Delhi District Court
Sh. Uma Kant Gupta vs Sh. Harminder Kumar Khurana on 15 December, 2014
1
In the Court of Ms. Namrita Aggarwal
CCJ Cum Additional Rent Controller1 (Central)
Tis Hazari Courts, Delhi.
Case No. E 37/14
Unique I.D. No. 02401C0074752014
In the matter of :
Sh. Uma Kant Gupta
S/o late Sh. Shiv Prasad Gupta
R/o E174, (First Floor), Kamla Nagar,
Delhi110007. ...........Petitioner
Versus
Sh. Harminder Kumar Khurana
S/o late Sh. Aroor Singh,
Shop no. 2, E174, Kamla Nagar,
Delhi110007. ...........Respondent
ORDER
15.12.2014
1. Vide this order, I shall dispose off the application moved by respondent for grant of leave to defend the eviction petition filed by the petitioner u/s 14(1)(e) Delhi Rent Control Act, 1956 [in short, 'the Act']. Page 1 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 2
2. Eviction petition has been filed by the petitioner Mr. Uma Kant Gupta against the tenant/respondent Mr. Harminder Kumar Khurana in respect of the tenanted premises, i.e., a shop bearing private no. 2, measuring 9 x 18 sq. ft., situated on ground floor of the premises bearing no. E174, Kamla Nagar, situated in the Main Kamla Nagar Market, facing towards market itself, as shown in colour red in the site plan annexed alongwith the petition on the ground of bonafide requirement under Section 14 (1) (e) of the DRC Act.
3. The case of the petitioners is that the petitioner is the owner/landlord of the suit premises. The house no. E174, Kamla Nagar, Delhi was originally owned by Smt. Sobhagyawati Devi wife of Sh. Shiv Prasad Gupta. During her lifetime, she executed a duly registered Will dated 17.10.196. She died on 14.03.1971. By way of her last Will she bequeathed the suit property in favour of her husband Sh. Shiv Prasad Gupta, to the exclusion of all her children. Sh. Shiv Prasad Gupta during his lifetime also executed a duly registered Will dated 20.05.1988. By way of this Will he bequeathed this property in favour of his three sons, namely, Mr. Uma Kant, Mr. Rama Kant and Mr. Shashi Kant. The petitioner herein got one shop at the ground floor, i.e., suit premises, the front portion of the first floor (comprising of three bed rooms, one closed Page 2 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 3 veranda (which is used as living room/dining room), small mezzanine/miani between the ground floor and first floor, as the back portion of the first floor fell in the share of Mr. Rama Kant.
4. After the death of Sh. Shiv Prasad Gupta, the petitioner approached the tenant claiming himself to be the landlord and owner of the suit premises and demanded rent of the premises in suit. The respondent atorned in favour of the petitioner as the owner/landlord, by making the rent payment. The suit premises had been let out by late Sh. Shiv prasad Gupta on 17.12.1978, to Sh. Aroor Singh, since deceased, i.e., the predecessorininterest of the respondent herein, for non residential purposes, and the same has always been used for non residential purposes. After the death of Sh. Aroor Singh, the tenancy rights devolved upon his legal heirs, i.e., his widow Ms. Om Shanta Khurana, two sons, namely, Mr. Harminder Kumar Khurana and Mr. Vimal Khurna and two daughters, namely, Ms. Rita Dhall and Ms. Indu Dhall, but thereafter, Ms. Om Shanta Khurana died, and the above respondent claimed himself to be sole tenant by stating that his father Sh. Aroor Singh had disowned/disinherited his other son Mr. Vimal Khurana and his two sisters have surrendered their tenancy rights in favour of the respondent. The respondent alone claimed himself to be Page 3 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 4 exclusive tenant of the suit shop depositing rent u/s 27 of the DRC Act. The respondent has been depositing the rent u/s 27 of the DRC Act in favour of the petitioner claiming himself to be the tenant of the premises in suit. Moreover, even otherwise, said Mr. Vimal Khurana and the above named two sisters of the respondent are neither in possession of the suit premises nor have ever claimed any rights of tenancy.
5. It is averred by the petitioner that the suit premises is bonafidely required/needed by the petitioner for the personal use and occupation of his family members, i.e., his two daughtersinlaw, namely, Ms. Parul Kant and Ms. Rashi Kotwalwala Gupta, both practicing advocates by profession, for the purposes of setting up their advocate office therein as both the daughtersinlaw upon the petitioner for the purposes of the office accommodation and does not own and/or are in possession/occupation of any place, whatsoever, to establish/set up their professional office.
6. The petitioner herein, earlier filed an eviction petition bearing no. E63/2010 under Section 14 (1) (e) of the DRC Act, against the respondent herein, titled "Uma Kant Gupta Vs. Harminder Kumar Khurana", thereby seeking eviction of the respondent on the ground to Page 4 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 5 start the readymade garment business after having retired from services with Jharkhand Govt. Tool Room & Training Centre. The petitioner since was not keeping good health, and being short of funds/capital, dropped the idea of starting readymade garment business and the abovesaid eviction petition bearing no. E63/2010 was withdrawn by the petitioner on 21.05.2012.
