Delhi District Court
Sh. Om Prakash Malik vs Sh. Vijay Nayyar on 29 January, 2015
In the Court of Sh. Sunil Kumar : Additional Rent Controller02,
Central District, Tis Hazari Courts, Delhi.
E. No. 555/14/10
Unique ID No. 02401C0275492010
In the matter of:
Sh. Om Prakash Malik,
S/o. Late Sh. Ishwar Dass Malik,
R/o. B202, (First and Second Floor)
Nehru Vihar, Timarpur,
Delhi110 054. .................... Petitioner
VERSUS
Sh. Vijay Nayyar,
S/o. Late Sh. Tilak Raj Nayyar,
R/o. D410, near Timarpur,
Nehru Vihar, Delhi110 054. .................... Respondent
APPLICATION UNDER SECTION 14 (1) (e) READ WITH SECTION
25B OF THE DELHI RENT CONTROL ACT, 1958
Date of Institution : 06.07.2010
Date of Arguments : 08.12.2014 & 23.01.2015
Date of Judgment : 29.01.2015
Decision : Petition Allowed.
E. No. 555/14/10 Page No. 1 of 15
JUDGMENT:
This is an application under clause (e) of proviso to sub section (1) of section 14 of the Delhi Rent Control Act, 1958 (Act 59 of 1958) by the petitioner Sh. Om Prakash Malik against the respondent Sh. Vijay Nayyar for recovery of possession of premises i.e. one shop at the ground floor forming part of the property bearing no. B 202, Nehru Vihar, Timarpur, Delhi110 054 as shown in colour red in the site plan as annexure A.
2. It is stated in the application that the petitioner Sh. Om Prakash is the owner and landlord of the premises in question i.e. the shop at ground floor forming part of the property bearing No. B202, Nehru Vihar, Timarpur, Delhi 110 054, as shown in red colour in the site plan annexed herewith as annexure A, which was let out to Sh. Vijay Nayyar for nonresidential purposes at a monthly rent of Rs.1500/ excluding electricity and water charges. That the premises are used by the respondent for running a shop in the name of M/s. Nayyar Electronics and the normal fittings and other fixtures are provided in the tenanted premises. That the respondent requested the petitioner in the first week of January 2007 that presently he has no business and he is in utter need of money for his livelihood. That the petitioner permitted the respondent to run his business from the said shop and inducted him as a licensee on the condition that the E. No. 555/14/10 Page No. 2 of 15 defendant will arrange his suitable shop within 67 months and will vacate and handover the shop to the petitioner. As the respondent was not in a position to pay any amount, no amount whatsoever was agreed to be paid by the respondent to the petitioner, thus, infact the respondent was permitted to occupy the demised shop as a licencee free of cost. That the respondent continued his unauthorized occupation on one false pretext or the other when the petitioner required the premises for his own use he asked the respondent to vacate the same and on his refusal to vacate the same, the petitioner sought legal advise to get the demised premises vacated from the respondent. As per the legal advice given to the petitioner at that time he was advised to file a suit for possession as the respondent was only a licencee being Suit No.164/2009 titled as Sh. Om Prakash Malik Vs. Sh. Vijay Nayyar . However, when the petitioner engaged the present counsel to contest the aforesaid, he was advised by the present counsel to contest the aforesaid, he was advised by the present counsel that as the respondent has taken the plea that he is a tenant in the demised premises at a monthly rent of Rs.1500/ and is contesting the issue that he is not a licensee, the petitioner instead of fighting the long drawn battle against the respondent should admit him to be the tenant as the petitioner has got no written document to show that the respondent was inducted as a licencee in the demised premises. In this suit for possession, the respondent has filed alleged rent agreement dated 23.02.1990 which is totally a forged and E. No. 555/14/10 Page No. 3 of 15 fabricated document and which was never executed between the parties. That thus under legal advise and without prejudice to his rights and contentions, the petitioner withdrew the above mentioned suit for possession with liberty to file appropriate petition under the Delhi Rent Control Act against the respondent from the concerned civil court vide order dt. 02.06.2010 and copy of the same has been filed alongwith the present petition. That the petitioner is the owner and landlord of the demised shop even as per version of the respondent at a monthly rent of Rs. 1500/. That the respondent has not paid the rent to the petitioner since beginning and is liable to pay arrears of rent (legally recoverable) from the last three years i.e. 02.07.2007 to 02.07.2010 alongwith interest @ 6% p.a. and he is also liable to pay future monthly rent regularly to the petitioner. It is further stated that on the ground floor, there are three shops out of which one shop is in the possession of respondent and the other two shops have been disposed off by the petitioner some time back as he was under
heavy debts and loans. It is further submitted that the petitioner is residing with his wife at the first floor and on the second floor, his two sons are residing. It is further submitted that after taking VRS from the NDPL, the petitioner is having no other source of income except the pension and has not got any other job or business to do, therefore, the petitioner and his family are facing financial crisis. The suit premises is required bonafidely by him for the purpose of starting his own business of laptop and mobile E. No. 555/14/10 Page No. 4 of 15 repairing and sale of their accessories alongwith his younger son. It is further stated that as the petitioner is a technical man and his younger son has also having professional training for starting the above business. That the petitioner is having no other accommodation / property in Delhi from where he can start his business except the demised shop from where he can start the abovesaid business alongwith his younger son. Thus, there is no other suitable accommodation from where the petitioner can start his business, the eviction order is liable to be passed in favour of the petitioner and against the respondent. It is therefore prayed by the petitioner that the Hon'ble Court may pass an eviction order against the respondent.
