Delhi District Court
Sh. Suresh Bharija vs Sh. Jasvinder Singh Hira @ Shunty on 23 December, 2014
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IN THE COURT OF SH. SUMEDH KUMAR SETHI
ACJ-cum-ARC-cum-CCJ (WEST) THC, DELHI
UID No. 02401C0597055548
E No.65/2013 U/s 14(1)(e) of DRC Act
Date of institution: 30.10.2013
Date of Order: 23.12.2014
1. Sh. Suresh Bharija
2. Sh. Rakesh Bharija
Both sons of Late. Sh. Bahadur Chand
R/o S-20, Ajay Enclave,
New Delhi-110018 ....... Petitioners
Versus
Sh. Jasvinder Singh Hira @ Shunty
S/o Sh. Trilok Singh Hira
R/o Shop at S-20, Front Side, Ajay Enclave
New Delhi-110018
....Respondent
Order deciding Leave to Defend in Eviction petition
U/sec. 14(1)(e) r/w Section 25-B of DRC Act, 1958
1)Vide this order the Court shall dispose of the application U/s 25-B (4 & 5) of DRC Act
of the respondent seeking leave to defend the eviction petition, filed on 20.12.2013.
2)The eviction petition U/sec. 14(1)(e) Section 25-B of the Delhi Rent Control Act, 1958
(hereinafter referred to as DRC Act) was filed by the petitioners against the respondent on
30.10.2013.
FACTS
3)The averments made in the petition are that:-
3.1 Two shops measuring approx. 14' X 15', alongwith varandah in property no.
S-20, (Front Side) Ajay Enclave, New Delhi-110018, (herein after called tenanted premises/shop in question), as shown in red colour in the site plan, were let out to the respondent @ Rs. 1210/- per month. The tenancy is oral and rent receipts were issued to the respondent.
3.2 The mother of the petitioners Smt. Raj Rani was the owner of the tenanted E. No. 65/2013 Suresh Bharija Vs Jasvinder Singh Hira Page no. 2 of 21 premises who died on 20.05.2002 leaving behind Ramesh Bharija-son, Suresh Bharija-son, Rakesh Bharija-son and four daughters namely Smt. Rama Chopra, Smt. Veena Talwar, Ms. Santosh Kumari and Ms. Neelam Kumari as her legal heirs.
3.3 The sisters of the petitioners namely Smt. Rama Chopra, Smt. Veena Talwar, Ms. Santosh Kumari, Ms. Neelam Kumari and one brother Ramesh Kumar relinquished their right in the suit property as well as other property bearing no. C-8, Ajay Enclave Extension, New Delhi, by virtue of Relinquishment Deed of 14.09.2005 which was registered before the Sub-Registrar-II, Janakpuri, Delhi vide Registration No. 25512 Addl. Book No.1, Volume No. 13201 on pages 185 to 188 Regd. On 14.09.2005.
3.4 The petitioners/landlords have no other reasonable suitable accommodation with them and are suffering hardship.
3.5 The following members are residing in portion of the property bearing no. S-20, Ajay Enclave, New Delhi :-
a) Ramesh Bharija - brother of the petitioners.
b) Suresh Bharija - petitioner no.1.
c) Rakesh Bharija - petitioner no.2.
d) Smt. Santosh Kumari - unmarried sister of the petitioner 38 years of
age.
e) Ms. Neelam Kumari - unmarried sister of the petitioners 37 years of
age.
3.6 The petitioners are in occupation of two rooms, one verandah, one kitchen, bathroom and toilet and that accommodation is not sufficient for them to live comfortably in the above mentioned property.
3.7 The petitioners are unmarried and their sisters namely Ms. Santosh Kumari and Ms. Neelam Kumari have been living with them who are also unmarried and they are dependents upon the petitioners for residence as well as financially.
3.8 The other brother of the petitioners Sh. Ramesh Bharija has been deserted by his wife and he is also living with the petitioners.
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3.9 The petitioners are not having sufficient accommodation to live comfortably and to occupy each room independently and they are facing great hardship in adjustment in the portion of the suit premises occupied by them. Even they feel very difficult when the married sisters of petitioners namely Smt. Rama Chopra and Smt. Veena Talwar visit the petitioners on any occasion for staying with them for few days.
3.10 The present accommodation is most suitable accommodation for the residence of the petitioners and their family members dependent upon them as same is three side open house and is fully ventilaed and since a very long time during the life time of their parents they are living in the said property and wanted to continue to live in the said property.
