Delhi District Court
Sh. Sunil Kumar vs Sh. Madan Lal on 27 April, 2015
IN THE COURT OF MS. BHAWANI SHARMA: ACJ/CCJ/ARC
SHAHDARA: KARKARDOOMA COURTS: DELHI
E 125/2014
Unique Identification No. 02402C0377162014
Sh. Sunil Kumar
S/o late Sh. Sukhbir Saran Bhatnagar,
R/o H.No. 235, Farsh Bazar,
Shahdara, Delhi110032. .....Petitioner
Versus
Sh. Madan Lal
S/o Sh. Vakil Chand Marwah,
Prop. M/s Fine Bakery,
Shop (Private No.2), Municipal No.1/1115,
Harsaran Niwas, Railway Road,
Shahdara, Delhi110032. .....Respondent
Application for Eviction of tenant under Section 14 (1) (e) of Delhi
Rent Control Act, 1958.
Petition filed on : 24.11.2014
Order reserved on : 15.04.2015
Date of Order : 27.04.2015
Decision : Leave to defend application of the
respondents - dismissed and
eviction order passed.
ORDER
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1. This is a petition for eviction of tenant under Section 14 (1) (e) of the Delhi Rent Control Act, 1958 (herein after referred to as 'DRC Act').
2. The petitioner filed a petition under Section 14 (1) (e) of the DRC Act. Summons under prescribed format were served upon the respondent on 11.12.2014. An application seeking leave to defend the petition was filed on 24.12.2014. Petitioner filed reply to the same.
3. (a) The petitioner has sought an eviction against the respondent stating that the petitioner is the owner/landlord of the property bearing no. 1/115, Harsaran Niwas, Railway Road, Shahdara, Delhi110032 and the respondent is a tenant in respect of a shop (Private No.2) which had been let out to the respondent for running the Bakery business.
(b) It is submitted that the tenanted premises is required bonafidely for the use of the petitioner himself in the context of his legal profession being an Advocate and being active in the legal practice for the last more than 35 years. It is submitted that the petitioner was enrolled as an Advocate with the Bar Council of Delhi in the year 1974 vide Enrollment No.D69/74 and he is member of Delhi Bar Association, District Courts, Tis Hazari, Delhi as well as Delhi High Court Bar Association from the last 30 years and has also got himself enrolled as member of the Supreme Court Bar E - 125/14 Sunil Kumar vs. Madan Lal Page 2 of 21 Association, New Delhi abut 25 years back. It is submitted that the the petitioner is the counsel for the East Delhi Municipal Corporation and also of Director of Panchayat/Union of India, Delhi Adminsitration and is conducting and defending civil cases and revenue cases on their behalf in Tis Hazari Courts, Delhi, KKD Courts, Delhi, SDM/RA/ADM and before the Ld. Financial Commissioner Delhi in North District, East District, South and West District, Delhi. It is further submitted that the petitioner for his legal practice does not have any chamber or seat in his name in any of the courts in Delhi or outside. The petitioner as such requires the tenanted premises in connection with his legal profession being an Advocate for setting up his office, chamber for entertaining his clients, for establishing computer set up and for library for his law books. The tenanted premises are most reasonable and suitable for the petitioner for this purpose as same is situated near Metro Station, Shahdara, Delhi and the petitioner can conveniently operate his workd from the said premises.
(c) It is submitted that on the first floor of the tenanted premises, there is residential flat of the petitioner but the same being in a dangerous and dilapidated condition, is neither suitable for him for setting up his office and library etc. and in the context of his legal profession, same cannot be used for the purpose being residential one. E - 125/14 Sunil Kumar vs. Madan Lal Page 3 of 21 Even the godown at Harsaran Niwas, Shahdara existing on the back side being in a very bad shape and in dilapidated condition with dump moisture, is not suitable for the petitioner for his bonafide need.
