Delhi District Court
Acj-Cum-Ccj-Cum-Arc vs Subhash Garments on 25 January, 2022
IN THE COURT OF MS. SNIGDHA SARVARIA,
ACJ-cum-CCJ-cum-ARC, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI.
RC ARC No : 107/2018
1 Naresh Sikka
2 Dinesh Sikka
Both sons of late Sh. Ram Kishan Sikka
Both R/o H. No. B-56, Surajmal Vihar,
Delhi-110092 ......... Petitioners
Versus.
Subhash Garments
Through Prop: Anand Kumar Jain
R/o J-3/9, First Floor,
Krishna Nagar,
Delhi-110051
Also at :-
IX/7019, Ashok Gali,
Gandhi Nagar, Delhi-110031 ......... Respondent
Order on application under S. 25-B of The Delhi Rent Control Act, 1958 seeking leave to defend
1. Vide this order I shall decide the application under S. 25-B of The Delhi Rent Control Act (DRC Act) seeking leave to defend filed by the respondent.
2. The brief facts of the case are that the petitioners are the real brothers and joint owners of built up property bearing no. IX/7019, Ashok Gali, Gandhi Nagar, Delhi- 110031, built on land admeasuring 100 sq. yds. by virtue registered sale deed. The respondent admits the petitioners as landlords/owners qua the demised premises. It is stated that petitioner nos. 1 and 2 along with their respective families are residing on second and first floors, respectively, of property bearing no. B-56, Surajmal Digitally signed by SNIGDHA SARVARIA RC ARC No : 107/2018 Naresh Sikka Vs. Subhash Garments SNIGDHA SARVARIA Date: 1 of 18 2022.01.25 13:37:51 +0530 Vihar, Delhi-110092. The mother of petitioners resides on ground floor of this property. It is stated that the second daughter of petitioner no. 1 namely Malika Sikka has succeeded in professional course of Chartered Accountancy and petitioner no. 1 bonafidely requires the demised premises for her who requires commercial space to open office for running the professional practice of Chartered Accountancy. Malika Sikka is dependent upon petitioner no. 1 for the purpose of commercial space to open office and she has no other commercial/residential space of her own either in Delhi or anywhere else. The demised premises along with adjoining shop is the most suitable space available with the petitioner no. 1 for the requirement of his daughter. The petitioner no. 1 is an office bearer of Ashok Bazaar Wholesale and Readymade Garments Association and on account of his being old resident of the vicinity, has got social circle over there which makes the demised premises most suitable for the daughter Malika Sikka to establish her professional practice of Chartered Accountancy. It is stated that petitioner no. 1 is running his business fro shop on the ground floor of property bearing no. IX/7019, Ashok Gali, Gandhi Nagar, Delhi-110031 and the first and second floors of this property are being used by him for godown and packaging purposes. The petitioner no. 2 and his son are in possession of adjacent shop and using the same for the business. The petitioner no. 1 is co-owner of another property bearing no. IX/6309, Jain Mandir Gali, Gandhi Nagar, Delhi-110031, however, same is old constructed and in a dilapidated state wherein three old tenants are occupying four small shops and as such the said property is neither available nor suitable one for requirement of his daughter. It is stated that the petitioner no. 2 is running his business in the name and style of Sikka Garmens from the ground floor and first floor of property bearing no. IX/6722, Janta Gali, Gandhi Nagar, Delhi-110031 for past several years. Petitioners have properties bearing no. IX/6722 and IX/6728, Janta Gali, Gandhi Nagar, Delhi-110031 but both of them are fully occupied and other property bearing no. IX/5711, Subhash Mohalla, Gandhi Nagar, Delhi- 110031 is in a dilapidated state and not fit for commercial purpose. Therefore, the demised premises is the only suitable, available accommodation with the petitioner no. 1 for the bonafide requirement of his daughter. It is prayed that eviction order Digitally signed by SNIGDHA RC ARC No : 107/2018 Naresh Sikka Vs. Subhash Garments SNIGDHA SARVARIA 2 of 18 SARVARIA Date:
2022.01.25 13:38:06 +0530 may be passed in favour of the petitioners and against the respondent qua the aforesaid property/shop.
3. The respondent was summoned vide order dated 27.02.2018 and was served with the summons of this petition, thereafter, affidavit seeking leave to defend under S. 25 B of the DRC Act was filed by the respondent on 15.05.2018 and the petitioner filed counter affidavit to it on 29.05.2018.