3.11 The late mother of the petitioners had filed an eviction petition under Section 14 (1)(f)(h)(j) of DRC Act which was after a prolonged litigation ultimately decided by the judgment dated 28.08.12 by Hon'ble Mr. Justice ML Mehta of Hon'ble High Court of Delhi at New Delhi, with the obsevation that the order of the ld. ARC dated 01.02.97 stood complied by the tenant against whom an eviction order Under Section 14 (1)(j) of DRC Act was passed by the court of Ms. R. Kiran Nath, the then ld. ARC, Delhi dated 01.02.1997.
3.12 The back wall of the said shops had two doors i.e. one in each shop which was after letting out to the respondent was temporarily closed by the petitioners just to avoid the nuisance being created by the machineries of the respondent and to prevent from pollution created by the chemicals i.e. Acids used by the respondent in his premises.
3.13 The petitioners are also occupying the another property being its owner bearing no. C-8, Ajay Enclave Extension, New Delhi.
3.14 In the said property there are four shops towards main road out of which shop no.1, is occupied by a tenant Sh. Om Prakash against whom eviction petition is already filed by the petitioners for requirement of the shop for the petitioners wherein one of the sisters, who is depending upon the petitioners may start her business of boutique or beauty parlour. The shop no.2 in the said property is occupied by petitioner no.1 who is carrying on his automobile business in the said shop. The shop no.3 is occupied by the tenant Parveen Kumar against whom an E. No. 65/2013 Suresh Bharija Vs Jasvinder Singh Hira Page no. 4 of 21 eviction petition is pending Under Section 14 (1)(e) of DRC Act for requirement of the shop by the petitioners for carrying on the business by their unmarried sisters who are dependents upon the petitioners to carry on the business of boutique and beauty parlour. The shop no.4 is occupied by the petitioner no.2 who is also carrying on the business of sale and purchase of automobile. Behind these four shops in the inner portion, there are four rooms which is occupied by the petitioner no.1 who used to keep his autos i.e. Scooter, motor cycle for sale and also using the said room for storage purpose of accessories and other allied items. None of the part of the said property (C-8) is vacant and that property is facing double road and is the best location for the purpose of commercial purposes and not suitable for the residence.
4)The respondent has filed application for leave to defend along with affidavit wherein he has admitted the following facts :-
4.1. The eviction petition in particular, paras 4, 8 and 18(a) (xii) (xiii) (iv) specifically state that the premises are commercial as they are the shops and were let out by Smt. Raj Rani, through who the present petitioners claim to have derived the right to seek eviction for their residence and/or the residence of the members of their family.1
5) Respondent has raised certain defenses in the application for leave to defend and the same are as under:
5.1 The property is admittedly not residential as is evident from the the averments made by the petitioners themselves in various paras of the petition. The premises being admittedly "shops and/or commercial one" the petitioners have find a novel way of seeking eviction of the respondent alleging that they require the said "shops/commercial premises" for their residence and/or for the residence of the members of their family allegedly dependent upon them.
5.2 The petitioners have conveniently ignored the availability of four rooms in property no. C-8, Ajay Enclave which is barely 40-50 yards away and just across the road from the suit.
5.3 The petitioners and their sisters are residing in premises no. C-8, Ajay Enclave Extension and one of their other brother Shri Rakesh Kumar is residing in two rooms behind the suit premises.
1 Para 4 of the affidavit of the respondent under consideration.
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5.4 The petitioners have deliberately not filed the document of ownership of their predecessor, Smt. Raj Rani in the absence of which the ownership of petitioners is not only prima facie established on record but is emphatically challenged by the respondent.
5.5 The relinquishment deed is with regard to the two properties i.e. S-20, Ajay Enclave and C-8, Ajay Enclave, one acquired by Smt. Raj Rani and second by Shri Bahadur Chand, the mother and the father respectively of the petitioners both of whom have since deceased. The two properties, at the first place could not become subject of one Relinquishment Deed, the same is therefore not a legally valid document and cannot be looked into. The petitioners have deliberately chosen not to file the registered documents which find reference in the Relinquishment Deed filed alongwith the petition.
5.6 In the Relinquishment Deed the four sisters of the petitioners and their one brother have admittedly released and relinquished their rights in the suit premises. It has specifically been stated in the Relinquishment Deed that they had been left with no rights therein. Clause of the Relinquishment Deed may be quoted here as follows :-
"That the release admit that they have been left with no rights, title interest or concern of any nature whatsoever in the said property ......" Once the members of the family of the petitioners have been left with no right in the suit premises, it will be too much to claim that they need the premises for their residence.
