Delhi District Court
Dayawati vs Pramod Kumar on 11 December, 2023
IN THE COURT OF SH. PRANAV JOSHI, CCJ CUM ARC,
CENTRAL, TIS HAZARI COURTS
RC ARC No. 725/2018
Dayawati Vs. Pramod Kumar
CNR No. DLCT03-005660-2018
In the matter of :
Smt. Dayawati (Deceased)
Through her Legal Heirs,
1. Rajender Prashad Aggarwal,
S/o Late Sh. Rameshwar Prasad,
R/o 1198, Gali Babu Ram,
Kucha Pati Ram, Bazar Sita Ram,
Delhi-110006.
2. Kailash Chand Aggarwal (Deceased)
Through his Legal Heirs,
(a) Smt. Suman Aggarwal,
W/o Late Sh. Kailash Chand Aggarwal,
R/o 1198, Gali Babu Ram,
Kucha Pati Ram, Bazar Sita Ram,
Delhi-110006. ...Petitioners
Versus
Sh. Pramod Kumar,
S/o Sh. Gauri Shankar,
At: Shop No. 204,
Ground Floor,
Chawri Bazar, Delhi-110006. ...Respondent
Eviction Petition under Section 14 (1)(e) of Delhi Rent
Control Act, 1958
Date of Institution : 31.08.2018
Date on which judgment was reserved : 16.11.2023
Date of Decision : 29.11.2023
Decision : Petition Dismissed
RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.1/26
JUDGMENT
1. This is an eviction petition for recovery of Shop No. 204, Ground Floor, Chawri Bazar, Delhi-110006 as shown in red colour in the site plan (hereinafter referred to as tenanted shop) against the respondent u/s 14(1)(e) of Delhi Rent Control Act 1958 (hereinafter referred to as DRC Act).
2. It is the case of the petitioners is that petitioner was the owner and landlady of property bearing municipal No. 200 to 205 situated at Chawri Bazar, Delhi. That the respondent is a tenant in the tenanted shop. That the petitioner was having two sons, two daughters-in-law, three grandsons and one granddaughter. That the property in question is bearing municipal Nos. 200 to 205 constructed as ground floor, first floor and second floor and the entire property has been occupied by different tenants except the first floor. That the suit premises is required for the daughters-in-law of the petitioner for doing their own independent business from the tenanted shop as the same is the most suitable accommodation for them. That the daughters- in-law of petitioner wanted to run their own boutique house for which the premises in question is required. That for the purpose of running the boutique house, the daughters-in-law of petitioner requires a separate tailoring/stitching space from where the tailors would stitch the ladies' clothes. That they also require a separate private space for the purpose of taking measurements for ladies clients. They also require the separate space for changing room besides separate WC facilities and also requires space for waiting of customers as well as for display of ladies' apparels. That the property in question is situated in the most popular and RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.2/26 busy vicinity near Chandni Chowk and Jama Masjid. That the petitioner does not have any other reasonable and suitable accommodation with her or to her daughters-in-law who are fully dependent upon her for the purpose of accommodation. That the daughters-in-law of the petitioner were fully dependent upon her. That the tenanted shop is situated in busy vicinity near Chandni Chowk from where the daughters-in-law of the petitioner could have called the customers who are passersby and can also attract the customers by opening a showroom, thus the tenanted shop is the most suitable accommodation. That the petitioner did not have any other reasonable or suitable accommodation where the said business activity can be carried out. Hence, the present petition.
3. During the pendency of the petition, the petitioner Smt. Dayawati expired and her legal heirs were brought on record as the present petition was preferred for the bona fide need of her family members. During the pendency of the present petition, Sh. Kailash Chand Aggarwal, on of the legal heirs of the petitioner also expired and his legal heirs were brought on record.
4. Upon receipt of the petition, the respondent appeared and file leave to defend application along with affidavit. Vide order dated 14.05.2019, the leave to defend application filed by the respondent was allowed and the respondent was granted leave to contest the present petition. As a consequence of granting leave to defend, the respondent filed written statement stating the following:
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(a) That the present petition is not maintainable as the present petition was filed by GPA holder and since the petitioner has expired, the said GPA has no power to pursue the present matter. That the legal heirs of the petitioner though came on record but has not filed any detailed affidavit showing their need and as such the present petition deserves dismissal on this ground only.
(b) That the present petition is liable to be dismissed on the ground that the deceased petitioner had not declared all her properties and after the death of the petitioner, the legal heirs of the petitioner had not given the details of the properties which are owned by them which amounts to concealment of material facts. That deceased petitioner and her family are the owners of various properties in the same area and further recently she has got the possession of the first floor of the premises and till today her family members have not started any business from the said premises and at present it is lying vacant and they had also informed various property dealers to put the said premises on higher rate of rent which shows that the petitioner or her family member do not have any requirement.
(c) That the deceased petitioner owned the property No. 1198, Gali Babu Ram, Kucha Patiram, Bazar Sita Ram, Delhi-110006, containing the three shops on the ground floor which are in possession, of the legal heirs of the deceased petitioner. That the said shops are lying vacant and is having area more than the area required by the petitioner in the petition. That the said property consists of ground, first, second and third floor RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.4/26 measuring around 150 sq.yds and that the petitioner has concealed this fact from this court.
(d) That the authority given by the petitioner is not genuine per se as the document i.e. General Power of Attorney itself shows that the same does not bear any entry number and no there is no proper signature of the Notary. That the present petition could not have been filed on the basis of GPA specifically when the GPA Holder is not aware about any facts of the case.
(e) That the need created by the petitioner as alleged in the petition is prima facie is not the genuine need which is clear from the fact that no circumstances have been changed from the date when she filed earlier petition. That it is not the case of the deceased petitioner that recently some members have been increased in the family and for them she needs more space and moreover, the need shown that they wanted to open boutique and all does not look genuine in view of the fact that the area/ market in which the suit premises is situated is paper and card/ printing market and there is no shop of clothes/ boutique in the said area.
