Delhi District Court
Neelam Chopra vs Panna Lal on 25 February, 2015
E No. 26/14 1 25.02.2015
IN THE COURT OF MS. KIRAN GUPTA, SENIOR CIVIL JUDGE
CUMRENT CONTROLLER, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
E26/14
Unique ID No. 02403C0102372014
Neelam Chopra
W/o Sh. Ramesh Chopra
R/o 12A/30, W.E.A, Karol Bagh
New Delhi
.....Petitioner
Versus
Panna Lal
S/o Sh. Jai Narain
58 B, Khan Market
New Delhi .....Respondent
Date of institution : 05.07.2014
Date of conclusion of arguments : 23.02.2015
Date of order : 25.02.2015
ORDER
1 Vide this order, I shall decide the application U/s 25(B) (4) of the DRC Act (hereinafter referred as "the Act"), filed by the tenant against the petitioner praying therein that he be allowed to contest the eviction petition u/s 14(1)(e) r/w sec. 25B of the Act in Neelam Chopra Vs Panna Lal Page 1 of 30 E No. 26/14 2 25.02.2015 respect of the tenanted premises, i.e. Shop No. 58B, Khan Market, New Delhi as shown red in the site plan (hereinafter referred as tenanted premises).
2 Brief facts of the case as stated by the petitioner are that she is the owner of the tenanted premises vide registered sale deed dt. 19.11.1969. She is the landlord of the tenanted premises and requires the same for running business for herself and her husband Mr. Ramesh Chopra. Neither she nor her husband has any other commercial accommodation, much less reasonable suitable accommodation, available with them. Petitioner was earlier carrying out her business from the tenanted premises under the name and style of Allied Fruit Mart. She got issued health licence from NDMC in her favour which is mandatory for running business. She also got the registration of the suit shop in her name under Delhi Shops & Establishment Act, 1954.
2.1 Father of petitioner was also doing the business from his shop at Khan Market. She was assisting her father in the business being done by him from his shop and as such she has substantial experience of running business and more particularly of selling fruits, vegetables, groceries and other similar items on retail basis. She till date is the member of Khan Market Trade Association Neelam Chopra Vs Panna Lal Page 2 of 30 E No. 26/14 3 25.02.2015 and is regularly paying the yearly subscription of Rs. 1800/ to the association. She has also been regularly paying the monthly car parking charges of Rs. 1500/ fixed for the shopkeepers.
2.2 Respondent was engaged as Manager with her by her father. However, subsequently respondent began to assert himself as a tenant in the shop and claimed to be in possession thereof as a tenant. In these circumstances, respondent filed a suit for permanent injunction against her being CS (OS) No. 574/2007 for restraining her from forcibly dispossessing him and his sons from the shop. Respondent stated in his plaint that he is occupying the premises as the tenant for the last more than 30 years. He further stated that initially he was running a shop in the premises as the proprietor and thereafter started doing the business in the name of Allied Fruit and Florist and eventually in 1999 he constituted a Private Limited Company consisting of himself as the Director and his other family members/ sons as other Directors and the name was changed as Allied Fruit and Florist Pvt. Ltd.
2.3 She filed a counter claim seeking declaration that respondent and his sons are unauthorized occupants of the shop and mandatory injunction directing them to vacate and remove from the premises. During the pendency of the said suit, in view of Neelam Chopra Vs Panna Lal Page 3 of 30 E No. 26/14 4 25.02.2015 the statement made by her that she will not dispossess the respondent except in accordance with due process of law, the suit of respondent was disposed of by the Hon'ble High Court of Delhi vide order dt. 27.05.2008. However, the counter claim of petitioner bearing no. 17/2008 continued.
2.4 Thereafter she filed an application bearing I.A No. 7953/2014, in the said counter claim, accepting the version of respondent of being tenant in the premises, for withdrawing the counter claim. . No objection was raised by respondent in this regard and she was permitt1ed to withdraw the counter claim vide order dt. 29.04.2014.