3. Having obtained leave to contest the application for eviction, a written statement was filed on behalf of the respondent wherein preliminary objections are taken to the effect that the petition does not cover the ingredients of section 14(1)(e) r/w. Section 25B of the DRC Act as there is no bonafide requirement of the shop in question. It is stated that the petitioner has two more shops besides the shop in question in his possession and alleged transactions of another two shops are based on false and fabricated documents. It is further stated that as the documents of transactions are not valid in the eyes of law, the same cannot be treated as legal transactions. It is further stated that entire male members are well placed and there is no need to start business and no male members are sitting idle including the petitioner and his other dependents. It is further E. No. 555/14/10 Page No. 5 of 15 stated that the petitioner is retired from NDPL as a shift manager and is getting handsome pension whereas his younger son is also a job holder. It is further stated that there is no other shop available to the respondent except the demised shop. It is further stated that the petitioner is enjoying the tenanted shop in question since 1990 and the contention raised in the petition by the petitioner is totally false. It is submitted that the petitioner has not filed any substantial proof of ownership of premises in question. It is further submitted that the monthly rate of rent is Rs. 1500/ p.m., however, at the time of letting out the shop in question the rent was Rs. 400/ p.m. and during the passage of time it was increased upto Rs. 1500/ p.m. It is further submitted that besides the fixation of rent of tenanted shop Rs. 10,000/ was given as a Pagri / security to the landlord but no receipt was given. It is further submitted that the bill of electricity is being deposited by the respondent himself after installation of fresh separate electricity connection by the direction of Hon'ble High Court of Delhi as per consumption in the tenanted shop. It is further submitted that the respondent was inducted in the tenanted shop on 23.02.1990. It is further submitted that the respondent has been also paying the conversion charges of MCD besides rent of the tenanted shop in question. It is denied that the petitioner is the landlord of the demised premises and the same is required bonafide by him for the purpose of starting his own business alongwith his younger son and the petitioner is having no other accommodation where he E. No. 555/14/10 Page No. 6 of 15 can start his business. The desire of the petitioner to start business after more than six years retirement is whimsical and fanciful desire. It is therefore prayed that the eviction petition is devoid of merits hence may kindly be dismissed with exemplary costs.
4. To the written statement of the respondent a replication is filed on behalf of the applicant wherein the averments made in the application are reiterated and the defence taken by the respondent are traversed.
5. In support of his case the applicant got examined himself as PW1 and during his examination in chief tendered his affidavit Ex.PW1/A alongwith documents as Ex.PW1/1 to Ex.PW1/24. The applicant was cross examined by counsel for the respondent. The applicant also examined PW2 Hemant Bhatia from Registrar Office alongwith documents Ex.PW2/1 to PW2/3, PW3 Record Keeper alongwith document PW3/1, PW4 from NDPL Office alongwith document Ex.PW4/1 and PW5 from USIB alongwith document Ex.PW5/1(colly.). These all witnesses were also duly crossexamined on behalf of the respondent. Thereafter, the Petitioner's Evidence closed.
6. In support of his case, the respondent got examined himself as RW1 and during his examination in chief tendered his affidavit Ex.RW1/A alongwith documents as Ex.RW1/1 to Ex.RW1/6. The witness was cross examined on behalf of the applicant. The respondent also examined RW2 E. No. 555/14/10 Page No. 7 of 15 i.e. official witness from Bank whose examinationinchief was recorded but never called for his crossexamination and RW3 Manoj Kumar was examined and crossexamined. Thereafter evidence on behalf of the respondent was closed.
