Delhi District Court
Sh. Charanjeet Singh vs ). Sh. Uma Shankar on 10 March, 2021
IN THE COURT OF MS NITI PHUTELA: RENT CONTROLLER,
SAKET COURTS (SOUTH)
RC ARC No.: 6350/16
1. Sh. Charanjeet Singh
2).Sh. Kulwant Singh
3). Sh. Surjeet Singh
4). Sh. Jagmohan Singh
5). Sh. Harjeet Singh
All S/o Lt. Sh. Sant Singh
All R/o 23, Jangpura Road,
Bhogal, New Delhi ..... Petitioners
Versus
1). Sh. Uma Shankar
2). Sh. Sanjay
Both S/o Lt. Sh. Kaushal Kumar,
Both R/o 4, Central Road, Bhogal,
Jangpura, Delhi. ...... Respondents
Date of institution of Suit : 22.02.2012
Date on which order was reserved : 05.03.2021
Date of decision : 10.03.2021
PETITION UNDER SECTION 14 (1) (e) R/W SECTION 25B OF
DELHI RENT CONTROL ACT, 1958
RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 1/32
JUDGMENT
1. As per the petition, the case of the petitioner is that Sh. Sant Lal was the owner of the shop bearing no. 4, (old number Kh387), Central Road Bhogal, Jangpura, New Delhi. Sh. Sant Lal expired in the year 1972 leaving behind his wife Smt Bimla Devi and five sons, who are the petitioners in the present case. That Smt Bimla Devi also expired on 17.04.2007 and thereafter all the petitioners became owner/landlord of the said shop.
2. That Sh. Sant Singh let out one portion of the said shop as shown in the red colour in the site plan to the father of the respondents namely Lt. Sh. Kaushal Kumar. That the rent was Rs. 70/ per month which became Rs. 1050/ per month after periodical enhancements. The premise was let out for commercial purpose and the same was being used by the respondents for the said purpose.
3. That Sh. Kaushal Kumar expired and after his death, all his LRs namely Smt Santi Devi i.e. his wife and sons namely Sh. Uma Shankar and Sh Sanjay became tenant in the shop in question. The rent receipt was thereafter, being issued in their favour. Smt. Santi Devi wife of the tenant also expired and after her death, his both sons Sh. Uma Shankar and Sh.Sanjay became the tenant in the shop and rent receipt was issued in their favour.
4. It is submitted by the petitioners that they require the tenanted premises for their bonafide use and other members of family which consists of petitioner themselves, their wives, 5 sons and 2 unmarried daughters. It is further averred in the petition that petitioners are in the occupation of RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 2/32 other portion of the shop bearing no. 4, Central Road Bhogal, Jangpura, New Delhi as shown in blue colour in the site plan, which is adjoining to the suit premises. From there, they are running their own business with family members.
5. That all the petitioners are having the liability of their family and it is becoming very difficult for them to meet both ends of life from one shop in their occupation. Thus, the petitioners and their children want to run their separate electronic items business and expand their existing business. It is also averred that the premises in question are adjoining to the shop of petitioners from where they are presently running the business. Thus, it is the most suitable place for running their business. They have no other reasonably suitable accommodation available except the property in question. Hence, as per them, they require the tenanted premises bonafidely for their use.
6. Hence, petitioners have filed the present suit, praying for passing an eviction order in their favour in respect to shop bearing no.4, (Old no. Kh387), Central Lane Bhogal, Jangpura, New Delhi as shown in Red colour in the site plan.
7. In response to the aforesaid petition, respondents filed an application u/s 25B of DRC Act for grant of leave to defend, which was allowed by the Ld. Predecessor of the Court vide order dated 21.02.2015.
8. Subsequently, written statement was filed by respondents stating that application under Section 14(1)(e) is not maintainable as the said application can be instituted only if the premises are required for bonafide purpose by the landlord. As per respondents, petitioners are the owners of various properties i.e. residential as well as commercial RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 3/32 and the said properties are equally efficacious in all respects being capable of satisfying requirements of the petitioners.
9. As per respondents, the petitioners do not have any interest left in the premises because lease was granted to father of petitioner by DDA vide lease agreement dtd 30.10.1964. the said lease agreement came to an end by efflux of time in the year 1982. thus, petitioners are not owners of property and respondents are deemed to have become direct tenants under DDA.
10. As per them, the petition is bad for nonjoinder of necessary and proper parties as Ms Kuljeet Kaur, d/o Lt Sh. Sant Singh is not made a party to the present case. Thus, as even DDA is also not made a party, the present suit is therefore bad for nonjoinder of necessary and proper parties.
11. It is further averred that plea of bonafide requirement as set out by the petitioners for getting the tenanted premises vacated for their families utilization is exfacie false and untenable as it has been admittedly stated by the petitioners that they own and reside in property no. 23, Jangpura Road, Bhogal, Delhi along with their families and do not own any shop in such property. It is also admitted by petitioners that the aforementioned property consists of two shutters on the ground floor, one of such shutters is used as a store, whereas another is used as study room/computer room and for keeping other household goods. However, as per respondents, the ground floor is actually being used for electronics repairing works business by the petitioners. It is also stated that the said property has large unused space lying vacant, which can RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 4/32 serve the purpose of petitioners.