(d) It is submitted that the petitioner is having a residential flat on the first floor in premises bearing no. 235 at Farsh Bazar, Shahdara, Delhi and the said premises cannot be used for commercial purpose being the residential nature. It is submitted that the petitioner is also in possession of one shop measuring 10' x 10' in Farsh Bazar, Shahdara, Delhi. Even the said shop being very small and being in dangerous and dilapidated condition and without roof, is neither suitable for the petitioner, nor can be used for his extensive need for office etc. as Lawyer.
(e) It is submitted that the petitioner is a senior citizen having crossed the aged of 65 years and on account of his old age has developed deep knee problem/pain of arthritis for the last several years and as such he has been medically advised by the doctors to avoid the staircase for going to the first floor. Consequently, the need of the petitioner is bonafide and genuine as he does not own or possess any suitable and reasonable accommodation in connection with his legal profession being an Advocate within the Union Territory of Delhi. It is, therefore, prayed to pass an eviction order in favour of the petitioner and against the respondent.
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4. (a) On the other hand, ld. counsel for the respondent has argued through his leave to defend application that the bonafide need as raised by the petitioner in his petition is prima facie not appears to be bonafide as the same is existed for the last about 35 years. In fact the petitioner has sought the eviction order for opening his office being a practicing lawyer for last about 35 years but it is matter of great surprise that a practicing lawyer who is in active practice for the last about 35 years, is practicing without having any office or chamber and at this stage of life when he has touched 65 years age, he is supposed to in the need of the tenanted premises for his office purpose. It is submitted that the petitioner is on penal of various Government/Autonomous authorities for the last several years and is appearing on their behalf being their counsel but it is prerequisite for empanelment to have a sufficient staff, a well set up office etc and therefore it appears that the petitioner has deliberately concealed the office/chamber from the court just to get the tenanted premises evicted on false and fabricated requirement.
(b) It is submitted that the premises where the tenanted premises is existed, had total five shops but out of them, the petitioner has already sold out three shops to different persons wherein three shops under the name & style of M/s Vidya Prakash Cycle Works, E - 125/14 Sunil Kumar vs. Madan Lal Page 5 of 21 Rohilla Fashion and Seth Medical Store are being carried on and one shop is being used by someone in association with the petitioner under the name & style of M/s Go Mobile. The three shops have been sold out by the petitioner during his period of practice and during the period when there was a need for opening an office which makes it clear that the petitioner has never been in the need of any accommodation for any office. It is submitted that the present petition is a merely a counter blast of the application under Section 27 of the DRC Act filed by the respondent vide DR No.106/14.
(c) It is submitted that there is sufficient space on the first floor of the tenanted premises to satisfy the need of the petitioner but instead of using the same for his needs, the petitioner is bent upon to get the tenanted premises evicted. It is argued that the petitioner himself stated that he has residential flat bearing no.235 at Farsh Bazar but simultaneously he has taken and excuse that the same is of residential nature and cannot be used for commercial purpose but here it is necessary to mention that the service provided by a lawyer do not fall under the category of 'Commercial Activity', more so, the property no.235 is not the flat but a property constructed on a big piece of land measuring about 400 sq. yds. hence there is no hurdle or obstacle or legal impediment to open an office at that residential accommodation which is nearest to the KKD Courts. It is submitted that the petitioner E - 125/14 Sunil Kumar vs. Madan Lal Page 6 of 21 himself stated that he is in possession of a shop measuring 10' x 10' sq. ft. which is small and in dilapidated condition. It is submitted that the petitioner can easily be satisfied with the minor repairs of the said shop and fulfill his requirement but instead of getting it repaired, the petitioner is bent upon to get the eviction order against the respondent. It is submitted that besides the sufficient accommodation available with the petitioner, he has several other accommodation with him in the area of Shahdara, Delhi which can be disclosed by the petitioner as the respondent is not aware at this stage about the same and he be allowed to contest the case as he would be in position to collect the information about the properties of the petitioner.