5.7 The petitioners have inflated the alleged requirement, deliberately to project falsely that they need additional accommodation not only from the present respondent but also from one of the other tenants namely Sh. Om Prakash from premises i.e. C-8.
5.8 The petitioners have falsely alleged that the property no. C-8 is the best location for commercial purposes and not suitable for the residence. As stated above, the rooms in the said property are partly in occupation by the petitioners for residence and part of it lying vacant. The very fact that there are two kitchens in the said property falsify the stand of the petitioners that it is not suitable for residence.
6) The petitioners have filed a reply to the application for Leave to Defend along with counter affidavits and in the counter affidavits the petitioners have denied the defences E. No. 65/2013 Suresh Bharija Vs Jasvinder Singh Hira Page no. 6 of 21 taken by the respondent. The petitioners further submitted as under:
6.1 It is denied that property bearing no. C-8, Ajay Enclave, is barely 40-50 yards away from the suit premises. It is denied that the petitioners have conveniently ignored the availability of four rooms in the property no. C-8, Ajay Enclave. It is submitted that four rooms behind the four shops of property no. C-8, Ajay Enclave, the petitioner no.1 is using the same to keep his auto i.e. scooters, motor cycle for sale and also using the said rooms for storage of accessories and other allied items and none of the the said rooms are vacant. It is submitted that the property no. C-8, Ajay Enclave, which is a single storey building is totally commercial.
6.2 The premises no. C-8, Ajay Enclave Extension is totally commercial and no part of the same is vacant. In the said property, there is no water connection and even the electricity meter is commercial. It is submitted that all the family members of the petitioners alongwith the petitioners are residing in the property no. S-20, Ajay Enclave, New Delhi.
6.3 The petitioners are the owners of the property in question by virtue of registered Relinquishment Deed executed by the other legal heirs of the deceased Smt. Raj Rani and Sh. Bahadur Chand.
6.4 It is denied that the petitioners and their sisters are residing in the premises no. C-8, Ajay Enclave Extension or one of their other brother Shri Rakesh Kumar is residing in two rooms behind the suit premises or the petitioners and/or the members of their family are possessed of sufficient accommodation.
6.5 It is denied that any part of the property bearing no. C-8, Ajay Enclave is vacant. The said property is old built up and by existing two kitchens does not mean that the said property is suitable for residence. It is submitted that the said property was constructed initially for the purpose of residence but the petitioners and their parents never lived in the said property but the same was let out for commercial purpose and the said property is commercial, hence not suitable for residence of the petitioners and other family members dependent upon them.
7) Rejoinder to the reply to the application was filed by the respondent wherein reference was made to the Relinquishment Deed relied upon by the petitioners, as per clause 3 of Relinquishment Deed which may be quoted here as follows:-
"That the releasees admit that they have been left with no rights, title interest or concern of E. No. 65/2013 Suresh Bharija Vs Jasvinder Singh Hira Page no. 7 of 21 any nature whatsoever in the said property...."
The releasees have given up rights of any nature whatsoever in the subject property and therefore the petitioners are basing their ground of eviction on the alleged need of their family members who are not entitled to enjoy any rights in the property.
8) Arguments were heard on the application under consideration on behalf of both the parties. Material on record has been perused. Submissions considered.
REQUIRMENTS
9) In order to succeed in a petition for eviction filed under section 14(1)(e) of the Delhi Rent Control Act the petitioner must establish that:
i.He is the owner and landlord in respect of the tenanted premises. ii.That he requires the premises bonafide for himself or for any member of his family dependent upon him.
iii.That he has no other reasonably suitable accommodation
10) The scope of the section has been enlarged in view of the judgment of the Hon'ble Supreme Court titled as Satyawati Sharma v. Union of India: AIR 2008 SUPREME COURT 3148 so as to include premises let out for commercial purposes also within the scope and ambit of a petition under section 14(1)(e) of DRC Act. The defences which are taken by respondent are discussed below and the same are as under:-
DEFENCES
11) Petitioners are not the owners of the tenanted premises:
11.1 The present litigation is for eviction of an admitted tenant and as such the Court is not required to give a finding as regards absolute ownership of the property. In rent control legislation, the landlord can be said to be owner, if he is entitled in his own legal right, as distinguished from for and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself.
