Delhi District Court
Ep No.122/2012(New No.6357/2016): ... vs Jagmohan Gupta" Doo: 01.08.2016 on 1 August, 2016
EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016
IN THE COURT OF PAWAN SINGH RAJAWAT:
ADDITIONAL RENT CONTROLLER (SOUTH):
COURT ROOM No.204: SAKET COURTS: NEW DELHI
Eviction Petition No.122/2012 (New No.6357/2016)
In the matter of:
Shri V.N Gupta,
S/o Late Shri Gopal Swarup Singhal,
R/o E14, Hauz Khas,
New Delhi.
.....Petitioner
(Through Shri S.P Pandey, Advocate)
Versus
Shri Jagmohan Gupta,
E14/2, Hauz Khas,
New Delhi110016.
.....Respondent
(Through Shri Deepak Gupta, Advocate) Date of Institution of Petition : 24.09.2012 Date of Reserving Order : 27.07.2016 Date of Pronouncement : 01.08.2016 U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 1 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 ORDER ON APPLICATION FOR LEAVE TO DEFEND 01.08.2016 O R D E R:
1. By this Order I shall decide the application moved on behalf of respondent seeking leave to defend in respect of a petition filed U/s 14 (1)
(e) r/w Section 25B of Delhi Rent Control Act (in short "DRC Act") by the petitioner, interalia seeking eviction of respondent from one shop bearing private No.E14/2, (stated to be admeasuring 10'x24'.6") and forming part of property/premises bearing No.E14, Hauz Khas, New Delhi, as shown in red colour in the site plan attached with the petition (hereinafter referred to as the "tenanted suit premises"), on the ground of bonafide requirement of the same for expansion of business of hardware cumsanitary store presently being run by his son namely Shri Saurabh Singhal under the name & style of M/s Gupta Sanitary & Hardware Store.
2. The facts of the case, succinctly stated and as borne out from the record are that petitioner has claimed himself to be owner & landlord of property/premises bearing No.E14, Hauz Khas, New Delhi110016 by virtue of registered Sale Deed dated 13.11.1984, executed in his favour by its erstwhile owners namely Smt.Saraswati K. Masand and Shri Ram K. Masand. It has been the case of petitioner that the premises in question has a frontage of 30 ft., consisting of basement, ground, first, second and U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 2 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 third floors. The ground floor is stated to be consisting of three shops, i.e one shop (having frontage of less than 10 feet) is stated to be in possession of son of petitioner namely Shri Saurabh Singhal, who is running his business of hardwarecumsanitary store therein under the name and style of M/s Gupta Sanitary & Hardware Store; while the middle shop is stated to be tenanted suit premises (having a frontage of approximately 10 feet) in which the respondent is running his business of glass under the name & style of M/s Sangam Glass Ware and the third shop (also having a frontage of approximately 10 feet) is stated to be in possession of another tenant, who is running his business therein under the name & style of M/s Gandhi Glass House. It has further been the case of petitioner that respondent is an old tenant, who has been occupying the tenanted suit premises prior to his purchase and pursuant to his purchase vide registered Sale Deed dated 13.11.1984, he intimated the respondent and thereafter respondent attorned him as his landlord and started tendering rent to him. The second and third floor of premises in question is being used by petitioner and his family members for residential purpose.