4. In the affidavit seeking leave to defend under S. 25 B of the DRC Act, the respondent has stated that petitioner no. 1 is well settled with his business and the daughter of petitioner no. 1 is also engaged in the said business as she is Chartered Accountant with petitioner no. 1. The respondent is a tenant in the shop in question since 1976 and since then he is running his business in the style of `Subhash Garments' and respondent is totally dependent upon the same. It is stated that the building in which the shop in question is situated was reconstructed by petitioners in the year 2000 and petitioners had collected the money from all the tenants and respondent also paid Rs.2,50,000/- in cash to petitioners in this respect. The petitioners have concealed the material facts intentionally and deliberately not disclosed the details of their other properties. The petitioners and the daughters have sufficient source of income from the aforesaid business. The rate of rent has been increased from time to time and lastly paid rent was Rs.517/- per month excluding electricity charges and respondent is paying the rent regularly. There is no urgent requirement of the shop in question to the petitioner no. 1 for his daughter as petitioners have three vacant shops in property bearing no. 6722, Ground Floor, Sikka Building, situated at Janta Gali, Gandhi Nagar, Delhi-31.
5. The petitioners in their counter affidavit to application for leave to defend denied the averments made in the affidavit seeking leave to defend under S. 25 B of the DRC Act of the respondent.
6. I have heard counsel for the parties, perused the record and have gone through the Digitally signed by SNIGDHA SARVARIA SNIGDHA RC ARC No : 107/2018 Naresh Sikka Vs. Subhash Garments SARVARIA Date:
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relevant provisions of the law.
7. The Supreme Court had in "Inderjeet Kaur Vs.Nirpal Singh", [2000]Supp 5 SCR 707, laid down the following guidelines to be followed by the Courts while deciding the applications for leave to contest filed by the tenants under Section 25(4) of the Delhi Rent Control Act,1958:-
"11. As is evident from Section 25B(4) & (5) of the Act, burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in Clause (e) of the proviso to Section 14(1) of the Act, with which we are concerned in this case, are good enough to grant leave to defend.
12................................"
13. We are of the considered view that at a stage when the tenant seeks leave to defend, it is enough if he prima facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. It would not be right approach to say that unless the tenant at that stage itself establishes a strong case as would non-suit the landlord leave to defend should not be granted when it is not the requirement of Section 25B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act, Leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of a landlord to recover possession of the premises from a tenant under Clause (e) of the proviso to Sub- section (1) of Section 14, when as a matter of fact the requirement may not be bona fide. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to him and his family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction. At the stage of granting leave to defend, parties rely on affidavits in support of the rival contentions. Assertions and counter-assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend were either frivolous, untenable or most unreasonable. Take a case when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire. The ground under Clause (e) of the proviso to Sub- section (1) of Section 14 enables a landlord to recover possession of the tenanted premises on the ground of his bona fide requirement. This being an enabling provision, essentially the burden is on the landlord to establish his case affirmatively. In short and substance wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the Rent Controller by the statute itself to grant leave. At the stage of granting leave the real test should be whether facts disclosed in the affidavit filed seeking leave to defend prima facie show that the landlord would be disentitled from obtaining an order of eviction and not whether at the end defence may fail. It is well to remember that when a leave to defend is refused, serious consequences of eviction shall follow and the party seeking leave is denied an opportunity to test the truth of the averments made in the eviction petition by cross-examination. It may also be noted that even in cases where leave is granted provisions are made in this very Chapter for expeditious disposal of eviction petitions. Section 25B(6) states that where leave is granted to a tenant to contest the eviction application, the Controller shall commence the hearing of the application as early as practicable. Section 25B(7) speaks of the procedure to be followed in such cases. Section 25B(8) bars the appeals against an order of recovery of possession except a provision of revision to the High Court. Thus a combined effect of Section 25B(6), (7) and (8) would lead to expeditious disposal of eviction petitions so that a landlord need not wait and suffer for long time. On the other hand, when a tenant is denied leave to RC ARC No : 107/2018 Naresh Sikka Vs. Subhash Garments 4 of 18 Digitally signed by SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:38:41 +0530 defend although he had fair chance to prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims.