11.2 In M.M.Quasim Vs Manohar Lal Sharma: (1981) 3 SCC 36 it was observed by the Apex Court that an "owner-landlord" can seek eviction on the ground of his personal requirement is one who has a right against the whole world to occupy the E. No. 65/2013 Suresh Bharija Vs Jasvinder Singh Hira Page no. 8 of 21 building in his own right and exclude anyone holding a title lesser than his own.
11.3 It was observed in Shanti Sharma Vs Smt Ved Prabha: AIR 1987 SC 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 vis-a-vis the tenant i.e. the owner should be something more than the tenant. In cases where the plot of land is taken on lease, the structure is built by the landlord and he is the owner of the structure.
11.4 The respondent, in the present case, has contended that the petitioners have deliberately not filed the document of ownership of their predecessor, Smt. Raj Rani in the absence of which the ownership of petitioners is not only prima facie established on record but is emphatically challenged by the respondent.
11.5 The petitioners have countered that they are the owners of the property in question by virtue of registered Relinquishment Deed executed by the other legal heirs of the deceased Smt. Raj Rani and Sh. Bahadur Chand. In the present case the defence raised by the respondent as regards ownership is not tenable even prima facie for the simple reasons that the respondent has admitted that the shops and were let out by Smt. Raj Rani (the mother of the petitioners), through who the present petitioners claim to have derived the right to seek eviction.2 After Raj Rani's death, the respondent started making payment of rent to the petitioner no. 1 which is evident from the counter foils of rent receipts filed by the petitioners and not denied by the respondent, by virtue of which, the respondent admitted the petitioner as landlord and now when eviction petition has been filed by petitioners, he cannot challenge/deny the relationship between the parties. Provisions of 2 Para 4 of the affidavit of the respondent under consideration.
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Section 116 of the Evidence Act are also attracted; the tenant is stopped from questioning the ownership or title of the landlord. The respondent has not stated that if the petitioners landlord are not the owner of the tenanted premises, then, who is.
11.6 Thus, this defence raised by the respondent is a vague and sham defence and it does not raise any triable issue.
12) Relinquishment Deed filed by the petitioners is not valid 12.1 The respondent has contended that the relinquishment deed is with regard to the two properties i.e. S-20, Ajay Enclave and C-8, Ajay Enclave, one acquired by Smt. Raj Rani and second by Shri Bahadur Chand, the mother and the father respectively of the petitioners both of whom have since deceased. The two properties, at the first place could not become subject of one Relinquishment Deed, the same is therefore not a legally valid document and cannot be looked into. The petitioners have deliberately chosen not to file the registered documents which find reference in the Relinquishment Deed filed alongwith the petition.
12.2 This defence does not required detailed delibeartion as an admitted tenant cannot challenge the title documents of the lanlords in such proceedings. Even otherwise, the Court in these proceedings cannot give a finding regarding the veracity or otherwise of documents being relied upon by the petitioners as the basis of their ownership.
12.3 Moreover, even if the relinquishment deed is put out of consideration, then at the most, the case of the respondent would be that the petitioners do not have exclusive ownership of the suit premises. It amounts to indirectly admitting that the petitioners are the owners of the premises but not exclusive owner of the premises. Thus, the petitioners are having a right against the whole world to occupy the tenanted premises in their own right and exclude anyone holding a title lesser than their own. Consequently, they are entitled to file the present petition. Further, it is not essential that the eviction petition is to be filed by all the co-owners of the property. As a co-owner petitioners can file eviction petition without impleading other co-owners. Reliance is placed on judgments Kanta Udharam Jagasia Vs C.K.S Rao: (1998)1 SCC 403; Surender Kumar Jhamb Vs Om Prakash Shokeen: 2000(2) RCR 540; Mohinder Prasad Jain Vs Manohar Lal Jain:
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(2006) 2 SCC 724; India Umbrella Manufacturing Co Vs Bhagadandei
Aggarwal: (2004) 3 SCC 178; Sri Ram Pasricha Vs Jagannath: (1976)4 SCC
184.
12.4 Thus, this defence raised by the respondent does not raise any triable issue.
13) Need not Bonafide as the petitioners have other property and do not require the shops in question:
13.1 It has been observed in judgment titled as Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors.: 155 (2008) DLT 383 by Hon'ble Delhi High Court as un- der:
"11)....Thus, the affidavit filed by the tenant was shown to be false by the landlady on the basis of documents placed by it. No Rent Controller is sup-
posed to grant leave to the tenant on the basis of a false affidavit and false averments and assertions. Such affidavit should be outrightly rejected by the Rent Controller. Only those averments in the affidavit are to be con- sidered by the Rent Controller which have same substance in it and are supported by some material. Mere assertions made by a tenant in respect of landlord's ownership of other buildings and in respect of alternate ac- commodation are not to be considered sufficient for grant of leave to de- fend."