7. That the petitioner is blessed with two sons and a daughter, namely, Mr. Ashootosh Kant, Mr. Ashwani Kant and Ms. Anjali Gupta respectively, all married. The petitioner alongwith his wife Smt. Vibha Gupta, younger son Mr. Ashwani Kant and daughterinlaw Ms. Rashi Kotwalwala Gupta is living at the portion of the first floor of the suit property. His daughter Ms. Anjali Gupta is married to Mr. Gaurav Gupta living in New Jersey, USA. His elder son, namely, Mr. Ashootosh Kant alongwith his wife Ms. Parul Kant and son Raghav Kant is living at house no. 112, Harsh Vihar, Pitam Pura, Delhi, which is a residential house, owned by the petitioner.
8. The petitioner and his wife Ms. Vibha Gupta do not own any other residential and or commercial property other then the properties, i.e., House no. 112, Harsh Vihar, Pitam Pura, New Delhi and the portion of Page 5 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 6 the first floor of the house no. E174, Kamla Nagar, Delhi alongwith the premises in suit. Similarly, both the sons Mr. Ashootosh Kant and Mr. Ashwani Kant and also their wives Ms. Parul Kant and Ms. Rashi Kotwalwala Gupta respectively, do not own any property, residential and or commercial property in the state of Delhi. Accordingly, both his sons, as well as, both his daughtersinlaw are dependent upon the petitioner for the purpose of residential and commercial properties.
9. That Ms. Parul Kant after getting enrolled in the year 2001, initially, for about one year, remained under the training. Thereafter, she worked extensively and gained practical court experience at various courts. After working with various organizations and gaining extensive experience Ms. Parul Kant, since early 2012 started her own independent law practice of court cases, corporate law, i.e., involving legal advice and opinions, drafting and vetting of agreements, issuing of legal notices, etc.. Similarly, Ms. Rashi Kotwalwala Gutpa, after getting enrolled in the year 2011, worked as a Junior Associate with the law firm. Now, Ms. Rashi Kotwalwala has also joined her sisterinlaw Ms. Parul Kant in her practice and together they have started working in partnership. In view of the above facts and circumstances, as they are getting constant and regular legal assignments, clientage, they wants to expand their practice Page 6 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 7 by establishing their own office. Presently both Ms. Parul Kant and Ms. Rashi Kotwalwala Gupta are working with an array of clients. Now both the daughtersinlaw of the petitioner wants to set up their joint profession advocates office in the suit premises, where they would be having safe, sufficient and proper sitting/working place to attend their clients, do their office and research work. As from this place they would be able to provide appropriate place to their office clerks, junior advocate(s) and steno/typist, etc.. In this regard, it is submitted that at present both Ms. Parul Kant and Ms. Rashi Kotwalwala Gupta have got sufficient number of assignments and they are attending to the same at different courts and forumns. In the absence of any working place/office, both of them are unable to make use of opportunities coming to them as due to paucity of space they are unable to employ suitable staff. Due to nonavailability of any office space, they are forced to meet their client at the common rooms at the court premises, or at some common place outside and or in the alternative at client's place, which is becoming highly embarrassing as not being conductive to expansion of their legal practice. Furthermore, due to paucity of a proper working space, they find it difficult to store their files/papers, books, computer, printers and copier, etc. and they are facing great difficulty in filing and organization of all their papers/documents in a proper way.
Page 7 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 8
10. It is stated by the petitioner that out of three rooms on first floor, one each is being used by the petitioner and his wife, his son and his wife. Third room is used as drawing room and pooja room. The closed veranda is being used as living cum dining room. The small mezzanine/miani room, having 5'5" average height and with a gate entrance having a 5 ft. height, is being used for storage purposes. The other residential property of the petitioner, i.e., House no. 112, Harsh Vihar, Pitampura, Delhi, situated in the residential area of Pitampura, a gated society, is being used for residential purposes only. Therefore, the suit premises being commercial premises, situated in the commercial market, is most suitable to the needs and requirements of both the daughtersinlaw of the petitioner, as far as, establishing their law practice.
On the above stated grounds, the present eviction petition has been filed by the petitioner against the respondent for vacation of the tenanted premises.
11. Summons were served upon the respondent who filed leave to defend application on the following grounds:
a) That the petitioner is not the owner of the premises in question and thus, he has no locus standi to file the present eviction Page 8 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 9 petition. The petitioner is claiming himself to be the owner of the property by virtue of some documents alleged to be executed by his father. However, in reality, the father of the petitioner from whom he is alleging to have inherited the suit property, was not the owner of the same.
b) That the petitioner is a habitual litigant and is in habit of filing eviction petitions against the tenants. Earlier also, one eviction petition bearing no. 63/2010 titled as "Uma Kant Gupta Vs. Harminder Khurana" was filed by the petitioner alleging therein that the petitioner is unemployed and has no source of income for his livelihood and further alleged that members of the family were dependent upon him, through at that time also, he was working as Professor in Department of Mechanical Engineering, Lingaya's University. However, when the matter came for arguments on leave to defend application, the petitioner had withdrawn the said eviction petition on the ground of his illhealth, however, in reality the petitioner had withdrawn the said petition when he realized that the respondent had raised triable issues in the said petition which required evidence of the parties and now after a lapse of approx. two years, the petitioner has again filed the eviction petition. If the petitioner was having genuine bonafide need and Page 9 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 10 requirement for his daughtersinlaw, then the petitioner should have filed the earlier eviction petition for the alleged bonafide need of his daughtersinlaw named Ms. Parul Goel, who as per document filed on record enrolled herself in the year 2001 whereas, the petitioner filed the earlier eviction petition bearing no. 63/10 for his own bonafide need and requirement which gives only one conclusion that neither the bonafide need and requirement of the petitioner was genuine nor the bonafide need and requirement of daughtersinlaw of the petitioner is genuine.