3. U/s 14(1)(e) of DRC Act, it has been the case of petitioner that prior to the year 2009 he was running the business of hardwarecum sanitary store under the name & style of M/s Gupta Sanitarry & Hardware Store while his son Shri Saurabh Singhal had been residing in Australia, who had acquired permanent resident status of Austriala. It has further been the case of petitioner that since his only son had been residing in U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 3 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 Australia, so he used to felt very lonely and as such he called his son to India and offered him proprietorship right of the said shop/business and accordingly in the year 2009, he/petitioner handed over the proprietorship rights of said business to his son, who then renovated the showroom as per today's market requirement, but he could neither make a desired window showcase to display the products in proper fashion nor could set up a decent size signboard due to lack of space at the entrance of the said shop. It has further been the case of petitioner that his son with International Master's Degree at his hand and good amout of work experience has lot of "expansion plans for the business", but is unable to execute them due to shortage of space in the said shop as the front portion of same is less then 10 feet. It has further been the case of petitioner that his son wants to bring novelty in his business and would like to display luxurious products like shower panels, whirlpool systems, steam & sauna cabins, towel warmers, operational bath tubs, multifunctions shower and steam systems and since the aforesaid products requires lot of space, so he bonafidely needs the tenanted suit premises, as the same is situated right adjacent to the shop from where presently business is being carried out by the son of petitioner. It has further been the case of petitioner that on account of shortage of space/accommodation at the existing shop, his son is not in a position to keep the counter right at the entrance of the shop facing the main road and the same is being kept at the back side of the tenanted suit premises, thereby loosing valuable business. Coupled with aforesaid, it has further been the case of petitioner that due to paucity of space, the U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 4 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 sales staff (including accountant) has been forced to be accommodated on the mezzanine floor, which is a great source of inconvenience to them as the height of same is about 6 feet. It has further been the case of petitioner that the stairs of mezzanine floor are also situated at the entrance, which in turn has eaten up lot of valuable display area and shape of shop has become extremely odd and consequently the display of the products cannot be done in proper way. It has further been the case of petitioner that the basement, mezzanine and first floor of premises in question are being used for "storing purposes" right from the day when the property was constructed and the construction is of such nature that the same cannot be used for any purpose except for storage purposes. It has further been the case of petitioner that the shop from where his son is carrying out his business is situated in a commercially approved market area of Hauz Khas and his son has been receving good offers/business dealings from various companies, but on account of nonavailability of window space in the front some companies have denied to display their products and as such, his son is unable to expand his business and in turn his growth is being severly hampered. Thus, it has been the case of petitioner that if the tenanted suit premises (which is situated right adjacent to the shop of his son) is made available to his son, then after removing the back wall as well as the front side wall of tenanted suit premises, his son would be having enough frontage to attract the public at large/customers visavis there would be sufficient space available for proper display of articles and his son would also be able to keep his U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 5 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 counter facing the main road. The petitioner has further averred that besides the premises in question he has no other suitable alternative accommodation available with him.
4. The petitioner has further averred that respondent own & possess a number of commercial properties, details of which are as under:
(a) M/s Sangam Glass Ware,
D30, Sector11, Noida.
(b) M/s Sangam Arts & Glass,
UG14, Maulsary Arcade, DLF PhaseIII, Gurgaon, Haryana.
(c) M/s Sangam Arts & Glass, F39 & 40, Industrial Area, Kehrani, Bhiwadi Extension, Alwar, Rajasthan.
(d) New Sangam Glass House, Ferozpur Road, Bharat Nagar Chowk, Bharat Nagar, Ludhiana, Punjab.
5. After being served with the notice of eviction petition, respondent filed his "Affidavit" in the Court on 12.10.2012 as per the provisions contained in Section 25B of DRC Act. Before dealing with the contentions raised in the "Affidavit" it is pertinent to mention here that on 05.12.2012, an application U/s 151 CPC was filed on behalf of petitioner, interalia taking preliminary objection to the effect that since the said "affidavit" is not accompanied by a formal application for leave to contest, U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 6 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 so the aforesaid affidavit cannot be looked into as any prayer made therein is no prayer in the eyes of law. This Court vide its order dated 15.10.2015 dismissed the said application of petitioner filed U/s 151 CPC. Now, let us have a glance through of the grounds raised by respondent in his aforesaid "Affidavit":
Relationship of landlord & tenant between the parties:
(i) The respondent admitted the relationship of landlord and tenant between the parties in as much as it was admitted that petitioner being landlord have received rent from him qua the tenanted suit premises for the period from 01.04.2012 to 31.03.2012. However, an objection was taken to the effect that since the petitioner has accepted the rent from 01.04.2012 till 31.03.2013, therefore, the petitioner/landlord is estopped in law to institute the instant eviction proceedings against him;
(ii) The respondent further took an objection that initially he, one Shri A.P Gandhi of Gandhi Glass House and the petitioner were all tenants in the premises in question in respect of three separate shops, however, during the course of time he/petitioner forcefully occupied the back portion of premises in question and it because of this illegal behaviour that the original owner, i.e Smt.Saraswati K.Masand and Sri Ram K.Masand were forced to execute a sale deed dated 19.11.1984 in favour of petitioner for a meagre sum of Rs.1.95 lakhs;
U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 7 of 25EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 On the point of "bonafide requirement" of the tenanted tenanted suit premises:
(iii) It was categorically pleaded on behalf of respondent that the petitioner do not have a "genuine bonafide need" qua the tenanted suit premises and the same is merely his "desire" to evict him from the tenanted suit premises and thereafter let out the same on higher rent;
(iv) The respondent further pleaded that the son of petitioner is not all dependent upon the petitioner as he is independently running M/s Gupta Sanitary & Hardware Store and from the photographs filed by the petitioner it is clear that the son of petitioner is having ample space as well as display area in the shop under his control and there is no requirement of any frontage area/display area. Coupled with aforesaid, it has further been the stand of respondent that right from the year 1965 till 1984 petitioner had been managing his business from shop No.E14/1, Hauz Khas and the total area available with him was around 270 sq.feet and after purhcase of the property in question by the petitioner, now the total area available with is around 8000 sq.feet. The area presently available with the petitioner in the premises in question has been alleged as under:
(a) Ground Floor 1500 sq.feet
(b) Basement 1000 sq.feet
(c) Mezzanine Floor 1000 sq.feet
(d) First Floor 1500 sq.feet
(e) Second & Third Floor 3000 sq.feet
Thus, it has been the case of respondent that petitioner's son has around 5000 sq.feet area available with him in the premises in U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 8 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 question and, therefore, it cannot be said that he has a bonafide need qua the tenanted suit premises which constitutes only 270 sq.feet area In this regard, the respondent filed his own site plan with his affidavit as "AnnexureA";
(v) It was further pleaded on behalf of respondent that the petitioner has a growing real estate business and his son is also a partner/Director therein and now the petitioner has no concern with his shop/business and instant petiton has been filed with only motive to harras and evict him from the tenanted suit premises.
(vi) As regards the commercial properties/shops at Noida, Gurgaon and Ludhiana, the respondent categorically stated that the same are presently not owned by him. In this regard, his stand has been that earlier he was the owner of M/s Sangam Glass Ware, Noida, but now the same stands surrendered by him which is now being run by M/s Prakash Textile, Noida. Qua shop at DLF PhaseIII, Gurgaon, the respondent stated that the same was surrendered by him about five years back (w.e.f 12.10.2012, i.e date of filing of leave to defend application) and he categorically denied having any property at Ludhiana. However, he admitted that besides the tenanted suit premises, he is also having a factory at INdustrial Area, Bhiwadi, Rajasthan.
(vii) With regard to the letter dated 12.07.2012, issued by one Shri S.K Chibbar of M/s Shanti Ventures to the petitioner, same has been termed to be a collusive one and it has been pleaded by the respondent U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 9 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 that the aforesaid letter has been obtained by the petitioner to create a case of bonafide need.
6. The petitioner vide his reply (filed in the Court on 12.02.2016) to the affidavit of respondent denied the contentions riased by respondent therein and reiterated the ones stated by him in the petition. On merits, it was submitted by the petitioner that prior to purchase of premises in question he was a tenant of entire back portion of the same which has been shown by him in the site plan. The petitoner further reiterated that his son namely Shri Saurabh Singhal is running the business of sanitary and hardware items from shop No.14/1, Hauz Khas and the items in the said business includes huge materials like bathtubs, shower enclosure(s), steam units etc., which cannot be stored on mezzanine floor or other portion on account of their big size/ volume visavis heavy weight and there is always an element of danger/ casuality while carrying them at the upper floor(s) and his son would like to display the aforesaid products in front of his showroom to attract the customers but on account of space crunch he is not able to do the same and as such loosing lot of business. The petitioner categorically denied that the area of basement, ground floor and mezzanine floor is 1000 sq.ft, 1500 sq.ft. And 1000 sq.ft. respectively and instead stated that the total area of ground floor is about 900 sq.ft. which is available for the showroom. The petitioner further categorically denied that he has growing real estate business or his son is partner/Director therein.