"14. This Court in Charan Dass Duggal v. Brahma Nand (1983)1SCC301 while dealing with the question in the matter of granting leave to defend to contest the eviction petition filed on the ground of personal requirement, in para 5 has stated thus:
"5. 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 non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When 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 the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counter- assertions 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 case affirmatively. If as it appears in this case, the landlord is staying at Pathankot, that a house is purchased, may be in the name of his sons and daughters, but there may not be an apparent need to return to Delhi in his old age, a triable issue would come into existence and that was sufficient in our opinion to grant leave to defend in this case."
15. In the same judgment, in para 7 it is further observed:
"7. The genesis of our procedural laws is to be traced to principles of natural justice, the principal amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and provide his own case. Summary procedure does not clothe an authority with power to enjoy summary dismissal. Undoubtedly wholly frivolous defence may not entitle a person leave to defend. But equally a triable issue raised, enjoins a duty to grant leave: May be in the end the defence may fail. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party by cross-examination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refuse to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through cross- examination of witnesses who have filed their affidavits........................................................."
8. Same view has been reiterated by the Supreme Court in a judgment in "Rachpal Singh and Ors.Vs. Gurmit Kaur and Ors.", (2009)15 SCC 88, in para no.12 which is re-produced below:-
"12. If some triable issues are raised then the controversy can be properly adjudicated after ascertainment of truth through cross-examination of witnesses who have filed their affidavits and other material documents. Burden is on the landlord to prove his requirements and his assertion is required..........................."
9. 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 requirement is bona-fide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso (e) of the Section 14(1) are : -
Digitally signed by SNIGDHA RC ARC No : 107/2018 Naresh Sikka Vs. Subhash Garments SNIGDHA SARVARIA SARVARIA Date:
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a) there exists landlord tenant relationship;
b) the premises were let out for residential or commercial purpose;
c)The said premises are bona-fide required by the landlord either for himself or for his dependant family member.
d) The landlord or the dependant family member has no other reasonable suitable accommodation.
10. The thresholds hereinabove 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.
11. For the purposes of leave to defend, the respondent had to show some defence which would disentitle the petitioner of the relief claimed.
12. The respondent has admitted that he is the tenant in the shop in question since 1976 and stated that he even paid for reconstruction of the building of which the shop in question is a part. He stated that he took the shop in question from the father of the petitioners in 1976 and is paying rent regularly. The petitioners on the other hand rely on the registered sale deed dated 13.05.1998 to contend that they are the owner of the property in question, therefore, landlord-tenant relationship between the parties is admitted.
13. Thus, the petitioners are the owner of the tenanted premises and that there is a relationship of landlord and tenant between the petitioner and the respondent herein in respect of the tenanted premises for the purpose of section 14 (1) (e) of Delhi Rent Control Act.
14. The petitioners case is that they require premises in question for, the daughter of petitioner no. 1, Malika Sikka who requires commercial space to open her office for running the professional practice of Chartered Accountancy. She is dependent upon the petitioner no.1 for the purposes of commercial space to open the office and has no other commercial/residential space of her own either in Delhi or anywhere else and thereby is Digitally RC ARC No : 107/2018 Naresh Sikka Vs. Subhash Garments signed by SNIGDHA 6 of 18 SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:39:13 +0530 completely dependent upon the petitioner no.l for the commercial space to open the office. That the daughter of petitioner no.1 Malika Sikka has completed her internship / article ship with H.S. Rustagi& Company having office at Daryaganj, Delhi and Kaushambi, Ghaziabad and gained handsome experience and is determined to commence her own professional practice and is not interested in doing service. The daughter Malika Sikka in order to commence her own practice requires commercial space and the demised premises alongwith adjoining shop is the most suitable space available with the petitioner no.1 for the requirement of his daughter. Also, the petitioner no.1 is an office bearer of Ashok Bazaar Wholesale and Readymade Garments Association and on account of his being old resident of the vicinity, has got social circle over there which makes the demised premises most suitable for his daughter Malika Sikka to establish her practice of Chartered Accountancy and demised premises being adjacent to the business place of petitioner so the said accommodation is the most suitable and the only available accommodation for the bona- requirement of Malika Sikka. That the demised premises is located in Ashok Gali, Gandhi Nagar, Delhi which is a renowned commercial market of readymade and wholesale garments. In the current scenario and dynamics, the businessmen often require the Professional Services and advise of Chartered Accountants and in the entire Ashok Gali there are more than five hundred commercial shops units being run, the demised premises being in the said vicinity / street is the most suitable space for the bona-fide requirement of the daughter of the petitioner no.l to commence her professional practice of Chartered Accountancy.
