Delhi District Court
Nisar Ahmad vs Agya Pal Singh on 7 June, 2018
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IN THE COURT OF MR. SHIRISH AGGARWAL, ARC-1, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
Eviction Petition No. RE-23/15
Unique Case ID no. 77518/16
Nisar Ahmad
S/o Late Mohd. Abid,
R/o D-999, New Friends Colony,
New Delhi-110025. ...Petitioner
Versus
Agya Pal Singh
S/o Late Rajinder Singh,
Shop No. 1344 (Ground Floor),
Star Building, Qutab Road,
Sadar Bazar, Delhi-110006. ...Respondent
Date of institution of the case : 24.07.2009
Date of Judgment reserved : 02.06.2018
Date of Judgment pronounced : 07.06.2018
JUDGMENT
1. This is an eviction petition u/s 14(1)(e) r/w section 25-B of the Delhi Rent Control Act filed by the petitioner against respondent on the ground of bonafide requirement. It is the case of the petitioner that the tenanted Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 1 of 67 //2// premises is required for the purpose of carrying out business by himself and by his family members allegedly dependent upon him.
Petitioner's case
2. It is stated in the eviction petition that the petitioner is the owner and landlord of shop on the ground floor bearing no. 1344, Star Building, Qutab Road, Sadar Bazar, Delhi-110006 more specifically shown in red color in the site plan filed alongwith the eviction petition (hereinafter referred to as 'tenanted premises'). It is averred that petitioner is one of the Mutawalli of the Wakf-ul-Aulad property bearing no. 908 to 923 and 1337 to 1345, Star Building, Qutab Road, Sadar Bazar, Delhi-110006. It is pleaded that he is one of the beneficiaries of the said Wakf-ul-Aulad property. It is stated in the eviction petition that the petitioner who is the mutawalli beneficiary has a right to file the present case in terms of the Wakf deed.
3. It is pleaded in the eviction petition that the respondent is a tenant in this premises at the monthly rate of rent of Rs.234/- excluding electricity charges and house tax.
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4. It is stated that the tenanted premises is a non-residential property. It is stated in the petition that the premises is required bonafide by the petitioner for himself and for his family members dependent upon him to carry out his own business in the said premises. It is averred that neither he nor any member of his family have any other reasonably suitable commercial premises. It is pleaded that the petitioner has two married daughters who are unemployed, highly educated and dependent upon the petitioner for commercial purpose as they have no separate business premises.
5. It is further stated in the petition that the elder daughter of the petitioner, namely, Ms. Sufia Ikhlas is a graduate and has studied in DPS, Mathura Road, New Delhi upto 12th class and has graduated from Lady Sri Ram College, New Delhi. It is also stated that the second daughter, namely, Dr. Noris Nisar has completed MBA and Phd. It is pleaded that the wife of the petitioner is also a graduate.
6. It is pleaded that the petitioner is passing very hard days, as he is unable to acquire a commercial premises to make both ends meet. It is stated that the petitioner is a senior citizen and is suffering from various ailments like Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 3 of 67 //4// knee joints, neuro problems and hypertension. It is submitted that the petitioner has also suffered brain hemorrhage and finds it difficult to climb stairs. As such, he wants to do business on the ground floor.
7. It is on the basis of these facts, that a prayer has been made by the petitioner to pass an eviction order in respect of the tenanted premises in his favour and against the respondent.
Respondent's case
8. Summons were served upon the respondent. The application for leave to defend filed by him was allowed. The respondent contested the eviction petition by filing his written statement. In the written statement, a preliminary objection was raised on the maintainability of the present case on the ground that the daughters of the petitioner are married and living with their husbands and thus cease to be directly dependent for accommodation on the petitioner. It is stated that the daughters are married since a long time and are settled with their husbands and children. It is averred that they are housewives and their husbands are well placed in life. It is stated that they are dependent upon their husbands as they are part of the husband's family. It is stated that neither Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 4 of 67 //5// daughters nor the husbands require the tenanted premises for commercial purposes. It is pleaded that they are living in perfect marital bliss and there can be no question of their taking up a commercial adventure at this belated time of their lives. It is further submitted by the respondent that the daughters of the petitioner are parda nashin ladies and keep themselves confined to their residence. It is further pleaded that the daughters of the petitioner are settled thousands a mile away and the petitioner has not disclosed how they will use the tenanted premises and for what purpose.
9. It is further pleaded that the landlord of the tenanted premises is Wakf-ul-Aulad created by the Wakf in June, 1921. It is stated that as per the Wakf deed, the petitioner is not a Mutawalli and therefore, the respondent is not a tenant under the petitioner.
10. It is pleaded that the petitioner has concealed that he is running a flourishing hotel under the name & style of M/s New Star Hotel. It is stated that this hotel is being run from the second floor of the same building where the tenanted premises is situated. It is averred that the hotel is being run by partnership firm in which wife of the petitioner is shown as a partner. It is Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 5 of 67 //6// submitted that the wife is just a nominal partner and all business of the firm is governed and administered by the petitioner. It is submitted that yet, the petitioner is alleging that he has no other suitable accommodation and income.
11. It is submitted that the wife of the petitioner Mrs. Balkis Begum is a parda nashin lady and has never even visited the hotel in which she is a partner having 1/3rd share. It is submitted that all business is done by the petitioner who is one of the landlords and his wife is one of the tenants. It is stated that the petitioner has concealed his income from New Star Hotel business.
12. It is submitted that petitioner has also concealed that he is getting rental income from more than 70 shops in the same building i.e. Star Building. The respondent has mentioned 53 names in the written statement and has stated that these persons are tenants of petitioner in Star Building. It is stated that the petitioner is residing in a posh colony i.e. New Friends Colony, which property is worth several crores. It is pleaded that he is maintaining a very lavish life style and is also enjoying modern facilities and gadgets. It is averred Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 6 of 67 //7// that the petitioner has not even filed his income tax returns to show his current financial status and source of his income. It is stated by the respondent that the petitioner cannot claim to have any income, business and other suitable commercial accommodation.
13. It is stated that the petitioner has also concealed that a few premises on the ground floor of the premises were vacated by the tenants and were again rented out by the petitioner after charging huge amount from newly inducted tenants at higher rate of rent. It is pleaded that if the petitioner had a bonafide requirement, he would not have inducted new tenants and would have rather started his own business. It is submitted that the petitioner has concealed material facts from the Court. It is stated that about 3-4 years prior to the institution of the present petition, a tenanted shop on the ground floor measuring 1000 sq. ft., which is almost of identical dimensions as the tenanted premises under the tenancy of one Mr. Harbans Singh Talwar was vacated and was rented out by the petitioner to M/s Dhingra Bag House, after charging heavy premium which was shared by the outgoing tenant Mr. Harbans Singh Talwar and the petitioner.
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14. It is further stated that in July, 2009, another shop bearing no. 918, Star Hotel Building, was vacated by M/s Reliable Electrical and was again rented out to one M/s Amit Electricals at a higher rate of rent after charging huge amount of money which the petitioner shared with the outgoing tenant.
15. It is averred that the petitioner has filed the present case with illegal designs and ulterior motive to evict the respondent and then to let out the tenanted premises after charging huge premium.
16. It is pleaded that the petitioner has not even disclosed the kind of business or commercial activity he wishes to start in the tenanted premises. It is stated that the alleged requirement set up by the petitioner is vague, unspecific and evasive.
17. It is stated by the respondent that the petitioner is hail and hearty and is not suffering from any ailment. The respondent has also denied other averments of the eviction petition and prayed that eviction petition be dismissed.
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//9// Petitioner's case as per Replication
18. Petitioner filed the replication wherein the averments of the eviction petition were reiterated and reaffirmed and those of the written statement were denied as false and incorrect. In particular, it is averred that the daughters of the petitioner are themselves beneficiaries under the Wakf deed dated 18.06.1921. It is stated that the dispute with regard to the married female heirs as beneficiaries under the Wakf deed has been decided by the Court of Ld. Additional District Judge vide order dated 12.03.1991 in which that it was held that the female heirs/beneficiaries of the Wakf have a right in the property. It is pleaded that this decision attained finality by order of the Hon'ble High Court of Delhi dated 19.07.2013.