(f) That the deceased petitioner has not filed certified translated copy of the alleged gift deed annexed with the petition.
(g) That the rent receipts filed by the deceased petitioner in the present petition is also forged and fabricated RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.5/26 which were not filed earlier in the said petition. Thus the present petition being filed on the forged and fabricated documents is liable to be dismissed with heavy costs.
(h) That the deceased petitioner has failed to declare all her properties in the petition and has not even declared that she does not owe any other property. That she has failed to give affidavit regarding the properties of the family members of the deceased petitioner for whom she is asking the possession and thus the petition is liable to be dismissed.
(i) That the present petition is a misuse of the process of law and based upon false and concocted story and the same has been filed with malafide intention to extort huge sum of money from respondent and to sell the property or rent it for higher price, therefore, the petition filed by the deceased petitioner is misused of the process of law.
(j) That the deceased petitioner has concealed the accommodation already available on the other floors of the building and other properties.
(k) That the deceased petitioner wants to re-
structure and re-built the tenanted premises. The present petition is case of additional accommodation.
(l) That the deceased petitioner of her own showing is the sole and absolute owner of the property no. 1198, Gali Babu Ram, Kucha Pati Ram, Bazar Sita Ram, Delhi-
RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.6/26 110006. That as per the municipal the erstwhile owner of the property was late Shri Rameshwar Prasad that is the husband of the deceased petitioner herein and he died intestate. That on his death his movable properties devolved on his natural heirs namely the deceased petitioner as well as her two sons i.e. the husbands of daughters in law of the petitioner in equal shares.
(m) That the deceased petitioner and her two sons are joint owners of the entire estate including the movable property bearing no. 1198, Gali Babu Ram, Kucha Pati Ram, Bazar Sita Ram, Delhi-110006. That the said sons and their family including their wives who are residing with them are not dependent in any manner particularly for accommodation, residential or commercial upon the petitioner.
(n) That in the property bearing no. 1198, Gali Babu Ram, Kucha Pati Ram, there are three shops each admeasuring 8'x28' on the lower ground floor which are lying closed, unused and unoccupied for last several years at least since 1998 till today. The respondent has relied upon the municipal record of the year 1996 pertaining to this property to show that it has been recorded that the said three shops are being used and occupied by the owner as godowns. That the adjacent properties to property bearing no. 1198 are used as commercial being situated in the heart of commercial market.
5. Replication was filed by the petitioners to the written statement of the respondent, wherein petitioners re- affirmed and re-iterated the facts mentioned in the petition and RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.7/26 denied the defences taken by the respondent.
6. In support of their case, petitioners examined attorney holder of the deceased petitioner as well as by her legal heirs (present petitioners) Sh. Manish Aggarwal as PW1 who tendered his evidence by way of affidavit Ex. PW1/A and relied upon following documents :
(i) GPA dated 20.08.2018 executed by deceased petitioner in favour of PW1 Ex. PW1/1 (OSR)
(ii) GPA dated 08.02.2019 executed by deceased petitioner in favour of PW1 Ex. PW1/2.
(iii) Copy of gift deed in favour of deceased petitioner Mark PW1/X1.
(iv) Copy of Hindi translation of the gift deed Mark PW1/X2.
(v) Rent receipt dated 04.04.2018 pertaining to Shop No. 200 Ex. PW1/5 (OSR).
(vi) Rent receipt dated 04.04.2018 pertaining to Shop No. 201 Ex. PW1/6 (OSR).
(vii) Rent receipt dated 04.04.2018 pertaining to Shop No. 202 Ex. PW1/7 (OSR).
(viii) Rent receipt dated 04.04.2018 pertaining to Shop No. 203 Ex. PW1/8 (OSR).
(ix) Rent receipts bearing Nos. 421, 434, 441 pertaining to Shop No. 204 Ex. PW1/9 (OSR).
(x) Rent receipt dated 04.04.2018 pertaining to Shop No. 205B Ex. PW1/10 (OSR).
(xi) Judgment/order dated 31.07.2017 of the Competent Authority, Slum Ex. PW1/12 (colly.).
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(xii) Copy of order dated 05.07.2019 passed by Ld. SCJ cum RC, Central, Tis Hazari Courts, Delhi,
(xiii) ID Proofs of the family of the petitioner Ex. PW1/14 (colly.) (OSR),
(xiv) Copy of sale deed in respect of property No. 1198, Kucha Pati Ram, Bazar Sita Ram, Delhi Mark PW1/X3.
(xv) Rent receipt dated 31.03.2018 in respect of one big godown in property No. 1198, Kucha Pati Ram, Bazar Sita Ram, Delhi Ex. PW1/16 (OSR).
(xiv) Rent receipt dated 31.03.2019 in respect of one big godown in property No. 1198, Kucha Pati Ram, Bazar Sita Ram, Delhi Ex. PW1/17 (OSR).
(xv) Photographs of property No. 1198, Kucha Pati Ram, Bazar Sita Ram, Delhi Ex. PW1/18.
(xvi) Site plan of property No. 1198, Kucha Pati Ram, Bazar Sita Ram, Delhi Ex. PW1/19.
(xvii) Site plan of suit property Ex. PW1/20.
(xviii) Affidavit under section 65B of Indian Evidence Act Ex. PW1/21.
PW1 was duly cross-examined by Ld counsel for the respondent.
7. Vide order dated 12.04.2023, the petitioners' evidence was closed in affirmative.
8. Respondent did not lead evidence despite several opportunities and vide order dated 22.08.2023, the right of the respondent to lead evidence was closed.
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9. I have heard arguments heard from both the sides. I have also perused the record.
10. In order to bring a case within the purview of section 14(1)(e) of DRC Act, the followings are the essential ingredients :
i. Petitioner is the owner/landlord in respect of the tenanted premises;
ii. The tenanted premises are required bona fidely by the petitioner for himself or for family members dependent upon him;
iii. The petitioner does not have any other reasonable suitable accommodation.