U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 10 of 25EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016
7. This is all as far as pleadings in the matter are concerned. Before, I proceed on to adjudicate the contentions of parties, I would like to mention here that the respondent herein filed in as many as three applications in the matter thereby pleading for taking on record "subsequent events". The first application regarding taking on record the "additional subsequent events" was moved by respondent on 31.07.2013; second application under the aforesaid provisions was moved by him on 19.12.2013 and the third application on the same aspect was moved by him on 28.01.2014. It is pertinent to mention here that during the course of hearing arguments on leave to defend application, the applications moved by respondent on 31.07.2013 and 28.01.2014, thereby pleading "subsequent events" were dismissed as withdrawn on the oral request of the learned counsel for the respondent. Now, only the application filed on 19.02.2013 remains. In the said application, it has been pleaded by the respondent that during the pendency of instant petition, the petitioner has leased out shop No.3, situated on the ground floor of premises No.E14, Hauz Khas Market, New Delhi to M/s Gandhi Glass House, for a period of nine years vide registered Lease Deed bearing Registration No.4664, Book No.1, Vol.No.414, pages 158 to 163 on 05.09.2013 and the said action of petitioner takes away his right to continue with the present case. Vide his reply to the aforesaid application, the petitioner admitted the execution of aforesaid lease deed, however, it was clarified on his behalf that by way of said lease deed he has only extended the time of said tenant, i.e M/s Gandhi Glass House, who has already been in possession of the said shop U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 11 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 being his tenant prior to execution of aforesaid lease deed. Be that as it may, I will deliberate upon the said application while adjudicating the issues raised in the "affidavit" of respondent which is in the nature of leave to contest application.
8. I have heard arguments advanced at bar by Shri S.P Pandey, advocate, learned counsel for the petitioner and Shri Deepak Gupta, advocate, learned counsel for the respondent and have carefully gone through the entire material on record, including the case laws relied upon by both the parties in support of their respective contentions.
9. At the outset, it may be mentioned that it has now been well settled that in order to obtain leave to defend the eviction petition, the tenant is required to file affidavit disclosing such facts, which would disentitle the landlord from obtaining the eviction order. Such facts must be material and substantial and they must be bonafide. Further, it has to be seen that allegations of facts are not meant to delay the disposal of the eviction petition. It is also well settled that mere denials for the sake of denials are not grounds in the eyes of law and if there is no grounds against pleas, eviction order has to be passed against the tenant, whereas if the facts disclosed by the tenant in his affidavit raise triable issues, then he is entitled for the grant of leave to contest the eviction petition.
U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 12 of 25EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016
10. Clause (e) of proviso to Subsection (1) of Section 14 of the DRC Act postulates four conditions which must be satisfied:
(i) That the landlord must be the owner of the property;
(ii) The premises must have been let out to tenant; (iii) The premises must be required bonafide by the owner for
occupation for himself or for any of his family members dependent on him and;
(iv) Nonavailability of the any other reasonably suitable accommodation for the said purpose with the landlord.
11. It is further settled law that the test to see whether the tenant has raised triable issues is not of the tenant having controverted/denied the claim of the landlord and thus disputed question of fact arising. The test is to examine pleas of facts and then to determine the impact thereof. A heavy burden lies on the tenant to prove that the requirement of the landlord is not genuine. The tenant is required to give all the necessary facts and particulars supported by documentary evidence, if available, to prove his plea in the affidavit itself, so that the Controller will be in a position to decide the question of genuine or bonafide requirement of the landlord; mere assertion of the tenant would not be sufficient to rebutt the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine (reference case reported as, "167(2010) DLT 80", titled as,"Swaran Dass Banerjee V/s Ram Prakash").
U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 13 of 25EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016
12. I am also conscious of the fact that there is no straight jacket formula to find out the bonafide requirement. The requirement of landlord has to be examined in the facts of each case by taking into consideration status of family, the requirement pleaded and to find out whether the requirement is so fanciful, unimaginable or is mere excuse to seek ejectment of a tenant.
13. In the backdrop of aforesaid legal propositions, now I propose to deal with the points/grounds raised by respondent in the leave to defend application.
14. The respondent has not disputed the relationship of landlord and tenant between the parties, however, an objection was raised on his behalf that since the petitioner/landlord has received rent for the period from 01.04.2012 to 31.03.2013 from him, so the petitioner/landlord is estopped from filing the instant eviction petition against him. It is noted that the instant case was filed by the petitioner in the Court on 24.09.2012, whereas as per respondent he had already paid rent upto 31.03.2013 to the petitioner. I am afraid the aforesaid objection is not legally tenable as there is no provision in the entire DRC Act which prohibits a landlord from invoking provisions U/s 14(1)(e) of DRC Act though he has taken rent in advance from the tenant. The said contentions of respondent accordingly stands rejected. I further do not find any substance in the contentions of respondent that on account of illegal behaviour of U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 14 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 respondent the erstwhile owners of premises in question, i.e Smt.Saraswati K.Masand and Shri Ram K.Masand were forced to execute the sale deed dated 19.11.1984 in his favour, as admittedly the respondent as nowhere claimed himself to owner of said premises at any point of time and further he has not claimed himself to be related to the said erstwhile owners. Being a tenant, the respondent is not allowed to put question marks on ownership of petitioner qua the premises in question, particularly when he has categorically admitted the relationship of landlord and tenant between the parties. The contentions of the respondent in this regard accordingly stands rejected.