2.5 Her husband Ramesh Chopra has been working as a businessman in the past as he was earlier running a Guest house till the year 1985 . Thereafter he started the business of producing TV Serials and documentary films for Doordarshan, which he did till the year 2000.
2.6 She along with her husband have no commercial premises available to them to carry on any business. She was totally dependent on the income earlier being accrued from the tenanted premises. The premises was her only source of income. She and her Neelam Chopra Vs Panna Lal Page 4 of 30 E No. 26/14 5 25.02.2015 husband are now sitting idle. They have two married daughters and nobody else to support them. They have no commercial space to carry out any business and have no other source of income. She wants to start her business of selling fruits , vegetables, dairy products and other eatables from the tenanted shop for which she has no other premises available to her. Her husband also intends to join her in the said business and has no other commercial space available with them.
2.7 She is aged about 65 years and her husband is about 70 years. They have not been able to do any business for non availability of commercial space. It is not possible for them to take up any employment or indulge into any other activity which would require hectic physical movement and efforts. The tenanted premises is also located at a convenient distance from their residence which is at Karol Bagh. The property at Karol Bagh is fully residential and belongs to her husband, where she is residing on the ground floor along with her husband . The first floor is kept for being used by their married daughters and their family, who lives in Gurgaon and the second floor is occupied partly by an unauthorized occupant, against whom Civil Suit has been filed by her husband and is still pending.
Neelam Chopra Vs Panna Lal Page 5 of 30E No. 26/14 6 25.02.2015 2.8 It is further stated that the respondent in the previous
petition / suit has categorically admitted ownership of petitioner qua the tenanted premises and that he has been paying rent to her @ Rs. 2000/ per month. She accepts the contentions of respondent in this regard and has hence filed the present petition. Certain criminal cases have also been filed by the parties against each other. Further as per the directions of the Hon'ble Division Bench, vide order dt. 03.06.2011, as an interim arrangement, respondent had been paying Rs. 2 lacs per month to her towards payment for restoration of electricity connection. It is prayed that since the tenanted premises is bonafide required by the her for running business for herself as well as for her husband, eviction order be passed in respect of the tenanted premises as they have no other alternate suitable accommodation except the tenanted premises to meet their bonafide requirement.
3 After notice of the petition, which was received by the respondent on 18.07.2014, he filed the application for leave to contest the present eviction petition on 31.07.2014. It is alleged that the petitioner has concealed material facts regarding various other litigations pending between them. Since the year 2003, when the disputes started between the parties, till the filing of the present petition, petitioner has never pleaded in any of the proceedings, Neelam Chopra Vs Panna Lal Page 6 of 30 E No. 26/14 7 25.02.2015 regarding her bonafide requirement for carrying on any business from the tenanted premises. She has not disclosed the other properties available with her and her husband and even not disclosed as to what kind of commercial activity she wishes to run from the tenanted premises, in as much as she has no experience of carrying on any trade and business. At the fag end of her life, the so called requirement urged by her is bogus and just to oust the legal right of respondent.
3.1 Present petition is not maintainable as respondent alone is not in possession of the tenanted premises, whereas it is a Private Limited Company ie. M/s. Allied Fruits and Florist Pvt. Ltd which is in possession and tenancy of the shop. The respondent is only one of the Directors. Since the company has not been arrayed as a respondent by petitioner, present petition is liable to be dismissed on this ground.
3.2 It is stated that the shop in question came to be transfered from its erstwhile owner Dr. S S Verma to Neelam Chopra in the year 1969. Even at that time, respondent was already sitting in the shop under an oral tenancy. Petitioner at that time was of 25 years of age who was merely a housewife and bought the shop in question for Rs. 20500/. Respondent was already running the shop Neelam Chopra Vs Panna Lal Page 7 of 30 E No. 26/14 8 25.02.2015 at that time, therefore, he continued to pay rent to Neelam Chopra. She also used to take vegetables/ grocery items for herself and her family members free of cost due to the cordial relations between the parties.