12. It is also submitted that petitioners had even concealed material facts in the previous eviction petition bearing no. E104/2011, wherein order dtd 11.01.2012 was obtained by playing fraud by putting the same grounds of bonafide requirement i.e for expanding their electronic items business but said property is being put to other use.
13. It is also stated by respondents that the present petition is filed merely to pressurize them to vacate the property, so that it can be lent on enhanced rent by the petitioners as was being done by them in earlier litigations. It is further stated that the alleged business, which petitioners intend to start i.e of electronic items is devoid of particulars inter alia because there is large variety of electronic items requiring expertise and capital outlay, statutory clearance/ requirements as regards which the petitioners are silent, which shows that petition is devoid of any merits.
14. Further, as per respondents, the eviction petition is liable to be dismissed because the petitioners have not disclosed the correct accommodation in their use and occupation and they have not mentioned the exact number of shops in their occupation and those in occupation of the tenants.
15. It is contended that, after the death of father of petitioners, rent was continued to be paid to petitioners with change in amount of rent and they made regular payment of the rents to the petitioners without fail. That respondents have tendered the applicable rent to the petitioners till January 2012. Even after present proceedings, respondents offered to pay the rent from the month of February 2012 onwards but the same RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 5/32 was refused to be received by the petitioners.
16. As per respondents, since the inception of their shops in or around the year 1960, the respondents have earned goodwill in the surrounding area and large number of clients visit their shop. That respondents and their family members are entirely dependent for their livelihood on income that is generated from their shop operating in the premises and if the shop is closed, their survival will become very difficult. It is also averred that respondent no.1 is suffering from blood pressure. Respondent no.2, is having school going children and he is running the business with his brother i.e. respondent no.1.
17. In the reply to the petition on merits, respondents have alleged that the area shown in red colour in the site plan alleged to be under occupation of respondents is not reflecting the true and correct status. The respondents denied rest of the averments of petitioner in reply on merits. Thus, it is prayed by the respondents that suit filed by the petitioners is liable to be dismissed and respondents are not liable to be evicted from the premises.
18. In the replication filed by petitioners, they denied all the averments of respondents as averred in the WS and reiterated and reaffirmed the facts alleged in petition. Apart from that, they also alleged that Ms. Kuljeet Kaur has no share in the property in question as she had already relinquished her right in favour of petitioners.
19. After completion of pleadings, matter was fixed for petitioner's evidence.
20. In support of their case, petitioners examined petioner no.1 as PW/1. He RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 6/32 tendered his affidavit along with certificate u/s 65B of Indian Evidence Act which is Ex.PW1. He relied upon documents i.e. lease deed which is Ex.PW1/1, death certificate of Sh. Sant Singh which is Ex.PW1/2, death certificate of Smt Bimla Devi is Mark A, relinquishment deed dtd 10.01.1974 executed by Smt Kuljit Kaur is Ex.PW1/4, site plan is Ex.PW1/5, rent receipts are Ex.PW1/6(colly 27 receipts), identity card of family members of petitioners are Ex.PW1/7 (colly 22 identity cards), electoral list of property no. 23, Jangpura, Bhogal is Ex.PW1/8, ration card of the petitioners are Ex.PW1/9(colly), certified copy of the court proceedings of cases is Ex.PW1/10, photographs of the rooms showing the status of two rooms inside the two shutters are Ex.PW1/11 (colly three photographs), site plan of the premises no. 23, Jangpura Road, Bhogal, Delhi is Ex.PW1/12, bills of electricity meter in the premises are Ex.PW1/13(colly 4 bills) and bills of water meter installed in the premises are Ex.PW1/4. He was crossexamined by Ld Counsel for respondents and was discharged.
21. PW2 Sh. Sumit Saxena, DEO, from Election Office was a summoned witness. He proved document Ex.PW1/8 i.e. attested copy of electoral Roll 2017/Voter list of family members of the premises no. 23, Jangpura Road, Bhogal, New Delhi bearing SI. no. 514 to 524.
