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Delhi District Court

Shri Karamvir Tyagi vs Shri. Surinder Kumar on 16 April, 2022

               In the Court of SCJ­cum­RC, (West District)
                         Tis Hazari Courts, Delhi.
                   Presided by : Ms. Susheel Bala Dagar

RC ARC 84/21
CNR Number : DLWT­03­003091­2021
In the matter of :­
Shri Karamvir Tyagi
S/o Late Shri Chet Ram Tyagi
R/o WZ­47B, Basai Darapur,
Tyagi Market,
New Delhi­110015.                                          ...........Petitioner

                                       Versus

Shri. Surinder Kumar
S/o Shri Ram Gopal
Proprietor of M/S SRS Electricals
R/o WZ­47B, Shop No.2, Basai Darapur
Tyagi Market, New Delhi­110015                             ........Respondent

                                 ORDER

16.04.2022

1. An eviction petition has been filed by the petitioner against the respondent for vacation of the tenanted premises i.e., Private shop no.2, ground floor, measuring 10.8'x18', comprising in property bearing no. WZ­47B, Basai Darapur, Tyagi Market, New Delhi­110015 as shown in color red in the site plan annexed along with the petition, on the ground of bonafide requirement under Section 14 (1) (e) of the Delhi Rent Control Act (hereinafter referred to as 'the DRC Act').

2. The case of the petitioner is that the petitioner is the RC ARC 84/21 Karamvir Tyagi v. Surinder Kumar Page 1 of 23 owner/landlord of the entire property bearing Municipal No. WZ­47B, Basai Darapur, Tyagi Market, New Delhi­110015, comprising of ground floor, first floor, and second floor. The ground floor is comprising of four shops where shop No. 2 was let out to the respondent in the year 1990 by the petitioner.

3. The family of the petitioner is comprising of Smt. Poonam Tyagi (Wife), Ms. Sonam Tyagi (elder daughter), Mr. Tushar Tyagi (Son) and Ms. Sonia Tyagi (younger daughter). The petitioner is 58 years of age and he is unemployed for the last some years. The elder daughter of the petitioner namely Ms. Sonam Tyagi is aged about 22 years. She has completed her qualification upto graduation. She is also having work experience as beautification but at present she is unemployed. Despite having all intention to run her own saloon, she could not start the same as no space is available with her. The son of the petitioner is also unemployed.

4. There are four shops on the ground floor of the suit property which are occupied by four different tenants. The elder daughter of the petitioner namely Ms. Sonam Tyagi has decided to start a business of beauty parlour, therefore she is in need for working space. The daughter of the petitioner is unable to start the said beauty parlour due to non­ availability of vacant space. Hence, the tenanted shop no.2 is required by the petitioner and his daughter for their bonafide requirement. Neither the petitioner nor his elder daughter possess any sufficient and alternative accommodation to cater to the need of daughter of the petitioner. The RC ARC 84/21 Karamvir Tyagi v. Surinder Kumar Page 2 of 23 petitioner's need of working space will not be fulfilled even after getting the said tenanted shop. The petitioner is also giving notice to other tenants in the said property. The petitioner do not possess any sufficient and alternative accommodation to cater to his need of starting the business of electrical goods.

On the above stated grounds, prayer is made for eviction of the respondent from the tenanted premises.

5. Summons were served upon the respondent, who appeared and filed leave to defend application taking various grounds which are discussed in detail hereinafter.

6. Reply to the leave to defend application was filed by the petitioner, wherein the petitioner has denied all the averments made by the respondent in the leave to defend application and has given detailed explanation to the grounds raised by the respondent in his leave to defend application.

7. I have heard Shri S.S. Khatri, Ld. Counsel for the petitioner and Shri Sunil Lalwani, Ld. Counsel for respondent and gone through the judicial record.

8. 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 bonafide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso (e) of the Section 14(1) are :

a) The said premises are bonafide required by the RC ARC 84/21 Karamvir Tyagi v. Surinder Kumar Page 3 of 23 landlord either for himself or for his family member.

b) The landlord or the family member has no other reasonable suitable accommodation.

These twin thresholds 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.

9. The satisfaction of the two requirements of bonafide need and no reasonably suitable accommodation has been time and again emphasized by the Supreme Court of India in several cases and more recently in the case Deena Nath v. Pooran Lal, (2001) 5 SCC 705 wherein the Supreme Court observed 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."