3.3 Since the respondent was growing old, his sons namely Anand Prakash, Devender Kumar and Late Raj Kumar also joined him. Over the years, business grew many fold. In the year 1995, the proprietary concern of Sh. Panna Lal namely M/s. Allied Fruits and Florists was converted into a partnership firm and later on with the sons joining in, the said partnership firm was converted into a Private Limited company namely M/.s. Allied fruits and Florist Pvt. Ltd w.e.f year 2000. The said company was formed to take over the running business of the said partnership wherein the respondent was a partner.
All this was within the knowledge and consent of petitioner. The said company has been carrying the trade and business from the shop in its own rights and capacity which is evident from the fact that one of the Director Late Sh. Raj Kumar, in the year 2003 was also elected in the Executive Council of Khan Market Traders Association. The company is registered with Sales Tax Department.
3.4 Petitioner at behest of her brother has been filing
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various cases and complaints against the respondent. She filed one writ petition bearing no. WP(C) No. 438/07 , which was subsequently withdrawn by her . She preferred complaint before the VATO, which was decided on 15.11.2007. She also lodged one complaint on 23.03.2007 with PS Tuglaq Road against two of the Directors namely Anand Prakash and Devender Kumar and consequently an FIR U/s. 509 IPC being FIR No. 67/07 was lodged. She also got lodged one FIR No. 68/07 dt. 24.03.2007. These two FIRs were registered to create a ground for preparation of kalandra U/s. 145 Cr.PC . She also obtained exparte sealing orders dt. 29.03.2007, though the same were subsequently vacated by the concerned courts. She has further got lodged FIR No. 196/07, 106/07, 2101/10, 12/08 against the respondent.
3.5 She feeling frustrated in her attempts to dislodge respondent and his sons from the tenanted premises , also got the electricity disconnected. It is stated that all along, petitioner has taken the stand that respondent and his sons were her employees and there has been no relationship of landlord and tenant between them. However, in the present petition she has taken a contrary stand. She in para 11 of her petition has not disclosed or admitted the rent as Rs. 2,000/ per month. She never admitted the respondent or the company as her tenant but instead has been Neelam Chopra Vs Panna Lal Page 9 of 30 E No. 26/14 10 25.02.2015 consistently taking a stand that respondent and his sons were only servants, initially of her father and later her servants, who are running the shop on her behalf. There is no specific admission or stand of the petitioner that respondent is monthly tenant @ Rs. 2,000/. Petitioner has nowhere admitted that she has given the suit property on rent to the respondent, which is evident from the various documents filed by her in various proceedings including the SLP before the Apex Court. She deliberately withdrew the earlier proceedings and malafidely initiated the present proceedings taking contrary stand as to what she has taken in the previous litigations.
3.6 It is further stated that petitioner has no bonafide requirement at this juncture of age. It is difficult to perceive that an old couple where the age of husband is 70 and of wife is 65 years, would venture in their life and too of selling fruits/ vegetables/ grocery and other items from tenanted premises, whereas they are admittedly living at Karol Bagh which is at a distance of around 20 km . Present petition has been filed by petitioner only to pressurize respondent and his sons to vacate the premises under the garb of bonafide requirement. Since 2003, she had never indicated her requirement, which clearly appears to be an after thought in order to get the premises vacated from respondent.
Neelam Chopra Vs Panna Lal Page 10 of 30E No. 26/14 11 25.02.2015 3.7 It is stated that petitioner has no experience of carrying
on trade or business in as much as all along the respondent has been carrying on the business activity from the said shop. Further, petitioner has premises available at the ground floor where she is residing at Karol Bagh which is a commercial area. No purpose has been mentioned as to why the first floor has been kept for the married daughters and how many rooms are available on the ground, first and second floor of the said property. Petitioner has also not disclosed the area of said property and concealed this factum. She has not given any details of the earnings she and her husband have got. She had underplayed the fact of her receiving an income of Rs. 2 lacs per month from the said shop for her survival at this juncture of age.