13.2 In their application, the respondent has stated that the petitioners have conveniently ignored the availability of four rooms in property no. C-8, Ajay Enclave which is barely 40-50 yards away and just across the road from the suit.
13.3 The respondent has further submitted that the petitioners and their sisters are residing in premises no. C-8, Ajay Enclave Extension and one of their other brother Shri Rakesh Kumar is residing in two rooms behind the suit premises.
13.4 The respondent has further submitted that the petitioners have falsely alleged that the property no. C-8 is the best location for commercial purposes and not suitable for the residence. As stated above, the rooms in the said property are partly in occupation by the petitioners for residence and part of it lying vacant. The very fact that there are two kitchens in the said property falsify the stand of the petitioners that it is not suitable for residence.
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13.5 The petitioners have countered these submissions and have denied that property bearing no. C-8, Ajay Enclave, is barely 40-50 yards away from the suit premises. It is denied that the petitioners have conveniently ignored the availability of four rooms in the property no. C-8, Ajay Enclave. It is submitted that four rooms behind the four shops of property no. C-8, Ajay Enclave, the petitioner no.1 is using the same to keep his auto i.e. scooters, motor cycle for sale and also using the said rooms for storage of accessories and other allied items and none of the the said rooms are vacant. It is submitted that the property no. C-8, Ajay Enclave, which is a single storey building is totally commercial.
13.6 The petitioners have further submitted that the premises no. C-8, Ajay Enclave Extension is totally commercial and no part of the same is vacant. In the said property, there is no water connection and even the electricity meter is commercial. It is submitted that all the family members of the petitioners alongwith the petitioners are residing in the property no. S-20, Ajay Enclave, New Delhi.
13.7 The petitioners have further submitted that it is denied that the petitioners and their sisters are residing in the premises no. C-8, Ajay Enclave Extension or one of their other brother Shri Rakesh Kumar is residing in two rooms behind the suit premises or the petitioners and/or the members of their family are possessed of sufficient accommodation.
13.8 The petitioners have further submitted that it is denied that any part of the property bearing no. C-8, Ajay Enclave is vacant. The said property is old built up and by existing two kitchens does not mean that the said property is suitable for residence. It is submitted that the said property was constructed initially for the purpose of residence but the petitioners and their parents never lived in the said property but the same was let out for commercial purpose and the said property is commercial, hence not suitable for residence of the petitioners and other family members dependent upon them.
13.9 There is not a single thing on record to shows that the petitioners are residing at the other property or not residing at the property in question except for bald averments which cannot be accepted. On the other hand the petitioners have come out clean and listed out the portions available with them in their petition alongwith their use and suitability qua their requirement to aver that only the shops in question caters to their bonafide requirement. There is nothing on record to counter E. No. 65/2013 Suresh Bharija Vs Jasvinder Singh Hira Page no. 12 of 21 the submissions of the petitioners to the effect that the other property is already being used and is not vacant. Thus, mere bald averments of the respondent to this effect do not give rise to a triable issue.
13.10 In Laxmi Prasad vs Suresh Kumar Mudgal decided by Hon'ble High Court of Delhi on 22 February, 2012 that:
"10. Just because the respondent - landlord was staying in a rented accommodation for many years would not make his decision to shift to his own house to live along with his children mala fide and so that plea also did not raise any triable issue at all.
11. Considering the family strength of the respondent - landlord and the accommodation in his possession in the property in question, as shown in the site plan filed by him and also described in the affidavit filed in this matter, it can certainly be said that his requirement for the premises in dispute was bona fide. It is not a case of any landlord seeking additional accommodation, as was urged by the learned counsel for the petitioner - tenant, and, therefore, the decision of the Supreme Court relied upon by him in the case of Dr. S.N. Mehra vs. Shri D.D. Malik (supra) cannot be pressed into service.
12. This revision petition being devoid of any merit is dismissed."
13.11 Taking an analogy from the principles propounded above, it cannot be said, while keeping in mind the size of the petitioners' family, that if they want more rooms for their siblings and to enable their married sisters to come and live with them at times, then this is a case of additional accommodation. Thus, the requirement of the petitioners is bonafide.
13.12 Moreover, in the judgment titled as Ragavendra Kumar v. Firm Prem Machinary: AIR 2000 SUPREME COURT 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. Moreover, as has been held in a plethora of cases, neither the Court nor the tenant cannot dictate terms to the landlord regarding the suitability of the premises.