c) None of the daughtersinlaw of the petitioner is actively involved in profession. Both their husbands are very well settled and they are living a luxurious life.
d) The daughterinlaw of the petitioner, namely, Ms. Parul Kant, for whose requirement the petitioner filed the present eviction petition alleging that she is practicing lawyer, in reality, is a Director/Managing Director in the firms, namely, M/s OCS Infosystems Pvt. Ltd., M/s One Card Solutions Pvt. Ltd. and M/s Future Technology.
e) That there are various properties available to the petitioner and his family members, details of which are as under: Property no. 186, Pocket6, Sector24, Near Prince Public School, Page 10 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 11 Rohini, Delhi.
Property no. 15, Panchkuyian Road, Connaught Place, New Delhi.
E174, Kamla Nagar, Delhi.
Property no. 69/6A, Rama Road Industrial Area, New Delhi.
Property no. P11, Bazar Lane, Bengali Market, New Delhi.
Premises no. 112, Harsh Vihar, Delhi, which is totally lying vacant
and same can be utilized by the petitioner for the alleged bonafide requirement.
f) That the premises in question was let out for a period of 99 years lease executed between Sh. Aroor Singh, i.e., father of the respondent and late Sh. S.P. Gupta on 19.12.1978, i.e., just after two days of execution of lease deed and at that period the father of the petitioner had taken a sum of Rs. 3,00,000/ from the father of the respondent.
g) That the petitioner himself is taking contradictory stands in each and every litigation as in DR no. 257/2008, the petitioner himself has stated that all the legal heirs of late Sh. Aroor Singh who was the original tenant are tenants and thus, the present petition is not maintainable without impleading all the legal heirs of late Sh. Aroor Singh and in the present petition all the legal heirs of late Sh. Aroor Singh, i.e., father of respondent who was inducted Page 11 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 12 initially as a tenant in the year 1978 have not been impleaded.
12. Reply to the application for leave to defend has been filed wherein the petitioner has denied all the averments made by the respondent in his leave to defend application stating that the respondent/tenant is admitting the petitioner to be his landlord as he has been depositing the rent of the suit premises u/s 27 of the DRC Act by claiming himself to be the sole tenant of the petitioner. Furthermore, it is the petitioner only who is receiving the rent, as only he being entitled to receive the same and therefore, the respondent has no right, whatsoever, to challenge the ownership of the petitioner. Further, the petitioner has not disputed that he had earlier also filed the eviction petition bearing no. 63/2010 titled as "Uma Kant Gupta Vs. Harminder Khurana", which fact has already been informed and stated in the eviction petition as well. Further, it is averred that it has repeatedly been held in a catena of judgments that bonafide requirement of a landlord u/s 14 (1) (e) of the DRC Act is a recurring/continuous cause of action. Further, it is submitted that off course Ms. Parul Goel enrolled herself as an advocate in the year 2001 but she got married to the son of the petitioner in the year 2003. At the time of her marriage and also thereafter she had been working with various advocates and organizations as an associate to gain practical Page 12 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 13 court experience. That in the year 2006, she as blessed with a child. Thereafter, she continued to work full time till the year 2008. After the year 2008, she started doing her own practice on a smaller scale and gained sufficient experience. Thereafter, as it is submitted in the eviction petition, the younger son of the petitioner got married in the year 2013 to Ms. Rashi Kotwalwala, who is an advocate. It is after this that Ms. Parul Kant and Ms. Rashi Kotwalwala, daughtersinlaw of the petitioner decided to work together on a large scale as they could support each other and hence, a bonafide need for an office space arose. Further, the contention of the respondent that both the husbands of the daughtersin law of the petitioner are very well settled and they are living a luxurious life has no connection whatsoever with the present eviction petition in as much as the bonafide requirement for an office space to set up an office is not dependent on the standard of living of a person, even otherwise, this contention of the respondent is without any basis, therefore, same is denied. It is also denied that one of the daughterinlaw of the petitioner, namely, Ms. Parul Kant, for whose requirement the petitioner filed the present petition is Director/Managing Director in the alleged firms and or she is not practicing as an advocate is falsely alleged. It is also denied that Ms. Parul Kant is the Managing Director in any of the alleged companies. It is stated that she is a nonexecutive, without Page 13 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 14 remuneration, director in M/s OCS Infosystems Pvt. Ltd., the other director being Mr. Deepak Mittal S/o Mr. Bal Kishan Aggarwal, R/o. 186, Pocket6, Sector24, Near Prince Public School, Rohini, Delhi and the same is being managed and controlled by the said Mr. Deepak Mittal only. Further, Ms. Parul Kant, presently has no connection whatsoever with the said M/s. One Card Solution Pvt. Ltd. (a company owned by the husband of Ms. Parul Kant), though for a short period she was non executive, without remuneration, director of this company, wherefrom, she resigned in the early 2013. Further, Ms. Parul Kant has no concerns, whatsoever, with said M/s Future Technology. It is submitted that the said M/s Future Technology is a partnership firm, the partners being Mr. Ashootosh Kant (elder son of the petitioner) and above said Mr. Deepak Mittal. Further, it is submitted that the respondent has made these false, baseless and fabricated allegations that Ms. Parul Kant is the Managing Director of the alleged company. Furthermore, the respondent has failed to substantiate any of these allegations.