Ownership of petitioner and Landlord-tenant Relationship between the parties
11. In the present case, the respondent has not disputed the landlord-tenant relationship between the parties. Therefore, on the basis of the pleadings of the parties, the landlord-tenant relationship is found established between the parties for the purpose of section 14(1)(e) of DRC Act.
Bona fide requirement of the petitioner.
12. In regard to the bona fide requirement, it is pleaded by the petitioners that the tenanted shop is required for the daughters-in-law of Smt. Dayawati (deceased petitioner) who want to run a ladies boutique. It is pertinent to mention that three separate eviction petitions have been preferred by the petitioners RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.10/26 against three tenants in respect of shops bearing Nos. 201, 203 and 204. To prove her case, the petitioner examined Sh. Manish Aggarwal as PW1. It is now well settled that a landlord can prove his bona fide requirement even without stepping into the witness- box and it cannot be held as inflexible preposition of law that bona fide requirement could be established by the evidence of landlord only and non else. Reliance is placed on Nathu Lal Gangabaks Khandelwal & Ors. Vs. Smt. Nandubai & Ors. (AIR 1984 Bom. 340 DB) and Smt. Ramkubai Vs. Hajarimal Dhokalchand Chandak ( AIR 1999 SC 3089). It was held by Hon'ble Delhi High Court in Om Parkash Vs Inder Kaur ( 2009 156 DLT 292) that there is nothing in the DRC Act which suggests that the landlord must step into the witness box to prove his bona fide need for the premises in question and that it is open to the landlord to lead any evidence which he chooses in order to substantiate his case of bona fide requirement. Similar view was taken in Capt. Praveen Davar Vs. Harvansh Kumari (2010) 119 DRJ 560, wherein it was held that it is not essential for the landlord to enter into witness-box and depose in favour of his case and even an attorney holder can depose on behalf of the landlord who has personal knowledge of the facts of the case. In a recent judgment, Hon'ble Delhi High Court in Anil Bhasin Vs Imarti Devi (RC Rev No. 266/2017 dated 06.11.2017), held that it is not essential in a proceeding for eviction of a tenant for the landlord himself to step into the witness box and any other witness who has personal knowledge of the facts can depose as a witness. It was further held that the landlord can prove his case without stepping into the witness box and no adverse inference can be drawn against him on the ground that he did not appear RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.11/26 his own witness in the case. Therefore, PW1 was a competent witness to depose and prove the bona fide need of the deceased petitioner and the contention of the respondent that after death of the original petitioner, the GPA was discharged, is not sustainable in law.
13. The present petition is one of the three eviction petitions filed by the petitioner against the tenants of shops No. 201, 203 and 204 and all these three petitions were heard and disposed of simultaneously. The present petition, like the other two petitions, is also the second petition filed by the deceased petitioner after the prior petition filed in the year 2014 was withdrawn. The petition is identical to the other two petitions. It is relevant to note that in the other two eviction petitions bearing RC ARC No. 723/2018 and 724/2018, it is held by the undersigned that the need set up by petitioners for the three shops i.e. shops No. 201, 203 and 204 (tenanted shop in the present petition) was not found to be bona fide. The following findings were returned in respect of the bona fide need of the petitioners in RC ARC No. 723/2018:
"...14. One of the main grounds on which the respondent disputes the bona fide of the present petition is that the present petition was filed by the petitioner within few weeks after withdrawing the earlier petition. It is contended that the earlier eviction petition was filed by the petitioner for the bona fide need of the sons and grandsons in the year 2014 but the same was withdrawn by the petitioner since she had lost interest in prosecuting the petition and within less than two weeks the petitioner filed the present petition for the bona fide need of her daughters-in-law. It is contended that the petitioner has not obtained permission under Order 23 of Civil Procedure Code, 1908 (hereinafter referred to as CPC) and thus, the present petition was not permissible as per law. It is also contended that the present petitioner also contravene Order 2 Rule 2 CPC as the petitioner could not have split his cause of action for different family members. It is also contended that the petitioner RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.12/26 has failed to explain the change in circumstances which led to the filing of the present petition. Coupled with this contention, it is also urged that the bona fide of the petitioner is also questionable since the petitioner, during the pendency of the two eviction petitions filed against the respondent (the earlier and the present petition), have negotiated sale with the other tenants of the adjacent shops namely 200 and 202 and their monthly rent was enhanced. It is also urged that during the pendency of the earlier petition, the grandson of the petitioner Sh. Manish Aggarwal i.e. PW1 had also entered negotiations for sale of the tenanted shop with the respondent and the conversation was recorded by the respondent which clearly proves the lack of bona fide in the present petition.
15. The contention that the petitioner has not obtained prior permission from Ld. ARC before withdrawing the earlier petition under Order 23 of CPC and that the present petition is barred by Order 2 Rule 2 CPC by are not sustainable in the eyes of law. Since, every ground for eviction constitutes a distinct cause of action and no liberty is required before filing a fresh petition and provisions of Order 2 Rule 2 CPC are not attracted in these cases. Reliance in this regard is placed on S. Rajdev Singh Vs. M/s Royal Studios AIR 1972 Del. 150, Jai Kishan Balkishan Vs. Dr. M.B. Kagal 1972 8 DLT 422, Abnash Kaur Vs. Dr. Avinash Nayyar ILR 1974 II Del. 133 (FB) and Vijay Kumar Vs. Manoj Kumar Garg RSA No. 179/2016, dated 20.07.2016. Therefore, merely on the ground that the earlier petition was dismissed without seeking prior permission from Ld. ARC, the present petition cannot be barred by law. The bona fide need for seeking eviction of a tenant u/s 14(1) (e) of DRC Act itself is of such nature that subsequent petitions for distinct cause of action may be preferred despite failure of earlier petitions. As already observed, Order 2 Rule 2 CPC dose not attract in such cases. However, the aspect whether after withdrawing the earlier petition, the present petition was filed for ulterior motives without there being any bona fide need would be wholly different which needs to be examined in the present case.