(d) It is argued that on the one hand, the petitioner is demanding the tenanted premises for his bonafide need and on the other hand, he is showing himself to be the patient of deep knee problems/arthritis for the last several years and therefore it is not digestible that how an old, sick and aged person can operate an office from such a long distance, while ordinarily his area of practice is North Delhi which falls within the jurisdiction of Tis Hazari Courts, Delhi.
(e) It is submitted that the tenancy of the respondent 46 years old and the business which the respondent is carrying out in the same, is only source of income of the old aged respondent who is self E - 125/14 Sunil Kumar vs. Madan Lal Page 7 of 21 depend and if in case the eviction order is passed, the respondent would be compelled to lay hands before other at the evening of his life.
Thus, it is argued that the respondent has raised triable issues and the respondent is entitled to leave to defend.
5. Before adverting to the submissions of the parties, it would be apposite to encapsulate the legal provision under Section 14 (1) (e) of the Delhi Rent Control Act, 1958, which governs the current litigation. Section 14 (1) (e) provides that:
14. Protection of tenant against eviction. (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of 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 ore more of the following grounds only, namely:
(e) that the premises are required bona fide by the landlord 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 reasonably suitable accommodation.
6. In Shambhoo Singh vs. Triloki Nath Sharma 2012 (2) Rent LR 52, it was held that the essential ingredients to establish a case E - 125/14 Sunil Kumar vs. Madan Lal Page 8 of 21 under Section 14 (1) (e) of the DRC Act are :
(a) The applicant has to be the landlord/owner.
(b) The premises should have been let out for residential or commercial purposes or both.
(c) The said premises are required bona fide by the landlord for occupation for himself or for his family member dependent upon him.
(d) The said landlord or family member dependent upon him has no other reasonably suitable residential accommodation.
7. In the present case the petitioner has filed the eviction petition stating that he is the landlord/owner of the tenant/respondent in respect of a tenanted shop (private no.2) bearing property no.1/115, Harsaran Niwas, Railway Road, Shahdara, Delhi110032. The petitioner has also claimed that the reason for eviction is a bonafide claim for commercial purpose for himself. He has no other property except the present property in the vicinity of Delhi.
8. What has to be seen now is whether the leave to defend application moved by the respondent has raised any triable issues or not for which evidence is to be led? I shall deal with all the defences raised in the leave to defend application of the respondent in a sequential manner:
9. The first ground on which leave to defend is sought is that the E - 125/14 Sunil Kumar vs. Madan Lal Page 9 of 21 bonafide need as raised by the petitioner in his petition is prima facie not appears to be bonafide as the same is existed for the last about 35 years. In fact the petitioner has sought the eviction order for opening his office being a practicing lawyer for last about 35 years but it is matter of great surprise that a practicing lawyer who is in active practice for the last about 35 years, is practicing without having any office or chamber and at this stage of life when he has touched 65 years age, he is supposed to in the need of the tenanted premises for his office purpose. It is submitted that the petitioner is on penal of various Government/Autonomous authorities for the last several years and is appearing on their behalf being their counsel but it is prerequisite for empanelment to have a sufficient staff, a well set up office etc. and therefore it appears that the petitioner has deliberately concealed the office/chamber from the court just to get the tenanted premises evicted on false and fabricated requirement.
10. The ground of objection under this head is rejected in as much as the bonafide need of the petitioner is considered from the date of its accrual and as per the averments, the need accrued on the date of filing of present petition. The contention that a practicing lawyer cannot be in active practice for about 35 years without any office, is of no avail as a member of Bar who is also empaneled with other E - 125/14 Sunil Kumar vs. Madan Lal Page 10 of 21 Government organizations can very well be in active practice through the office given to him by those paneled Government organizations. Nonexistence of separate office or chamber can neither be a bar for active practice nor it can be an impediment in allowing the present petition in as much as the relationship of landlord and tenant are admitted and the bonafide need for the tenanted premises for having an office or chamber for the petitioner is generally denied.