13. It is further averred that the applicant without placing on records any documents, whatsoever, i.e., sale deed, title deed, etc., has alleged that the property no. 186, Pocket6, Sector24, Near Prince Public School, Rohini, Delhi belongs to the petitioner. It is submitted that the Page 14 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 15 petitioner has no concerns, whatsoever, with this property. To the knowledge and information of the petitioner this property belongs to one Mr. Deepak Mittal, one of the director of the above stated M/s OCS Infosystems Pvt. Ltd.. Further, the petitioner has no concerns, whatsoever, with the property no. 15, Panchkuyian Road, Connaught Place, New Delhi. As far as the property no. E174, Kamla Nagar, Delhi is concerned, the petitioner has not concealed anything, as he has already in his eviction petition, stated about the same. Further, the petitioner has no concerns, whatsoever, with the alleged property no. 69/6A, Rama Road Industrial Area, New Delhi15. It is submitted that the applicant without any basis and substance has made false, baseless, vague and wild allegations. To the information of the petitioner this property belongs to one Mr. Avinash Rani Vohra. This property since the year 2010 is under the tenancy of M/s One Card Solution Pvt. Ltd. (a company owned by Mr. Ashootosh Kant, the husband of Ms. Parul Kant). Further, there is no property bearing no. P11, Bazar Lane, Bengali Market, New Delhi, belonging and/or available to the petitioner and or his daughterinlaw. As a matter of fact, that is property no. 911, Bazar Lane, Begali Market, New Delhi, which is jointly owned and possessed by three brothers, namely, Mr. Gopal Krishan Kotwalwala (i.e., father of Ms. Rashi Kotwalwala Gupta), Mr. Dinesh Kumar Kotwalwala and Mr. Page 15 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 16 Ram Kishan Gupta, i.e., real uncles of Rashi Kotwalwala Gupta. As far as house no.112, Harsh Vihar, Delhi, owned by the petitioner, is concerned, every details about this house has already been stated in detail by the petitioner in the eviction petition.
14. Further, it is denied that the eviction petition is liable to be dismissed being premature as the premises in question was let out for a period of 99 years as is falsely claimed by the applicant. It is also denied that premises was let out for 99 years and or any amount of Rs. 3,00,000/ had been taken from the father of the respondent for giving the premises on 99 years lease. It is further submitted that the respondent/applicant has failed to place on record or give details of any such documents to support his allegations. Further, it is submitted that the respondent by his own admission on affidavit before the Hon'ble Court of Ms. Aditi Garg, Ld. CJ in suit bearing no. 37/2012 as suit for Permanent Injunction, has clearly admitted that he is the sole tenant of the suit premises.
15. Rejoinder has been filed wherein the respondent has reaverred what was averred by him in leave to defend application. It is further submitted that the petitioner has intentionally and deliberately not Page 16 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 17 produced on record the Form No. 32 issued from the office of ROC to show as to whether in reality the daughterinlaw of the petitioner has resigned from the Directorship of M/s One Card Solution Pvt. Ltd. and the alleged letter of resignation filed on record alongwith reply is nothing but forged and fabricated document procured and managed by the petitioner merely to fulfill the locunas of pleading and to conceal the true, actual and correct facts from this court. Further, it is averred that even if for the sake of arguments it is assumed though denied that the petitioner is in need of bonafide need and requirement, the same can be met out from the premises no. E174, Kamla Nagar, Delhi, area measuring approx. 175 sq. yds. and 112, Harsh Vihar, Delhi, area measuring approx. 150 sq. yds, which is the residence of Ms. Parul Kant and she can very well utilize her office if her requirement is genuine. Further, it is submitted that the alleged letter dated 03.10.2013 filed alongwith reply by the petitioner to show the resignation of Ms. Parul Kant is nothing but an after thought document which has been procured after coming to know about the defence raised by the respondent in the present petition.
16. Before appreciating the affidavits and counter affidavits pertaining to application for leave to defend to contest present eviction petition, I must mention here the law of appreciating application/affidavit for leave Page 17 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 18 to defend.
17. Proviso(e) to Section 14(1) is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirements is bonafide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso(e) of the section 14(1) are:
(a) The said premises are bona fide required by the landlord either for himself off or his family member.
(b) The landlord or the family member has no other reasonable suitable accommodation.
These twin thresholds are to be satisfied conjunctively in order to attract the provisions of section 14(1)(e) and the absence of even one of the said ingredients clearly makes the said provision inapplicable.