On the point of bonafide requirement of petitioner:
15. The learned counsel for the respondent very vehemently argued that requirement pleaded by the petitioner qua the tenanted suit premises is neither bonafide nor genuine and the same is a mere "desire" on the part of petitioner as after evicting the respondent, he would let out the same on higher rent. To be specific, he has argued that the son of petitioner is having sufficient frontage/display area available with him, as he has at his disposal an area of about 1000 sq.ft each in the basement and mezzanine floor and the shop from where he is carrying out his business of hardware & sanitary items is having an area of 270 sq.feet. He has further argued that had the requirement of petitioner been bonafide, then he would not have leased out the shop No.E14/3 to M/s Gandhi Glass House for a further period of nine years vide lease deed bearing registration No.4664, U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 15 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 dated 05.09.2013. In support of his arguments, the learned counsel for the respondent has relied upon case reported as, "(2015) 2 SCC 158", titled as, "Shanti Devi V/s Rajesh Kumar Jain & Anr." and case reported as, "(2009) 16 SCC 740", titled as, "Ramesh Kumar Aggarwal V/s Rani Ravindran & Ors.".
16. I do not find any substance in the argument of learned counsel for the respondent that leasing out the shop No.E14/3, Hauz Khas, New Delhi completely wipes out the claim of petitioner raised U/s 14(1)(e) of DRC Act on two counts. Admittedly the shop No.14/3 is not situated right adjacent to the shop of the son of petitioner. A perusal of site plan filed by the petitioner reveals that the tenanted suit premises is situated right adjacent to the shop of son of petitioner and the petitioner has categorically averred that since the tenanted suit premises is situated right adjacent to the shop of his son, so in case the same is made available to his son then after removing the back wall as well as the front wall of tenanted suit premises, his son would be having an frontage/display area of about 20 feet which in turn would help in boosting the business, as by doing the same a lot of customers would get attracted to his son's shop. The respondent has nowhere denied that the tenanted suit premises is not situated adjacent to the shop of son of petitioner. Secondly, the respondent has also not disputed the factum that prior to execution of aforesaid lease deed qua shop No.E14/3, M/s Gandhi Glass House had been tenant in the said shop. I find substance in the argument of learned counsel for the U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 16 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 petitioner that by way of aforesaid lease deed, the petitioner has not created a fresh tenancy, but has merely renewed the tenancy of M/s Gandhi Glass House. As such, the contentions of respondent in this regard stands rejected and with this the application filed by respondent on 19.12.2013 qua pleading of "subsequent event" also stands dismissed.
17. The next limb of arguments put forth by the learned counsel for the respondent has been that the petitioner/his son has about 5000 sq.feet area available with him in the premises in question (including an area of about 270 sq.feet of the shop from where son of petitioner is carrying out his business of hardware and sanitary items) which is more than sufficient to meet the requirement of petitioner for alleged expansion of business of his son, if any. Admittedly, it has not been disputed by the respondent that second and third floor of premises in question is being used by petitioner and his family members for their residence (even as per the respondent, the combined area of said floors consists of 3000 sq.feet). As regards the basement and first floor, it has been the categorical case of petitioner that the said floors are being used for storage purpose by his son for storing hardware and sanitary items. Further, it has also not been disputed by the respondent that the mezzanine floor is totally closed from all the corners and having entry from back side only and the same is having a height of about 7 feet only. It is noted that the respondent himself has filed atleast eight coloured photographs thereby showing the frontage/display area of the premises in question as AnnexureB. Even a bare perusal of the said U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 17 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 photographs reveals that frontage of first floor of premises in question is completely built up & closed and the same is not being used for any commercial purpose by the petitioner. Thus, the argument of learned counsel for the respondent that the petitioner has about 5000 sq.feet available with him does not come to his rescue on account of the fact that second and third floor are being used by petitioner and his family members for residential purpose, whereas the basement and first floor are being used for storing materials. Even if we go by the site plan filed by respondent in the case (AnnexureA), then also it is noticed that the front area of the shop from where the son of petitioner is presently carrying out his business about 10 feet only. The front area of the premises in question is facing main road and I find the reasoning accorded by the petitioner to be plausible that in case the tenanted suit premises is made available to him, then his son would have a frontage/display area of about 20 feet, which would in turn would help in attracting more customers and thereby boosting his business. In order to show that on account of paucity of display area/space in the existing shop his son Shri Saurabh Singhal has lost some business, the petitioner has filed on record original letter dated 12.07.2012 of one Shri S.K Chibber of M/s Shanti Ventures. A perusal of the said letter shows that M/s Shanti Ventures refused to supply sanitary material to the son of petitioner on account of not having enough display area visavis narrow entrance of the showroom. Though, the respondent has taken a stand that the said letter has been obtained by the petitioner in collusion with said Shri S.K Chibbber, however, no concrete material in U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 18 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 support his allegations has been filed by the respondent. However, it has not been denied on behalf of respondent that M/s Shanti Ventures is dealing in a wide range of sanitary products like large size bath tubs, shower panels, steam and sauna units etc. The contentions of respondent in this regard are accordingly rejected.