3.8 All licences from various departments were no doubt obtained in her name but that was because the premises could not be initially shown to be let out without the requisite sanction from the concerned authorities. The income tax returns, which she has filed do not show that the said income was from the business being run from the suit premises. Petitioner at no point of time had been carrying out any activities from the suit premises. Income as per petitioner as stated in her petition from the suit premises Neelam Chopra Vs Panna Lal Page 11 of 30 E No. 26/14 12 25.02.2015 comprises of the rentals, which were being given earlier from time to time. Respondent has raised various triable issues, hence his application be allowed and he be granted leave to contest the present petition.
4 In the reply to the application of respondent, petitioner while reiterating the facts as stated in petition, has prayed that since no triable issue has been raised by the respondent, his application be dismissed accordingly. It is stated that other proceedings between the parties are not relevant in any manner whatsoever. Further the documents filed by respondent are not even remotely suggestive of furthering his case. The counter claim of petitioner filed before the Hon'ble High Court is sufficiently indicative and suggestive of the bonafide requirement of petitioner. It is stated that the alleged firm / company of respondent is a mere sham and a cloak to defraud the petitioner and usurp her property.
5 In the rejoinder filed by respondent, he has reiterated the facts as stated in the application and counter affidavit and denied the facts as stated in the reply by petitioner.
6 It is argued by counsel for petitioner that petitioner has
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accepted respondent as her tenant as per the version of the respondent. The relationship was never disputed by respondent and it is further not disputed that petitioner is the owner of the property. The tenanted premises is required by petitioner for her bonafide requirement as she wants to open her own business of selling fruits, vegetables and grocery along with her husband in the tenanted premises. She has no other alternate suitable accommodation available to her to meet her requirement. No triable issue has been raised by respondent in the entire application for leave to defend. Hence, the application of respondent be dismissed and petition be allowed accordingly.
7 Per contra, it is argued by Ld. counsel for respondent that petitioner has always disputed the relationship of landlord and tenant with respondent. She has filed various complaints and cases against the respondent alleging that he is her servant but now she all of a sudden has taken a contrary stand that respondent is the tenant and filed this petition for her alleged bonafide requirement. Even if, for the sake of argument petitioner is allowed to take the admission of respondent that he is a tenant, the admission to be taken as a whole. If she is taking respondent as the tenant, then she has take the company as tenant and not individual because in the tenanted premises the company under the name and style of M/s.
Neelam Chopra Vs Panna Lal Page 13 of 30E No. 26/14 14 25.02.2015 Allied Fruit Private Ltd is functioning of which respondent is only one of the Director . She has never admitted respondent as tenant but has always stated him as trespasser. Even in the present petition she has stated that as per the respondent he is a tenant @ Rs. 2,000/ per month meaning thereby that she is relying upon the statement of respondent but not accepting him as her tenant. The inconsistency in the said statement regarding trespasser and tenant is itself a triable issue. She cannot be allowed to aprobate and reprobate at the same time and file the petition in this regard by showing fake bonafide requirement. It is further argued that petitioner has been filed cases against respondent since last 14 years but she never divulged about her requirement which has been stated for the first time in the present petition.
7.1 It is further argued that she has never stated in the previous litigations regarding her bonafide requirement . No document of income has been filed except the averments. She is around 65 years and her husband is around 75 years and they both cannot be expected to run any business or start any business at this juncture of age. The distinction has to be drawn between the need and necessity of petitioner. In the present petition, her whimsical need which she has portrayed is only grab the tenanted premises from the respondent who is running his business for the last 40 Neelam Chopra Vs Panna Lal Page 14 of 30 E No. 26/14 15 25.02.2015 years. It is further argued that she has sufficient alternate accommodation i.e the property at Karol Bagh. The first floor of the said property is lying vacant as per petitioner herself. The area of Karol Bagh is a commercial area and she can very well start her business from the said accommodation as she has sufficient space in the said accommodation to meet her alleged bonafide requirement, if any. It is argued that since respondent has raised various triable issues, his application to contest the present petition be allowed accordingly.