16. The respondent has placed on record a voice recording Ex. RW1/5 of the conversation of PW1, who is grandson of the petitioner, and the respondent which took place during the pendency of the first petition. The respondent has also supported the voice recording Ex. RW1/5 by certificate u/s 65B of Indian Evidence Act, 1872 Ex. RW1/6. The contention of Ld. Counsel for the respondent is that the conversation between the respondent and PW1 itself shows that the intent behind seeking eviction of the respondent was to realize market value of the property and not to utilize it for any business of daughters-
in-law of the deceased petitioner. On the other hand, Ld. Counsel for the petitioners has not only disputed the authenticity of the recording but also submitted that the facts and circumstances prevailing at the time of the earlier petition cannot be a deciding factor for the present petition.
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17. Before any finding can be given to the voice recording Ex. RW1/5, it is necessary to consider whether any fact which occurred during the pendency of the earlier petition could be relevant to affect the bona fide of the petitioner in the present petition. It is pertinent to mention that the earlier eviction petition bearing No. 78966/2016 (new number) was filed in the year 2014 and on 04.08.2018, an application u/s 151 CPC Ex. PW1/R4 was moved by the petitioner seeking permission to withdraw the said petition. The contents of the application are reproduced as under:
" 1. That the petitioner has filed the above noted eviction petition against the respondent under section 14(1) (e) of the Delhi Rent Control Act, which petition is pending for adjudication before this Hon'ble Court.
2. That Petitioners/ Applicants are no more interested to continue the present petition as such the present petition may kindly be dismiss as withdrawn.
In view of the aforesaid facts and circumstances, it is, therefore, most respectfully prayed that the aforesaid petition may kindly be dismiss as withdrawn.
It is prayed accordingly,"
It is pertinent to mention that the present petition was filed on 31.08.2018. The earlier petition was filed by the petitioner for the bona fide need of her sons and grandsons. In regard to the earlier petition, it is stated in para 19(i) by the petitioner that due to change in circumstances, vacation of first floor and with passage of time, the bona fide need of the sons and grandsons came to an end and the bona fide need of the daughters-in-law arose. The para 19(i) of the petition is reproduced as under:
"(i) Petitioner had filed an eviction petition in the year 2014 against the respondent and that eviction petition was withdrawn on 07.08.2018. The said petition was filed by the petitioner for requirement of her sons and grandsons. However, due to change of circumstances, vacation of First Floor and with the passage of time, the bonafide need of the sons and grandsons of petitioner came to an end and end and due to change of circumstances of the petitioner, the bonafide need of the daughters-in-law of the petitioner arose and the previous petition was withdrawn and the present one is being filed due to change of circumstances."
It is pertinent to mention that the application PW1/R4 does not contain any such averments as made in para 19(i) of the present petition. The respondent has categorically pleaded in his defence that the petitioner was negotiating the settlement with the respondent through PW1 and the petition was withdrawn only due to this fact only. It is also specifically pleaded by the respondent that the petitioner entered into similar negotiations with other tenants and thus, filed only the petition for three of the tenants and chose not to file any eviction RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.14/26 petition against the other two tenants shops Nos. 200 and 202. It is contended that the petitioner through PW1 was negotiating sale of the shops in one go and the same is proven by the voice recording Ex. RW1/5. The close proximity in which the earlier petition was withdrawn and the present petition was filed makes the defence of the respondent relevant for testing the bona fide of the present petition. The cross-examination of PW1 on this point also makes this enquiry relevant. PW1 admitted in his cross-examination that till the withdrawal of the earlier petition on 07.08.2018, there was no bona fide need of the daughters-in- law of the petitioner existing and the same arose only during a period of twelve days i.e. between 07.08.2018 and 20.08.2018. It is pertinent to reproduce the relevant cross-examination of PW1 in this regard:
" Q. Is it correct that since the name of the daughters in law of the deceased petitioner was not mentioned in the 1" petition, therefore, there was no bonafide need of the daughters in law of deceased petitioner between the period i.e. with effect from 23.01.2014 (when the first petition was filed) till 07.8.2018 (when the same was withdrawn)?
Ans. It is correct.
Q. The first petition was withdrawn on 07.08.2018 and the present petition filed on 20.08.2018, so according to you bonafide need of the daughters in law of deceased petitioner arose between these twelve days?
Ans. Yes".
The fact that allegedly there were negotiation going on between PW1 and the respondent, and the bona fide need for filing the present petition arose within a period of twelve days with no clear explanation in regard to the change in circumstances makes this enquiry into the bona fide of the present petition necessary.
18. Now, it is to examined whether the respondent has been able to prove the conversation between PW1, the respondent and Sh. Ravinder Suri, tenant in shop No. 203 through the voice recording Ex. RW1/5. The conversation was put to PW1 during his cross-examination but he did not deny that the voice in the recorded conversation Ex. RW1/5 was in fact his voice. He simply chose to avoid the question. In the replication, it is pleaded that the recorded conversation is edited. In the pleadings also, it is not denied that the alleged voice in the recorded conversation Ex. RW1/5 is of PW1. When PW1 was confronted with the written transcript of the conversation, he could not specify which of the portion of the conversation has been edited. PW1 simply stated that he did not read the transcript. The relevant cross-examination of PW1 is reproduced below:
"...It is correct that grandson of petitioner referred to in RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.15/26 ordersheets dated 06.05.2016, 20.03.2017, 03.07.2017 and 03.10.2017 in the first petition filed by the petitioner to me. The said ordersheets are now exhibited as PW1/R-8 (colly.) (at page no. 705, 709, 711 and 713 of the present case file). I have not heard the audio recording in CD annexed with leave to defend application. I do not know whether my counsel heard the same or not. I do not know on what basis it is mentioned in para 12 of preliminary objection mentioned in replication that the CD has been edited or not sustainable in the eyes of law.