The Satisfaction of the two requirements bonafide need and no reasonably suitable accommodation has been time and again emphasized by the Supreme Court of India in several cases and more recently in the case Deena Nath Vs. Pooram Lal, V(2001) SLT 195=(2001)5 SSC705, wherein the Supreme Court observed thus:
"The legislature in enacting the provision has Page 18 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 19 taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in praesenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. the legislative intent is made further clear by making the provision that the landlord has not other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation . Similar statutory provision is made in Sub section(e) of Section12(1) of the Act in respect of accommodation let unambiguous,the Court is dutybound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other Page 19 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 20 reasonably suitable nonresidential accommodation in his occupation in the city/town is available. The judgment/order of the Court/authority for eviction of a tenant which does no show that the Court/authority has applied its mind to these statutory requirements cannot be sustained and the superior Court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the Court has to bear in mind the statutory mandate incorporated in Section 12(1)(f). If it is found that the Court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such erroneous findings illegally arrived at would vitiate the entire judgment".
18. The principals requiring considerations for grant of leave to defend application in the eviction petition have been laid down by the Hon'nble Supreme Court wayback in the year 1982 in the case of Charan Dass Page 20 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 21 Duggal v. Brahma Nand, 21 (1982) DLT 378 and which have been reiterated in various judicial pronouncements and can be noted thus:
"What should be the approach when leave to defend is sought for? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would nonsuit the landlord, leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action(see Santosh Kumar V. Bhai Mool Singh). At that stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counterassertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought for on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision, the burden is on the landlord to establish his Page 21 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 22 case affirmatively."
It is also settled that the at the stage of granting leave to defend, the test that is applied is whether in the facts disclosed in the affidavit, filed seeking leave to defend, prima facie shows that the landlord would be dis entitled to obtain an eviction order and not, where at the end, the defence taken by the tenant may fail. If the application filed under Section 25B disclosed some substantial triable issues, then it would be grave injustice to brush them outrightly, without testing the veracity of the claims made by the tenant/applicant. The law in this regard is well settled in various pronouncements and reference can also be made to Inderjeet Kaur V. Nirpal Singh, VII(2001) SLT 602=(2001) 1 SCC 706, wherein it was held as under:
" A landlord, who bona fidely requires a premises for his residence and occupation should not suffer for long waiting for eviction of a tenant. At the same time, a tenant cannot be thrown out from a premises summarily even though prima facie he is able to say that the claim of the landlord is not bona fide or untenable and as such not entitled to obtain an order of eviction. Hence the approach has to be cautious and judicious in granting or refusing leave to defend to a tenant to contest Page 22 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 23 an eviction petition within the board scheme of Chapter IIIA and in particular having regard to the clear terms and language of Section 25B(5)".
Further, there is also no dispute with regard to legal proposition that if the tenant bring up some well fonded and worth considering subsequent events to the notice of the Court, these need to be considered, and not ignored, for the purpose of examining and evaluating the bona fide requirements of the tenanted premises of the landlord. Reference can be made here to the decision of the Supreme Court in the case of Hasmat Rai V. Raghunath Prasad, (1981) 3 SCR 605, wherein it was held that:
"If the tenant is in a position to show that the need or requirement no more exists because of subsequent events, it would be open to him to point out such events and the Court including the appellate Court has to examine, evaluate and adjudicate the same. Otherwise the landlord would derive an unfair advantage. An illustration would clarify what we want to convey. A landlord was in a position to show he needed possession of demised premises on the date of the suit as well as on the date of the decree of the trial Court. When the Page 23 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 24 matter was pending in appeal at the instance of the tenant, the landlord built a house or bungalow which would fully satisfy his requirement. If this subsequent event is taken into consideration, the landlord would have to be nonsuited. Can the Court shut its eyes and evict the tenant? Such is neither the spirit nor intendment of Rent Restriction Act which was enacted to fetter the unfettered right of re entry. Therefore when an action is brought by the landlord under Rent Restriction Act for eviction on the ground of personal requirement, his need must not only be shown to exist at the date of the suit, but must exist on the date of the appellate decree, or the date when a higher Court deals with the matter. During the progress and passage of proceeding from Court to Court if subsequent events occur, which if noticed would non suit the plaintiff, the Court has to examine and evaluate the same and mould the decree accordingly".
19. Though, I am conscious of the fact and to which, there is no dispute that the landlord is the best judge of his affairs and also choices, and the tenant cannot dictate as to how the landlord has to live and Page 24 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 25 utilize his premise; but, at the same time, it is also settled principles of law in such cases that the mere wish or desire of the landlord or his decision to get the tenanted premises vacated is not the decisive factor. It is not that whatever he would say, in every case, would be taken to be a gospel truth. If that was so, then, on the mere asking of every landlord that he needs the premises for setting up an office for his or his family member's business and he is the judge and master of his decisions and choices, the statutory protection afforded to the tenant, would become meaningless. That is not the intent of the legislation. The applicability of above proposition is only after the landlord is able to demonstrate that his assertion of requirement of the tenanted premises is authentic and genuine. If he is able to show and demonstrate so, then certainly neither the tenant nor this Court could dictate terms upon him as to how and in what manner he should utilize his premises. The projected requirement of the tenanted premises, based on his subjective decision, is required to be tested by the Court.
Ownership & landlordtenant relationship.