10. Chambers 20th Century Dictionary defines bona fide to mean "in good faith and genuine i.e. without fraud or deceit". 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 RC ARC 84/21 Karamvir Tyagi v. Surinder Kumar Page 5 of 23 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.

11. 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.

Ownership as well as landlord­tenant relationship: ­

12. The respondent has not denied the existence of landlord tenant relationship between the parties. It is submitted that the respondent filed a petition U/S 27 of DRC Act for deposit of rent which is pending in the Court of Sh. Anurag Das, Ld. ARC, West District, THC, Delhi. However, it is submitted that the petitioner has filed a false and fictitious family settlement. The petitioner has failed to show that petitioner has brothers whose names are mentioned in the family settlement. As per the knowledge of respondent, the petitioner has only one brother & one sister and any such family settlement never took place. The petitioner has RC ARC 84/21 Karamvir Tyagi v. Surinder Kumar Page 6 of 23 created false and forged document which is unregistered and is not even signed by witnesses. The document filed by the petitioner is an instrument of partition which requires compulsory registration and it has to be scribed on proper stamp duty. The document therefore is not admissible in evidence and it cannot be seen for any purpose. The family settlement alleged to have been entered into has many over­writings and there is interpolation of the documents. The document is also not accompanied by site plan. Even the signatures and seal of notary are forged as the said notary public has not signed on the seal on every page of the document.

13. In reply, it is submitted by the petitioner that the respondent has neither filed any documentary evidence nor disclosed any facts/details in support of his alleged contentions/ground mentioned in the application and affidavit. It is stated that the respondent has full knowledge that petitioner has four brothers and four sisters. The name of the brothers of the petitioner are Sh. Ramavatar, Sh. Karamvir Tyagi, Sh. Virender Singh Tyagi (Now deceased) and Sh. Ashok Tyagi. The names of the abovesaid brothers are specifically mentioned in the family settlement deed and all the brothers are residing in the property bearing No. WZ­47B & 47C and occupying their respective shops in the said properties as per the terms and conditions of Deed of Family Settlement.

14. It is submitted that as per the Family Settlement, four shops alongwith residential accommodation came to the share of the petitioner and five shops alongwith residential portion within the said property RC ARC 84/21 Karamvir Tyagi v. Surinder Kumar Page 7 of 23 came to the share of Sh. Ramavtar Tyagi and 3 shops alongwith residential portion came to the share of Sh. Virender Singh Tyagi and two rooms on ground floor and 3 rooms on first floor came to the share of Sh. Ashok Tyagi in property bearing No. WZ­47B & 47C which has been described in the family settlement. It is submitted that there is no compulsory requirement of the site plan to be filed with the family settlement as alleged.

15. Perusal of the record shows that the respondent has duly admitted that he is a tenant in the tenanted premises as he submits that he has already filed DR Petition under Section 27 DRC Act for deposit of rent before Ld. ARC (West). Once the respondent admitted the existence of landlord tenant relationship between the parties, the respondent is estopped under Section 116 of the evidence Act from disputing the ownership of the petitioner over the tenanted premises. Moreover, the respondent has already placed on record the copy of the settltement deed dated 17.08.2000 to show his ownership over the tenanted premises. Even otherwise, the petitioner being one of the co­owners can file the eviction petition against the respondent. No objection has been raised by any of the other co­owners. As per the case­law in Kanta Goel v. B.P. Pathak (1977) 2 SCC 814; Pal Singh v. Sunder Singh (1989) 1 SCC 444; Dhannalal v. Kalawatibai (2002) 6 SCC 16; Indian Umbrella Manufacturing Co. v. Bhagabandei Agarwalla (2004) 3 SCC 178; and , Mohinder Prasad Jain v. Manohar Lal Jain (2006) 2SCC 724 it is held that the landlord, even if not the absolute owner, is at least one of the co­ RC ARC 84/21 Karamvir Tyagi v. Surinder Kumar Page 8 of 23 owners, is entitled to maintain a petition under Section 14(1)(e) of the Act.