19. It is pointed out that as per the judgment of the Hon'ble Delhi High Court dated 11.02.2015, petitioner is the landlord and has a right to seek eviction from the tenanted premises. It is stated that this decision of the Hon'ble Delhi High Court dated 11.02.2015 has been upheld by the Hon'ble Supreme Court. It is submitted that even otherwise, in the affidavit filed by the respondent alongwith his application for leave to defend, he has admitted that the petition has been filed by Mutawali. It is pleaded that the respondent is Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 9 of 67 //10// taking contradictory pleas which is not permissible.
20. It is stated in the replication that the rate of rent is Rs.234/- per month and not Rs. 2,000/- per month.
21. It is denied by the petitioner that he is running the hotel, namely, M/s New Star Hotel on the second floor of the building. It is pleaded that he has no concern with the hotel business. It is stated that apart from the wife of the petitioner, there are several other partners running the hotel and the income from the hotel available to the wife is a nominal amount. It is pleaded that since the petitioner has no concern with the income of the hotel, he has rightly not disclosed the income. It is stated that the hotel is on the second floor and in view of the petitioner's health condition and diseases, he wants to start business on the ground floor. It is stated that the petitioner is a master of his requirements and tenant has no right to dictate terms to him. It is denied that the wife of the petitioner is parda nashin and has never visited the hotel. It is averred that the wife is controlling, managing, administering and looking after the affairs of the hotel. It is stated that the petitioner has already filed the partnership deed of the hotel. It is denied that the hotel has more than 50 rooms. It is averred that it has only 13 rooms.
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22. It is denied by the petitioner that he is receiving rental income from 70 shops in the building. It is stated that majority of the tenants in the building are old and are paying a meager amount as rent. It is also submitted that there are 50 beneficiaries of the rental income from the building. It is stated that the petitioner is receiving a nominal amount as rental income. It is stated that petitioner is not in a position to disclose the income as it is a nominal amount and because there are large number of beneficiaries to the rental income.
23. It is however admitted by the petitioner that he is living a "very good lifestyle" and is enjoying all modern facilities and gadgets. It is pleaded that as such, the requirement of the petitioner is compatible to his standard. It is prayed that the requirement of the petitioner be assessed by considering his living of standard and education and the way he is living which is in an unpedantic manner.
24. It is submitted that the respondent has not stated that the petitioner has even a single shop on the ground floor of the property.
25. It is denied that in the recent past, the petitioner had some properties Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 11 of 67 //12// vacated which were again rented out to new tenants. It is denied that 3-4 years prior to filing of eviction petition, a shop on the ground floor measuring 1000 sq. ft was vacated by the tenant Mr. Harbans Singh Talwar or that this premises was rented out to M/s Dhingra Bag House. It is stated that it was seven years prior to the filing of the petition that tenancy in this property was changed. It is submitted that the petitioner has already filed rent receipts of the year 2002 which clearly shows that M/s Dhingra Bag House was occupying the premises since the year 2002. It is submitted that at that time, the daughters of the petitioner were studying and petitioner had suffered a brain stroke.
26. It is denied that in July, 2009, another shop bearing no. 918, Star Hotel Building was vacated by the tenant M/s Reliable Electrical and was again let out to M/s Amit Electricals at a higher rate of rent after charging premium. It is stated that they are tenants of shop no. 919 and not 918. It is denied that the premises was let out by the petitioner in July, 2009 to M/s Amit Electricals. It is stated that the rent receipt of this property of the year 2002 has been filed which negate that the premises was rented out to M/s Amit Electricals in the year 2009. It is pleaded that even otherwise, shop of M/s Amit Electricals is in Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 12 of 67 //13// a narrow lane towards the back side and is very small in size compared to the tenanted premises herein measuring about 250 sq. ft. It is stated that the tenanted premises is easily approachable and customers are able to see it from far.
27. It is denied that the daughters of the petitioner and their respective husbands are well placed in life and that the daughters are not dependent on the petitioner for accommodation. It is stated that the elder daughter of the petitioner, namely, Ms. Sufia Ikhlas lives at property no. C-677, New Friends Colony, New Delhi and the younger daughter, namely, Dr. Noris Nisar is living with the petitioner.
28. It is pleaded that there is no requirement of law for the petitioner to disclose the nature and the character of the business that he wishes to start in the tenanted premises. It is however stated that the petitioner and his daughters wish to start business of books, stationery and other allied business in the tenanted premises as they are highly educated and graduate. Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 13 of 67
//14// Evidence led by the parties
29. In order to prove the case, petitioner examined himself as PW-1. He tendered his evidence by way of affidavit as Ex.PW-1/A. Following documents were relied upon and proved by the petitioner:
i. Ex.PW-1/1 is certified copy of the decision of Hon'ble High Court of Delhi dated 11.02.2015 passed in RC Rev. No. 377/2011.
ii. Ex.PW-1/2 is certified copy of decision of Hon'ble Supreme Court dated 07.05.2015 by which the SLP challenging order of the Hon'ble High Court of Delhi dated 11.02.2015 was dismissed.
iii. Mark A is photocopy of rent receipt dated 17.07.2002 issued in favour of Mr. Rajinder Singh, father of the respondent.
iv. Ex.PW-1/5 is site plan of the tenanted premises.
v. Ex.PW-1/5A is site plan of shop no. 919, Ground Floor, Star Hotel Building, Qutab Road, Sadar Bazar, Delhi.
vi. Ex.PW-1/5B to D are photocopies of certificates of educational qualification of Ms. Noris Nisar, daughter of the petitioner. Originals were seen and returned.
vii. Ex.PW-1/6 is photocopy of discharge summary of petitioner. Original was seen and returned.
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//15// viii.Document Mark-B is photocopy of order, judgment and preliminary decree sheet dated 12.03.1999 passed by Ld. Additional District Judge in suit no. 523/96 titled Smt. Rana Khurshid Vs. Sheikh Feroz Ahmed & Ors.
ix. Ex.PW-1/8 is certified copy of order dated 19.07.2013 passed by Hon'ble High Court of Delhi in RFA No. 434/1999.
x. Document mark C is photocopy of receipt dated 23.03.2002 issued in favour of M/s Dhingra Bag House.
30. Respondent examined himself as RW-1. He tendered his evidence by way of affidavit as Ex. RW-1/A. He also examined one Mr. Rajiv Sahani who claimed to have a shop in the building adjoining to the building where the tenanted premises is situated. He was examined as RW-2. Mr. Rajiv Sahani tendered his evidence by way of affidavit as Ex. RW-2/A.
31. The petitioner has relied upon the following judicial precedents:
(i) Anil Bajaj and Anr. Vs. Vinod Ahuja (2014) SCCR 533
(ii) Gulshera Khanam Vs. Aftab Ahmad (2016) SCCR 993
(iii) Ram Babu Aggarwal Vs. Jai Kishan Dass, Civil Appeal No. 1388/2016 Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 15 of 67 //16// dated 07.10.2009 passed by Hon'ble Supreme Court.
(iv) Manju Devi Vs. Pratap Singh, 219 (2015) DLT 260
(v) Mahinder Kumar Vs. Seema, CM (M) No. 486/2001 dated 09.08.2001 passed by Hon'ble Delhi High Court.
(vi) Avtar Singh Vs. Gurbaksh Singh CM (M) No. 605/1997 dated 06.08.1999 passed by Hon'ble Delhi High Court.
(vii) Mohd. Qamar Shah Khan Vs. Mohd. Salamat Ali Khan 512 ILR Vol. IV (Allahabad).
(viii) Prakash Kaur vs Asha Chopra and Ors. 2014 (1) RLR 615
32. The respondent has relied upon the following judicial precedents:
(i) S.R. Dutta Vs. Chunni Lal Bhatia 1981 (2) DRJ 43.
(ii) Bhim Singh Saini Vs. Priti Gupta 223 (2015) DLT 303.
(iii) Jagdish Lal Khurana Vs. Hemant Arora & Ors. 2013 (1) AD (Delhi) 404.
33. I have heard the learned counsel for the petitioner and the learned counsel for the respondent and carefully gone through the record. In order to succeed in a petition for eviction filed under section 14 (1) (e) of the Delhi Rent Control Act, the petitioner must establish that:- Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 16 of 67
//17// i. He is owner and landlord in respect of the tenanted premises.
ii. He requires the premises bonafide for himself or for any member of his family dependent upon him.
iii. He has no other reasonably suitable accommodation.