20. The respondent has disputed the ownership of the petitioner over the suit property as well as existence of landlordtenant relationship Page 25 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 26 stating that the father of the petitioner from whom he allegedly inherited the suit property was not the owner of the same and thus, the petitioner does not have any locus standi to file the present eviction petition. Per contra, it is averred by the petitioner that he is the owner/landlord of the suit premises as the suit premises was earlier owned by Smt. Sobhagyawati Devi, i.e., deceased mother of the petitioner. During her lifetime, she executed a duly registered Will dated 17.10.196 in favour of her husband Sh. Shiv Prasad Gupta, to the exclusion of all her children. Sh. Shiv Prasad Gupta during his lifetime also executed a duly registered Will dated 20.05.1988, by which, he bequeathed this property in favour of his three sons, namely, Mr. Uma Kant, Mr. Rama Kant and Mr. Shashi Kant. The petitioner herein got one shop at the ground floor, i.e., suit premises, the front portion of the first floor (comprising of three bed rooms, one closed veranda (which is used as living room/dining room), small mezzanine/miani between the ground floor and first floor, as the back portion of the first floor fell in the share of Mr. Rama Kant. That after the death of Sh. Shiv Prasad Gupta on 23.07.1999, the petitioner approached the tenant claiming himself to be the landlord and owner of the suit premises and the respondent atorned the petitioner as the owner/landlord, by making the rent payment. The petitioner has also filed copy of the Sale Deed in favour of Smt. Sobhagyawati Devi, by Page 26 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 27 which she became the owner of the suit property, photocopy of duly registered Will of Smt. Sobhagyawati Devi and Sh. Shiv Prasad Gupta has also been filed, by which, the petitioner became the owner of the portion of the suit property. It is further averred by the petitioner that the suit premises had been let out by late Sh. Shiv prasad Gupta to Sh. Aroor Singh, since deceased, i.e., the predecessorininterest of the respondent on 17.12.1978 by way of rent agreement and after the death of Sh. Aroor Singh, the tenancy rights devolved upon his legal heirs, i.e., his widow Smt. Om Shanta Khurana, two sons, namely, Mr. Harminder Kumar Khurana and Mr. Vimal Khurna and two daughters, namely, Ms. Rita Dhall and Ms. Indu Dhall. After the widow of Sh. Aroor Singh died, the respondent claimed himself to be sole tenant by stating that his father Sh. Aroor Singh had disowned/disinherited his other son Mr. Vimal Khurana and his two sisters have surrendered their tenancy rights in favour of the respondent and the respondent alone is claiming himself to be exclusive tenant of the suit shop by depositing rent u/s 27 of the DRC Act in favour of the petitioner. Copy of rent agreement, by which, the deceased father of the petitioner had inducted the predecessorin interest of the respondent as tenant in the suit property has been filed alongwith photocopy of petition filed u/s 27 of the DRC Act, by which, the present respondent alone had filed a petition for deposit of rent u/s 27 of Page 27 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 28 the DRC Act against the petitioner herein. Perusal of the said deposit of rent petition clearly shows that the respondent had admitted the petitioner to be his landlord/owner of the suit property and therefore, claimed to deposit rent of the suit property in his favour by way of petition u/s 27 of the DRC Act. The petitioner has also filed a no objection certificate of Smt. Indu Dhall and Smt. Rita Dhall, by which they had surrendered their tenancy rights in favour of the respondent and also a photocopy of a newspaper cutting, by which, Sh. Aroor Singh, i.e., predecessorininterest of the respondent had disowned/disinherited his other son Mr. Vimal Khurana from the suit property. Perusal of these documents clearly shows that the petitioner is owner/landlord of the suit premises and the respondent is the exclusive tenant to the exclusion of all other legal heirs of the predecessorininterest of the respondent by depositing rent in favour of the petitioner with respect to the suit property by way of petition filed u/s 27 of the DRC Act. Thus, from the abovesaid discussed facts, the ownership as well as landlordtenant relationship of the petitioner over the suit premises is proved.
21. The respondent has also stated that the predecessor of the petitioner had inducted Sh. Aroor Singh, i.e., father of the respondent as Page 28 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 29 tenant for a period of 99 years and also took a sum of Rs. 3,00,000/ in lieu of the same from the father of the respondent, and hence, the petitioner be estopped from getting the tenanted premises vacated today from the respondent. The respondent has also filed a receipt, by which the father of the petitioner allegedly took Rs. 3,00,000/ from the father of the respondent for letting out the tenanted premises for 99 years. However, as per the rent agreement, it is admitted by both the parties that there is no such clause in it stating that the father of the respondent had taken premises for 99 years on rent or that Rs. 3,00,000/ was paid by father of the respondent to the predecessor of the petitioner in lieu of the same.
Bonafide requirement.