8 Heard counsels for the parties and perused the complete record file. Under section 14 (1) (e) of the Delhi Rent Control Act, a landlord/land lady will be entitled to an order of eviction, if, he/she is able to show that:
(a) the premises in question were let out for residential purpose or commercial purposes [as per the law laid down by the Hon'ble Supreme Court in Satyawati Sharma v. Union of India and another, 148 (2008) DLT 705 (SC),]
(b) he/she is the landlord/land lady and owner of the suit premises,
(c) the premises is required bona fide by him/her for occupation as residence for himself/herself or any member of his family dependent upon him/her for residence and for any person for whom the premises Neelam Chopra Vs Panna Lal Page 15 of 30 E No. 26/14 16 25.02.2015 are held, and
(d) the landlord/land lady or such person has no other suitable residential accommodation.
9 In the present matter the factum that petitioner is the owner of the tenanted premises is not disputed by the respondent. He in his application for leave to contest has categorically stated that petitioner has purchased the tenanted premises for a sum of Rs. 20,500/. Further petitioner has also placed on record the copy of registered sale deed dt. 19.11.1969 to show that she is the owner of the tenanted premises. Thus there is no dispute to the fact that petitioner is the owner of the tenanted premises.
10 As regards the relationship of landlord and tenant is concerned, the respondent in the entire application for leave to defend has not disputed that he is the tenant in the tenanted premises. On the contrary, he has challenged the stand of the petitioner that she cannot be allowed to treat him as tenant at this stage, as all along in the previous litigation she has been considering him as her employee/ trespasser qua the tenanted premises.
Neelam Chopra Vs Panna Lal Page 16 of 30E No. 26/14 17 25.02.2015 11 It is not the first round of litigation between the parties. The petitioner has always denied the status of
respondent as tenant and the respondent had always taken the plea that he is the tenant at monthly rent of Rs. 2000/. As per the petitioner, she has accepted respondent as her tenant at monthly rent of Rs. 2000/ as per his own contention in the previous litigation. For this she has drawn attention of the court to the application for withdrawal filed by her in the counter claim filed against the respondent before the Hon'ble High Court of Delhi and also the averments made in the petition as well as the reply to the application for leave to contest. Curiously enough, this time though the respondent in the entire application has not disputed that he is the tenant in the tenanted premises but had challenged the acceptance of the said fact by the petitioner. There is no doubt that due to the plea of respondent that he is the tenant at monthly rent of Rs. 2000/, petitioner had been running from pillar to post to get relief on account of the defence taken by him at various stages/litigations. As per the pleadings filed by the respondent accompanied with the corresponding affidavit in the other Neelam Chopra Vs Panna Lal Page 17 of 30 E No. 26/14 18 25.02.2015 litigations, he has always taken one stand that he is the tenant in the premises at monthly rent of Rs. 2000/.
12 The question which is for consideration is, whether such an acceptance of the relationship of landlord and tenant by the petitioner at this stage, raises any triable issue or not. The answer is in negative. The respondent has all along taken the stand that he is the tenant in the premises under petitioner. Now when she has accepted the said admission of the respondent, he cannot be allowed to challenge the same without any basis. The respondent cannot be allowed to aprobate and reprobate at the same time and take the defence which is suitable to himself . In all the previous litigations between the parties, respondent has claimed himself as tenant at the monthly rent of Rs. 2,000/ per month. He now at this stage, cannot be allowed to take a somersault and allege that since he was always treated as trespasser by the petitioner, there is no relationship of landlord and tenant between the parties. Not only in the previous pleadings filed by the respondent in the form of plaint or written statement, he had taken the stand that he is the tenant in the premises but also in Neelam Chopra Vs Panna Lal Page 18 of 30 E No. 26/14 19 25.02.2015 para 4 of his counter affidavit filed along with the leave to defend, he has categorically stated that he was already sitting in the shop under an oral tenancy when the same was purchased by petitioner in the year 1969. Since he was already running the shop, therefore, he continued to pay the rent besides the other articles which were taken by petitioner free of cost on account of the cordial relationship. It is the admitted fact by the respondent himself that he is the tenant in the premises and when this fact has been taken as it is by petitioner, the respondent has taken a U turn and denied the relationship of landlord and tenant for the sake of it. Even as per section 2 (e) of the Act, petitioner being the owner "is entitled to recover rent" and thus qualifies to be the landlord of respondent.