11. In Tej Prakash vs. Idrish & Ors. 2012 (2) R.C.R. (Rent) 536, it was held that "it was prerogative of the landlord when to remain unemployed or to do his business. No prior experience or arrangement is required by the landlord to start a new business. A person can start a new business even if he has no experience [(2010) 1 SCC 164 relied]".
12. In Raghubar Dayal Om Prakash vs. Jai Kishan Rohtagi 2012 (2) Rent LR 36 held that "it is not for the tenant or court to dictate terms to the landlord as to how and in what manner he has to meet his need for an accommodation. The certificate filed by the petitioner issued by Bar Council of Delhi substantiate the fact that the petitioner is qualified Law graduate and eligible to do practice and in fact genuinely intended to do so from the tenanted premises". E - 125/14 Sunil Kumar vs. Madan Lal Page 11 of 21 In Sheela Sapra vs. New India Electrical IND Co. 1992 (2) RCR 193 it was held that "where son of the landlord is a lawyer, requirement of son for office is a requirement for residence. Any professional man of standing would necessarily have to set apart a portion of his residence for such purposes and premises does not cease to be residence because of that nor it can be consideration extraneous to the scope of clause (e)". In Khanna vs. Batra 2 DLT 306, where a landlord advocate sought eviction of the tenant from 1st floor as sufficient for his needs for purposes of residence or office, eviction under Section 14 (1) (e) of the DRC Act was held to be proper.
13. Next ground taken by the respondent is that the premises where the tenanted premises is existed, had total five shops but out of them, the petitioner has already sold out three shops to different persons wherein three shops under the name & style of M/s Vidya Prakash Cycle Works, Rohilla Fashion and Seth Medical Store are being carried on and one shop is being used by someone in association with the petitioner under the name & style of M/s Go Mobile. The three shops have been sold out by the petitioner during his period of practice and during the period when there was a need for opening an office which makes it clear that the petitioner has never been in the E - 125/14 Sunil Kumar vs. Madan Lal Page 12 of 21 need of any accommodation for any office. It is submitted that the present petition is a merely a counter blast of the application under Section 27 of the DRC Act filed by the respondent vide DR No.106/14.
14. The objection of the applicant that part of his property (three shops out of five shops) has already been disposed off by the petitioner is not tenable in as much as the owner of the property, petitioner herein who enjoys bundle of rights including right to dispose off the same with respect to the property, cannot be stopped from exercising "right of disposal" of the suit property, in case of financial crunch felt by the owner. The ground that the present petition is filed as cross petition to the petition of the respondent filed under Section 27 of the DRC Act, is not tenable as no cogent material in support of the contention ever filed by the applicant. The petitioner has specifically denied of filing present petition as counter blast to the petition of the respondent. In absence of any cogent material, the averment remains a bald statement raising no triable issue for the purpose of proceeding with the trial in the present petition. In Naval Kishore Khandelwal vs. Kunti Devi 2013 (1) CLJ 295 Delhi while following case of Rajender Kumar Sharma vs. Leelawati, 155 (2008) DLT 383, it was held that mere assertion made by a tenant in respect of landlords ownership of other buildings and in respect of E - 125/14 Sunil Kumar vs. Madan Lal Page 13 of 21 alternate accommodation are not to be considered sufficient for the grand of leave to defend. If this is allowed, the whole purpose of Section 25B of the Act shall stand defeated and any tenant can file a false affidavit and drag a case for years together in evidence, defeating the very purpose of statute. The Rent Controller is, thus, precluded from considering the material placed before it by the landlord in response to leave to defend to show that the tenant's assertions and averments were totally false.