22. It is averred by the petitioner that the suit property is bonafidely required by the petitioner for the personal use and occupation of his two daughtersinlaw, namely, Ms. Parul Kant and Ms. Rashi Kotwalwala, both practicing advocates by profession, for the purpose of setting up their advocate office and that both the daughtersinlaw of the petitioner are dependent upon him as they do not own or possess any other suitable commercial office in Delhi. It is also averred that both the Page 29 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 30 daughtersinlaw of the petitioner got enrolled in the Bar Council of India in 2001 & 2011 respectively and thereafter, extensively gained practical court experience at various courts and other legal offices and threfore, they want to start their own business jointly which should be safe and sufficient to them to attend their clients, do their office and research work alongwith providing appropriate place to their office clerks, junior advocate(s) and steno/typist, etc.. as now both Ms. Parul Kant and Ms. Rashi Kotwalwala Gupta have got sufficient number of assignments and they are attending to the same at different courts and forumns. It is also submitted that due to nonavailability of any working place/office, both of them are unable to make use of opportunities coming to them as due to paucity of space they are unable to employ suitable staff. Due to non availability of any office space, they are forced to meet their client at the common rooms at the court premises, or at some common place outside and or in the alternative at client's place, which is becoming highly embarrassing as not being conductive to expansion of their legal practice. Per contra, it is submitted by the respondent that none of the daughtersinlaw of the petitioner are effectively involved in their profession as husbands of both the daughtersinlaw of the petitioner are very well settled and are living a luxurious life. Further, it is averred that daughterinlaw of the petitioner, namely, Ms. Parul Kant, for whose Page 30 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 31 requirement the present execution petition has been filed is infact, Director/Managing Director in various firms, namely, M/s OCS Infosystems Pvt. Ltd., M/s One Card Solutions Pvt. Ltd. and M/s. Future Technology.
23. I have heard the contentions of both the parties.
24. The petitioner has placed on record the certificate of enrollement of both his daughtersinlaw, by which they have enrolled themselves in Bar Council of India. Petitioner has also placed on record the Identity Cards issued by Hon'ble Delhi High Court Bar Association in the name of Ms. Parul Goel and Ms. Rashi Kotwalwala and stated the number of clients attended by the daughtersinlaws of the petitioner and from these facts, it is clear that both the daughtersinlaw of the petitioner are in actual practice and have number of clients for whom they require separate office space to carry on their work of advocacy efficiently. In order to prove his contention that Ms. Parul Kant is Director/Managing Director of various firms, the respondent has placed on record the photocopy of basic company info of firms OCS Infosystem Pvt. Ltd. and Page 31 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 32 One Card Solution Pvt. Ltd, wherein, Ms. Parul Kant is shown to be Director/Managing Director of these firms. Per contra, the petitioner has denied that Ms. Parul Kant is the Managing Director in any of the alleged companies. Further, it is submitted that she is a nonexecutive, without remuneration, director in M/s OCS Infosystems Pvt. Ltd., the other director of the said company is Mr. Deepak Mittal and the same is being managed and controlled by the said Mr. Deepak Mittal only. Further, it is submitted by the petitioner that Ms. Parul Kant, presently has no connection whatsoever with the said M/s. One Card Solution Pvt. Ltd. (a company owned by the husband of Ms. Parul Kant), though for a short period she was nonexecutive, without remuneration, director of this company, wherefrom, she resigned in the early 2013. Further, it is averred that Ms. Parul Kant has no concerns, whatsoever, with said M/s Future Technology as the same is a partnership firm, the partners being Mr. Ashootosh Kant (elder son of the petitioner) and above said Mr. Deepak Mittal. The petitioner has also placed on record the copy of resignation letter, by which, Ms. Parul Kant had resigned from the post of nonexecutive, without remuneration, Director of M/s One Card Solution Pvt. Ltd.. Hence, it has been proved by the petitioner that Ms. Parul Jain is no longer associated with any of the companies named by the respondent. Even otherwise, the landlord is the master of his choice and Page 32 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 33 tenant cannot dictate terms on him as to what the landlord should do or not do or for what purpose the landlord should use premises, as held in catena of judgment by various courts. Hence, the averment of the respondent that Ms. Parul Kant cannot start her own office of advocacy alongwith other daughterinlaw of the petitioner as she is Director/Managing Director/Partner in various other firms is baseless, without any substance and does not hold any ground.
25. It has also been averred by the respondent that earlier also an eviction petition was filed by the petitioner against the respondent bearing no. 63/2010, by which the petitioner claimed the tenanted premises for his own bonafide requirement stating that he is unemployed and has no source of income for his livelihood. It is averred by hte respondent that nowhere in that eviction petition, the petitioner has stated about any genuine bonafide requirement of his daughtersinlaw and had there would have been any genuine bonafide requirement of daughters inlaw of the petitioner, then the petitioner should have filed the earlier eviction petition for bonafide requirement of his daughtersinlaw and for for his own bonafide requirement. Per contra, it is averred by the petitioner that Ms. Parul Goel enrolled herself as an advocate in the year Page 33 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 34 2001 and got married to his son in the year 2003 and at that time she had been working with various advocates and organizations as an associate to gain practical court experience. Further, it is stated that in the year 2006, she was blessed with a child and thereafter, she started full time work only after 2008. Further, it is submitted that the younger son of the petitioner got married in the year 2013 to Ms. Rashi Kotwalwala, who is also an advocate and thus, bonafide requirement of the petitioner arose only after marriage of younger son of the petitioner as it was only after that, that both the daughtersinlaw of the petitioner decided to work together and wanted to start their joint advocacy business. This contention of the petitioner cannot be denied that a joint advocacy business could have been started only after the marriage of the younger son of the petitioner and not before that. Further, contention of the respondent that both the husbands of daughtersin law of the petitioner are very well settled and living luxurious life has no connection, whatsoever, with the present eviction petition. Thus, from the above stated facts, the bonafide requirement of the petitioner to start the advocacy office for both the daughtersinlaw of the petitioner is proved as it has nowhere been denied that both the daughtersinlaw of the petitioner are enrolled as an advocate in Bar Council of India. Page 34 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 35 Alternative suitable accommodation.