22. No other witness was got examined by petitioners, hence, PE was closed.
23. Respondents in their evidence examined respondent no.1 as DW1. He tendered his affidavit which is Ex.DW1/A. He relied upon documents RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 7/32 i.e. site plan already exhibited as Ex.PW1/5, certificate of registration of Establishment (Shop) under Delhi Shops and Establishment Act dated 07.08.1967 is Ex.DW1/2, receipt of conversion charges dated 29.03.2008 is Ex.DW1/3, photocopy of cheque No. 601966 dated 29.03.2008 is MarkA, photocoopy of cheque No. 601965 dated 29.03.2008 is MarkB, computer generated copy of Adhoc Registration Certificate of retail shops dated 08.01.2007 is Ex.DW1/5, receipts dated 05.03.1984 and 05.07.1984 are already Ex.PW1/6 (colly. running from page 8 to 39), site plan of property No. 23, Jangpura Road, Bhogal, Delhi filed by respondents is MarkC, five coloured photographs showing property no.4, Bhogal, lying unused are Ex.DW1/8 (colly. running from page 34 to 35 of list of documents dated 17.4.12 and from page 43 to 44 of list of documents dated 06.05.2015), two coloured photographs showing portion of said property being used for purposes other than petitioner's family business are Ex.DW1/9 (colly. on page 43 and 45), three coloured photographs showing commercial activity being carried out by petitioners in property No. 23, Jangpura Road are Ex.DW1/10 (colly. running in Page 33 of list of documents dated 17.04.2012 and page 40 of list of documents dated 06.05.2015), one coloured photograph showing commercial activities in and around property No.23 as Ex.DW1/11, visiting card of petitioner No.3 showing carrying out of Electronics repairing and other businesses by petitioners as Ex.DW1/12, certified copy of order dated 14.05.2016 is Ex.DW1/13, copies of two rent receipts dated 03.05.2012 and 26.04.2014 are MarkD (colly.), copy of RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 8/32 three receipts dated 03.06.2015, 26.05.2016 and 17.07.2017 are Mark E (colly.). The witness was crossexamined by Ld Counsel for petitioners and was discharged.
24. RW2 Anil Kumar Sharma tendered his affidavit which is Ex.RW2/A. He relied upon documents i.e. Ex.DW1/1, which is already Ex.PW1/5. It was stated by him that he had prepared the site plan which is already Mark C and the same was, thereafter exhibited as Ex.RW2/1. He was crossexamined by Ld Counsel for petitioners and was discharged.
25. No other witness was got examined by respondents, hence, RE was closed.
26. I have heard the final arguments addressed by ld. Counsel for petitioners. I have also gone through the evidence on record very carefully.
27. The present petition has been filed u/s 14 (1) (e) DRC Act. Section 14 (1) (e) DRC is reproduced below: "Section 14 (1) (e): Notwithstanding anything to the contrary contained in any other law or contract, no order of decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:(e) That the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonable suitable residential accommodation."
28. In order to succeed in the case u/s 14 (1) (e) of DRC Act, the petitioners are required to prove the following ingredients"
RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 9/32(a)Ownership in respect of tenanted premises;
(b)Relationship of landlord and tenant between the parties;
(c)Petitioners require the tenanted premises for their bonafide need and necessity or necessity of their family members
(d)Petitioners do not have any other alternative accommodation with them/him/her.
OWNERSHIP IN RESPECT OF TENANTED PREMISES AND RELATIONSHIP OF LANDLORDTENANT BETWEEN THE PARTIES:
29. It is the case of petitioner that their father Sh Sant Lal was the owner of the property in question i.e. Shop no.4 (old no. Kh387), Central Road, Bhogal, Jangpura. After the death of their father, the LRs of Sh. Sant Lal i.e. Smt Bimla Devi and five petitioners herein became the co owners. To support this contention, petitioners have filed on record lease deed in favour of Sh. Sant Lal, Ex.PW1/1, as leased by DDA dtd 30.10.1964, to show their right/title/interest in the property.
30. A ground was raised by respondents in the WS that Ms Kuljeet Kaur D/o Lt. Sh. Sant Lal has not been made a party to the present petition due to which the present petition is bad for nonjoinder of the parties. In this respect it was specifically averred by the petitioners in the replication that Ms. Kuljeet Kaur had already executed release/ relinquishment deed, dtd 10.01.1974, Ex.PW1/4, in favour of their mother Smt Bimla Devi. Thus, from the above said documents is clear that Ms. Kuljeet Kaur has no right/ title/ interest left in the said property and the suit is not bad for nonjoinder of Ms Kuljeet Kaur.
RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 10/3231. Moreover, as per the judgment of in case titled Sri Ram Pasricha vs. Jagannath 1976 RCR (Rent) 832, (1976) 4 Supreme Court cases 184, Kanta Goel vs. D.P. Pathak, 1979 (1) RCR (Rent) 485; (1977) 2 Supreme Court cases 814 and Pal Singh vs. Sunder Singh 1989 (2) RCR (Rent) 331; : (1989) 1 Supreme Court cases 444; that one of the coowners can alone and in his own right file a suit for ejectment of the tenant and it is no defence open to the tenant to question the maintainability of the suit on the ground that the other coowners were not joined as parties to the suit. When the property forming the subject matter of the eviction proceedings is owned by several owners every co owner owns every part and every bit of the joint property along with others and it can not be said that he is only a partowner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of the tenant without joining the other coowners if such other coowners do not object.
32. Therefore, even if no relinquishment or release deed had been executed by Ms. Kuljeet Kaur, then also the suit would not have been bad for nonjoinder of Ms. Kuljeet.
33. Another contention of respondent is that the petition is also bad for non joinder of DDA as the lease deed on which petitioners have relied has expired by efflux of time and the respondents are now direct tenant under the DDA. However, in para no.K of Brief facts in the WS filed, they have categorically admitted that rent was being paid by them regularly to respondents. Both the pleas are coontradictory.