13 Now coming to the argument of counsel for respondent that it is the company ie. Allied Fruits and Florist Pvt. Ltd which is the tenant in the premises and not the respondent alone, hence the petition is not maintainable. As per the respondent himself, he was the sole tenant even prior to 1969 when the tenanted premises was purchased by the Neelam Chopra Vs Panna Lal Page 19 of 30 E No. 26/14 20 25.02.2015 petitioner. It is in the year 1995 that his proprietorship concern namely M/s Allied Fruits and Florists was converted into a partnership firm and later on when his sons joins, the said partnership firm was converted into a private limited company namely M/s. Allied Fruits and Florists Pvt. Ltd. w.e.f year 2000. The said company was formed to take over the running business of the previous partnership wherein the respondent was a partner. The respondent is one of the Directors of M/s. Allied Fruits and Florists Pvt. Ltd. Thus it is the proprietorship firm of the respondent, which was merged to form a partnership firm and the said partnership firm was converted into a Private Limited Company. The respondent is one of the Director of the said Private Limited company . As per the respondent himself, he was the tenant in the premises, it is his proprietorship firm which has merged into a company, as per the internal arrangement. The other Directors of the said company are none other than the sons of respondent. The argument of counsel for respondent in this regard is misconceived and not tenable. No triable issue is raised regarding the ownership and relationship by the respondent.
Neelam Chopra Vs Panna Lal Page 20 of 30E No. 26/14 21 25.02.2015 14 Now coming to the other aspect as to whether the
tenanted premises is bonafide required by the petitioner and as to whether she has any other suitable alternate accommodation. The petitioner in her petition has categorically stated that she requires the tenanted premises for starting her own business along with her husband. She has further stated that she has no source of income at this stage and even her husband who was earlier employed is not doing anything at present and both of them have no source of income, hence wants to start their own business of selling vegetables/ fruits/ grocery items in the tenanted premises. There is no dispute to the fact that petitioner has got the registration of the tenanted premises in her name under Delhi Shops & Establishment Act 1954. She has also placed on record her income tax returns that she was earning some income from the tenanted premises.
15 The respondent has challenged the bonafide requirement of petitioner on the ground that she at this juncture of her old age when she is already 65 years and her husband is around 70 years cannot be expected to start any Neelam Chopra Vs Panna Lal Page 21 of 30 E No. 26/14 22 25.02.2015 business. It is further argued that petitioner has no experience to start any business and further has no bonafide requirement to start any business and present petition has been filed by her only to get the premises vacated from the respondent.
15.1 In John Impex (Pvt.) Ltd. Vs Dr. Surinder Singh & Ors 135 (2006) DLT 265, broad principles have been set down regarding the requirement of a landlord that it should not be a mere whim or fanciful need but should be a genuine need of the landlord. It is only then that the requirement can be said to be bonafide within the meaning of under section 14 (1) (e) of the said Act. This would naturally require all the necessary matrix in terms of the factual averments and the evidence to be adduced in that behalf. Simultaneously it has to be kept in mind that the landlord is the best judge of his requirement and a tenant cannot dictate the terms on which the landlord should live. The bonafide requirement of the landlord would also depend on his financial status and his standard of living. The ARC found in favour of the landlord / owner and thus what has to be considered is whether there is any illegality or jurisdictional error in the impugned order and not to sit as an Appellate court though the scope of scrutiny in a rent revision Neelam Chopra Vs Panna Lal Page 22 of 30 E No. 26/14 23 25.02.2015 would be more than a revision petition under section 115 of the Code of Civil Procedure, 1908.