Witness is shown transcript of conversation/ recording of the CD which is now marked as Mark-B from point A to A-1 and he is asked as to which portion of the conversation has been edited.
Ans. I cannot say since I have not heard the recording.
I have not even read the relevant transcript of the audio CD as reproduced in the written statement by the respondent. It is wrong to suggest that I am deliberately giving evasive answers."
19. It is also pertinent to mention that during the cross-examination of RW1 also, no suggestion was put to RW1 that the alleged voice in EX RW1/5 was not of PW1. There was no suggestion also that the transcript of the conversation is not true or genuine. Thus, respondent was able to prove the voice recording Ex. RW1/5. A perusal of Ex. RW1/5 shows that PW1 was negotiating sale of the the shops with the respondent and Sh. Ravinder Suri (tenant of shop No. 203) and PW1 was insisting for sale of three shops i.e. shops No. 201,203 and 204 (in respect of which eviction petitions have been filed). Therefore, it stands proved that during the pendency of the earlier eviction petition, there were negotiations for sale of the shops 201,203 and 204 going on which was done by PW1 on behalf of the petitioner apparently and that the petitioner was contemplating sale of these shops in one go. As already observed, when PW1 was asked about the conversation and the said negotiations, he gave evasive answers and did not offer any explanation. In the connected eviction petition bearing No. RC ARC No. 724/2018, PW1 was asked specifically during the cross-examination whether any such conversation took place between him and the respondent and Sh. Ravinder Suri, which he simply denied without offering any explanation. The relevant cross-examination dated 07.06.2022 is reproduced as follows:
"...I suggest to you that during the earlier petition you had been negotiating with the respondent herein and Mr. Ashwini Suri, who is the occupant of shop no. 201 in the same building as is evident from CD recording, i.e., Annexure R-1 filed with the leave to defend application, with regard to the shop in question and other shops for selling the shops or raising the rent?
Ans. It is wrong to suggest."
RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.16/26 These circumstances i.e., arising of the bona fide need for the present petition during a period of only twelve days between the withdrawal of the earlier petition and preparation of the present petition, no clear and cogent explanation for the change of circumstances coupled with the recorded conversation Ex. RW1/5 and the fact that eviction petitions were filed only in respect of these three shops only create a strong suspicion that the present petition was only filed because the negotiations for the sale of these shops i.e. 201, 203 and 204 had failed and the petitioner was not able to realize market price for the same and as such the bona fide need for filing the present petition was lacking. The burden was on the petitioners to disprove the same but they failed in doing so.
20. Further, nowhere in the petition it is mentioned as to how much space is required for the bona fide need of the business of the daughters-in-law of the deceased petitioner. It is pertinent to mention that there are five shops on the ground floor and the eviction petitions have been filed only in respect of three shops only. The relevant pleadings in the petition made in regard to the bona fide need are reproduced as follows:
" 8. That for the purpose of running the boutique house, the daughters-in-law of petitioner requires a separate tailoring/stitching space from where the tailors would stitch the ladies' clothes. They also require a separate private space for the purpose of taking measurements for ladies clients. They also require the separate space for changing room besides separate WC facilities and also requires space for waiting of customers as well as for display of ladies' apparels."
From the above, it appears that the petitioners require at least five shops for opening the boutique but no specific averments are made that the said requirement can be fulfilled by only these three shops for which the eviction petitions are filed. A question was put to PW1 as to how much space is required for opening boutique for the daughters-in-law of the deceased petitioner, he could not specify the same. The relevant cross-examination is reproduced herein:
"...Q. How much space/ size is required for allegedly opening boutique for the daughters-in-law of the deceased petitioner?
A. filed. The size of the shop for which the present case has been Q. Can you tell the exact measurements for the space required as mentioned above?
A I cannot tell.
It is wrong to suggest that I cannot tell the same since no space is required for opening boutique for the daughters-in-law of the deceased petitioner."
RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.17/26 It is settled preposition of law that the requirement of the petitioner to possess the tenanted premises must be bona fide and not a mere wish or desire i.e. something whimsical or fanciful. In this regard, the Hon'ble Supreme Court in Deena Nath Vs Pooran Lal (2001 3 SCR 925) has observed:
"...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 sub-section (e) of Section 12( 1) of the Act in respect of 1ccommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is duty-bound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable non-residential 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 iliecourt/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind the statutory mandate incorporated in Section 12( 1 )( f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment. In such case the High Court cannot be faulted for interfering with the finding in exercise of its second appellate jurisdiction under Section 100 of the Code of Civil Procedure."
The petitioners have not been able to explain as to how their requirements for accommodation can be met only by these three shops only despite their pleadings suggest their requirement to be of five shops and as such, the need set up by the petitioners appears to be a mere wish and desire. The petitioners have not been able to prove that the shops 201, 203 RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.18/26 and 204 are required by them (since the original petitioner has expired) bona fide.
Since, it has already surfaced in the above mentioned two petitions that the need of the petitioners for the shops No. 201, 203 and the tenanted shop was not bona fide, in view of the above findings in the other two petitions in RC ARC No. 723/2018 and RC ARC No. 724/2018, it is held in the present petition also that the petitioners have no bona fide need for the tenanted shop in question.
Availability of suitable alternative accommodation.
14. In regard to the alternative accommodation available, the petitioners have pleaded that they do not have any other alternative suitable accommodation available. Per contra, the respondent has taken the plea that the petitioners are having the first floor of the property No. 200-205, Chawri Bzar, Delhi as well as property No. 1198, Gali Babu Ram, Kucha Pati Ram having three shops available to them.