34. It was observed in Shanti Sharma Vs. Smt. Ved Prabha [AIR 1987 SC RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 11/32 2028] that:
"the term "owner" has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. The Act has been enacted for protection of the tenants. But, at the same time, it has provided that the landlord under certain circumstances will be entitled to eviction and bona fide requirement is one of such grounds. Ordinarily, the concept of the ownership may be absolute ownership in the land as well as of the structure standing thereon. But in the modern context, where all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Government or the authorities constituted by the State. The legislature, when it used the term "owner" in s. 14(1)(e), did not think of ownership as absolute ownership. The meaning of the term "owner" is visavis the tenant i.e. the owner should be something more than the tenant."
35. It has been held in Dr. Jain Clinic Pvt. Ltd. Vs. Sudesh Kumar Dass in RCR No. 136/12 that:
"It is settled law that in the context of Delhi Rent Control Act, what appears to be the meaning of the term 'owner' is that visa vis the tenant i.e. the owner should be something more than the tenant." The position in law is that "The ownership" of the landlord for the purpose of maintaining a petition U/Sec. 14(1)
(e) of the D.R.C. Act is not required to be a absolute ownership of the property and it is sufficient if the landlord is a person who is collecting the rent on his own behalf. The imperfectness of the title of the premises can neither stand in the way of an eviction petition U/Sec. 14(1)(e) of the Act, nor can the tenant be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord."
36. In light of the above said judgments, it is evident that the landlord is not supposed to prove absolute ownership. Therefore it is no more resintegra that in a suit between landlord and tenant, it is only the title as landlord which is relevant and not the title as "owner".
RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 12/3237. In the case in hand, the landlordtenant relationship is not disputed because in para no.A of Brief facts in the WS filed, it is specifically averred by respondents that petitioners are legal heirs of Sh. Sant Lal and respondents are legal heirs of Late Sh Kausahal Kumar.
38. It was categorically deposed by PW1 in his crossexamination that his father had acquired the property on the basis of inheritance and prior to him the property was acquired by his mother i.e. the grand mother of the petitioners. The lease deed Ex.PW1/1 in favour of his father is proved on record. He also even clarified that apart from his father, there were no other children of his grand parents. Thus, it is evident that property fell into share of the petioners through inheritance.
39. In Bharat Bhushan Vij Vs. Arti Techchandani 2008 (153) DLT 247, in para 4 and 5 it was held as under:
"the concept of ownership in a landlord tenant litigation governed by the Delhi Rent Control Act, has to be distinguished from the one in a title suit. If the premises was let out by a person and after the death , the premises has come in the hands of a beneficiary under a Will, the tenant has no right to challenge the title of such a beneficiary. If on the death of the original owner, the tenant has any doubt as to who was the owner of the premises, he is supposed to file an interpleader suit impleading all the legal heirs of the deceased and ask the court to decide as to who shall be the landlord / owner after the death of the original owner. Where no interpleader suit is filed by the tenant and the tenant continues in possession after the death of original owner without demur and without raising any objection against the person , who claims to have inherited the property under Will, he later on cannot challenge the ownership of such a person. It is not the domain of the tenant to challenge the Will of the deceased landlord. If a landlord is able to show there is a testament in his/her favour, he is deemed to have discharged his burden of proving under the Act. If the tenant takes a frivolous objection about ownership, RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 13/32 such an objection cannot be entertained unless the tenant comes forward as to who was the landlord / owner of the premises and to whom he has been paying rent after the death of original owner."
40. From the above said judgment it is clear and evident that petitioners in the present case have been able to prove their ownership over the tenanted premises by relying upon above said documents.
41. Moreover, the status of respondents is merely of a tenant. Section 116 of Indian Evidence Act bars the tenant from disputing the title of landlord who had inducted him as tenant. It is reproduced below: "Section 116 No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given."
42. Further, petitioners proved the rent receipts which are Ex.PW1/6(colly).
The said rent receipts reflect that Smt Bimla Devi issued the same previously in the name of Sh. Kaushal Kumar i.e. father of the respondents herein and thereafter the said receipts were being issued in the name of the respondents.
43. It is also clear from the testimony of DW1, who specifically admitted in his crossexamination that his father was inducted as tenant by the father of the petitioners i.e. Sh Sant Lal. He also admitted that after the death of his father, they are still in the possession of the tenanted premises and are doing business. These admissions clearly reflect that RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 14/32 the admission on the part of respondents regarding their status of being a tenant.
44. In Capt. Praveen Davar (Retd.) & Another Vs. Harvansh Kumari and Ors; 2010 (119) DRJ 560, Hon'ble High Court of Delhi held as under :
"15. From the aforesaid, in my opinion, there is no manner of doubt that the learned trial court rightly decided issue No. 1 in favour of the respondents and against the appellants. Reliance placed in this regard by the learned trial court on the provisions of Section 116 of the Evidence Act and the following observations of the Supreme Court in Anar Devi v. Nathu Ram, 1994 (2) RCJ 103, conclusively clinches the issues: "Section 116 of the Evidence Act applies and estops even a person already in possession as tenant under the landlord from denying the title of his subsequent landlord when once he acknowledges him as his landlord by attornment of conduct. Therefore, a tenant of immovable property under landlord who becomes a tenant under another landlord by accepting him to be the owner who had derived title from the former landlord, cannot be permitted to deny the latter's title, even when he is sought to be evicted by the latter on a permitted ground."