15. Another ground taken by the respondent is that there is sufficient space on the first floor of the tenanted premises to satisfy the need of the petitioner but instead of using the same for his needs, the petitioner is bent upon to get the tenanted premises evicted. It is argued that the petitioner himself stated that he has residential flat bearing no.235 at Farsh Bazar but simultaneously he has taken and excuse that the same is of residential nature and cannot be used for commercial purpose but here it is necessary to mention that the service provided by a lawyer do not fall under the category of 'Commercial Activity', more so, the property no.235 is not the flat but a property constructed on a big piece of land measuring about 400 sq. yds. hence there is no hurdle or obstacle or legal impediment to open an office at that residential accommodation which is nearest to the E - 125/14 Sunil Kumar vs. Madan Lal Page 14 of 21 KKD Courts. It is submitted that the petitioner himself stated that he is in possession of a shop measuring 10' x 10' sq. ft. which is small and in dilapidated condition. It is submitted that the petitioner can easily be satisfied with the minor repairs of the said shop and fulfill his requirement but instead of getting it repaired, the petitioner is bent upon to get the eviction order against the respondent. It is argued that besides the sufficient accommodation available with the petitioner, he has several other accommodation with him in the area of Shahdara, Delhi which can be disclosed by the petitioner as the respondent is not aware at this stage about the same and he be allowed to contest the case as he would be in position to collect the information about the properties of the petitioner.
16. The argument as advanced that petitioner is already having sufficient accommodation to satisfy his need as he is having one residential flat bearing no.235, Farsh Bazar, Shahdara, Delhi and also another shop measuring 10' x 10' sq. ft. (address not disclosed) is not tenable in as much as the argument as advanced rather reflects a piece of advice given by the applicant to the petitioner who is admittedly the owner of suit property to use his property of Farsh Bazar for his need for opening chamber/office as the same is more convenient in terms of being in the vicinity of the Karkardooma Courts and more suitable as the services by lawyer (which do not fall in the category of E - 125/14 Sunil Kumar vs. Madan Lal Page 15 of 21 commercial activity) petitioner herein can very well rendered. It is pertinent to mention here that bonafide need for the eviction of the tenant so as to meet the requirement of the petitioner is to be judged from the prospective of the petitioner and not the tenant.
17. Hence, the arguments as advanced is not tenable in the light of the fact that the petitioner is himself in need of the accommodation and that he himself is the best judge of his own requirements. In Sudesh Kumar Soni & Anr. vs. Prabha Khanna & Anr., 153 (2008) Delhi Law Times 652, the court observed that "It is not for tenant to dictate terms to landlord as to who else he can adjust himself without getting possession of tenanted premisessuitability has to be seen for convenience of landlord and his family members and on the basis of circumstances including their profession, vocation, style of living, habit and background."
18. The ground that the present petition is filed as the petitioner having several other accommodation, is not tenable as no cogent material in support of the contention ever filed by the applicant. The petitioner has specifically denied of having reasonable suitable alternative accommodation. In absence of any cogent material, the averment remains a bald statement raising no triable issue for the purpose of proceeding with the trial in the present petition. In E - 125/14 Sunil Kumar vs. Madan Lal Page 16 of 21 Prithpal Singh vs. Satpal Singh (D) through LRs (2010) 2 SCC 15, it was held that mere bald assertion made without any basis cannot create a triable issue.
19. Another ground taken by the respondent is that on the one hand, the petitioner is demanding the tenanted premises for his bonafide need and on the other hand, he is showing himself to be the patient of deep knee problems/arthritis for the last several years and therefore it is not digestible that how an old, sick and aged person can operate an office from such a long distance, while ordinarily his area of practice is North Delhi which falls within the jurisdiction of Tis Hazari Courts, Delhi.
20. The arguments as advanced that the petitioner having deep knee problems cannot operate an office from such a long distance as his area of practice is North Delhi falling within the jurisdiction of Tis Hazari Courts is not tenable in as much as the tenant cannot be allowed to dictate the terms to the owner who is admittedly to be in active practice in all the trial courts including Karkardooma Courts. The ground is without any basis and with no cogent material in its support hence rejected.