15. It is no more res integra that a daughter can be dependant on her parents for accommodation, residential or commercial or both. It is also settled principle of law that the landlord is entitled to seek eviction of tenanted premises not only for himself/herself, but for other dependant family members. There is no dispute that the parents are under moral obligation to help establish their child/children in business and can seek eviction of the tenanted premises for them. Herein, the respondent has not brought forth anything contrary to the case of the petitioners that Malika Sikka is not dependant on the petitioners or petitioner no. 1 and that she requires premises in question to practice CA. Reference in this regard can be made to the case of Joginder Pal v. Naval Kishore Behal, (2002) 5 Digitally RC ARC No : 107/2018 Naresh Sikka Vs. Subhash Garments 7 of 18 signed by SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:39:32 +0530 SCC 397, where the Supreme Court held that:
"The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use......... 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 the 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."
16. In the case of Mst. Bega Begum vs Abdul A Khan (dead) by Lrs. and Ors., [1979] 1 SCC 273, the Hon'ble Supreme Court observed as follows :
"In several decisions the pari materia provisions were interpreted so as to include the requirement of the wife, husband, sister, children including son, daughter, a widowed daughter and her son, nephew, coparceners, members of family and dependents and kith and kin, the requirement of landlord as "his" or "his own"
requirement and user. Keeping in view the social or socioreligious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be an 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 identity nexus between such person and the landlord so as to satisfy the requirement of the first query."
17. In this regard it is stated by the respondent that the business of the petitioner no. 1 is on large scale and it is not possible for only one person to maintain/take care of the said business, therefore, the daughters of the petitioner no.1 has also been working for last several years in the said business. That the petitioners and his daughter have sufficient source of income from the aforesaid business. The sufficiency of money is not a criteria or a sine qua non for deciding bonafide requirement. The respondent has not placed on record anything to support his contention that Malika Sikka is working with the petitioner and helping him in his business. Mere bald averments in this regard are of no help to the respondent.
18. In order to evaluate whether the need of the petitioner is bonafide or not, let us understand the legislative and judicial connotation of the term, ' bonafide'. In landmark case Deena Nath v. Pooran Lal, (2001) 5 SCC 705 wherein the Supreme Court observed RC ARC No : 107/2018 Naresh Sikka Vs. Subhash Garments Digitally 8 of 18 signed by SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:39:50 +0530 thus:
"The Legislature in enacting the provision has 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 presenti 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 no 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 subsection (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and 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 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 not 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 that 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 finding illegally arrived at would vitiate the entire judgment."
Chambers 20th Century Dictionary defines bona fide to mean "in good faith and genuine". Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bonafide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the court. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. 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 meaning of "bonafide" in the context appears to be in two folds. (a) the need of the landlord must be a genuine one and not a frivolous one. (b) landlord is not motivated by extraneous considerations in trying to recover the possession from the tenant with a view to let it out again to another tenant at a higher rent.
19. The Apex Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta reported in SCFBRC 1999 Page 330, has observed as under:
"In Prativa Devi (Smt.) v. T.V. Krishnan, 1996 (5) SCC 353, this Court has held that in considering the availability of alternative accommodation, not availability merely but also whether the landlord has the legal right to such accommodation has to be considered.
Reverting back to the case at hand, the landlord has been living on the ground floor of the Defence Colony house. It was conceded at the Bar that as on the day the RC ARC No : 107/2018 Naresh Sikka Vs. Subhash Garments Digitally signed by 9 of 18 SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:40:05 +0530 family of the landlord consists of the landlord himself (a practicing doctor), his son (again a practicing doctor), the daughter-in-law and two grand children who are gradually growing in their age. Looking at the size of the family, available of three bed rooms in the premises in which the landlord may live, is a requirement which is natural and consistent with the sense of decency-not to talk of comfort and convenience. There is nothing unreasonable in a family with two practicing doctors as members thereof needing a room or two or a room with a verandah to be used as a residential-clinic divided into a consultation room and a waiting place for the patients. A drawing room, a kitchen, a living room and a garage are bare necessities for a comfortable living. The landlord has been living in Defence Colony locality for more than 35 years. The first floor which was let out to the tenant in the year 1978 as being an accommodation surplus with the landlord has with the lapse of time become a necessity for occupation by the landlord and his family members. More than ten years by now have been lost in litigation. The death of the wife of the landlord and the death of landlord's mother-in-law, are events which have hardly any bearing on the case of felt need of the landlord, The need as pleaded and proved by the landlord is undoubtedly natural sincere and honest and hence a bona fide need. There is no material available on record to doubt the genuineness of such need. It continues to subsist inspite of the two deaths. It is not the case of the tenant- appellant that while seeking eviction of the tenant the landlord is moved by any ulterior motive or is guided by some other thing in his mind. It will be most unreasonable to suggest that the landlord may continue to five on the ground floor of the Defence Colony house and some members of the family may move to Sarvodaya Enclave House if the whole family cannot be conveniently and comfortably accommodated as one unit in the Defence Colony house. It would be equally unreasonable to suggest that the entire family must shift to Sarvodaya Enclave House which is admittedly situated at a distance of about 7-8 kms. from Defence Colony. The landlord and his family are used to living in Defence Colony where they have developed friends and acquaintances, also familiarity with the neighbourhood and the environment. The patients usually visiting or likely to visit the residential clinic know where their doctor would be available. Shri Arun Jaitley, learned Senior Counsel for the respondent, has very rightly submitted that it could not have been the intendment of the Rent Control Law to compel the landlord in such facts an circumstances to shift to a different house and locality so to permit the tenant to continue to live in the tenanted premises. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself rightly into lesser premises protecting the tenant's occupancy."