16. As regards the contention of the respondent regarding the family settlement being unregistered, not being signed by witnesses, not being scribed on proper stamp duty and requiring compulsory registration, the said grounds are not available to the tenant against his landlord. The eviction petition cannot be treated at par with a title suit. The petitioners has to prove only that he is something more than a tenant. In T.C. Rekhi v. Usha Gujral ILR 1969 Delhi 9 and in Shanti Sharma v. Ved Prabha 1987 AIR SC 2028 discussing on the point what is meant by the word "Owner" it is held that the general rule is to the effect that the plaintiff has to have a better title than the defendant and is not required to show that he has the best of all possible titles and that the purpose behind requirement of ownership in Section 14(1)(e) of the DRC Act, 1958 as amended is to avoid misuse of the provision. It need not be proved in the absolute sense of the term of ownership as laid down in Parvati Devi v. Mahinder Singh 1996 (1) AD (Del) 819, B. Banerjee v. Romesh Mahajan 1996 (63) DLT 930, Milk Food Ltd. v. Kiran Khanna 1993 (51) DLT 141, Sushil Kanta Chakravarty v. Rajeshwari Kumar AIR 2000 Del 413, Ujjagar Singh v. Iqbal Kaur 2002 (97) DLT 646 that the petitioner to an eviction petition under Section 14(1)(e) of the DRC Act, 1958 as amended need not show that he was the absolute owner in the strict sense and has to show a better and superior title only to the RC ARC 84/21 Karamvir Tyagi v. Surinder Kumar Page 9 of 23 tenant.The same is reiterated in Sheela v. Prahlad Rai Prem Prakash by the Hon'ble Supreme Court report in AIR 2002 SC 1264.

17. Thus, the ownership of the petitioner over the premises in question for the purpose of the DRC Act as well as existence of landlord­tenant relationship between the parties stands duly proved. Bonafide requirement.

18. It is submitted by the petitioner that the petitioner is 58 years of age and he is unemployed for the last some years. The elder daughter of the petitioner namely Ms. Sonam Tyagi is aged about 22 years. She has completed her qualification upto graduation. She is also having work experience as beautification but at present she is unemployed. Despite having all intention to run her own saloon, she could not start the same as no space is available with her. The son of the petitioner is also unemployed.

19. There are four shops on the ground floor of the suit property which are occupied by four different tenants. The elder daughter of the petitioner namely Ms. Sonam Tyagi has decided to start a business of beauty parlour, therefore she is in need for working space. The daughter of the petitioner is unable to start the said beauty parlour due to non­ availability of vacant space. Hence, the tenanted shop no.2 is required by the petitioner and his daughter for their bonafide requirement. Neither the petitioner nor his elder daughter possess any sufficient and alternative accommodation to cater to the need of daughter of the petitioner. The petitioner is also giving notice to other tenants in the said property.

20. On the other hand it is submitted by the respondent that the petitioner himself is doing the business of supply of fan spare parts and he does not require any accommodation. In fact the business of the petitioner is just to supply the goods and his job is to remain in field for supply of goods. He is earning handsome money by supply of goods and the nature of the job of the petitioner is such that the petitioner can operate from his house and no shop is required.

21. Further it is submitted that the son of the petitioner is gainfully employed in a large company at Noida (U.P) and getting the salary of about Rs. 50,000/­ per month. Daughter of the petitioner is also gainfully employed and presently working in luxurious saloon at Rajouri Garden and getting handsome pay package. It is submitted that petitioner does not require any premises for himself or for his son or daughter as alleged.

22. It is not the case of the respondent that the petitioner is not doing any work instead it is admitted that he is doing the work of fan spare parts though the present petition has not been filed for bonafide requirement of the petitioner or his son. It is also not denied by the respondent that the petitioner is having a son and a daughter who is dependent upon him for the purpose of accommodation. In such circumstances, petitioner is at liberty to get the premises vacated for the beauty parlour business of his daughter to be run from the tenanted premises of which the petitioner is the owner. Further, a business being run from a shop would fetch more customers than that being run from the house or as an employee at other salon in Rajouri Garden or at any other place. Moreover, when the RC ARC 84/21 Karamvir Tyagi v. Surinder Kumar Page 11 of 23 petitioner is owner of the tenanted premises, his daughter and son are at liberty to start their own business from the premises owned by their father as per their requirements rather than continue to remain employed under others. The respondent cannot dictate the terms and conditions on the petitioner how and from which place the daughter of the petitioner should do her business of beauty parlour. Further, it is the moral obligation of the landlord to settle his daughter and son well in life and to contribute his best to see them economically independent. In Joginder Pal v. Naval Kishore Behl, 2002 (1) RCR Rent 583 (SC) it has been held that the landlord is entitled to evict tenant from non residential premises for use of his family member or a person who is dependent on landlord or on whom the landlord is dependent.