Ownership of tenanted premises and relationship of landlord-tenant between petitioner and respondent:
34. Although the respondent has disputed the relationship of landlord and tenant between the petitioner and respondent and the competency of the petitioner to file the present petition, this issue has already been decided by the Hon'ble Delhi High Court in its order dated 11.02.2015 which has been upheld by the Hon'ble Supreme Court by order dated 07.05.2015. The said order of the Hon'ble High Court has been proved by the petitioner as Ex. PW- 1/1 and order of the Hon'ble Supreme Court has been proved as Ex. PW-1/2. By the said order of the Hon'ble Delhi High Court, the order passed by the Ld. Predecessor of this Court rejecting the present petition was set aside. It was held that the petitioner/landlord has a right to seek eviction of the tenant provided he can prove his bonafide need. The respondent now cannot re- open this issue.
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35. Accordingly, it is held that the petitioner is competent to have filed the present eviction petition and there exists a relationship of landlord and tenant between the petitioner and the respondent.
Requirement of premises bonafide by the petitioner for himself and for members of his family dependent upon him and non-availability of any other reasonably suitable accommodation:
36. The respondent has alleged that the petitioner does not bonafide need the tenanted premises for doing business with his daughters. It has been argued by the Ld. Counsel for the respondent that the petition ought to be dismissed since the petitioner has not come to the court with clean hands and does not require the tenanted premises bonafide. It is averred that the petitioner has concealed various material facts.
Are daughters member of petitioner's family dependent on him for accommodation for business?
37. It is the case of the petitioner that he needs the tenanted premises to do a business in it alongwith his two married daughters who are dependent upon him for commercial purpose since they do not have separate business premises. This has been denied by the respondent.
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38. It is admitted by the petitioner that his daughters are not residing with him, but are residing with their respective husbands and children in their matrimonial home. The petitioner has admitted during his cross-examination that his daughter Ms. Sufia got married about 20 years back and that her husband has been working since before marriage in the company of his brother which is into manufacturing pharmaceutical medicines. He stated that he does not know the designation of his son-in-law and his monthly income. He further admitted that his daughter Ms. Sufia is happy and satisfied in her matrimonial life. He stated that she has never done any job or worked in her lifetime. It is stated that she has only done honorary work. He deposed that his daughter Ms. Sufia is residing in New Friends Colony and has one son aged 21 years and one daughter aged 17-18 years. It is testified by him that the son of Ms. Sufia has completed his Engineering from Manipal University and the daughter of Ms. Sufia is pursuing B.Com LL.B from Amity University. He deposed that neither his daughter nor his son-in-law have a car in their names. He deposed that he does not know in which car his son-in-law visits his house.
39. PW-1 has not led any evidence which discloses that Ms. Sufia is Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 19 of 67 //20// dependent upon him. Only a bald oral assertion has been made that her husband is meeting out expenses of Ms. Sufia and their children with difficulty. It is common knowledge that fee of courses like Engineering is quite high. Also, pursuing B.Com LL.B course from a private University like Amity University cannot be inexpensive. The fact that the husband of Ms. Sufia has been able to afford these expenses, lives in a posh and expensive locality of South Delhi and is involved in the family business of manufacturing pharmaceutical medicines indicates that he is doing well financially.
40. From the photograph mark X-1 that was put to the petitioner during his cross-examination, it is evident that it is of the building where the tenanted premises is situated. It can be seen in the photograph that the Sadar Bazar market is busy, cramped and crowded. It is hard to believe that after 20 years of marriage, Ms. Sufia who has never worked in her life is facing such grave financial difficulty that she has to start working for supplementing her husband's income and that too in a market like Sadar Bazar. It also appears that PW-1 deliberately did not disclose the car used by his son-in-law, so as to conceal his living standard. If the petitioner knows the intricate detail that the car/s being used by his daughter and her husband are in neither of their Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 20 of 67 //21// names, he would obviously know the make of the car used by his son-in-law. Also, had there been any financial constraints for Ms. Sufia, she would not have been doing honorary work but would have charged for the same. Since Ms. Sufia who as per the Petitioner is highly educated and is happy and satisfied in her marital life, it is far-fetched that she would leave comforts of her matrimonial home of 20 years to start a business of selling stationery etc in Sadar Bazar.
41. With respect to the petitioner's younger daughter, Dr. Nooris Nisar, petitioner has testified that she is married to one Dr. Tausif Ahmed and is residing at Punjabi Phatak, Balimaran. The petitioner deposed that Dr. Tausif Ahmed is currently working in Doctor Reddy Pharma since two years. He testified that prior to this, Doctor Tausif Ahmed was doing a job in Bombay in a Pharmaceutical company for 4 years. He testified that during this period his daughter Dr. Nooris was residing at Bombay with her husband. He further deposed that prior to Bombay, his son-in-law was doing a job in Pune in a pharmaceutical company for 4 years and during this period, his daughter was residing in Pune with her husband. He testified that prior to this, the son-in-law was doing a job in Delhi in Ranbaxy company for 3 years. He deposed that Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 21 of 67 //22// his son-in-law joins whichever company offers him a good salary package. He testified that he does not know the salary of the son-in-law. However, he stated that the son-in-law must be an income tax assesse. He stated that Dr. Tausif has a car but he does not know which car it is. He deposed that his daughter Dr. Nooris has two sons who are studying in Hyderabad. At this stage of cross-examination, PW-1 disclosed that his daughter Dr. Nooris is residing in Hyderabad with her sons and husband whose job is in Hyderabad with Dr. Reddy Pharma. He admitted that his son-in-law is meeting out all expenses of his daughter and children. He deposed that in case eviction order is passed, his daughter Dr. Nooris shall come to Delhi after leaving her matrimonial home.
42. During cross-examination, PW-1 has admitted that his son-in-law Dr. Tausif Ahmed has changed his jobs and is currently working in Hyderabad. The petitioner admitted that his son-in-law changes his job when he is offered a good package of salary. This indicates that the son-in-law currently has a high package of salary because of which he has shifted his job to Hyderabad and is not working in Delhi, where he was previously employed. Again, only a bald oral assertion has been made by the petitioner that his daughter is not Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 22 of 67 //23// happy in her matrimonial home and that she has financial problems.
43. The petitioner has been making contradictory submissions. In the replication, he stated that his daughter, Dr. Nooris is residing with him. During cross-examination, he first deposed that Dr. Nooris is residing at Punjabi Phatak, Balimaran. Later, he testified that she is residing at Hyderabad. During cross-examination, to justify his requirement for the tenanted premises, he stated that Dr. Nooris will leave her matrimonial home in Hyderabad and come to Delhi when eviction orders are passed.
44. Dr. Nooris has always lived with her husband since 10-12 years of her marriage. She even left Delhi and moved to another city to live with her husband and children. She kept shifting to which ever city her husband shifted. The petitioner has failed to even disclose, let alone prove, the grave and dire need of the highly educated Dr. Nooris because of which she is ready to leave her matrimonial home, her husband and her 5 and 7 years old children, and come to Delhi to start a business of selling stationary etc from Sadar Bazar.
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45. The petitioner did not file any document to show the financial standing of his daughters and their husbands. During cross-examination, he deposes that both his daughters are facing financial difficulty. However, when he is questioned further, he deposed that he cannot produce the Income Tax Returns of his daughters and their respective husbands. He stated that he does not wish to produce the Income Tax Returns since those are not required in the case.
46. There is no gainsaying the fact that even an affluent person can seek eviction of a tenant for starting a new business and therefore it is not necessary for a landlord to prove penury for having an eviction order in his favour. It is also trite that dependence is not always a matter of finance. However, this court is of the view that principles of law cannot be applied blindly in every case. Applicability of a principle of law depends on the facts of the case. In the case of Khem Chand & Ors. vs Arjun Jain & Ors. RC. Rev. No.442/2012 dated 13 September, 2013, the Hon'ble Delhi High Court held that there cannot be any straight jacket formula and one cannot really say that one proposition which may hold good in one case can be equally applied to another case with equal strength without seeing the difference in the facts of Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 24 of 67 //25// the case. It was held that even the proposition that the ground floor is always a reasonable accommodation than the first floor or the basement cannot be an absolute proposition. This has to be seen on case to case basis. It was observed by the Hon'ble High Court that a reasonably suitable accommodation is to be interpreted by looking at it from the common man's perspective. It was held that it is essentially a question of fact and it has to be seen from the eyes of common person's prudence.