45. In the judgment tiled as Ramesh Chand Vs. Uganti Devi reported as 157 (2009) DLT 450 the Hon'ble High Court of Delhi held:
"....It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent Control act, the Court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the Court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner, howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under Section 14(1)(e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 15/32 premises, to whom he is paying rent, acts dishonestly....."
46. Therefore, tenant is estopped from challenging the title of landlord.
Hence, respondents cannot take the ground that DDA is owner and they are tenants under DDA. They have themselves admitted that they are paying rent to petionsers. If rent is not paid to DDA then how DDA is landlord is unanswered by respondents.
47. Hence, in view of the aforementioned discussion, it has to be concluded that petitioners have proved to the preponderance of probability that there exists relationship of landlord and tenant between them and respondents as well as the fact that they are the owners of tenanted premises.
PETITIONERS REQUIRE THE TENANTED PREMISES FOR BONAFIDE NEED AND THE PETITIONERS DOES NOT HAVE ANY OTHER ALTERNATIVE ACCOMMODATION WITH THEM:
48. To ascertain the bonafide requirement of the petitioner, this court needs to judge whether the need of the landlord is genuine and honest and conceived in good faith. It must be a reasonable requirement as opposed to a mere desire or wish.
49. It has been held in case of Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta AIR 1999 SC 2507; by the Hon'ble Supreme Court that:
"Chambers 20th 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 Whitley define bonafide to mean 'good faith, without fraud or deceit'. Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 16/32 desire. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the 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. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the court. The Judge of facts should place himself in the arm chair 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. If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the court is satisfied of the bonafides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against."
50. Thus, the question of bonafide need and necessity will be adjudicated on the basis of the aforementioned proposition of law.
51. It is version of petitioners that they need premises in question for expansion of their business as they are already running business from the other portion of the same shop. It is their version that in the family RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 17/32 of the petitioners there are 1213 persons and there is requirement of opening of separate business on the part of petitioners and their children for which premises in question are required.
52. During the crossexamination of PW1, it was also questioned to him that apart from him, who else from his family was involved in his electronic item business to which he clarified that apart from him and his four other brother, his son namely Sh. Palvinder Singh was in the said business. It was suggested to him that his son Sh. Gurmreet Singh was also involved in the business to which he denied the said fact.
53. In view of the said facts stated in the testimony of PW1, it is clear and evident that 6 members of the family are running the said business from one shop. The petitioners have placed on record the Aadhar Cards of all the family members which are Ex.PW1/7 and the electoral list of the family members of the petitioners and ration card of the petitioners which are Ex.PW1/8 and Ex.PW1/9(colly) respectively. The electoral list i.e. Ex.PW1/8 was duly proved by PW2, who was a summoned witness. All these documents reflect that in the families of the petitioners there are around 1315 members who require due financial support. The petitioners are five brothers, who have their respective families and if his one son is also in the same business, it is more a reason for the petitioners that they require the expansion of their existing business of electronic items.
54. At this stage it is relevant to mention the judgment in case titled Joginder Pal Singh Vs. Naval Kishore Behal AIR 2002 SC 2256 it has been held as under:
RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 18/32"24.......... Keeping in view the social or 'socioreligious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and / or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord . If the requirement is of actual user of the premises by a person other than the landlord himself the court shall with circumspection inquire: (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close interrelation or identify nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the overlaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent."
55. In this regard it is also relevant to mention the judgment in case titled Kharati Ram Khanna & sons. Vs. Krishna Luthra 172 (2010) DLT 551, it was held that "landlord's requirement of two separate shops for running business by her two sons separately and independently is bona fide and genuine requirement. It is a settled law that landlord can seek eviction for bona fide need of himself or his family members. Being a father, he is under an obligation to settle his son"
56. In view of the abovesaid judgments, it cannot be said that the requirement of petitioners is not bonafide. Hence, there is bonafide requirement of expansion of business, considering the number of members who are dependent on the existing business.
57. It was suggested to PW1 by Ld Counsel for respondents that apart from the existing business which is being run in the name and style of Charan Enterprises, he along with his brothers was running business from 23, RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 19/32 Jungpura , Bhogal,New Delhi. In this regard, he was confronted with a visiting card Ex.DW1/12. The said visiting card is in the name of petioner no.3 I.e Surjeet Singh in respect to address as mentioned above. It reflects that repair of electronic items/articles is mentioned therein. The said document was objected by Ld Counsel for petitioners subject to mode of proof. No independent witness was called to corroborate and support the said document. Hence, in absence of any corroborative evidence, it cannot be relied upon.
58. Moreover, it is matter of common knowledge that visiting cards can be printed by any person. Merely mentioning the name of petitioner in said card is not proving the fact that he is running any business of electronic item/article repair from said premises.
59. Apart from the abovesaid document, no other document or witness was produced by respondents to show that there is any other source of income of petitioners or that there is no bonafide need for expansion of business as sought by them.
60. In this regard it was held in Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors. [ 155 (2008) DLT 383] 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. Mere assertions made by a tenant in respect of landlord are not to be considered sufficient.
RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 20/3261. Section 106 of Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It does not lay down the burden to prove the evidence in negative. Thus, respondents were required to prove that the said visiting cards were that of petitioner no.3. In absence of which no reliance can be placed upon that document.
62. An objection was also taken by respondents that the requirement alleged by the petitioners is not bonafide because they have not explained that which kind of business of electronic items the petitioners want to start and they have not given proper particulars that what requirements are needed such as the technical expertise to run the said business.
63. It was also questioned to PW1 that apart from Sh. Tejender Singh S/o Sh. Sarjeet Singh, no one was having any B.Tech degree to run the electronic item business, which was admitted by him.
64. In this regard it is relevant to mention the judgment in Balwant Singh Chowdhary & Anr. vs. Hindustan Petroleum Corporation Ltd., 2004 (1) RCR 487, wherein was held that:
"It is not necessary for the landlord to plead and prove the specific business he wants to set up, if the landlord wanted the premises for business purposes."
65. In Gurcharan Lal Kumar vs. Srimati Satyawati & Ors.,2013 (2) RCR (Rent) 120 it was observed that "Merely because the exact nature of business has not been described would not take away their bonafide need to carry out a business (when admittedly both the sons are dependent upon petitioner for this need). It was observed that if the business need is not disclosed this would not wipe away the bonafide RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 21/32 need of the landlord as has been pressed under Section 14(1)(e) of the DRCA, 1958."
66. In Raj Kumar Khaitan & Ors. vs. Bibi Zubaida Khatun & Anr., AIR 1995 SC 576, it was observed that:
"It was not necessary for the appellantslandlords to indicate the precise nature of the business which they intended to start in the premises. Even if the nature of business would have been indicated nobody would bind the landlords to start the same business in the premises after it was vacated."
67. This court in Puran Chand Aggarwal v. Lekh Raj, 210 (2014) DLT 131 held as follows:
" As far as business is concerned, it is not necessary that the landlord must show some evidence that he has experience of said business. That is not the requirement of law in order to file the eviction petition on the grounds of bonafide requirement.
68. In Ram Babu Agarwal vs. Jay Kishan Das, (2010) 1 SCC 164, it was observed that "A person can start a new business even if he has no experience in the new business that does not mean that his claim for starting new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business and sometimes they are successful in the new business also."
69. In Tarsem Singh vs. Gurvinder Singh, 173 (2010) DLT 379, it was observed that:
"If the landlord wants to start his own business in the premises owned by him then by no stretch of imagination, it can be said that the requirement of the landlord for the premises is neither bonafide nor genuine."
70. In M/S Seth & Sons Private Limited vs Arjun Uppal & Anr 2017 (2) RCR (Rent) 479, Hon'ble High Court held that:
RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 22/32"Prior experience in running of a business or disclosure of nature of the same is not necessary for filing an eviction petition. This aspect has no bearing on the bonafide of the landlord."
71. In view of the above said judgments, it is clear and evident that the exact nature of the business which is required to be opened is not required to be disclosed and the experience in opening of the said business or expertise required is also not relevant for deciding the merits of the case.
72. It was also alleged by respondents that in previous litigation between petitioners and other tenant namely Sanjay Jagiya, the petitioners had concealed material facts from the court and had obtained the decree of eviction on the same ground of bonafide requirement of expansion of their business by playing fraud upon court which was later on set aside.
73. To support this contention the respondents had relied upon the court proceedings/orders in respect to the said litigation which are Ex.DW1/13. By relying upon the said proceedings/orders, it was argued by Ld Counsel for respondent that the said orders shows that petitioners are capable of playing fraud upon the court and they are doing so by filing the present petition and there is no bonafide needon their part.
74. The order dtd 14.05.2016 is perused by the present court. Vide the said order, Ld Predecessor Judge had set aside the order of eviction which was passed in EP no. 104/11 and even dismissed the execution petition by allowing the objections of the objector Sh.Rakesh. The said order has not been challenged by the petitioners till date, therefore the said order has attained the finality.
RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 23/3275. From the abovesaid proceedings two things are clear. First prima facie observation of Ld Predecessor Judge is there in respect of playing of fraud by petitioners in the said case and secondly that the said portion is still not under possession of petitioners.
76. However, it is a settled rule of law that whenever fraud is alleged to have been played by the other party, the party, who alleges has to specifically prove the same. In the present matter, no specific averments are there that any fraud is being played by the petitioners by filing the present petition. The fraud played by petitioners in the previous proceedings cannot vitiate the present proceedings. Hence, it cannot be said that petitioners have approached the court with unclean hands or any fraud has been played upon by them.
77. Therefore, it can safely said that petitioners have been able to show on preponderance of probability that there is bonafide requirement on their part for expansion of their electronic item business.
78. Now coming to the aspect of alternative accommodation. It is settled law that an alternative accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit property where from the landlord is seeking eviction.