23. In Savitri Sahay v. Sachidanand Prasad AIR 2003 SC 156, Ragavendra Kumar v. Firm Prem Machinery AIR 2000 SC 534 and The Punjab State Co­operative Supply & Marketing Federation Ltd. v. Amit Goel 204 (2013) DLT 63 it is held that the landlord is the best judge of his requirement for residential or business purpose and the tenant cannot dictate landlord to adjust as suitability would be seen from the convenience of landlord and other circumstances. Further it is well settled law that the owner/landlord can seek eviction of the tenant for expansion of his business, as has been held in M/s. Sait Nagjee Purushottam & Co. Ltd. v. Vimalabai Prabhulal, (2005) 8 SCC; M/s. Bajaj Associates v. Vinod Kumar, 2008 (2) RCR 258 P & H; Rajan v. Poil Raghavan, 2009 RC ARC 84/21 Karamvir Tyagi v. Surinder Kumar Page 12 of 23 (1) RCR 429 Kerala DB.

24. The plea of the landlord of bonafide requirement is not to be judged by considering the possibility by which the tenant may be allowed to continue in the premises. The requirement is to be judged on the basis of the property as it stands and not by commanding the landlord to somehow or the other accommodate the tenant. The Supreme Court in Siddalingamma v. Mamtha Shenoy (2001) 8 SCC 561 held that the concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life; an approach either too liberal or too conservative or pedantic must be guarded against.

25. Another contention of the respondent is that the petitioner has failed to disclose whether the petitioner is in possession of sufficient funds to start business and that the petitioner has sufficient knowledge of the same. However, the said contention of the respondent is not found tenable as the petitioner is not required to furnish any project report to the respondent. Moreover, it is a well settled law that no prior experience is required by the landlord or his daughter to start any business. Reliance in this regard can be placed upon the judgment passed by the Hon'ble Delhi High Court in Aero Traders Pvt. Ltd. v. Mohan Singh & Anr., 2014 (140) DRJ 560, wherein it has been held that:­ "No experience is required to start a new business and if a landlord wants to start his own business in the premises owned by him then by no stretch of imagination, it can be said that the requirement of the landlord for the premises is neither bonafide nor genuine."

26. It is settled law that a landlord need not have know how or experience of the business sought to be started as held in Mohinder Prasad Jain v. Manoher Lal Jain, AIR 2006 SC 1471, Ram Babu Agarwal v. Jay Kishan Das, AIR 2010 SC 721 and Shamshad Ahmad v. Tilak Raj Bajaj AIR 2008 SC 526.

27. The petitioner has suddenly filed the eviction petition with respect to 3 shops i.e. shop no.1 and also with respect to shop no. 2 & 3 against Sh. Surinder Kumar (tenant of shop no. 2 & 3). The need of the petitioner has cropped up all of a sudden together. However, the multiple needs of the petitioner also cannot be challenged by the tenant. It is for the petitioner to decide which need is more pressing and requires priority. In Saroj Malik v. O.P. Gupta RC REV 122/2013 and CM 5176/2013 dated 29.08.2014, the Hon'ble Delhi High Court has held that the landlord's need for a tenanted premises could be not only on one but on a number of grounds and all of them could well be taken as grounds for eviction. They cannot be treated as competing needs, but would only go to show urgency for the need of the premises on different counts. Hence, the petitioner is at liberty to use the premises for any of their bonafide requirements as mentioned in the petition.

28. Moreover, in Sarla Ahuja v. United India Insurance Co. Ltd., AIR 1999 SC100, 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 RC ARC 84/21 Karamvir Tyagi v. Surinder Kumar Page 14 of 23 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 bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself...".

29. Thus, in view of the discussion made above, the bonafide requirement of the petitioner qua the tenanted premises for beauty parlour business of his daughter stands duly proved.

Availability of alternative suitable accommodation: ­

30. It is the contention of the respondent that the petitioner is the owner and landlord of various other shops of the ground floor of properties bearing no. WZ 47B and WZ­47C, Basai Darapur, Moti Nagar, New Delhi. The petitioner is the owner of 14 shops on the ground floor of the above premises. Out of the above mentioned shops, shop no.1 is under the tenancy of Tilak Raj, Shop no. 2 is under the tenancy of respondent Sh. Surinder Kumar and Shop no. 3 is under the tenancy of Surinder Kumar and Sh. Raj Kumar. Sh. Tilak Raj is the brother of respondent. Deceased Sh. Raj Kumar was also the brother of the respondent.