15. In the petitions RC ARC No. 723/2018 and 724/2018, it is held by the undersigned that the petitioners have alternative accommodation available on the lower ground floor of the property No. 1198, Gali Babu Ram, Kucha Pati Ram and on the first floor of the property No. 200-205, Chawri Bzar, Delhi. The findings returned in RC ARC No. 723/2018 reads as under:
"...It is relevant to note that the property No.1198, Gali Babu Ram, Kucha Pati Ram was owned by husband of deceased petitioner Sh, Rameshwar Prashad and after the death of Sh. Rameshwar Prashad and the original petitioner, the property RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.19/26 has devolved upon the petitioners (impleaded after the death of Smt. Dayawati). The upper floors have stated to be used for residential purposes. It is deposed by PW1 in his examination- in-chief that the basement floor of the said property consists of two shops which are under occupation of two tenants. PW1 has relied upon rent receipts Ex. PW1/14 and Ex. PW1/15, photographs of the floor Ex. PW1/16 and site plan Ex. PW1/17. It is admitted position between the parties that the lower ground floor at No. 1198, Gali Babu Ram, Kucha Pati Ram is used for commercial purposes. The property No.1198, Gali Babu Ram, Kucha Pati Ram is having three shutters. It is the case of the respondent that the said lower ground floor consists of three shops as per the MCD survey report of the year 1993-94, which fact is not disputed, and these shops are not only lying vacant but are suitable for the alleged bona fide need of the petitioners since the property is surrounded by commercial establishments. The respondent has challenged the rent receipts Ex. PW1/4 and Ex. PW1/15 on the ground that they are not genuine. The respondent has also put the rent receipts Ex. PW1/R6 (colly) which pertain to the said shops at lower ground floor to PW1 during the course of his cross-examination. It is the contention of Ld. Counsel for the respondent that the rent issued Ex. PW1/R6 (colly) in respect of the lower ground floor were issued in the name of Sh. Rameshwar Prashad who had expired in the year 1998. It is further contended by him that falsity of these rent receipts can be seen from these rent receipts which show that during the period 2011-2013, the rent in respect of portion allegedly shown under the tenancy of Bishamber Nath Hem Chand was first increased from Rs. 425/- per month to Rs. 450/- per month but then the same was decreased to Rs. 450/- per month which was not possible.
22. In the replication, it is pleaded by the petitioners that the shops situated on the lower ground floor are only two in number and since, one shop is larger than the other, the said shop is having two shutters. It is pertinent to mention that the petitioners have not denied that the MCD survey report of the year 1993-94 shows the existence of three shops. It is pleaded that during the passage of time, the structural changes have occurred in the property and that there are only two shops which are occupied by tenants. The petitioners have relied upon rent receipts issued in the name of Raj Kumar and Bishamber Nath Hem Chand Ex. PW1/14 and Ex. PW1/15 and photographs Ex. PW1/16 to show that the lower ground floor on the property bearing No. 1198, Gali Babu Ram, Kucha Pati Ram is in possession of the tenants and the same consists of two shops only. It is pertinent to mention that the photographs Ex. PW1/16 do not show the entire portion of the lower ground floor on the said property and therefore, from these photographs it cannot be conclusively held that the lower ground floor only consists of two shops and not three shops. It is also revealed from the photographs that the two shutters shown in the said photographs are in dilapidated condition and appears to be non-functioning. It is relevant to note that the petitioners have not denied the assertion of the respondent that as per the MCD RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.20/26 survey report of the year 1993-94, three shops were shown to be existing on the lower ground floor. Though, the petitioners have alleged in the replication that the said lower ground floor has undergone structural change during the passage of time, however, the petitioners have not been able to prove the same. The petitioners have produced two rent receipts Ex. PW1/14 and Ex. PW1/15 but the same only mention one big godown and from these rent receipts, it is inconclusive to hold that the lower ground floor in property bearing No. 1198, Gali Babu Ram, Kucha Pati Ram consists of only two shops and not three shops. Since, the petitioners have not denied the above-mentioned MCD survey report, the burden to prove that the said lower ground floor consists of only two shops and not three shops, was on the petitioners. However, petitioners have not able to bring forth any evidence in this regard and thus, have failed to prove that the said lower ground floor consists of only two shops. As already observed, the photographs Ex. PW1/16 only shows a part of the lower ground floor having two shutters only (the second shutter is also not completely visible) and thus, the stand taken by the petitioners that one shop of the lower ground floor is having two shutters being large in size and therefore, there exists three shutters on the lower ground floor has remained unsubstantiated.