7. I have heard counsel for the parties and gone through the material on record.
8. Having drawn my attention on testimony of the applicant and its witnesses , documents tendered by them and also on the judgments titled as Ratan Studio Vs. Ms. Raju Rani jain MANU/DE/3703/2012, Raghvendra Kumar Vs. Firm Prem Machinary and Co. AIR 2000 SC 534, Sh. Labhu Lal Vs. Smt. Sandhya Gupta MANU/DE/2522/2010, P. Sundaram Vs. R. Gangadharan 2002 (1) RCR, Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta MANU/SC/0432/1999, Sait Nagjee Purushotam and Co. Ltd. Vs. Vimalabai Prabhulal and Ors. MANU/SC/2480/2005, Dewan Chand Puri Vs. Gurchet Singh MANU/PH/0083/2006, S.P. Sethi Vs. R.R. Gulati and Ors. MANU/PH/0333/2006, Bal Kishan Vs. Harjit Kaur and Ors. MANU/PH/0717/2006, Ashok Kumar Vs. Raj Kumar and others 2007(1) RCR, Inderjit Vs. Mahesh Gupta MANU/PH/2315/2006, Hotel Vilas and Anr. Vs. Anil Roy and Ors. MANU/UP/0415/2007, Suresh Kumar Kothari Vs. Ramchandran & another 2007 (2) RCR, Charanjit Singh Vs. Guru Ravi Dass High School MANU/PH/1315/2006, Sh. Surinder Singh Vs. Sh. Jasbir Singh MANU/DE/2575/2010, Satish Bansal Vs. Neelam Gupta E. No. 555/14/10 Page No. 8 of 15 MANU/DE/4905/2012, Naresh Kumar and Suresh Kumar Vs. Mahesh Chand and sons (HUF) MANU/DE/3969/2012, Delhi Commercial Press Vs. Roop Kishore Rastogi MANU/DE/3970/2012, Inderjeet Singh Vs. Harish Chandra Bhutani MANU/DE/3544/2012, Smt. Narender Kaur Vs. Mahesh Chand and Sons (HUF) MANU/DE/4127/2012, Pawan Kumar and Ors. Vs. Sant Lal and Anr. R.C. Rev. 303/2012 decided on 06.08.2012 in the Hon'ble High Court of Delhi, Royal Nepal Airlines Corporation Vs. Shirshti Properties Pvt. Ltd. MANU/DE/4266/2011, Ragavendra Kumar Vs. Firm Prem Machinery & Co. 2000(1) RCR 135 (SC), Krishan Lal Vs. R.N. Bakshi, 2010 (169) DLT 769, Sudesh Kumar Soni & Anr. Vs. Prabha Khanna, 2008(153) DLT 652, Sarla Ahuja Vs. United India Insurance Co. Ltd. AIR 1999 SC 100, Sham Lal Vs. Raj Kumar 2007(1) RCR 83, Dr. J.S. Sodhi Vs. Mela Ram 2001 (2) RCR 396 (P&H), Inderjeet Vs. Mahesh Gupta 2007 (1) RCR 414, Ghulam Hussain (died) & Ors. Vs. D. Raj Kumar 1997 (2) RCR 111 (AP HC), P. Sundaram Vs. R. Gangadharan, 2002 (1) RCR 62 (MAD. HC), It is submitted by counsel for the applicant that the applicant is the owner and landlord of the premises which are required bona fide by him for his necessity. It is further submitted by counsel for the applicant that the applicant has no other reasonably suitable accommodation in Delhi. It is further submitted by counsel for the applicant that an eviction order be passed in favour of the applicant and against the respondent. E. No. 555/14/10 Page No. 9 of 15
Per contra, having drawn my attention on contents of the application for eviction, written statement, replication, and the testimony of PWs and RWs, it is submitted by counsel for the respondent that the application for eviction filed by the applicant is frivolous and the same is liable to be dismissed. It is further submitted by counsel for the respondent that the present application has not been made for bona fide reason and the premises are not required by the applicant. It is further submitted by counsel for the respondent that the application is motivated and has been made only to get vacated the premises. It is further submitted by counsel for the respondent that the application for eviction be dismissed.