47. Also, it was important for the petitioner it have filed the Income Tax Returns of himself, his daughters and their husbands so that it could be established that none of them have an alternative suitable accommodation. In case the petitioner's daughters and their respective husbands have alternative suitable accommodation, the daughters would not be dependent upon the petitioner. In this context, reliance is placed on the decision of the Hon'ble Delhi High Court in the case of Davinder Kumar Chadha Vs Pushpa Rani Sahani RC. Rev. 133/2012 decided on 11.02.2015 in which the following was held:
"Indubitably in an eviction petition, the landlord need not disclose all its immovable assets however, it has to disclose those facts which are essential for the Court to ascertain that Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 25 of 67 //26// neither the landlord nor the dependant for whom he is seeking eviction of the tenanted premises has any other suitable accommodation".
48. In the order dated 28.03.2016 by which leave to defend was granted to the respondent, it was further observed by the Ld. Predecessor of this court that the petitioner has concealed the property available with him, his married daughters and their husband. It was held that the petitioner has failed to disclose the assets of his married daughters and their husbands and as to how they have no other suitable accommodation. It was held that this raises a triable issue.
49. By order dated 28.03.2016, the Ld. Predecessor of the court further held that dependency of the daughters of the petitioner over him and their financial standing, were triable issues. It was observed that the petitioner's daughters are residing with their husband and children in their matrimonial home. It was held that the petitioner has not shown that his married daughters are residing with him after marriage and are dependent upon him for accommodation. It was observed that the petitioner has nowhere shown how his married daughters are dependent upon him and not upon their husband Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 26 of 67 //27// for accommodation. It was held that it is the general practice that after marriage, the daughter is firstly dependent upon her husband for the purpose of accommodation especially for commercial purposes, and if needed, then upon her father. It was held that in the present case, the petitioner has failed to show how his married daughters are first dependent upon him and not upon their husbands for accommodation.
50. The aforesaid order of the Ld. Predecessor dated 28.03.2016 was upheld by the Hon'ble High Court and the Hon'ble Supreme Court. In view of the observations made in this order, it was imperative for the Petitioner to have disclosed the assets of his daughters and their husbands. The petitioner would have filed the Income Tax Returns of himself, of his daughters and their husbands, if his case was bonafide and his claims of daughters facing financial hardship were true. After leave was granted, the parties to the case are required to lead evidence on matters which are held to be triable. Despite the observations made in paragraph no. 23 and 24 of order on leave to defend application, dated 28.03.2016, the petitioner did not lead any evidence which could establish that his daughters are dependent on him. No material including income tax returns have been filed to show that they are dependent Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 27 of 67 //28// on the petitioner for commercial premises. If the need of the Petitioner was genuine and bonafide, he should not have shied away from filing income tax returns.
51. There is nothing on record to show that the daughters are facing any financial difficulties. They are admittedly not residing with the petitioner. Therefore, in view of the decision in the case of Bhim Singh Saini vs Preeti Gupta RC Rev. No. 303/2015 dated 22nd September, 2015, the daughters are not dependent upon the petitioner. In this case, the Hon'ble High Court of Delhi held the following:
"9. In the instant case, admittedly, the daughter of the petitioner after having got married, even though continues to be a member of the family but she ceases to be directly dependent on him once she moves to her matrimonial home. Although she may have, as rightly observed by the learned ARC, a right of succession under the statute but that is on different aspect. We are not concerned with the succession of the property, we are only concerned as to whether she could be treated as a member of the family dependent on the petitioner for the purpose of eviction of a tenant and the answer to this is certainly in negative. The judgments which have been relied upon by the learned counsel for the petitioner are the judgments where despite the daughter having got married in one Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 28 of 67 //29// of the cases, she was living with her father and therefore, for all practical purposes, she was treated as a member of his family while as in the instant case, there is no such averment or factual position that the daughter is living with the father. Therefore, these judgments which have been relied upon by the petitioner are distinguishable.
10. The second question which arises is that even if she is a member of the family of the petitioner, the next question would arises whether she could be treated as a dependent on the petitioner for the purpose of her accommodation. Certainly, to this question also the answer prima facie should be in negative. The reason being that once the daughter of the petitioner has got married for purposes of any accommodation, she would be dependent on her husband rather on her father."
52. In the case of Jagdish Lal Khorana Vs Hemant Arora 2013 I AD (Delhi) 404, the Hon'ble Delhi High Court even doubted the dependence of the sons over their landlord father since they were settled in business and not living with the Petitioner.
53. In the case of S.R. Dutta vs Chunni Lal Bhatia 1981 (2) DRJ 43, the following was held:
Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 29 of 67
//30// "(10) Learned counsel for the appellant next contends that the daughter and son-in-law of the respondent were not dependent upon him, that they were keeping their own establishment, that the daughter of the respondent was earning Rs. 2450.00 while the son-in-law was earning Rs. 1500.00 being employed in Steel Authority of India at Ghaziabad. He further says that the daughter was not living with the respondent at the time of the institution of the eviction application and there was no such plea.
The daughter as such cannot be treated as a member of the respondent's family and the son-
in-law is also not a member of the respondent's family."
54. In the present case, even though the daughters are not earning, yet as per the information disclosed by the Petitioner during his cross-examination, the daughters are well settled in her matrimonial life and are therefore not dependent on the petitioner for commercial purposes.
55. The petitioner has relied upon the decision in the case of Prakash Kaur Vs Asha Chopra and Ors. 2014 (1) RLR 615 and has argued that even a married daughter living separately from her parents is dependent upon her parents for accommodation for commercial purposes. However, this court is of the view that the decision in the case of Prakash kaur Vs Asha Chopra does not apply to the facts of the present case since in the present case, the Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 30 of 67 //31// husbands of the daughters are well settled in their respective vocations. Also, in the present case, the court has a doubt on whether the daughters indeed wish to start a business from the tenanted premises. Moreover, in the case of Prakash Kaur, the possession of the tenanted premises was sought also for an unmarried and unemployed daughter of the landlord.
56. The petitioner has also relied upon the decision in the aforesaid case of Gulshera khanam vs Aftab Ahmed (2016) SCCR 993 in which it was held that a female having interest in the property is also included in the definition of family. This court is of the view that even this decision does not apply to the facts of the present case. The decision in the case of Gulshera Khanam was passed in an eviction petition under the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972. The provisions of this statute are different from that of the Delhi Rent Control Act. In this rent Act of the State of Uttar Pradesh, family has been defined to include any female having a legal right of residence. There is no such provision in the Delhi Rent Control Act.
57. Which member of the family of the landlord is dependent on him Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 31 of 67 //32// depends on the facts of the case. The concept of family is not rigid and one cannot say that married daughters are always dependent on their family. It depends on the circumstances of the family. In the case of J.K. Saxena vs Shri Madan Lal Khurana 1998 RLR 640, the following was held:
"However, the concept of "family" is not that rigid as to always exclude such relations from the family in as much as there can be genuine cases where people in that category also require help in their old age...This Court in the judgment reported as R.K. Bhatnagar Vs. Smt. Sushila Bhargava and another clearly defined the concept of the "family". Operative portion of paragraph 8 of the judgment reads as follows:
"However, the concept of family is not that rigid as to always exclude the married daughters from the family of their parents inasmuch as there can be genuine cases where married daughters are in fact living with their parents for one reason or the other and they may be said to be dependent on their parents for residential accommodation. It is now well settled that the expression "family" has to be interpreted reasonably and fairly giving due regard to the social, religious and Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 32 of 67 //33// economic conditions of life in our country as also peculiar circumstances of each case. As held by a Division Bench of this Court in Gobind Dass Vs. Kuldip Singh, an extended meaning is to be given to the word "family".
Observed the Division Bench:
"The word "family" has not been defined in the Act and we feel advisedly so. The concept of what constitutes family when a number of persons are related or are living together is not something static or capable of concise definition. What constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ideas of persons constituting that society and the religious and socio-religious customs of the community to which such persons may belong.""
58. It is general practice that after marriage and especially after many years of marriage, the daughter in firstly dependent on their husband and Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 33 of 67 //34// then, if need be, on their father. Despite an opportunity being granted to the petitioner by order dated 28.03.2016, he has still not led any evidence to establish that his daughters are dependent on him and not on their husbands for accommodation. Despite an objection taken in this regard, for reasons best knows to the petitioner, he has not filed the Income Tax Returns of his daughters and their respective husbands. It was for the first time during cross- examination that the Petitioner claimed that the daughters are facing financial problems. No such plea was taken in the Eviction Petition. As such, even for this reason, the plea of the petitioner that his daughters are facing difficulties financially, cannot be considered. In the regard, reliance is placed on the decision of S.R. Dutta vs Chunni Lal Bhatia 1981 (2) DRJ 43, in which the following was held:
"...Strictly speaking, replication is not a part of the pleadings. The appellant-tenant never had any opportunity to file a written reply to the additional allegations made in the replication. If there was any additional plea available to the respondent-landlord he ought to have amended the eviction application but it appears that no step was taken.