23. It is also pertinent to mention that it is the case of the petitioners that the lower ground floor in the property bearing No. 1198, Gali Babu Ram, Kucha Pati Ram is occupied by the tenants and in this regard, the petitioners have relied upon the rent receipts Ex. PW1/14 and Ex. PW1/15. It is the categorical stand of the respondent that the rent receipt Ex. PW1/14 and Ex. PW1/15 are forged and fabricated and as such the lower ground floor is lying vacant and the same is used by the petitioners for domestic storage. Ld. Counsel for the respondent, during the course of the arguments, has drawn the attention of the undersigned to the rent receipts Ex. PW1/R6 (Colly.) which were filed in the earlier petition and which pertains to the lower ground floor in the property bearing No. 1198, Gali Babu Ram, Kucha Pati Ram and he submitted that in the rent receipt issued to Bishamber Nath Hem Chand for the period 09.08.2012 to 08.11.2012, the rent is shown to be Rs. 475/- per month but for the subsequent period i.e. 09.11.2012 to 31.03.2013, as per the rent receipts, the rent has been reduced to Rs. 450/-. It is also contended by Ld. Counsel for the respondent that the rent receipts were issued in the name of Sh. Rameshwar Prashad, husband of the deceased petitioner, who had expired in the year 1998. It was submitted by Ld. Counsel for the petitioners that sometimes it is a customary practice to issue rent receipts in the name of the earlier owner, even though he was no more in existence as a mark of respect. It is pertinent to mention that these rent receipts i.e. Ex. PW1/R6, are not disputed by the petitioners. A careful examination of these rent receipts show that despite Sh. Rameshwar Prashad has expired in the year 1998, still rent receipts were being issued in his name till 2018. The rent receipts Ex. PW1/R6 (Colly.) are eighteen in number starting from the year 01.04.2005 till RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.21/26 30.03.2013 and the same were issued in the name of Sh. Rameshwar Prashad. However, the rent receipts Ex. PW1/14 and Ex. PW1/15 which were filed with the present petition and which pertain to lower ground floor shops in property bearing No. 1198, Gali Babu Ram, Kucha Pati Ram, were issued in the name of the deceased petitioner and Sh. Rajender Prashad Aggarwal, one of the newly impleaded petitioner. There is no explanation from the petitioners if the rent receipts Ex. PW1/R6 (Colly.) were issued in the name of Sh. Rameshwar Prashad even after his death as a customary practice then why the receipts Ex. PW1/14 and Ex. PW1/15 were also not issued in his name only. It is also pertinent to mention that the name of Sh. Rameshwar Prashad in these receipts was handwritten and the submissions made by Ld. Counsel for the petitioners that the receipts were continued to be issued in the name of Sh. Rameshwar Prashad as a customary practice, would be acceptable had the rent receipts Ex. PW1/R6 (Colly.) were printed one so that it could have been said that the rent receipts which were earlier issued to the tenants during the lifetime of Sh. Rameshwar Prashad were also continued to be issued after his death. Further, perusal of the rent receipts Ex. PW1/R6 (Colly.) show that during the period 09.04.2011 to 08.08.2012, the monthly rent of the portion allegedly under the tenancy of Sh. Bishamber Nath Hem Chand was Rs. 425/- and during the period 09.08.2012 to 08.11.2012, the monthly rent was enhanced to Rs. 475/- per month but subsequently the rent for the period 09.11.2012 to 31.03.2013, the monthly rent was reduced to Rs. 450/-. Therefore, the rent receipts in respect of the lower ground floor portions of the property bearing No. 1198, Gali Babu Ram, Kucha Pati Ram cannot be said to be free from doubt. Moreover, from the photographs Ex. PW1/16 the lower ground floor portion, as visible in the photographs, does not appear to be in active usage. Consequently, a presumption u/s 114 of Indian Evidence Act, 1872 is liable to be drawn against the petitioners that they have an alternative accommodation available on the lower ground floor in property bearing No. 1198, Gali Babu Ram, Kucha Pati Ram which they have concealed. It is not the case of the petitioners that the lower ground floor in the property bearing No. 1198, Gali Babu Ram, Kucha Pati Ram is not suitable for the business proposed to be setup by the daughters-in-law of the deceased petitioners and thus, cannot be considered to be an alternative suitable accommodation. Therefore, the respondent, on the basis of preponderance of probabilities, has been able to show that the petitioners have alternate suitable accommodation available with them on the lower ground floor in property bearing No. 1198, Gali Babu Ram, Kucha Pati Ram and the petitioners have not been able to disprove the same.
24. Further, in the petition, the petitioners has given a passive reference to the first floor of the property No. 200-205, Chawri Bazar, Delhi (wherein the tenanted premises are situated) being vacated during the pendency of the earlier petition. It is pleaded in the petition that on vacation of the first floor coupled with change in circumstances, the bona fide need RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.22/26 of sons and grand sons of the deceased petitioner had come to an end. Hence, it was necessary for the petitioners to have mentioned as to how the said first floor is being utilized or the same is lying vacant. The respondent has contended that first floor of the above-mentioned property is lying vacant since May 2018. The petitioners have denied this assertion and in replication, they have pleaded that the first floor is occupied by Sh. Rajender Prashad Aggarwal, petitioner No.1, who is running his Astrology services from the first floor. The petitioners have not led evidence to prove the same. The petitioner No.1 (newly impleaded) being in occupation of the first floor had the special knowledge of this fact and hence, the burden of proof was on the petitioners in terms of section 106 Indian Evidence Act, 1872 to prove that the same is not lying vacant. The petitioners have not only concealed the requisite details in regard to the the astrology services of Sh. Rajender Prashad Aggarwal but also withheld crucial evidence from the Court. PW1 during his cross-examination fairly admitted that there is no document to show that Sh. Rajender Prashad Aggarwal is doing astrology business on the first floor. Thus, a reasonable doubt arises as to whether the first floor of the property as above-mentioned is lying vacant or not and which fact the petitioners have not able to prove in their favour. It is relevant to note that simply because the premises are situated on the first floor, it cannot outrightly be presumed that the premises are not suitable even they are located in a commercial area such as Chawri Bazar. In this regard, the observation of Hon'ble Delhi High Court in Khem Chand & Ors. Vs. Arjun Jain & Ors., RC Rev No. 442/2012, dated 13.09.2013 are worth mentioning and read as under:
"...29. Now the question arises what constitutes a "reasonably suitable accommodation". The wordings reasonably suitable accommodation are to be interpreted by looking at from the common man‟s perspective as to what in the given circumstances can be said a reasonably suitable accommodation. It is essentially a question of fact. In a given case, some premises may not be a reasonably suitable accommodation as the same may be an inconvenient for the landlord to adjust or fit or put him to hardship but in another case it may act as a reasonable suitable accommodation. But one thing is certain which is that the mere denial by the landlord of a particular premise to be categorized as existing accommodation as not reasonably suitable accommodation cannot be said to be a sole ground to determine a reasonably suitable accommodation. It is equally true that the tenant cannot insist that the particular place/ premise can be reasonably suitable accommodation when as a matter of fact it is not.