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13.13 Thus, the petitioners cannot be dictated to leave the property in question and stay at another premises where they have stated that they are carrying on their busi- ness. The petitioners have complete liberty to decide which accommodation is most suitable for their residence and neither the Court nor the tenants can dictate terms to the contrary to the petitioners.
13.14 It has been held in the case of Krishan Lal vs R N Bakshi decided by our own Hon'ble High Court on 19 May, 2010 that:
"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 totally mala fide or not genuine."
13.15 Thus, the respondent cannot dictate what accommodation would be suffi- cient for the petitioners and what would not. The same has to be judged solely by the petitioners as per their family's subjective living standard.
13.16 Accordingly, this defence raised by the respondent as regards bonafide requirement and as regards alternate accommodation is a sham defence and it does not raise any triable issue
14) Property not residential:
14.1 The respondent has contended that the property in question is admittedly not residential as is evident from the the averments made by the petitioners themselves in various paras of the petition. The premises being admittedly "shops and/or commercial one" the petitioners have find a novel way of seeking eviction of the E. No. 65/2013 Suresh Bharija Vs Jasvinder Singh Hira Page no. 14 of 21 respondent alleging that they require the said "shops/commercial premises" for their residence and/or for the residence of the members of their family allegedly dependent upon them.
14.2 However, the respondent has himself admitted that one of their other brother Shri Rakesh Kumar is residing in two rooms behind the suit premises. This itself negates the defence taken by the respondent, as if the brother of the petitioners is residing at the property in question then by no stretch of imagination can the said property be termed entirely commercial.
14.3 In the judgment titled as Ragavendra Kumar v. Firm Prem Machinary: AIR 2000 SUPREME COURT 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. Moreover, as has been held in a plethora of cases, neither the Court nor the tenant cannot dictate terms to the landlord regarding the suitability of the premises or even the extent of the business proposed to be carried out.
14.4 In the present case, it is not for the respondent to judge the suitability of the shops in question with respect to the requirement of residence put forth by the petitioners and it is hereby held that the defence being deliberated upon does not raise any triable issue.
15) Other siblings have released their share:
15.1 The respondent has contended that in the Relinquishment Deed the four sisters of the petitioners and their one brother have admittedly released and relinquished their rights in the suit premises. It has specifically been stated in the Relinquishment Deed that they had been left with no rights therein. Clause of the Relinquishment Deed may be quoted here as follows :-
"That the release admit that they have been left with no rights, title interest or concern of any nature whatsoever in the said property ......" Once the members of the family of the petitioners have been left with no right in the suit premises, it will be too much to claim that they need the premises for their residence.
15.2 In the rejoinder it has been reiterated by the respondent that the releasees have given up rights of any nature whatsoever in the subject property and therefore the petitioners are basing their ground of eviction on the alleged need of their E. No. 65/2013 Suresh Bharija Vs Jasvinder Singh Hira Page no. 15 of 21 family members who are not entitled to enjoy any rights in the property.
15.3 In a recent judgment titled Pawan Kumar Vs Sant Lal R.C.Rev 303/2012 decided on 6.8.2012 it has been held by Honorable Mr Justice M.L.Mehta as under:-
"16. Further, submissions of learned counsel for the petitioner that Dr. Ankit was not financially dependent upon his father and so the tenanted premises could not be got vacated for his requirement, is also only noted for rejection. It is trite that the landlord is entitled to help his son, establish his business. In Labhu Lal Vs. Sandhya Gupta 2011(1) RCR,(Rent) 231 (Delhi), it has been held by this Court that the children are very much dependant on the landlord for the purpose of setting up their business and such a requirement is a bonafide one. The right of the landlord for possession of his property for setting up a business for his son has been also recognized by the Apex Court in Ram Babu Aggarwal Vs. Jay Kishan Das 2009(2) RCR 455. The moral duty of a father to help establish his son was also recognized by the Apex Court in Joginder Pal Singh Vs. Naval Kishore Behal AIR 2002 SC 2256 in the following words:
"24........Keeping in view the social or socio-religious 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 inter- relation 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."
15.4 There is not even an iota of doubt that the unmarried and married sisters of the petitioners are closely connected with them, especially in view of the death of their parents. Thus, even if they have released their share in the property in E. No. 65/2013 Suresh Bharija Vs Jasvinder Singh Hira Page no. 16 of 21 question in favour of the petitioners, then also it does not absolve the petitioners from their moral duty to provide for the residence of their siblings. There is nothing malafide in trying to do the same.