20. Further, in another landmark case of "Sarla Ahuja v. United India Insurance Co. Ltd., reported as AIR 1999 SUPREME COURT 100", whereby it was held that :
".....The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself....".Digitally signed by SNIGDHA
SNIGDHA SARVARIA
SARVARIA Date:
2022.01.25
13:40:22 +0530
RC ARC No : 107/2018 Naresh Sikka Vs. Subhash Garments 10 of 18
21. In view of the aforesaid discussions and case laws and considering that Malika Sikka is dependant on his father petitioner no. 1 for commercial accommodation to practice Chartered Accountancy and that the shop in question befits and is suitable as is on a commercial road and near to the business of the petitioner no. 1 who has contacts in the market which would help in publicising her practice, therefore, the requirement of the petitioner as mentioned herein above is found to be genuine and bonafide and Malika Sikka, daughter of the petitioner is held to be dependant on the petitioner for the premises in question to run practice Chartered Accountancy profession.
22. As regards alternate accommodation in Sarwan Dass Bange vs Ram Prakash 2010 IV AD (Delhi) 252, observations made by Supreme Court in Baldev Singh Bajwa V Monish Saini MANU/SC/1239/2005 (2005) 12SCC 778, have been quoted 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 landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given right of restoration of possession; the landlord who evicts the tenant on the ground of his 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 inbuilt strong presumption that the need of the landlord is genuine;the restrictions and conditions imposed on the landlord make it virtually improbable for the landlord to approach the court for ejectment of tenant unless his need is bonafide 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 his 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 bonafide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine. The tenant is required to give all necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine.
23. In Adarsh Electricals and others vs Dinesh Dayal - MANU/DE/2782/2010, it was held that " the concept of alternate accommodation means that accommodation which is reasonably suitable for the landlord, and the court would not expect the landlord to sacrifice on his own comforts and requirements merely on the ground that the premises is with a tenant . The problem had to be approached from the point of view of a reasonable man and not that of a whimsical landlord. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one Digitally RC ARC No : 107/2018 Naresh Sikka Vs. Subhash Garments signed by SNIGDHA 11 of 18 SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:40:40 +0530 but the other accommodation must be accepted by the landlord to satisfy his such need."
24. It is stated by the petitioners that petitioner no. 1 is running his business from shop on the ground floor of property bearing no. IX/7019, Ashok Gali, Gandhi Nagar, Delhi-110031 and the first and second floors of this property are being used by him for godown and packaging purposes. The shop, which is adjacent to the demised premises on Southern Side, shown in Blue Colour is in possession of another tenant namely Sh. Amrit Lal Berry and is also required alongwith the demised premises, for which separate eviction petition has been filed. The shop adjacent to the Shop shown in site plan in Red Colour on the northern side, shown in Orange Colour is in the possession of the petitioner no. 2 and the son of petitioner no.2 is using the same for his business. However, as per the respondent the petitioners have concealed the material facts intentionally and deliberately and not disclosed the other property details belonging to the petitioners, some shops are on rent run by different persons at same areas and three shops are vacant at same area. It is stated that the petitioners have not disclosed about the property in question bearing no.