31. It is contended by the respondent that there is shop no.4 which is under the tenancy of Sh. Shiv Narain Gupta. Similarly shop no. 5 is under the tenancy of Sh. Amit Gupta,whereas shop no. 6,7,8 & 9 are lying vacant and petitioner is in the possession of the vacant shops. Another shop by the name of M/S Pooja Traders is also owned by petitioner. It has been recently let out to Mr. Yadav who is running the business under the name & style of M/S Pooja Traders. This shop has been let out to Mr. Yadav only in the year 2019 and petitioner is getting the monthly rent of Rs. 15,000/­ per month. The other 2 shops have been let out to Mr. Tyagi who is running the business under the name & style of M/S Kajal Traders. Another shop has been let out by petitioner to Mr. Praveen Bhalla who is running the business under the name & style of M/S Sai Traders and the other shop is also being run by Mr. Parveen Bhalla, who is paying rent for both the shops to the petitioner. Mr. Shive Narain Gupta and Mr. Amit Gupta are paying rent to the petitioner. It is alleged that if at all petitioner really requires the shops, then the petitioner would not have let out the shop to M/S Pooja Traders, Kajal Trader and Sai Ram Traders recently.

32. In reply, it is submitted by the petitioner that the respondent, in order to achieve his illegal motive and design has made a false and contradictory statement with regard to the ownership/landlordship of the other properties and shops which are not being owned by the petitioner. It is admitted that the respondent has filed a civil suit for permanent injunction against the petitioner and in the said suit he has specifically RC ARC 84/21 Karamvir Tyagi v. Surinder Kumar Page 16 of 23 mentioned/admitted that the petitioner is the owner of four shops on ground floor and residing on second floor in the property bearing No. WZ­47B only. But in his leave to defend application and detailed affidavit he had made a false statement that petitioner is the owner of the property bearing No. WZ­47B & 47C consisting of 14 shops as alleged. It is submitted that M/S Sangwan & Associates has filed a wrong and false site plan without verifying the property on the site.

33. Further, it is submitted that petitioner is neither owner nor in occupation of any other shop in the suit property as alleged by the respondent. It is wrong and denied that alleged shop No. 4 in his site plan is under the tenancy of Sh. Shiv Narain Gupta and shop No.5 is under the tenancy of Sh. Amit Gupta. It is wrong and denied that the petitioner is the owner and in possession of shop No. 6,7,8,9 and same are lying vacant as alleged. It is stated that the site plan filed by the respondent is not as per the site.

34. It is further submitted that the petitioner has not let out any shop during the pendency of the present proceedings nor any other shop was let out recently as alleged. It is submitted that fourth shop is very small and under the stair case of the house which is not suitable for the business of the petitioner and his family members. The said small shop under the tenancy of M/s Pooja Traders was let out to the tenant before 2019.

35. In order to establish his contention, the respondent has placed on record certain photographs alleging that the said photographs are showing the shops owned by petitioner. However, in reply the petitioner has RC ARC 84/21 Karamvir Tyagi v. Surinder Kumar Page 17 of 23 already stated that the alleged photographs are false and same are not the shops of the petitioner.

36. Perusal of the record shows that the respondent has relied upon two different site plans, one site plan has been filed by the respondent in the civil suit for permanent injunction filed by him against the petitioner in CS SCJ bearing no. 1203/20 titled Surinder Kumar v. Karamvir Tyagi wherein he has admitted that the petitioner is the owner/landlord of four shops only on ground floor of property bearing no. WZ­47­B Basai Darapur, Tyagi Market, New Delhi and adjoining shops bearing no. WZ­ 46 have been mentioned as other's property. It is submitted by the petitioner that the said shop belongs to Sh. Raju S/o Sh. Jai Kishan. However, in the site plan filed by the respondent along with the leave to defend application, the respondent has alleged that petitioner is the owner of 14 shops on the ground floor. In the alleged site plan filed by the respondent, ownership of the 14 shops of WZ­47­B and WZ­47­C has been shown/admitted of one Sh. Raj Kumar Tyagi.