(7)...He did not plead that the daughter and/or son-in-law were required to stay in the house to look after him and his wife in old age. Evidence recorded on these facts, not pleaded, cannot be Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 34 of 67 //35// looked into. In Siddik Mahomed Shah v. St. Saran and others, A.I.R. 1980 Privy Council 57(1) it has been held, "where a claim has not been made in the defense presented no amount of evidence can be looked into upon a plea which was never put forward". ...It was further observed by the Supreme Court that in the absence of any pleading and issue on the said question, the High Court was in error in recording the finding that the two shops were sub-let. In Prem Sheel Malhan v. R.P. Chawla etc. (L.Rs.). Som Nath Katyal, Chand Kumari, D.N. Abbi, 1974 Raj. Law Reporter 522 eviction was claimed under Section 14(l)(e) of the Act and it was held that the requirement of joint family can be allowed to be proved only if it is expressly alleged. The landlord in that case had not pleaded that the premises were owned by the Joint Hindu Family and were required for the members and therefore he was not allowed to take up that plea.
(8) In Rajendra Singh Yadav v. Chandra Sen and others, it was observed, "what is not pleaded cannot be allowed to be subject-matter of evidence". In view of this statement of law, it appears that as there was no plea by the respondent that the premises were required by him for his daughter to look after him and his wife in their old age or that the premises were required for the son-in-law cannot be taken into consideration."
59. In these circumstances, it is held that the daughters of the petitioner are not dependent on him for accommodation for starting business. Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 35 of 67
//36// Bonafide need of daughters for tenanted premises to do business?
60. Now it shall be determined whether there is indeed a bonafide requirement of the daughters to start a business. In the case of Ajit Singh Vs. Inder Saran & Ors., 1979 (1) RCR (Rent) 602, the Hon'ble High Court of Delhi held that the expression 'required' in clause (e) of Section 14(1) of the Delhi Rent Control Act appears to signify more than a mere whim, a wish or a desire. It was held that the expression 'bonafide' implies an element of honesty or, to put it differently, the absence of any ulterior motivation. It was held that the words therefore signify an honestly felt need of an owner. It was further held that the Court is duty bound to ensure that the claim of the owner is confined within a broad reasonable limit. It was held that the need of owner has to be determined on the basis of an objective criteria of the need of a reasonable person subject to the prevalent socio-economic conditions.
61. In the case of Shiv Gupta Vs. Dr. Mahesh Chand Gupta, 1999 AIR (SC) 2507, the Hon'ble Supreme Court held that Chambers 20 th Century Dictionary defines 'bonafide' to mean 'in good faith: genuine'. The word 'genuine' means 'natural: not spurious : real ; pure : sincere'. In Law Dictionary, Mozley and Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 36 of 67 //37// Whitley define bonafide to mean 'good faith, without fraud or deceit'. It was held that bonafide or genuinely refers to a state of mind. It was observed that a requirement in a sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. It was held that the judge of facts should place himself in the armchair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord, the need to occupy the premises can be said to be natural, real, sincere, honest.
62. For the reasons best known to the Petitioner, despite an opportunity granted to lead evidence, he did not even examine his daughters so that his claims about the daughters wanting to start the business could have been verified. It was important for him to have his daughters come to witness box particularly because of the observations made in order dated 28.03.2016.
63. The aforesaid decisions makes it incumbent for the court to analyse the alleged requirement of the landlord and assess if it is natural, real, sincere Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 37 of 67 //38// and honest. Both the daughters are well settled in their matrimonial lives. In view of the admission made by the petitioner about the family circumstances of his daughters which have already been discussed hereinabove, it does not appear that the daughters will indeed do business in the tenanted premises. The said claim of the petitioner cannot pass the test of objectivity and reasonableness.
64. In these circumstances, this court is of the view that the daughters of the petitioner do not bonafide require the tenanted premises for starting a business.
Waqf-ul-Aulad property to be used only for and by sons/male members?
65. It has been argued by Ld. Counsel for the respondent that the tenanted premises cannot be used for the benefit of the daughters of the petitioner. It is submitted that the property of Waqf-ul-Aulad can be used only for and by the sons. This has been denied on behalf of the petitioner. Attention of the court has been drawn by the Ld. Counsel for the petitioner to the decision in suit no. 523/1996 of the Ld. Additional District & Sessions Judge, Tis Hazari Courts Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 38 of 67 //39// and in RFA No. 434 of 1999 decided on 19.07.2013 by the Hon'ble High Court of Delhi. The judgment of the Ld. Additional District & Sessions Judge has been identified by the petitioner during his examination-in-chief as Mark-B and the order of the Hon'ble High Court dated 19.07.2013 is Ex. PW-1/8.
66. The assertion of the respondent that the Waqf property cannot be used for the benefit of the daughters has not been pleaded by the respondent in the written statement and therefore cannot be considered by the Court. In this context, reliance has been placed on the decision in the aforesaid case of S.R. Dutta vs Chunni Lal Bhatia 1981 (2) DRJ 43.
67. Even otherwise, this issue has been settled in the aforesaid decisions Mark-B and Ex. PW-1/8. It has been held by the Hon'ble High Court that the daughters are not excluded from the benefit of the Waqf. Even in the decision of the Hon'ble High Court of Delhi passed in this case dated 11.02.2015 which is Ex. PW-1/1, it has been held that the manner in which the Waqf property is to be put to use could at best be subject matter of separate proceedings and is not to be examined by the Rent Controller in eviction proceedings. It was further held that the tenant has no right to question the use of the tenanted premises by the Mutawalli.
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//40//
68. In these circumstances, it is held that the objection of the respondent that the tenanted premises cannot be used by the daughters for starting a business is misconceived.
Daughters having independent right in Waqf-ul Aulad property
69. It has been argued by Ld. Counsel for the petitioner that even if the Court is of the view that the daughters are not dependent upon the petitioner, yet the respondent can be evicted for the requirement of the daughters to start business since they have an independent right in the tenanted premises. It is contended that the daughters are beneficiaries under the Wakf deed dated 20.06.1921. It is argued on behalf of the petitioner that in the aforesaid decisions Mark-B and Ex. PW-1/8, it has been held that the female heirs are also beneficiaries of the Wakf-ul-Aulad property and have a right in it and in the rental incomes of the properties. Attention of the Court is also drawn to paragraph no. 12 of the evidence by way of affidavit of the petitioner.
70. At the outset, even if the aforesaid contention of the Ld. Counsel for the petitioner is accepted, the same will still not entitle the daughters to seek Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 40 of 67 //41// eviction of the respondent since the Court has already formed an opinion hereinabove that the requirement of the daughters to start a business is not bonafide.
71. Also, the assertion of the petitioner that his daughters are beneficiaries of the Wakf-ul-Aulad property has not been pleaded by the petitioner in the eviction petition and therefore cannot be considered by the Court. The present case has been filed by the petitioner on the ground that he requires the tenanted premises for himself and for his daughters who are dependent on him. The daughters have not been impleaded as petitioners. They have not even been examined by the petitioner. They have not come to the witness box and disclosed their intention of seeking eviction of the respondent for starting business in the tenanted premises. They are not seeking possession of the tenanted premises on the ground that they have an independent right in the tenanted premises. This was also the observation of the Ld. Predecessor of this Court in the order dated 28.03.2016 by which the application for leave to defend was allowed. Merely by raising this subsequent plea in the replication does not make it part of the pleadings as pleadings are only the eviction petition and the written statement. The respondent never had any opportunity Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 41 of 67 //42// to file a written reply to the additional allegation made in the replication that the daughters of the petitioner are beneficiaries of Wakf-ul-Aulad property. In this context, reliance has been placed on the decision in the aforesaid case of S.R. Dutta vs Chunni Lal Bhatia 1981 (2) DRJ 43. It has been held in this case that if there was any additional plea available to the petitioner, he ought to have amended the eviction application. Despite it been held way back on 28.03.2016 that the petitioner's contention that his daughters are beneficiaries under the wakf deed is beyond pleadings, the petitioner never filed an application seeking amendment of the eviction petition. Now the Court cannot consider the averment of the petitioner that his daughters are also beneficiaries of the Wakf-ul-Aulad property and have a right in the tenanted premises.