IX/7019, situated at Ashok Gali, Gandhi Nagar Delhi-51, having 5 shops and out of which 4 shops are on rent to different person alongwith respondent and 5th shop is run by petitioners namely Naresh Sikka & Dinesh Sikka in style of M/s Jai Ambey Sales Corporation. No cogent material has been brought on record by the respondent to show that there are 4 tenants in the property in question bearing no. IX/7019, situated at Ashok Gali, Gandhi Nagar Delhi-51 instead of 2 as stated by the petitioners and that both petitioners are running business from a shop in the name and style of M/s. Jai Ambey Sales Corporation, thus, this plea is of no assistance to the respondent. Furthermore, the petitioners have completely disclosed about the status of this property in the application under S. 14 (1) (e) DRC Act.
25. It is stated by the petitioners that the petitioner no.l owns 1/3rd undivided share in property bearing no. IX/6809 (Ekta Market), Gandhi Nagar, Delhi-31. The said property is 3 storey admeasuring 189 Sq. Yds. The said property was purchased by Digitally RC ARC No : 107/2018 Naresh Sikka Vs. Subhash Garments signed by SNIGDHA 12 of 18 SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:40:57 +0530 the petitioner no.1 with Ram Prasad Chamaria and Neeraj Kumar in the year 2005 and there are more than 20 (twenty) old tenants occupying the same and the co- owners are not prepared for getting the tenants therein evicted for the bona-fide requirement of the daughter of petitioner no.1. The respondent has not brought on record any material to the contrary in this regard to rebut the case of the petitioners, thus, this property cannot be said to be a suitable alternative accommodation.
26. The petitioners have stated that the petitioner no.l is owner of 1/4 undivided share in property bearing no. IX/6309, Jain Mandir Gali, Gandhi Nagar, Delhi110031. The petitioner no.1 alongwith petitioner no.2 and Sh. Nitin Jain own the said property. The said property is old constructed and in a dilapidated state wherein there are 3 (three) old tenants who are occupying 4 (four) small shops and as such, the said property is neither available nor suitable for the requirements of daughter Malika Sikka. The respondent has not brought on record any material to the contrary in this regard to rebut the case of the petitioners, thus, this property cannot be said to be a suitable alternative accommodation.
27. As per the petitioners the deceased father of petitioner no.l Sh. Ram Kishan Sikka was owner of property bearing no. IX/6722, (248 Sq. Yds.), Janta Gali, Gandhi Nagar, Delhi-110031 and the petitioner no.2 is running his business in the name and style of SIKKA GARMENTS from the Ground Floor and the First Floor of property bearing no. IX/6722, Janta Gali, Gandhi Nagar, Delhi-110031 from past several years. The Second Floor and there above of the said property, is under the possession of the son of petitioner no.2 i.e. Siddak Sikka who is using the said floors for the purposes of manufacturing and fabrication of the garments. Siddak Sikka is running his business in the name and style of M/S SIKKA TRADING and is selling the readymade garments from the shop shown in Orange Colour in the Site Plan of property bearing no. IX/7019, Ashok Gali, Gandhi Nagar, Delhi- 110031. That the petitioner no.1 after the death of his father Sh. Ram Kishan Sikka, has become a co-owner to the properties of Sh. Ram Kishan Sikka alongwith the petitioner no.2 and mother Smt. Santosh Kumari. The property-bearing no. IX/6722 is fully occupied, as stated above and there is no space available in the said Digitally RC ARC No : 107/2018 Naresh Sikka Vs. Subhash Garments signed by SNIGDHA 13 of 18 SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:41:15 +0530 property for the bona-fide requirement of the daughter Malika Sikka. As per the respondent the petitioners have concealed the material facts intentionally and deliberately and not disclosed the other property details belonging to the petitioners, some shops are on rent run by different persons at same areas and three shops are vacant at same area. It is stated that the petitioners have not disclosed about the property bearing no. 6722, Gound Floor, Sikka Building, Situated at Janta Gali, Gandhi Nagar, Delhi, in which there are 4 shops and one room and out of it 1 shop is on rent and other 3 shops are vacant. The respondent has not brought on record any material to the contrary in this regard to rebut the case of the petitioners or to show that there is any vacant shop in said property no. 6722 of Sikka building or that there are any other tenants in the said property, thus, this property cannot be said to be a suitable alternative accommodation. The photographs filed by the respondent in this regard do not disclose the necessary particulars to connect the properties in photographs with the petitioners and thus are of no assistance to the respondent.