15.5 In this regard it has been held by the Honorable High Court of Delhi in Inderjeet Singh vs Harish Chandra Bhutani: in R.C.REV. 98/2010 decided on 06.07.2012 that:
"6. On the perusal of record, it is evident that the Ld. ARC has opined that the son of the petitioner is financially independent on the basis of his credit card statements. In my opinion such an observation was patently erroneous. Holding a credit card is a common practice and not a yard stick to the financial status of a person. In any case, this issue is irrelevant to the current proceedings due to the fact that even if the son of the petitioner is carrying on his business still as a father the petitioner is obliged to make efforts for setting up a business in a suitable place for his son. Such a requirement is quite reasonable and justified and cannot be termed as malafide. It is not the case of the respondent that the petitioner is in possession of any alternate accommodation from where his son could carry his business. If a person is owner of a commercial property, but is forced to pay rent towards a tenanted premises, then his requirement for possession of his property is bonafide and must be recognized. The respondent has failed to show as to how the son of the petitioner is not dependent on him for the requirement of the premises for carrying his business. I find no merit in this plea taken up by the respondent and admitted by the ARC. Such unfounded pleas cannot become a reason for denying the petitioner the right to use his property for setting up a shop for his son. In Labhu Lal Vs. Sandhya Gupta 2011(1) RCR,(Rent) 231 (Delhi), it has been held by this Court that the children are very much dependant on the landlord for the purpose of setting up their business and such a requirement is a bonafide one. The right of the landlord for possession of his property for setting up a business for his son has been also recognized by the Apex Court in Ram Babu Aggarwal Vs. Jay Kishan Das 2009(2) RCR 455.
7. Regarding the bald plea of the respondent that there is discrepancy in the amount of rent payable for the tenanted premises and the payer of the E. No. 65/2013 Suresh Bharija Vs Jasvinder Singh Hira Page no. 17 of 21 rent, it is sufficient to say that these minor discrepancies are not fatal to the case of the petitioner and not patently germane to the case. It is immaterial that who pays the rent for the tenanted shop being used by the petitioner's son. The fact of bonafide requirement and lack of any other accommodation for business purposes has been amply established by the petitioner. His son is in fact carrying out his business from a tenanted accommodation; he has no other alternate suitable accommodation. In this view of the matter, this submission of the tenant is clearly without force."
15.6 Thus, it is for the respondent to show that the siblings of the petitioners are not dependent on them and there is nothing pertinent on record to show the same.
15.7 Thus, this defence raised by the respondent does not raise any triable issue.
16) Petitioners have projected inflated requirement:
16.1 The respondent has contended that the petitioners have inflated the alleged requirement, deliberately to project falsely that they need additional accommodation not only from the present respondent but also from one of the other tenants namely Sh. Om Prakash from premises i.e. C-8.
16.2 It has already been opined by this Court in the foregoing paragraphs that this is not a case of additional accommodation.
16.3 It has been held in the case of Subhash Chand vs Trilok Chand: 1997 RLR 464 that:
"9)....the landlord used one room for his commercial purpose on the ground floor for earning his livelihood. It cannot be said that by using a room for his livelihood the landlord created artificial scarecity of accommodation. After all landlord has to make his earning. If he uses a room on the ground floor for commercial purpose, it cannot be said that that accommodation was available to the landlord for his living or for the living of his family members dependent upon him."
16.4 Likewise, it has been held in the case of Shyam Bihari Singh vs Sushila Devi Mittal: 1982 RLR 97 that:
"(12) The shortage of residential accommodation with the landlady may be due to various reasons. In deciding an application under Section 14(l) E. No. 65/2013 Suresh Bharija Vs Jasvinder Singh Hira Page no. 18 of 21
(e) what is relevant to see is as to whether that shortage was created with a view to oust the tenant. If the landlady alters the use of the residential premises with her, for example by using them for commercial purposes, and this has been done so as to create the shortage of residential accommodation with her with a view to seek the eviction of a tenant, then in such a case the landlady would not be entitled to any relief. On the other hand, the change of user of the residential premises for commercial or professional purposes may be bona fide for the purposes of earning a livelihood If the changed user is in accordance with law then, if the remaining residential accommodation with the landlady is insufficient, the landlady can justifiably move an application and seek the eviction of a tenant under section 14(l)(e). Where the bona fides of the landlady are not in doubt, the tenant will not be heard to say that the shortage of accommodation is due to the landlady's own creation and the tenant's eviction should not be ordered. A landlady is entitled to use the accommodation with her in any way she pleases. If the use of the accommodation for commercial purposes is bona fide and in accordance with law then she would be entitled to plead that the remaining accommodation with her is insufficient for residential purposes."