30. It has to be seen from the eyes of common person‟s prudence and the question should be asked as to whether in the particular case a person has a reasonably suitable accommodation or not to reside or to carry on business. If the answer comes in affirmative, RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.23/26 then no matter what the landlord says in order to evict the tenant that the provisions of Section 14 (1) (e) of the Act does not get attracted. If the answer comes in negative, then no matter what the tenant states to refute the reasonableness and suitability of the accommodation, the eviction has to follow.
31. There are collective factors which aids to the determination of the reasonableness and suitability of the accommodation include the financial status of the landlord which will help in understanding what can be his reasonable requirement, proximity of the required premises with the existing accommodation where it is required by the landlord or his family members, the availability of the other properties with the landlord within the same location or equivalent place, in the case of commercial premises, the operation of the business by the other persons in the similar area or premises. All these factors are merely inclusive and not exhaustive which may enable to court to arrive at the finding as to what can constitute the reasonably suitable accommodation.
32. In view of the above discussion, it is clear that there cannot be any straight jacket formula to determine what can be reasonably suitable accommodation available with the landlord and it cannot be certainly only depends upon the demands of the landlord. Therefore, one cannot really say that one proposition which may hold good in one case can be equally applied to another case with equal strength without seeing the difference in the facts of the case. Where there is a doubtful case whether a particular accommodation can or cannot act as reasonably suitable accommodation in such cases too, the court seized of the eviction proceedings should postpone the decision making of reasonableness and suitability of accommodation as a fact finding to the trial rather than to evict the tenant by granting the leave to defend.
33. As I have discussed above that the reasonableness and suitability of the accommodation is a question of fact and has to be seen on case to case basis, therefore the proposition that the ground floor is always a reasonable accommodation than the first floor or the basement cannot be an absolute proposition. This has to be seen on case to case basis as to in which case a basement is not reasonable accommodation available with the landlord and thus ground floor is required and in which case the first floor can act as a reasonable accommodation.
43. The aforesaid view of the Supreme Court in M.M. Quasim (supra) and other views quoted above are consistently followed by the courts in the country which make it clear that even the landlord is considered to be the best judge to decide his need, the same should be merely a weighing factor in order to decide the reasonableness and suitableness of the alternative accommodation and ultimately the said question is to be RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.24/26 decided by the rent controller on objective standards and not on the subjective will of the either party be it landlord or the tenant. As I have indicated, the reasonableness and suitability of the available accommodation is a question of fact, it has to be decided on case to case basis by controller by examining the tenability of the pleas of the parties rather than just believing the stand of either side. That is why, I have indicated that the reasonableness and suitability is to be decide from the glasses of man of ordinary prudence as what should be reasonable and suitable in the given circumstances.
44. Applying the said test for examining the reasonableness and suitability of the accommodation to the instant case, it can be seen that the respondent No. 1 is already operating through the tenanted premises at the ground floor shop bearing No. 9A Sunder Nagar Area which is named as Padam Jewels for which as per the respondent No. 1, there is an eviction proceedings which are pending against his uncle. The said eviction proceedings is yet to be determined. The respondent no. 1 is also owning and is possessing of the first floor of the property No. 10 Sunder Nagar, which is lying vacant and is not being used by him for any purpose where the commercial activities can be carried out as per the case of the petitioner that in the Sundar Nagar market. It is not denied by respondent No.1 that there has been as many shops on first floor which are commercially running by various businessmen being one of elite area. The need which has been defined by the respondent No. 1 in the petition is a broad based which include the respondent No. 1 himself and his dependent sons and daughter and their likelihood of joining the respondent‟s business. Upon objectively testing the discerning position which has been emerging by weighing the factors collectively cast a doubt as to the bona fide need of the respondent No. 1 in getting the premises vacated and if not bona fide need then at least creates a doubtful case as to availability of the reasonable suitable accommodation."
Even though, the above observations were made in regard to an eviction order passed by Ld. ARC dismissing the leave to defend application without holding a trial but these observation make it clear that the suitability of an accommodation is a question of fact and it does not merely depend upon the demand raised by the petitioner/landlord. In the present petition, therefore, the fact of the first floor of the property No. 200-205, Chawri Bazar, Delhi was lying vacant or not so as to determine reasonable suitable accommodation with the petitioners was a crucial aspect affecting the merits of the petition. The petitioners have failed to prove by leading any cogent evidence that the said first floor is not lying vacant and it has been occupied by petitioner No.1 for rendering astrology services and therefore, a reasonable inference can be drawn that the first floor of the property No. 200-205, Chawri Bazar, Delhi was also available to the petitioners as an alternative suitable RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.25/26 accommodation."
It has surfaced in the other two petitions that the petitioners have not been able to prove that the lower ground floor of the property No. 1198, Gali Babu Ram, Kucha Pati Ram was having two shops only and not three shops, and that the same were not lying vacant. Similar to the other two petitions, the petitioners have filed rent receipts Ex. PW1/16 and Ex. PW 1/17 and same photographs Ex. PW1/18. It has been held by the undersigned in the other two petitions that the rent receipts issued in respect of the lower basement portions are not free from doubt and the photographs of the said lower ground floor do not reveal the entire floor and the same does not appear to be in active usage. In view of the findings returned in other two eviction petitions bearing RC ARC No. 723/2018 and 724/2018 as above, it is held that the petitioners have alternative suitable accommodation available on the lower ground floor, in the property No. 1198, Gali Babu Ram, Kucha Pati Ram and on the first floor, in the property No. 200-205, Chawri Bazar, Delhi.
16. In view of the foregoing, the petitioners have not been able to succeed in establishing their case under Section 14 (1) (e) of the DRC Act. Accordingly, the present petition is dismissed.
No order as to costs. Digitally signed
by PRANAV
PRANAV JOSHI
Date:
JOSHI 2023.12.11
Announced in open Court 16:53:43
+0530
on 11th Day of December, 2023
(Pranav Joshi)
CCJ-cum-ARC (Central)
THC/Delhi/11.12.2023
RC ARC No. 725/2018 Dayawati Vs. Pramod Kumar Page no.26/26