9. I have given my thoughtful consideration to the submissions made on behalf of the parties.
10. The present application has been made under clause (e) of subsection (1) of section 14 of Act 59 of 1958, which after passing of judgment in Satyawati Sharma's case (supra) is to be read as follows:
14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: * * * * * *
(e) that the premises are required bona fide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for E. No. 555/14/10 Page No. 10 of 15 any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation;
11. In the light of the provisions of clause (e) of subsection (1) of section 14 of Act 59 of 1958 and the pleadings of the parties following points fall for the determination of this court, namely:
(i) Whether the applicant is the owner of the premises?
(ii) Whether there exists relationship of landlord and tenant between the parties?
(iii) Whether the premises are required bona fide by the applicant for himself ?
(iv) Whether the applicant has no other reasonably suitable accommodation?
12. In so far as first point and second point for determination are concerned, it is observed that the same are admitted by the respondent before the Civil Court in the civil suit filed by the petitioner. Therefore, in the light of the pleadings of the parties and other material placed before this court, in so far as clause (e) of subsection (1) of section 14 of Act 59 of 1958 is concerned, the applicant is the owner of the premises and it is also found that there exists relationship of landlord and tenant between the applicant and the respondents.
13. The next question which falls for the determination is:
whether the premises are required bona fide by the applicant for himself?
14. In Shiv Sarup Gupta v. Dr. Mahesh Chand, AIR 1999 SC E. No. 555/14/10 Page No. 11 of 15 2507 having discussed the provisions of s clause (e) of subsection (1) of section 14 of Act 59 of 1958 the Hon'ble Supreme Court has held as follows:
13. Chambers 20th Century Dictionary defines bona fide to mean 'in good faith : genuine'. The word 'genuine' means 'natural : not spurious : real : pure : sincere'. In Law Dictionary, Mozley and Whitley define bona fide to mean 'good faith, without fraud or deceit'. Thus the term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bona fide' is suggestive of legislative intent that a mere desire which is 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 a 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 landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the Court is satisfied of the bona fides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court. 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 but the other accommodation must be accepted by the landlord to satisfy his such need. In E. No. 555/14/10 Page No. 12 of 15 short, the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against.
15. In the present case to judge whether the premises are required bona fide by the applicant the statements made by him in his application for eviction and replication and his testimony as PW1 are required to be noticed.
16. During his examination as PW1 it has been deposed by the applicant that the demised premises is required by him for the purpose of starting his business alongwith his younger son and not having other suitable accommodation / property in Delhi except the demised shop from where he can start his business. As such, it is stated by the petitioner that to meet out the bonafide needs, the petitioner is not having sufficient / reasonable accommodation for his livelihood after his retirement as he has no other source of income except meager pension and has got no other job or business to do. The petitioner states that he being a senior citizen. He further stated that he want to start new business with his younger son who is also having technical degree.
During his crossexamination, nothing adverse has been deposed by the PW1 against himself which could suggest that he did not require the premises for his bonafide requirement.
17. From a reading of the application for eviction, replication and E. No. 555/14/10 Page No. 13 of 15 the testimony of the applicant, it is clear that as per the version of the applicant, he bonafidely require the tenanted premises. The petitioner has already pointed out in the application for eviction that he is an old aged person and a retired technical man from NDPL and living on the pension which he receive and now, he want to start a new business alongwith his younger son for their livelihood. Therefore, the requirement of bonafide of the applicant stands established alongwith the factum that he has no other alternative accommodation with him in Delhi.
18. In the light of the material on record, especially the pleadings of the applicant and his testimony, if one attempts to peep into the mind of the applicant to ascertain his bona fide requirement then it is found that the premises is bonafidely required by the applicant for himself and for his son. Needless to say that the landlord is the best judge of his commercial requirement and there is no law which deprives the landlord of the beneficial enjoyment of his property. In the case in hand, the requirement of the petitioner is established and found bonafide and he has full choice to take the benefit of his property as per his convenience.
19. In view of above discussion and the mandate of subsection (4) of section 25B of Act 59 of 1958, the present application for eviction is allowed. The applicant is found entitled to recover the possession of the premises, bearing property No.B 202, Nehru Vihar, Timarpur, Delhi110 054 as shown in colour red in the site plan as annexure A attached with the E. No. 555/14/10 Page No. 14 of 15 application. In the facts and circumstances of the case there shall be no order as to costs. File be consigned to Records.
20. In view of the provisions of subsection (7) of section 14 of Act 59 of 1958 this order for recovery of possession of premises shall not be executed before the expiration of a period of six months from this date.
Announced in the open court (Sunil Kumar)
on this 29th day of January, 2015 Additional Rent Controller
29.01.2015
E. No. 555/14/10 Page No. 15 of 15