79. In Adarsh Electricals & Ors. vs. Dinesh Dayal 173 (2010) DLT 518, it has been held that:
"It is settled law that, "the question of accommodation, actually in possession of the landlord, being 'reasonably suitable' is to be judged solely in the context of physical sufficiency of the accommodation and that the Court may hold RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 24/32 that accommodation is insufficient having regard to various circumstances, such as, the social status of the family or traditions and customs observed by it. As long as the landlord is able to establish that he in good faith and genuinely wishes to occupy the premises in possession of the tenant and that good faith or genuineness is of a reasonable man, it would not be open to the Controller to weigh the claim of the landlord in a fine scale. The law does not require the landlord to sacrifice his own comforts and requirements merely on the ground that the premises is with a tenant."
80. As per petitioners the tenanted shop is most suitable for expansion of already existing business which they are running from adjoining shop. On the other hand as per respondents, the vacant spaces in the shop no.4, Cental Road, Bhogal i.e where shops of both the parties are located can be used for said purpose or petitioners can operate from the 2 shops which are existing in their residence at 23, Jungpura, Delhi as nearby areas are commercial areas.
81. In this context DW1 admitted in his crossexamination that one portion of the said shop is under the tenancy of Sh Fakir Chand and the other portion was with other tenant, whose name he did not remember. Thus, it is admitted fact on record that out of the four portions of the shop in question, one portion is under the possession of petitioners, one portion is under the tenancy of respondents, the third portion is under the tenancy of Fakri Chand and the last portion which was the subject matter of civil Suit of EP no. 104/11, as reflected at point ABCD, as shown in the site plan Ex.PW1/5 is with some other tenant, however, it is still not decided by the said petition that it was under whose tenancy I.e of Arjun Dev or Rakesh Kumar.
82. The admission on the part of DW1 reflects that apart from abovesaid RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 25/32 portions, there are no other portions lying vacant in the said shop
83. To support these contentions regarding vacant spaces, respondent no.1 relied upon photographs Ex.DW1/8. The said photographs show the terrace of the suit premises. The said photographs were objected by Ld Counsel for petitioners subject to mode of proof. No supporting certificate u/s 65B of Indian Evidence Act was filed on record. Moreover, no negatives of the photographs were produced by the respondents despite objection, hence, the said photographs cannot be relied upon.
84. Even if for the sake of arguments the said objection of Ld Counsel for petitioner is not taken into account, then also it is admitted fact that the suit shop is on the ground floor and there is no other floor over the same. An open terrace cannot be used as a shop for running an electronic business without any shop.
85. It was stated by PW1 in his crossexamination that terrace was being used for keeping waste material such as cardboard, newspaper etc. it was suggested to him, that he used to keep his electricals goods on terrace. However, even from the photographs Ex.DW1/8, it cannot be said that any such articles are stored. Even if the same is done, then also respondents cannot dictate petitioners to construct new portion over the terrace for the purpose of expansion of business.
86. In M/s John Impex Pvt. Ltd. Vs. Dr. Surender Singh & Ors. 135 (2006) DLT 265), it has been held that, "The landlord is the best judge of his requirements and a tenant cannot dictate the terms on which the landlord should live."
RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 26/3287. Further, in Sudesh Kumar Soni & Anr. Vs. Prabha Khanna & Anr 153 (2008) DLT 652, it has been held that:
"24. 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 bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself. Suitability has to be seen from the convenience of the landlord and his family members and on the basis of the circumstances including their profession, vacation, style of living, habits and background
88. In S N Kapoor Vs Basant Lal Khatri, VII (2001) SLT 648 (2002) 1 SCC 329 it was held:
"that to contend that no material has been brought on record and no proof has been made by the tenant by any positive material that the requirement of the landlord is neither genuine nor bonafide or reasonable but a mere excuse to get ride of the tenant. Though the choice or proclaimed need cannot be whimsical or merely fanciful, yet a certain amount of discretion has to be allowed in favour of the landlady too and the courts should not impose their own wisdom forcibly upon the landlady to arrange her own affairs, according to their perception carried away by the interest or hardship of the tenant and the inconvenience that may result to him in passing an order of eviction. So far as a claim under Section 14(1) (e) is concerned, the very requirement has to be shown not only to be bonafide but the move of the landlord/ landlady to seek eviction of the tenant must be genuine."
89. In the judgment titled as Ragavendra Kumar v. Firm Prem Machinary AIR 2000 SC 534 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. In fact even the court cannot thrust its own choice on the needy.RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 27/32
90. It has been held by Hon'ble Supreme Court in Rishi Kumar Govil Vs. Maqsoodan, 2007 (1) RCR (Rent) 405 "It is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter."
91. In Mohd. Ayub and anr Vs. Mukesh Chand (2012) 2 SCC 155 wherein it has been held that "........It is well settled the landlord's requirement need not be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start.........."
92. In the light of abovesaid judgments, it is clear that it is not for the tenant to dictate the landlord that in which manner, the premises are to be used. Thus, respondents cannot sermon the petitioners that he can use the other portions of the property for his business.
93. Contention was also raised by respondents that the two rooms which are there in the property bearing H. no. 23, Jangpura, New Delhi are already being used for running a business of repairing the electronic items by the petitioners and the same can be used as alternative accommodation for running the electronic items business. To support their contentions, they placed on record photographs Ex.PW1/10 and Ex.PW1/11.