28. As per the petitioners the deceased father of petitioner no.l Sh. Ram Kishan Sikka was owner of property bearing no. IX/6728, Janta Gali, Gandhi Nagar, Delhi-
110031 (210 Sq. Yds.), Sh. Ram Kishan Sikka left for his heavenly abode on 8th of February 2016. Sh. Ram Kishan Sikka was running his business of textiles in the name and style of "SIDDAK TEXTILES" from the property-bearing no. IX/6728, Janta Gali, Gandhi Nagar, Delhi-110031. As per the last wish of the father, the said business after his death is being carried forward by the daughter-in-law Reena Sikka, wife of petitioner no.2. That the petitioner no.1 after the death of his father Sh. Ram Kishan Sikka, has become a co-owner to the properties of Sh. Ram Kishan Sikka alongwith the petitioner no.2 and mother Smt. Santosh Kumari. The property-bearing no. IX/6728 is fully occupied and there is no space available in the said property for the bona-fide requirement of the daughter Malika Sikka. However, as per the respondent the petitioners have concealed the material facts intentionally and deliberately and not disclosed the other property details belonging to the petitioners, some shops are on rent run by different persons at same areas and RC ARC No : 107/2018 Naresh Sikka Vs. Subhash Garments Digitally signed by 14 of 18 SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:41:31 +0530 three shops are vacant at same area. It is stated that the petitioners have not disclosed about the property bearing no. 6728, Ground Floor, situated at Janta Gali, Gandhi Nagar, Delhi, in which 2 shops are on rent to different person. The respondent has not brought on record any material to the contrary in this regard to rebut the case of the petitioners or to show that there are tenants in said property no. 6728, thus, this property cannot be said to be a suitable alternative accommodation. The photographs filed by the respondent in this regard do not disclose the necessary particulars to connect the properties in photographs with the petitioners and thus are of no assistance to the respondent.
29. It is stated by the petitioners that the deceased father of petitioner no.l Sh. Ram Kishan Sikka was owner of property bearing no. IX/5711, Subhash Mohalla, Gandhi Nagar, Delhi-110031 (100 Sq. Yds.). This is a residential property which is in a dilapidated state and not fit for commercial purposes. The demised premise thereby is the only suitable, available accommodation with the petitioner no.l for the bona-fide requirements of his daughter Malika Sikka to commence her professional practice of Chartered Accountancy. The respondent has not brought on record any material to the contrary in this regard to rebut the case of the petitioners thus, this property cannot be said to be a suitable alternative accommodation.
30. As per the petitioners the wife of petitioner no.1 Alka Sikka owns undivided half share in property bearing no. IX/6590, Nehru Gali, Gandhi Nagar, Delhi-110031 built on a land measuring 20.9 Sq. Meters. The said property is an old constructed two-storey built-up property. An old tenant who is a tea vendor occupies the only shop on the Ground Floor of the said property. The said property is not in a commercial market / road. The said property is old constructed residential built-up property and as such, is not suitable for the bona-fide necessity of daughter Malika Sikka. The respondent has not brought on record any material to the contrary in this regard to rebut the case of the petitioners thus, this property cannot be said to be a suitable alternative accommodation. The photographs filed by the respondent in this regard do not disclose the necessary particulars to connect the properties in Digitally signed by RC ARC No : 107/2018 Naresh Sikka Vs. Subhash Garments SNIGDHA SNIGDHA SARVARIA 15 of 18 SARVARIA Date:
2022.01.25 13:41:45 +0530 photographs with the petitioners and thus are of no assistance to the respondent.
31. In the cases of Dhannalal Vs. Kalawatibai (2002) 6 SCC 16 and Uday Shanker Upadhyay Vs. Naveen Maheshwari (2010) 1 SCC 503, it was held that judicial notice can be taken of the fact that the upper floors are generally not commercially viable and consumers and patrons of the market are reluctant to walk into the same and are more prone to walk into a shop on the ground floor. Relying on these decisions, the Hon'ble High Court of Delhi in the case of M/s A.K.Woolen Industries & Ors. Vs. Shri Narayan Gupta RC. Rev. No. 495/2017 dated 31.10.2017 held that availability of upper floors above the tenanted premises on the ground floor cannot be said to be alternate suitable accommodation.