15.2 In Ram Babu Aggarwal Vs Jay Kishan Das 2009 (2) RCR 455 It was held that :
"we are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business and some times they are successful in the new business also".
16 In the present petition, the respondent has not brought to the notice of court any other vocation or source of income of petitioner. The respondent has merely challenged the bonafide requirement of petitioner on the ground that she at this old age cannot be expected to start any business. During arguments, counsel for petitioner has drawn attention of the court to the age of respondent who is also around 80 years old. It is argued by the counsel for petitioner that if the Neelam Chopra Vs Panna Lal Page 23 of 30 E No. 26/14 24 25.02.2015 respondent can work in such a old age, there should not be any impediment for the petitioner who is much younger to him to start her own business of selling vegetables/ fruits / grocery items.
17 Age of a person cannot be a criteria to start any new business. Petitioner wants to start her business of selling vegetables/ fruits and grocery items from tenanted premises. In my opinion for starting the said business, there should not be any age bar and further no experience is required for starting such kind of business. In the present matter, petitioner has placed on record the registration certificate in her favour in respect of Allied Fruits and Florists that she was running the said shop.
18 In the absence of any substantial material brought before the court or pointed out by the respondent in the affidavit, it cannot be said that the present petition for eviction is actuated by malafide or has not been made with bonafide intention. The bonafide requirement is further established from the fact that petitioner requires the tenanted premises for Neelam Chopra Vs Panna Lal Page 24 of 30 E No. 26/14 25 25.02.2015 the purpose of opening the business for herself and her husband as they both are not having any source of income. On the face of it and from the above discussion, the case of bonafide requirement is made out.
19 Now coming to the argument of Ld. counsel for respondent that the petitioner is having alternate accommodation in her residential house at Karol Bagh. The petitioner in her petition has stated that she is having one property at Karol Bagh which is a residential property constructed upto two floors. It is submitted by the petitioner that she is living in the said residential accommodation since last 15 years. She is residing at the ground floor while the first floor is kept for her married daughters and the second floor is in occupation of an unauthorised occupant against whom she has already filed the suit. The respondent in the entire application has not disclosed any other property owned or possessed by the petitioner. Except the residential property in Karol Bagh, respondent has not disclosed any other alternate accommodation available with petitioner. Respondent has not disclosed any other commercial property owned or in Neelam Chopra Vs Panna Lal Page 25 of 30 E No. 26/14 26 25.02.2015 possession of petitioner or her husband at Delhi which can be used for commercial purposes. Respondent has merely stated that even the area of Karol Bagh is commercial and petitioner can open her business on ground floor of her residential accommodation as she can shift on the first floor of her residential accommodation which is lying vacant.
19.1 In Sudesh Kumar Soni & Anr. Vs. Prabha Khanna &Anr. 153 (2008), DLT 652 it was held that "it is not for the tenant to dictate the terms to the landlord as to how else he can adjust himself without getting possession of tenanted premisessuitability has to be seen for convenience of landlord and his family members and on the basis of circumstances including their profession, vocation , style of living , habit and background".
20. Thus it is not for the tenant to dictate the terms to the landlord. Further a person cannot be expected to start a business on the first floor of the residential accommodation. Petitioner requires the premises for opening the business for herself and her husband. She has specifically stated that she Neelam Chopra Vs Panna Lal Page 26 of 30 E No. 26/14 27 25.02.2015 has no other suitable accommodation for her use in Delhi. Respondent has not placed on record any document regarding other suitable / alternate accommodation available with the petitioner except the bald assertions. From the above discussion, this court is satisfied that the need of petitioner is bonafide and appears to be sincere and honest and not a mere pretext to evict the respondent/tenant. The tenanted premises is the most suitable to meet the requirement of petitioner and her husband. The argument of Ld. counsel for respondent on this count is misconceived and not tenable. On the face of it, the case of bonafide requirement is made out. Further, the respondent has miserably failed to bring to the notice of this court any alternative accommodation with the petitioner in Delhi, which would disentitle her from claiming the premises for her bonafide use. There is no triable issue between the parties on these aspects also.