26. Property no. 186, Pocket6, Sector24, Near Prince Public School, Rohini, Delhi - Regarding this property, it is submitted by the petitioner that he has no concerns, whatsoever, with this property and the said property belongs to one Mr. Deepak Mittal, one of the director of the above stated M/s OCS Infosystems Pvt. Ltd.. The petitioner has also placed on record the house tax receipt and mutation letter showing that property no. 186, Pocket6, Sector24, Near Prince Public School, Rohini, Delhi belongs to Mr. Deepak Mittal.
27. Property no. 15, Panchkuyian Road, Connaught Place, New Delhi. The petitioner has stated that he has no concerns, whatsoever, with the property no. 15, Panchkuyian Road, Connaught Place, New Delhi. Even otherwise, the respondent has failed to place on record any document to prove that the petitioner is owner or in possession of the said property bearing no, 15, Panchkuyian Road, Connaught Place, New Delhi.
Page 35 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 36
28. Property no. 69/6A, Rama Road Industrial Area, New Delhi15. It is submitted that the petitioner has no concern with this property as well and as per the information of the petitioner, the said property belongs to one Mr. Avinash Rani Vohra and the said property since the year 2010 is under the tenancy of M/s One Card Solution Pvt. Ltd., a company owned by Mr. Ashootosh Kant, the son of the petitioner. Photocopy of the rent agreement pertaining to the said property has also been filed, which clearly shows that the said property belongs to Mr. Avinash Rani Vohra and not in ownership of the petitioner.
29. Property bearing no. P11, Bazar Lane, Bengali Market, New Delhi. As regards this property, it is submitted by the petitioner that no such property is available to the petitioner or his daughterinlaw as the correct number of this property is 911, Bazar Lane, Begali Market, New Delhi, which is jointly owned and possessed by three brothers, namely, Mr. Gopal Krishan Kotwalwala (i.e., father of Ms. Rashi Kotwalwala Gupta), Mr. Dinesh Kumar Kotwalwala and Mr. Ram Kishan Gupta, i.e., real uncles of Rashi Kotwalwala Gupta.
Page 36 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 37
30. Property bearing no.112, Harsh Vihar, Delhi. The said property as has already been stated by the petitioner in the original eviction petition is owned by the petitioner and is a residential property in possession of one of the son and the daughterinlaw of the petitioner. The said property is completely residential property from where, daughtersinlaw of the petitioner cannot start their advocacy office.
31. Property no. E174, Kamla Nagar, Delhi. It is stated by the respondent that the said property is in possession of the petitioner and daughtersinlaw of the petitioner can start their joint advocacy business from even first floor of the said property as sons of the petitioner are also using the property for commercial purposes since the registered address of all the companies of both the sons of the petitioner is of E174, Kamla Nagar, Delhi. Per contra, it is averred by the petitioner that registered address of the companies of the sons of the petitioner is of E174, Kamla Nagar, Delhi, since, this is a residential accommodation of sons of the petitioner and any correspondence with respect to affairs of the companies is received by son of the petitioner at this address. Even otherwise, it is clearly stated by the petitioner that the entire space available with the petitioner at the first floor of the said property is fully Page 37 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 38 utilized by the petitioner and his family members for their residential purpose and there is no vacant space for daughtersinlaw of the petitioner to start their office from the said premises. In view of the above said facts, the respondent has failed to prove availability of any alternative suitable accommodation with the petitioner to enable his daughtersinlaw to start their advocacy office.
32. Further, contention of the respondent that daughtersinlaw of the petitioner can start advocacy office from first floor of property no. E174, Kamla Nagar, Delhi, is also of no ground, though, the said property is situated in Kamla Nagar, Delhi, which is mainly used for commercial purposes but then also, the first floor is being utilized by the petitioner for residential purpose and there is no vacant space available in the said property to enable his daughtersinlaw to start their office from the said premises. The fact that the registered office of OCS Infosystem Pvt. Ltd., One Card Solution Pvt. Ltd. and Furture Technology is shown to be of E174, Kamla Nagar, Delhi, is also due to the fact that all the correspondence with respect to any official purpose is received by the son of the petitioner at his residential address and no commercial activities as such, is carried out from the said property. Page 38 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14 39
33. Thus, from the discussion made above, respondent has failed to raise any triable issue, which requires evidence to be proved. The petitioner, on the other hand, have clearly established his bonafide requirement regarding tenanted premises. Hence, the application for leave to defend filed by respondent is ordered to be dismissed. Consequently, eviction order is liable to be passed against the respondent u/s Section 25 B (4) of the Act. In view of above, petitioner is held entitled for recovery of the tenanted premises, i.e., a shop bearing private no. 2, measuring 9 x 18 sq. ft., situated on ground floor of the premises bearing no. E174, Kamla Nagar, situated in the Main Kamla Nagar Market, facing towards market itself, as shown in red colour in the site plan annexed with the petition. However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act.
Announced in open Court (Namrita Aggarwal)
on 15 Day of December, 2014.
th
CCJ cum ARC1 (Central)
[This order contains 39 pages.] Tis Hazari Courts, Delhi.
Page 39 of 39 Uma Kant Gupta Vs. Harminder Kumar Khurana E. No. 37/14