94. The said photographs were objected by Ld Counsel for petitioners subject to mode of proof. No supporting certificate u/s 65B of Indian Evidence Act was filed on record. Moreover, no negative of the photographs were produced by the respondents despite objection, hence RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 28/32 the said photographs cannot be relied upon.
95. Even if for the sake of arguments the said objection of Ld Counsel for petitioner is not taken into account, then also it is the admitted already alleged by the petitioners in their petition that the said two rooms are being used for storage purpose and as study room for the children.
96. The fact that property bearing no.23, Jungpura, Bhogal is used for residential purpose by petionsers and their family members is not in dispute. To support the said fact they relied upon copies of Adhar Card, electoral list, ration card and electricity bills which are Ex.PW1/7, Ex.PW1/8, Ex.PW1/9(colly) and Ex.PW1/13(colly) respectively. The electricity bills show that a domestic connection has been obtained in respect to the property bearing no. 23, Jangpura, New Delhi.
97. The petitioners also filed two photographs showing the status of the said two rooms where shutters have been placed which are Ex.PW1/11. The said photographs were also not supported with any certificate u/s 65B of Indian Evidence Act. However, they were not objected by Ld Counsel for respondents. It is clear from the said photographs that the said two rooms which were though bearing shutter on the same are part of the residential premises where all the family members of the petitioners are living. It is not reflected from said photographs that any business is being run from said premises.
98. Moreover, even if it is presumed that the said portions can be used for commercial purpose being near to other commercial properties in vicinity then also the fact that the shop in question is most suitable being adjoining to already existing shop of petitioners cannot be RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 29/32 ignored. Petitioners cannot be asked to squeeze their means I.e the residential area for expansion of business.
99. It is relevant to mention the judgment in case titled Sudesh Kumar Soni & Anr.(Supra) wherein it is held that:
"If landlord wishes to live with comfort in a house of his own, law does not common or compel him to squeeze himself lightly into lesser premises protecting tenants occupancy. Landlord is the best judge of his residential requirement."
100. The site plan filed and prepared by RW2 which is Ex. DW1/7/Mark C of the residence of petitioners was prepared when shutters were closed, as was admitted by RW2 in his crossexamination. He specifically admitted that he had not seen any commercial activity in the said portions. Hence, even the site plan filed by respondents or the testimony of RW2 is of no help to respondents.
101. Therefore, the above said documents are not at all clinching or concrete pieces of evidence to show that petitioners have any other alternative accommodation available which is reasonably suitable for purpose of expansion of their business.
102. It was also argued by Ld Counsel for respondents that the present petition has been filed merely to get the property vacated and petitioners want to lent it on enhanced. In this regard, this court is of the view that in case the petitioners do not use the tenanted premises for the purpose as claimed by them, the respondents can always take recourse to the provisions of Section 19 of the DRC Act.
103. In Badldev Singh Bajwa v. Monish Saini (2005) 12 SCC 778 wherein it was held that:
RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 30/32"........ if there is any breach by the landlord, the tenant is given a right of restoration of possession............. It was held that these restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant unless his need is bona fide no unscrupulous landlord in all probability, under this Section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that this inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his requirement shall be presumed to be genuine and bona fide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine.."
104. Another leg of argument as addressed by respondents that respondents are in possession of shop since 1960 and they have no other source of livelihood except the said shop. They have also alleged that they are both suffering from various ailments due to which their survival will become very difficult if they will be evicted.
105. In regard to said averment, DW1 in his crossexamination admitted that his son was running a factory on rent by the name Dhanwantri Industries at Faridabad, Haryana. However, even if said fact is not taken into account then also the difficulty faced by tenant due to eviction or long possession in premises is no ground.
106. It has been held by the Hon'ble Supreme Court of India in Sushila Vs. IInd Additional District Judge, Banda 2003 (2) SCC 28, that long possession of the tenant or his hardships have no relevance in deciding the bonafide requirement of the landlord. If the tenanted premises is the only source of living of the tenant, even then the requirements of the petitioner/landlord are to be considered as paramount.
107. Hence, in view of the aforementioned discussion, it has to be concluded that petitioners have proved to the preponderance of RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 31/32 probability that there exists bonafide requirement on their part expansion of existing business for themselves and for their family members from tenanted premises and there is no other alternative suitable accomodation available except the tenanted shop for said purpose.
108. Thus, all the essential ingredients for passing of an eviction order are fulfilled. Therefore, an eviction order is passed in favour of petitioners and against the respondents in respect of property i.e one shop bearing no. 4(old number KH387), Central Lane, Bhogal, Jangpura, New Delhi as shown in Red colour in the site plan Ex.PW1/5. This order shall not become operative before the Digitally passage of six months from today. signed by NITI NITI PHUTELA
109. File be consigned to the Record Room. PHUTELA Date:
2021.03.12 17:27:44 +0530 (Announced in the open court) (NITI PHUTELA) on 10th March, 2021 RC/(SOUTH)/ SAKET COURTS NEW DELHI RC ARC. 6350/16 Charanjeet Singh And Ors vs Uma Shankar And Anr Page No. 32/32