Bonafide requirement of the petitioner to do business?
72. It is also to be considered by the Court whether the requirement of the petitioner for the tenanted premises for starting business by himself still remains even after deciding that the daughters of the petitioner are not dependent upon him. The Court is of the view that it has never been the case of the petitioner that if not with the daughters, he can start business by himself Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 42 of 67 //43// for which he needs the tenanted premises. The entire case of the petitioner has been that since his daughters are highly educated and are not working, he can do business with the daughters. As has been held hereinabove, a plea which is not taken in the eviction petition, need not be considered by the Court while deciding the case.
73. In the eviction petition, the petitioner stated that he is "passing very hard days" and unable to make his ends meet. Therefore, the case of the petitioner was that he is facing financial difficulty because of which, he requires the tenanted premises for starting a business. However, when the respondent brought on record, in his application for leave to defend about the financial status of the petitioner, in the replication, the petitioner changed his stand and admitted that he is living a 'very good lifestyle' and is enjoying all modern facilities and gadgets. During cross-examination, the petitioner denied the suggestion that he and his wife are well to do. Thus, during cross- examination, the petitioner again changed his stand and claimed that he is not doing well financially. Therefore, the stance of the petitioner in his replication is contradictory to what he had claimed in the eviction petition and during cross-examination. The petitioner has not given an iota of explanation as to Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 43 of 67 //44// why his versions in the petition, in the replication and during cross- examination are contradictory. This shows malafide on part of the petitioner. In the order dated 28.03.2016 by which leave to defend was granted to the respondent, the Ld. Predecessor of the Court also noted that the version of the petitioner in this regard is contradictory. Despite such observations of the Court, the petitioner did not explain in replication as to why there has been contradictions in this regard. The Court is constrained to draw adverse inference against the petitioner for taking contradictory stands.
74. There are judicial precedents in which it has been held that even an affluent person can seek eviction of tenant for starting business in the tenanted premises. However, these judicial precedents would have applied to this case if the petitioner would have come out in the open and disclosed the truth that he has sufficient income. The court would not have taken adverse view about the petitioner having sufficient means of livelihood. However, the petitioner has been evasive and dishonest because of which the court is of the opinion that the requirement of the petitioner is not bonafide and real.
75. On reading of clause 18(a) of the eviction petition, it appears that the Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 44 of 67 //45// petitioner had initially claimed that he wants to do business with his daughter as well as his wife. It was for this reason that he had mentioned about his wife being a graduate in that portion of the paragraph where he was explaining the competence of his daughters to do business with him. When the respondent brought on record about the New Star Hotel which as per the petitioner is that of his wife, the petitioner started claiming that the business is to be run by him and his daughters and not the wife.
76. Also, the requirement of the petitioner as described in clause 18(a) of the eviction petition appears to be vague. It is not clear from it whether the petitioner already had a business which he wanted to expand and therefore required the tenanted premises or he wanted to start a new business. In the eviction petition, the petitioner has stated that he wants to do "his own business". He further stated that he wants "his business" to be carried out on the ground floor. It appears from the language that the petitioner already had a business which he wanted to expand. However, in the replication, it is stated that the petitioner wants to start a new business and this has been his case ever since then.
Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 45 of 67
//46//
77. For the court to determine whether the alleged need of the petitioner is bonafide, the petitioner ought to have disclosed better details of his requirement. In the case of Charan Dass Duggal Vs. Brahma Nand (1983) 1 SCC 301, it was held that in a case for eviction on the ground of bona fide requirement, the burden is on the landlord to prove his requirement and his assertion is required to be tested. In the case of S.R. Dutta vs Chunni Lal Bhatia 1981 (2) DRJ 43, the following was held:
"TA, claim eviction the landlord has to plead facts in support of his alleged requirement. He has to prove those facts if denied by the tenant. The landlord has to plead the members of his family and their requirement together with status and other facts on the basis of which he claims eviction. He has to allege the existing accommodation preferably supported by the plan of premises available to him for residence. In the present case, the respondent only pleaded that he required the premises for his daughter for whose benefit he was folding the premises. He did not plead that he required the premises for his daughter as a member of his family or as a dependent on him. He did not plead that he required the premises for his grand daughter or son- in-law. He did not plead that the daughter or granddaughter were residing with him. He did not plead that the daughter and/or son-in-law were required to stay in the house to look after him and his wife in old age. Evidence recorded on these facts, Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 46 of 67 //47// not pleaded, cannot be looked into."
78. Even in the case of Davinder Kumar Chadha & Anr. Vs. Pushpa Rani Sahni, RC Rev. No. 133/2012 dated 11.02.2015, the Hon'ble Delhi High Court held that the landlord has to disclose those facts which are essential for the Court to ascertain his bonafide. On plain reading of the case of the petitioner as mentioned in clause 18 (a) of the petition, there are several questions that will come to any person's mind of which there is no answer in either the eviction petition or even the replication. The petitioner has concealed his source of livelihood in 71 years of his life. Only a bald averment has been made in the eviction petition that petitioner is passing very hard days and wants both ends to meet. It was incumbent for the petitioner to disclose the circumstances, preferably by placing material on record because of which at this age and despite several ailments he wishes to start a business. It was for the first time during cross-examination that the petitioner admitted that he is already working. He admitted that he is in the business of medical consultation since the last 20-25 years. He further admitted that he has been filing income tax returns since the last 30-40 years. He admitted that his annual income from the said business of medical consultation is about Rs.6 lakhs. The petitioner should have himself disclosed these material facts in the Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 47 of 67 //48// eviction petition or atleast in the replication, specially when, in the order by which the leave was granted to the respondent to contest this case, it was observed by the Court that the averments of the petitioner are vague, evasive and unspecific which raises a triable issue. The observations of the Hon'ble Supreme Court in the case of Inderjeet Kaur Vs. Nirpal Singh 2001 (1) SCC 106 were also quoted in the same order dated 28.03.2016. It was observed that an absolute need is not to be satisfied by the landlord but a mere desire is also not sufficient. It was held that there has to be more than a mere desire and the burden is on the landlord to establish his case affirmatively. Despite these observations of the Ld. Predecessor of this court, the petitioner continued to hide material facts which came out only during his cross- examination. This shows malafide on his part.
79. The petitioner has not disclosed as to when the need arose for him to do business. He is about 71 years of age and has been working as a medical consultant since 20-25 years. He claimed in the petition that he is finding it difficult to make ends meet. He also claims to be suffering from various ailments. It is not clear whether he wishes to start a business because his income from the business of medical consultation is not sufficient or whether Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 48 of 67 //49// he is unable to pursue the profession because of the ailments. As per the medical document Ex. PW-1/6 which is discharged summary of the petitioner, he had suffered brain hemorrhage in the year 1997. Tenancy of the property in question was created in the year 1948. The present case was filed in the year 2009. It is the case of the petitioner that a nominal amount of rent is being received from all 70 tenants of the building. This implies that as per the petitioner, all tenancies in the 70 shops are old. A long time has passed since the tenanted premises and other shops in the building were let out. A long time has also passed since the petitioner had fallen ill and since the time he filed the present eviction petition. It is difficult to believe that since the time the petitioner's need arose to do business, none of the 70 shops in the building were vacated or was tried by the Waqf/petitioner to be got vacated. The petitioner has admitted that all four floors of the building are commercial in nature. The testimony of RW2 that the building is open from all four sides and there are commercial shops on every side of the building, remains unchallenged and uncontroverted. It is highly improbable that the petitioner never found any shop other than the tenanted premises suitable for his alleged requirement of doing business of books and stationery. Nothing about eviction from the 70 shops has been even mentioned by the petitioner on his Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 49 of 67 //50// own. In the case of Manchukonda Sriniwasam Vs. Vempolu Brahmananda Rao, CRP No. 3292 of 2000 dated 10.02.2013, the Hon'ble Andhra Pradesh High Court held the following:
"No reasons are forth coming from the petitioner/landlord for his not occupying the shop vacated by G. Sanyasirao. On thorough reading evidence of PW-1 I am in no doubt to conclude that the requirement of the premises in occupation of the respondent/tenant by the petitioner/landlord is not bonafide".