32. It is stated by the respondent that the petitioners have concealed about property bearing no. 6735, Ground Floor, Situated at Janta Gali Gandhi Nagar Delhi, having 3 shops where all shops are on rent and run by different persons. The petitioners have denied having any concern with the said property. In the absence of any ownership/tenancy documents qua the said property no triable issue is raised by the respondent and the plea of the respondent in this regard is without any merits and of no assistance to the respondent.
33. The respondent has raised the plea that the petitioners have alternative suitable premises and thus this petition is not maintainable is without any merits as neither the respondent has brought forth any material to show an alternative suitable accommodation nor details of such alternative suitable accommodation is given. Clearly, this is a sham defence. It is well settled that the tenant is required to give all necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine. (See:
Sarwan Dass Bange V. Ram Prakash 2010 IV AD (Delhi) 252).
Digitally signed by SNIGDHA SNIGDHA SARVARIA RC ARC No : 107/2018 Naresh Sikka Vs. Subhash Garments SARVARIA Date: 16 of 18 2022.01.25 13:42:01 +0530
34. Landlord is the best judge of his needs. It is well settled that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. From the aforesaid submissions of the petitioner, clearly, his need is bona fide. Herein the son of the petitioner is adult and need to stand on his feet and earn his own living. The respondent has not brought any material on record that the need or requirement of the petitioner is not genuine and bonafide. Also, there is no material on record to show that there is any alternative suitable accommodation for the petitioner apart from the tenanted premises in question. The petitioner-owner of the premises in question, is clearly not expected to accommodate himself and his family in tenanted shop when he bona fide requires the tenanted premises. In Mahendra Trivedi Vs. Jai Prakash Verma, 157 (2009) DLT 690 and Sudesh Kumar Soni & Anr. Vs. Prabhas Khanna & Anr. 153 (2008) DLT 652, it is held that If landlord wishes to live with comfort in a house of his own, law does not common or compel him to squeeze himself lightly into lesser premises protecting tenants occupancy.
35. The pleas qua other premises owned by the respondent, payment of rent, pagri amount and reconstruction amount paid, electricity meter in the name of the respondent and payment of electricity charges are not relevant for petition under S. 14 (1) (e) DRC Act and thus are not dealt with.
36. The decisions (i) Tarun Pahwa Vs. Pradeep Makin 2013 (1) CLJ 801 Del, (ii) Deepak Gupta Vs. Sushma Aggarwal 202 (213) DLT 121, (iii) Vinod Ahuja Vs. Anil Bajaj & Anr. 194 (2012) DLT 203, (iv) Harsh Sabharwal Vs. Sheetal Prasad Jain DHC decided on 13.09.2012, (v) S.K. Seth & sons Vs. Vijay Bhalla DHC decided on 25.07.2012, (vi) Rachpal Singh & ors. Vs. Gurmit Kumar & anr. (2009) 1 SCC, (vii) Inderjeet Kaur Vs. Nirpal Singh (2000) Supp 5, SCR 707, (viii) Charan Dass Duggal Vs. Brahma Nand (1983) 1 SCC 301 and (ix) Harcharan Singh Vs. Neeraj Sahu & anr. 190 (2012) DLT 625; relied upon by the respondent is of no assistance to the respondent as it has been decided on different fact situation and cannot be applied like a Euclid's theorem. Digitally signed by SNIGDHA SNIGDHA SARVARIA RC ARC No : 107/2018 Naresh Sikka Vs. Subhash Garments SARVARIA Date: 17 of 18 2022.01.25 13:42:21 +0530
37. In view of the above discussion and the documents filed by the parties, there is no triable issue between the parties which entitles the respondent for leave to contest the present application for eviction. The application for leave to contest is without merits.
38. Conclusion:
In these circumstances, the application for leave to defend filed by the respondent is dismissed and the respondent is liable to be evicted from the tenanted premises i.e. one shop measuring 7'x 13' approx. on Ground Floor of property no. IX/7019, Ashok Gali, Gandhi Nagar, Delhi-110031 as shown in red colour in the site plan (now exhibited as Ex P1) filed with the present petition. Accordingly, the petition filed by the petitioner u/s 14 (1) (e) r/w S. 25B of the DRC Act is allowed, subject to provisions u/s 19 of the DRC Act. 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. No orders as to costs. Digitally signed by SNIGDHA SNIGDHA SARVARIA SARVARIA Date: 2022.01.25 13:42:39 +0530 Announced through VC (SNIGDHA SARVARIA) on 25th Day of January, 2022. ACJ/ARC/CCJ [This judgment contains 18 pages.] (SHAHDARA) KKD, DELHI.
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