18. As regards the reliance placed by the learned counsel for the respondent upon the case of Shanti Devi (supra), it is noted that in the said case it was pleaded by the tenant/appellant that the landlords/respondents were having an alternative accommodation available with them, whereas admittedly in the instant case the issue of availability of suitable alternative accommodation which is suitable for expansion has not at all been pleaded by the respondent/tenant. As such, the aforesaid judgment is not applicable to the facts of the instant case and thus is of no help to the respondent. Similarly, the reliance placed by the learned counsel for the respondent upon case of Ramesh Kumar Aggarwal (supra) is also of no help to him as it is noted that by way of aforesaid judgment the Hon'ble Apex Court has merely opined that since several triable triable issues were raised by tenant therein, so the leave to contest application was allowed, however, the Hon'ble Apex Court has not specifically enumerated those triable issues.
19. It is common knowledge that a shop which is situated on the ground floor would attract more footfall and would be more suitable to any U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 19 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 person as compared to shop which is situated on the mezzanine floor and the mezzanine floor cannot take place of a shop situated on the ground floor on the plinth of commercial viability. Even the Hon'ble High Court of Delhi has been pleased to hold in case reported as, "214 (2014) DLT 745", titled as, "Bhupinder Singh Bawa V/s Smt.Asha Devi" that a property on a main road and on the ground floor is much more suitable for carrying on the business of sanitary and hardware, then as against a property which is situated on the first floor of any premises. It is further common knowledge that hardware and sanitary materials requires/consumes larger space for display as compared to any other business. I further find substance in the argument of learned counsel for the petitioner that some of the sanitary items viz. bathtub etc. which weighs as much as about 200 Kg are hard to carry to upper floor(s) and there is every apprehension of any casuality on this account. I further find the contention of the petitioner to be plausible that in case the tenanted suit premises is made available to him then his son would be having a frontage of about 20 feet available with him and he will use the same for making a "huge/big display window" for hardwarecumsanitary items visavis his son further would be able to place his counter in the front area of the shop, which presently is being kept by him at the back of his shop on account of paucity of space at the front side. By way of instant petition, the petitioner is seeking expansion of business for his son and in my opinion seeking expansion of business is no sin as it is the dream of every businessman that his business should flourish. In case reported as, "173 (2010) DLT 318", U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 20 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 titled as, "Labhu Lal V/s Sandhya Gupta", the Hon'ble High Court has been pleased to observe that seeking expansion of business should be viewed as most bonafide and genuine.
20. In the case reported as, "AIR 2000 SC 534", titled as, "Ragavendra Kumar V/s Firm Prem Machinery", the Hon'ble Supreme Court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Similar observations have been made by the Hon'ble High Court of Delhi in case reported as, "2013 (2) RCR (Rent) 120", titled as, "Gurucharan Lal Kumar V/s Smt.Satya Wati" and case reported as, "172 (2010) DLT 611", titled as, "Surinder Singh V/s Jasbir Singh".