16.5 In the present case also, the tenant cannot interfere in use of the properties of the petitioners, and he cannot be allowed to plead the defence of deliberate creation of shortage or scarcity or inflating their requirement. Likewise, respondent cannot dictate the petitioners that they use the other property for their residence and not the one occupied by him.
16.6 Therefore, the defence raised by respondent is a sham defence and it does not raise any triable issue.
16.7 In the judgment titled as Sarwan Dass Bange Vs. Ram Prakash: 167 (2010) DLT 80 the Hon'ble High Court of Delhi referring to the judgment of Baldev Singh Bajwa v. Monish Saini: (2005) 12 SCC 778 observed in para 17 as under:
"..It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of E. No. 65/2013 Suresh Bharija Vs Jasvinder Singh Hira Page no. 19 of 21 landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given a right of restoration of possession; the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only..."
16.8 Thus, it is clear that the special summary procedure provided for u/s 25B of the DRC Act is an exception to the general intent to the Act. The intention of the legislature is to provide an expeditious remedy to landlords who seek eviction on the ground of bonafide requirement under the stringent conditions imposed in the special procedure. Thus, the mere bald averment of the respondent to the effect that the petitioners have inflated their requirements cannot disentitle the petitioner from relief that they are entitled to get after fulfilling the stringent requirements provided for in the special procedure. Thus, this submission of the respondent is found to be untenable.
16.9 It is well settled law that bald allegation without any material on record to substantiate the same could not be looked into as the mere bald allegations are not enough for grant of leave to defend. It is held by the Hon'ble High Court of Delhi in Rajinder Kumar Sharma and Ors. Vs. Leelawati and Ors. (supra) that:
11....."Only those averments in affidavit are to be considered by Rent Controller which have some substance in it and are supported by some material."
16.10 Moreover, It is held by the Hon'ble High Court of Delhi in a case tiled as Hari Shanker Vs. Madan Mohan Gupta: 111 (2004) DLT 534 that:
"Summary procedure in Section 25-B of Delhi Rent Control Act, 1958 cannot be defeated by merely making frivolous and vague allegations which can never be substantiated."
16.11 Thus, on the basis of the aforesaid legal propositions the contention of the respondent is rejected as the same is a mere assertion without any substance.
16.12 Thus, this defence raised by the respondent is a sham defense and it does not raise any triable issue.
E. No. 65/2013 Suresh Bharija Vs Jasvinder Singh Hira
Page no. 20 of 21
CONCLUSION
17) It is well settled that leave to defend is granted to the tenant in case any triable issue is raised by him, which can be adjudicated by consideration of additional evidence. The mere existence of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it will disentitle the landlord from obtaining the eviction order.
18) In the judgment titled as Sarwan Dass Bange Vs. Ram Prakash (supra) the Hon'ble High Court of Delhi referring to the judgment of Baldev Singh Bajwa v. Monish Saini (2005) 12 SCC 778 observed in para 17 as under:
"...the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. 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.." (emphasis supplied)
19) The whole purpose and import of summary procedure under Section 25B 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 cannot mechanically and in routine manner grant leave to defend. In the light of the aforesaid facts, circumstances and legal propositions, all the pleas taken by the respondent have failed to raise any triable issues regarding the ownership of the petitioners or the land lord-tenant relationship; the bonafide requirement of the landlord; or the availability of any alternative suitable accommodation. The contents of the application for leave to defend have failed to rebut the presumption of bonafide qua the requirement of the petitioners. The application for leave E. No. 65/2013 Suresh Bharija Vs Jasvinder Singh Hira Page no. 21 of 21 to defend filed by the respondent is thus rejected.
20)As a consequence thereof, an eviction order is passed U/s. 14 (1) (e), DRC Act against the respondent regarding the tenanted premises i.e two shops measuring approx. 14' X 15', alongwith varandah in property no. S-20, (Front Side) Ajay Enclave, New Delhi-110018, as shown in red colour in the site plan
21) However in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.
22) The parties are left to bear their own costs.
23) File be consigned to Record Room after due compliance.
Announced in the open Court on 23rd day of December, 2014 (SUMEDH KUMAR SETHI) ACJ/ARC/CCJ(West)/23.12.2014 E. No. 65/2013 Suresh Bharija Vs Jasvinder Singh Hira