80. The petitioner has relied upon the decision in the aforesaid case of Manju Devi Vs Pratap Singh 219 (2015) DLT 260 and has argued that the landlord need not disclose about another accommodation which is not suitable for his requirements. In this context, the court is of the view that this principle may not apply to facts of the present case where it is a matter of record that the Petitioner has as many as 70 shops available for his use. Also, even if the landlord did not deem it fit to disclose all his immovable assets, he ought to have disclosed at least those facts which are essential for the court to ascertain that neither the landlord nor his family members for whom he is seeking eviction have any other suitable accommodation. In this regard, Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 50 of 67 //51// reliance is placed upon the decision of the Hon'ble High Court of Delhi in the case of Davinder Kumar Chadha and Anr. Vs Pushpa Rani Sahni 2015 Law Suits (Delhi) 679. For example, he could have disclosed the Income Tax Returns of himself, his daughters and his son-in-law.
81. It is averred in the written statement that the petitioner is getting rent from 70 shops. It is also stated that the income from the Hotel business runs into lakhs of rupees. This has been denied by the Petitioner. However, in view of Order 8 Rule 4 of Code of Civil Procedure, the denial of the petitioner that he does not receive rent from 70 shops and that the income from the hotel does not run into lakhs of rupees is an evasive denial. He ought to have disclosed in the replication as to from how many shops he is receiving rent if not from 70 shops and how much income is from the hotel if not in lakhs of rupees.
82. On one hand, the petitioner claims that he suffers from various serious ailments because of which he cannot climb stairs and wants to do business from ground floor of the property. On the other hand, the petitioner travels 5-7 kms. and visits the residence and premises of his clients for doing medical Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 51 of 67 //52// consultation.
83. The petitioner also concealed about the New Star Hotel been run on the second floor of the building where the tenanted premises is situated. He claimed that he has nothing to do with this business and that his wife alongwith other partners are running this business. During cross-examination, he admitted that he has no dispute or litigation with his wife. However, he stated that his wife never tells him how and where she is spending her income. He stated that he does not know the monthly or annual income of his wife from the hotel business. He admits that his wife has been filing income tax returns since about 15 years. However, he states that he has never seen those returns and his wife files it. Even in this context the petitioner has taken contradictory stands. He claims that he does not know about the hotel. However, in replication, he states that the income from the hotel is a nominal amount. In the replication, the Petitioner stated that he has rightly not disclosed the income from the hotel since he has no concern with the income. During cross-examination, he deposed that he does not know the income from the hotel.
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84. During cross-examination, petitioner states that there are 19 rooms in the hotel but the license is only for 13 rooms. The petitioner is aware of these intricate details of the hotel but claims that he does not know the income of his wife and has never seen her income tax returns and has nothing to do with the hotel. The petitioner has admitted during his cross-examination that his family comprises only of his wife and two daughters. The daughters are stated to be married and living separately. So it is only the petitioner and his wife who are residing together under the same roof at New Friends Colony and they have no dispute between them. Keeping in view the norms of our society, it is hard to believe that the wife of the petitioner is managing the business of hotel and the petitioner does not know anything about it including the income of his wife. It may be noted here that the hotel is being run by a partnership firm in which the brothers, sisters and sister-in-law of the petitioner are partners. It is also the case of the petitioner that the partnership firm has taken the second floor premises to run the hotel on rent from the Waqf-ul-Aulad and is paying rent Rs. 1500/- for it. All these details about the hotel business got revealed only during cross-examination. The Petitioner did not disclose it on his own despite the Ld. Predecessor of the court holding that non-disclosure about the Hotel by the Petitioner amounted to concealment and was a triable Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 53 of 67 //54// issue. The petitioner deems it fit to mention in the eviction petition that his wife is educated, perhaps with the intention of showing the court that she will help in the business that is proposed to be carried out from the tenanted premises, but does not deem it fit to disclose about the hotel and his wife having a share in it and that too of 32 percent. The court can infer dishonesty and concealment on the part of the petitioner. If the petitioner had nothing to hide and his case was bonafide, he should have come out and disclosed all material facts.
85. In the replication, the petitioner states that there are 13 rooms in the New Star Hotel. However, during cross-examination, it was revealed that there are 19 rooms in the hotel.
86. The respondent has alleged in the written statement that the petitioner is getting huge amount of rent from 70 shops. This has been denied by the petitioner in the replication. However, during cross-examination, the petitioner admitted receiving rent from 70 shops. Therefore, even in this regard, contrary stands have been taken by the petitioner because of which his case reeks of dishonesty.
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87. During cross-examination of the petitioner, certain photographs were put to him and he was asked if these photographs were of the building where the tenanted premises is situated and the Star Hotel is being run. The petitioner stated that he cannot identify these photographs. These photographs are Mark X-1 to X-11. On seeing photographs Mark X-1 one can see boards of Star Hotel and Dhingra Bag House outside the building. It is clear that the photograph is that of the building where the tenanted premises is situated. Yet, the Petitioner deposed that he cannot identify the photographs. It is evident that the petitioner has given an evasive reply and is trying to conceal material facts for ulterior motives.
88. During cross-examination, when the petitioner is asked about his income, he states that he does not remember the amount of annual return filed by him with the Income Tax Department for any of the financial years. It is strange that the petitioner remembers the educational qualifications and colleges of his grandchildren and knows that the car used by his daughter and son-in-law are in neither of their names, but does not remember the income of his wife and also of himself and the make of the car used by his son-in-law Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 55 of 67 //56// who lives in the same locality as the Petitioner and must also be visiting him in the car. It is hard to believe that the petitioner does not remember the amount of returns filed by him in any of the financial years. It appears that the petitioner has deliberately tried to conceal his income from the court.
89. It is the case of the respondent that certain shops in the building where the tenanted premises is situated were vacated, but were again rented out by the petitioner. It is deposed by the respondent that four years prior to the institution of the eviction petition, a tenanted shop on the ground floor measuring 1000 sq. ft. having almost identical dimension as that of the tenanted premises, which was in use and occupation of one tenant, namely, Mr. Harbans Singh Talwar, was got vacated by the petitioner and thereafter was rented out to M/s Dhingra Bag House after charging heavy premium from him.
90. It is further testified by the respondent that even in July, 2009, another shop bearing no. 918 which was in possession of M/s Reliable Electricals was vacated and again rented out to M/s Amit Electricals at a higher rate of rent after charging huge amount of money as premium.
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91. It is further deposed by the respondent that even shops no. 919 and 911 were vacated by the previous tenants and were again rented out to new tenants.
92. It is argued that if the petitioner indeed required a premises for starting a business, he would have used the premises which were earlier vacated by tenants and would not have rented out the same to new tenants.
93. The averments about re-letting shops no. 918, 919 and 911 have been denied by the petitioner.
94. At the outset, it is observed that the averments regarding shops no. 919 and 911 are beyond pleadings and cannot be taken into consideration. The application of the respondent under O. 6 R. 17 of Code of Civil Procedure by which the respondent sought to incorporate his averments about shops no. 919 and 911 in the written statement was dismissed and the order of dismissal has attained finality.
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95. The petitioner has admitted that the shops which were in possession of the tenants Mr. Harbans Singh Talwar and M/s Reliable Electricals were indeed vacated. However, it is pleaded that these shops were rented out again in the year 2002 but that was much prior to filing of the eviction petition. It is argued by the Ld. Counsel for the petitioner that in the year 2002, the petitioner did not feel the need for starting a new business since he had suffered a brain stroke and his daughters were studying. It is stated that the shop which was vacated by M/s Reliable Electrical which is bearing no. 918 is very small in size and measures about 250 sq. ft. It is further stated that the shop is in narrow lane towards the back side and is not as easily approachable as is the tenanted premises. Reliance has been placed by the petitioner on rent receipts of the year 2002 pertaining to these two properties. It is stated that it is evident from the rent receipt that these two premises have been re-let to M/s Dhingra Bag House and M/s Amit Electricals way back in the year 2002 itself which is much prior to the filing of eviction petition.
96. Per contra, the respondent has deposed in his cross-examination that the shop was rented out to M/s Dhingra Bag only 2-3 years ago. He stated that it was due to oversight and mistake that it was mentioned in the rejoinder Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 58 of 67 //59// to the reply to the application for leave to defend that this premises was re-let to M/s Dhingra Bag House in the year 2002.
97. Be that as it may, the petitioner has atleast admitted to have re-let a shop on the ground floor measuring 1000 sq. yards having dimensions similar to the tenanted premises to another tenant. It is admitted that this premises is not used by the petitioner for his alleged requirement. The best evidence for establishing the time when fresh tenancy was created in these shops was in the possession of the petitioner. He did not produce the same for reasons best known to him. He placed reliance on certain rent receipts allegedly of the year 2002. However, there is only one rent receipt of these shops on which he places reliance in his examination-in-chief. This documents is Mark-C and is purported to be receipt of rent paid by M/s Dhingra Bag House in the year 2002. However, this document has not been proved in accordance with law as it is a photocopy and cannot be read in evidence.