21. In Krishan Lal vs. R.N. Bakshi, cited as 169 (2010) Delhi Law Times 769, it was held by the Hon'ble High Court of Delhi that E - 125/14 Sunil Kumar vs. Madan Lal Page 17 of 21 "8. It is settled law that it is not for a tenant to dictate the terms to the landlord as to how and in what manner he should adjust himself, without calling upon the tenant to vacate a tenanted premises. While deciding the question of bonafides of requirement of landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted. When the landlord shows a prima facie case, a presumption that the requirement of the landlord is bonafide, is available to be drawn. It is also settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter and it is no concern of the Courts to dictate to the landlord how and in what manner, he should live or to prescribe for him a residential standard of their own. The tenant cannot compel a landlord to live in a particular fashion and method until and unless the requirement shown is tatally mala fide or not genuine."
22. In Gulab Chand Pukhraj vs. R.B. Jinender Raj & Anr., 2009 (4) Civil Court Cases 748 (SC), it was held that "once it is not disputed that landlord is in bonafide need of premises, court cannot dictate to landlord which floor he should use for his business. Moreover, it is well settled law that it is the landlord's prerogative as to in which location he prefers to run business and law should not and E - 125/14 Sunil Kumar vs. Madan Lal Page 18 of 21 cannot prevent such preference by a landlord in order to meet his bonafide requirement".
23. Next ground taken by the respondent is that the tenancy of the respondent 46 years old and the business which the respondent is carrying out in the same, is only source of income of the old aged respondent who is self depend and if in case the eviction order is passed, the respondent would be compelled to lay hands before other at the evening of his life.
24. The arguments as advanced on behalf of the respondent to contend the bonafide requirement of the petitioner by stating that the tenancy is 46 years old and the tenanted shop is only source of his income, does not raise any triable issue for the purpose of adjudication of the present petition. Firstly, the financial status of the respondent or for that matter of the petitioner is not relevant for the purpose of determining whether a triable issue raised or not. Secondly, it is not disputed that the petitioner requires the suit premises for the bonafide requirement for himself. Thirdly, the bonafide requirement of the petitioner has been generally challenged. In Gurcharan Lal Kumar vs. Smt. Satyawati & Ors. 2013 (2) CLJ 28 (NOC) Del. it was held that it is not necessary for landlord to indicate nature of business intended to start - sons and grandsons of the landlord have no other E - 125/14 Sunil Kumar vs. Madan Lal Page 19 of 21 suitable alternate accommodation to carry out business - application for leave to defend dismissed with cost.
Conclusion:
25. It is well settled law that leave to defend can be granted to the tenant in case of any triable issue has been raised by him, which can be adjudicated by consideration of additional evidence. The mere existence or averment of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it would disentitle the landlord from obtaining the eviction order. The whole purpose and import of summary procedure under Section 25 B of the Act would otherwise be defeated. The prayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclosed a prima facie case i.e. such facts which disentitles the landlord from obtaining an order of eviction, the Court should not mechanically & in routine manner grant leave to defend.
26. In the light of the aforesaid legal ratio, all the pleas taken by the respondent seems to be sham and moonshine, which have failed to raise any requisite triable issues. The contents of the application for leave to defend have failed to rebut the presumption of bonafide qua the need of the petitioner. The application for leave to defend filed by E - 125/14 Sunil Kumar vs. Madan Lal Page 20 of 21 the respondent is thus rejected.
27. Consequently, an eviction order is passed under Section 14 (1)
(e) of the DRC Act against the respondent in respect of a shop (Private No.2) in the property bearing no.1/115, Harsaran Niwas, Railway Road, Shahdara, Delhi110032 as shown with red colour in the site plan as shown in red colour in the site plan filed by the petitioner in this case.
28. However in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.
29. The parties are left to bear their own costs.
30. After compliance, file be consigned to Record Room.
(Announced in the open (Bhawani Sharma)
Court on 27.04.2015 ACJ/CCJ/ARC (Shahdara)
(Order contains 21 pages.) Karkardooma Courts, Delhi.
E - 125/14
Sunil Kumar vs. Madan Lal Page 21 of 21