21. Further, in case reported as, "AIR 1999 SC 100", titled as, "Sarla Ahuja V/s United India Insurance Co. Ltd.", it was held that:
xxxxx It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself...........".
xxxxx U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 21 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016
22. The need have to be seen from the angle of landlord and not from the view point of a tenant. The tenant cannot dictate the terms for his landlord, as to how the later can adjust him without asking for eviction from the tenanted premises. The genuine desire of the landlord cannot be looked with suspicion. The landlord need not to show his need beyond reasonable doubt, as doctrine of judicial prudence cannot be applied in such cases. (Reference case reported as, "1996 (5) SCC 353", titled as, "Pratibha Devi V/s T.V Krishnan"). The Hon'ble Supreme Court of India depricated the solicitious approach of the courts below and held that there is no law which deprives the landlord of the beneficial enjoyment of his property. So, it does not lie in the mouth of respondent to dispute that the son of petitioner is having enough space available with him for running his business of hardwarecumsanitary items.
23. The next limb of argument put forth by the learned counsel for the respondent has been that the petitioner has a growing real estate business, wherein his son is partner/Director and now neither the petitioner nor his son have any concern with the business of hardware & sanitary items and the present petition has been filed just to harass the respondent and evict him from the tenanted suit premises. Per contra, the said contention has been very vehemently denied by the learned counsel for the respondent. It is noted that except for making a bald assertions in this regard, the respondent has miserably failed to file any documentary proof which could prima facie show that either the petitioner or his son are also U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 22 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 engaged in the business of real estate. In case of "Rajender Kumar Sharma V/s Leela Wati [155 (2008) DLT 383]", it has been held that only those averments in the affidavit are to be considered by the Rent Controller which have some substance in it and are supported by some material and mere assertions made by a tenant in respect of landlord are not to be considered sufficient for grant of leave to defend. The contentions of respondent in this regard does not carry any water and accordingly stands rejected.
24. The learned counsel for the respondent has further very vehemently argued that right from the inception of tenancy since the year 1965, the respondent has been running his business of glass in the tenanted suit premises and in these long years he has established a reputation/ goodwill in the market and his eviction from the same would cause extreme hardship for the respondent. I am afraid the aforesaid submissions being only emotional in nature are not legally tenable as emotional submissions of respondent cannot disentitle the petitioner from seeking eviction of respondent qua the tenanted suit premises in view of settled proposition of law laid down in case reported as, "1979 (1) RCR 153", titled as, "Ajit Singh V/s Inder Saran", wherein the Hon'ble High Court has been pleased to hold that, "The Act unfortunately makes no provision for alternative accommodation for the evictees and the hardship that may be caused to them is not a ground to deny to the owners their bonafide need of a premises". Be that as it may, in my opinion the U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 23 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 "bonafide requirement" of a landlord/petitioner qua his property cannot be overlooked and the factum of comparative hardship to the tenants has to take a backstage, as has been held by the Hon'ble High Court of Delhi in Ajit Singh's case (supra). Thus, this defence is also not available to the respondent.
25. This takes us to the last contention of respondent that in case of his eviction from the tenanted suit premises, the petitioner would relet the same on higher rent is also of no help to him, as the respondent is not without a jural succour in view of protection U/s 19 DRC Act available to him.
26. Keeping in view the aforesaid broad principles, I find the requirement of petitioner to be bonafide and not at all fanciful. From the aforesaid discussion, the undisputed conclusion is that the respondent has miserably failed to raise any triable issue in the leave to contest application. The "affidavit dated 12.10.2012" filed by the respondent (which is taken to be leave to contest application) is accordingly dismissed.
27. Consequently, eviction order in respect of tenanted suit premises, i.e, one shop bearing private No.E14/2, situated on the ground floor and forming part of property/premises bearing No.E14, Hauz Khas, U/s 14 (1)(e) r/w Sec.25 B of DRC Act ("Leave to Defend Dismissed") Page 24 of 25 EP No.122/2012(New No.6357/2016): "V.N Gupta Vs Jagmohan Gupta" DOO: 01.08.2016 New Delhi, as shown in red colour in the site plan filed/attached with the petition is passed in favour of petitioner and against the respondent. However, in light of Section 14 (7) DRC Act, the aforesaid eviction shall not be executable for a period of six months from the date of this order. The parties are left to bear their own costs.
28. File be consigned to Record Room after completion of necessary formalities.
Announced in the open court (Pawan Singh Rajawat)
on 01.08.2016 Administrative Civil Judge
cumAdditional Rent Controller
cumCommercial Civil Judge:
(South):Saket District Courts:
New Delhi
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