21. During arguments, counsel for respondent has relied upon the judgment of Khem Chand & Ors. Vs. Arjun Jain & Ors. , 2013 (IX) Apex decisions Delhi 89. I have perused the said judgment. The said judgment is not applicable to the Neelam Chopra Vs Panna Lal Page 27 of 30 E No. 26/14 28 25.02.2015 facts and circumstances of the case. Further Hon'ble Supreme Court of India vide order dt. 16.12.2013, while dismissing the SLP preferred by respondent has categorically clarified that the impugned order i.e the above said judgment may not be treated as precedent.
22 Now coming to the other argument of Ld. counsel for respondent that since tenanted premises is the only means of earning and livelihood of respondent and his family, a lot of hardship shall be caused to him if his application is dismissed or the suit of the petitioner is allowed. The concept of comparative hardship has no application so far as ground of eviction U/s. 14 (1) (e) of the Act is concerned. Nothing has been stated by respondent as to whether any attempt has been made by him to get alternate accommodation or that he failed to get such accommodation. Hence, the argument of the Ld. counsel for respondent is untenable. In Mohd. Ayub & Anr. v. Mukesh Chand (2012) 2 SCC , 155 Hon'ble Supreme Court of India while placing reliance upon its earlier judgments titled as Ganga Devi v. District Judge Nanital and Ors, (2008) 7 SCC 770, Rish Kumar Govil v. Maqsoodan, (2007) 4 SCC 465, in Neelam Chopra Vs Panna Lal Page 28 of 30 E No. 26/14 29 25.02.2015 para 13 and 14 of the judgment observed that :
"13. ...................................................It is well settled that landlord's requirement need not be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start. It was wrong on the part of the District Court to hold that the appellants' case that their sons want to start the general merchant business is a pretence because they are dealing in eggs and it is not uncommon for a Muslim family to do the business of nonvegetarian food. It is for the landlord to decide which business he wants to do. The court cannot advise him. Similarly , length of tenancy of the respondent in the circumstances of the case ought not to have weighed with the court below."
" 14. .............................................. This court observed that if this is the correct approach then an affluent landlord can never get possession of his premises even if he proves all his bonafide requirements. This court further observed that the fact that a person has the capacity to purchase the property cannot be the sole ground against him while deciding the question of comparative hardship. If the purchase is pursuant to a genuine need of the landlord the said purchase has to be given due weightage unless, of course, the purchase is actuated by collateral consideration. This court rejected the High Court's finding that the landlord had secured the premises apparently in a game of speculation. Somewhat similar observations are made in this case by the District Court which in our opinion, are totally unsubstantiated".
23 Hence, in the given facts and circumstances, on the Neelam Chopra Vs Panna Lal Page 29 of 30 E No. 26/14 30 25.02.2015 basis of above discussion, there is no triable issue raised by respondent to allow his application to contest the present eviction petition. The application for leave to contest is without any merits and is accordingly dismissed. As a result of the dismissal of the application for leave to contest, the petitioner is found entitled to recover the possession of the tenanted premises i.e. Shop No. 58B, Khan Market, New Delhi as shown red in the site plan attached with the petition. The eviction petition is allowed. No order as to costs.
24. In view of provisions of sub section 7 of Section 14 of the Act, this order for recovery of possession of premises shall not be executed before the expiration of the period of six months from the date of this order. The respondent is further restrained not to sublet or create any third party interest during the aforesaid period of six months. Present petition is disposed of accordingly.
File be consigned to record room.
ANNOUNCED IN THE OPEN ( KIRAN GUPTA )
COURT ON 25.02.2015 SCJCUMRENT CONTROLLER
PATIALA HOUSE COURTS:NEW DELHI
Neelam Chopra Vs Panna Lal Page 30 of 30