98. Even RW-2 who claims to have a shop in the building adjoining to the building where the tenanted premises is situated has supported the case of the respondent and has deposed that the petitioner is in a habit of evicting Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 59 of 67 //60// tenants and letting out the shops at a higher rate of rent to new tenants. He also testified that the shop of Mr. Harbans Singh Talwar was also re-let to M/s. Dhingra Bag House. He further stated that the premises with M/s Reliable Electricals was rented to M/s. Amit Electricals.
99. Even in the order by which leave was granted to the respondent to contest the present case, the Ld. Predecessor of this court held that the allegation of re-letting shop raises a triable issue. In these circumstances, if the petitioner had nothing to hide, he would have brought on record copy of the rent agreement, rent receipts or even examined his new tenants to establish the time period when the shops were re-let. The respondent could not have brought on record more material than he has already done about re- letting of shops. The burden of proving that the shops were not re-let around the time when the present case was instituted was upon the petitioner since it was only him who could have produced evidence in this regard. By disclosing that certain shops were re-let by the petitioner, the respondent created a doubt on the alleged bonafide need of the petitioner. It was for the petitioner to have cleared this doubt by leading cogent evidence. Having failed to do so, an adverse inference can be drawn against him and it can be inferred that he Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 60 of 67 //61// does not bonafide need the tenanted premises for starting business. If the petitioner indeed wanted to start a business of books, stationery and allied business, he would have done so in the shop which was vacated by Harbans Singh Talwar or in the shop 918.
100. By placing reliance on the decisions in the aforesaid cases of Anil Bajaj and Anr. Vs Vinod Ahuja (2014) SCCR 533 and Manju Devi Vs Pratap Singh 219 (2015) DLT 260, Ld. Counsel for the petitioner has argued that the tenant cannot dictate to the landlord as to how the property belonging to the landlord should be utilized by him. It is stated that landlord is the best judge of his requirement.
101. This court is of the view that the landlord being the best judge of his requirement is not an absolute principle of law. The court is required to check the bonafide of the alleged requirement of petitioner for seeking possession of the tenanted premises. In this context, reliance is placed upon the decision of the Hon'ble High Court in the case of Khem Chand & Ors. vs Arjun Jain & Ors. Rev. No.442/2012 dated 13 September, 2013. The Hon'ble High Court of Delhi held the following in this case:
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//62// "39. It is true that there are other cases where in the appropriate facts the courts have held that the landlord is the best judge to decide his convenience. The said are the line of the cases where the landlord is put to the extreme hardship by tenant's insistence that he should adjust to inconvenient premises by squeezing his needs. The facts of the present case are entirely different where the landlord is enjoying the property with in the same location though as a tenant coupled with another property lying vacant within the same location though on the different floor owned by the landlord himself where the business can be carried out as per the market conditions and thereafter the landlord is seeking to vacate the third property in the same location on the basis of bonafide need and non availability of the alternative accommodation which raises the doubt on the need of the landlord as not felt need but fanciful desire. ... It is not the thumb rule that in every case the landlord always is the best judge and the court is helpless by not scrutinizing the stand of the tenant while testing the reasonableness and suitability of the alternative accommodation. Actually it depends upon the case to case basis. The courts have otherwise also held consistently that even though the landlord is the best judge to decide his needs Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 62 of 67 //63// and he cannot be compelled by the tenant to accommodate at the place which is lesser in any way than the place which is sought to be evicted, still the court would examine the reasonableness and suitability of the existing accommodation by weighing what is available with the landlord vis-à-vis the plea of the tenant.
...42. The Supreme Court in the case of M.M. Quasim Vs. Manohar lal, AIR 1981 SC 1113 which is a three bench decision passed by the court speaking through Hon'ble Desai, J. (as His Lordship then was) has categorically flawed this approach of mechanically stating that the landlord is the best judge without applying a judicious approach in the matter."
102. The very purpose of creation of machinery of Rent Controllers and Additional Rent Controllers, is that the plea of the landlord is to be tested on the anvil of bonafide. It is for this reason that in this case, the Ld. Predecessor of this court had granted leave to defend. The ground on which the landlord is seeking eviction of tenant has thus been put to test and this itself implies that the grounds urged have to be carefully scrutinized rather than being accepted on face value.
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103. In the case of Liaq Ahmed and Ors. Vs Habeeb-Ur-Rehman (2000) 5 SCC 708, the Hon'ble Supreme Court held that the rent control legislations seek to strike a balance between the rights of the landlord and requirements of the tenant. It was held that the purpose of the legislation should not be nullified by giving hyper technical or liberal construction to the language of the statute which instead of advancing the object of the Act may result in its frustration. It was observed that Rent Acts have primarily been enacted to give protection to the tenants and with paramount object of essentially safeguarding their interest and their benefit. It was held that a rational approach should be followed in interpreting the law relating to control of tenants.
104. The prime question to be answered is that whether the tenanted premises is required bonafide by the landlord for his use or for the use of his family dependent upon him. The petitioner has admitted during cross- examination that he is doing the business of medical consultation and his annual income from it is about Rs. 6,00,000/-. He has further admitted that he receives rent of Rs. 12,000/- per year. Though no material has been placed on record by the petitioner to substantiate that he indeed only gets Rs. 12,000 per annum as rent, yet, even if this amount is accepted to be correct, the court Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 64 of 67 //65// is of the view that this amount together with the income from medical consultancy is not so less that the petitioner finds it so difficult to make ends meet that at this age and with ill-health, he wishes to start a business, that too which is completely different from his previous vocation. It should be noted here that the wife of the petitioner has separate income and the petitioner is maintaining anyone else from his income.
105. The Petitioner admittedly owns 250 sq. yds. plot which is the front portion of a 500 sq. yds plot at the posh and expensive New Friends Colony of Delhi. He admits to be collecting rent from 70 shops. Therefore, he is a man of means. As per the petitioner's own admission, he is leading a laving life. His wife runs a hotel and maintains two cars. His daughters are well settled in their matrimonial homes. One of them is residing in Hyderabad with her husband and young children. The other one, as per the own testimony of the Petitioner, is happy and satisfied in her matrimonial life and has never worked before. No cogent reasons have been disclosed by the petitioner as to why he and his daughters wish to start the business. As has been held by the Hon'ble Delhi High Court in the aforesaid case of Khem Chand & Ors. Vs. Arjun Jain & Ors., the court has to assess the case of the landlord from common man's perspective and prudence. From the testimony of the Eviction petition RE-23/15 Nisar Ahmad Vs. Agya Pal Singh Page 65 of 67 //66// petitioner and in view of the contradictions, concealment and anomalies in the case of the Petitioner, the court cannot infer honestly felt need of the petitioner and absence of ulterior motive. A dishonest is litigant is not entitled to relief from the court. It must also not be forgotten that in civil cases, the test of proof of facts is not beyond reasonable doubt. In absence of conclusive evidence, the Court has to see preponderance of probability. The material on record clearly shows that the preponderance of probability lie in favour of the respondent and against the petitioner. For the reasons stated herein above, the judicial conscience of the court is not in favour of passing eviction orders against the respondent as the claim of the owner is beyond the broad reasonable limit and does not satisfy the test of objectivity, reasonableness and rationality.
106. If on such vague pleas, tenant protected by the Delhi Rent Control Act is allowed to be evicted, it would frustrate the very purpose of the enactment of the beneficial legislation, since every landlord can take such a plea that he wants his property for business or residence without giving any further details and this plea would, if the testimony of the petitioner's contention is accepted, would be judicially inscrutable.
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107. The net result is that petitioner has failed to establish that the tenanted premises is required bonafide by him for his use and for the use of his family dependent upon him. Accordingly, the eviction petition u/s 14 (1) (e) r/w section 25-B of Delhi Rent Control Act is hereby dismissed.
108. No order as to costs. File be consigned to Record Room. Digitally signed by SHIRISH
SHIRISH AGGARWAL
AGGARWAL Date: 2018.06.08
13:17:12 +0530
SHIRISH AGGARWAL
ARC-I, Central District,
Tis Hazari Courts, Delhi
(Announced in open court
on 07.06.2018)
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