37. It is submitted by the petitioner that Sh. Raj Kumar Tyagi @ Narender S/o Late Sh. Virender Singh Tyagi is his nephew. The petitioner has filed one site plan in reply wherein he has given the details of 15 shops in property bearing no. WZ­47­B and WZ­ 47­C. It is submitted that the alleged shop number 10 and 11 is owned by Sh. Manoj and Raju both sons of Sh. Jai Kishan and thereafter there is a staircase and a small shop of petitioner is existing but which has not been shown there in the site plan filed by the respondent/tenant. The alleged shop RC ARC 84/21 Karamvir Tyagi v. Surinder Kumar Page 18 of 23 number 12 is owned by Sh. Narender kumar Tyagi @ Raj Kumar S/o Late Sh. Virender Singh Tyagi S/o Sh. Chet Ram Tyagi and thereafter there is another staircase. The alleged shop No. 13 is owned by Sh. Chandu Lal Gupta and shop No.14 is owned by the Chetan Prabhakar S/o Sh. Mesha Prabhakar. It is submitted that the alleged shop No.4 is owned by Sh. Narender Kumar Tyagi @ Raj Kumar S/o Late Sh. Virender Singh Tyagi S/o Sh. Chet Ram Tyagi and alleged shop No. 5 is owned by Sh. Ramavtar S/o Sh. Chet Ram Tyagi. The alleged shop No. 6,7,8 and 9 owned by Sh. Ramavtar S/o Sh. Chet Ram Tyagi and same are under tenancy of Shiv Narain Gupta. It is submitted that none of alleged shop are vacant and all are occupied by different tenants and owned by different owners. It is submitted that the petitioner is the owner only in respect of four shops on ground floor which has been shown in the site plan attached with the petition.

38. Thus, the copy of the site plan showing the exact location of the properties and their respective owners is filed by the petitioner. The same is found to be in conformity with the copy of the plaint with affidavit and site plan filed by the respondent in the civil suit for permanent injunction which is already pending between the parties. It seems only in order to raise a frivolous ground for seeking leave to defend that the respondent has filed a frivolous site plan different from the site plan already relied by him in the suit for permanent injunction bearing CS SCJ no. 1203/2020. Further the site plan being filed by the petitioner is found to be in accordance with the family settlement dated 17.08.2000 which shows that RC ARC 84/21 Karamvir Tyagi v. Surinder Kumar Page 19 of 23 five shops on the ground floor and a big hall has fallen to the share of Sh. Ramavtar Tyagi, thereafter three shops and two rooms on the ground floor to Karamvir Tyagi and three shops on 15 feet road and two rooms on backside of ground floor to Vijender Singh Tyagi.

39. Thus, the site plan relied upon by the respondent while filing the suit for permanent injunction as well as the site plans filed by the petitioner along with the petition and reply to the leave to defend application are found to be correct and in conformity with the family settlement. The same are found to be correct and the site plan filed along with the leave to defend application which is not in conformity with the site plan already relied upon by the respondent in the earlier suit is found to be false and not in accordance with site.

40. Further, as regards the contention that the shop M/s Pooja Traders has been let out recently by the petitioner, the respondent has not been able to produce any documentary proof to show that the same has been let out recently moreover, the said shop is below the stairs and is stated to be a small shop as compared to the other shops. It is for the petitioner to decide against which tenant he wishes to seek eviction and the respondent cannot be allowed to challenge that the petitioner has to seek eviction against which of the tenants. Hence, this contention is also found bereft of any merits.

41. It is submitted by the respondent that the present petition is the counter blast to the civil suit filed by the respondent, which pending in the Court of Sh. Anurag Das, ACJ, West District, THC, Delhi. The RC ARC 84/21 Karamvir Tyagi v. Surinder Kumar Page 20 of 23 respondent has filed the suit for injunction against the petitioner as the petitioner threatened the respondent to forcibly occupy the tenanted premises. However, this contention of the respondent is without any merit as the petitioner is at liberty to file eviction petition for his bonafide need as per rules and as per provisions of the DRC Act.

42. Another contention of the respondent is that the intention of the petitioner is to get market rate of rent and he does not want to start any business as alleged. The petitioner infact wants to re­let the premises on the higher rate of rent.

43. In reply, it is submitted that the petitioner never issued any notice for enhancement of the rent since the inception of the tenancy although he is legally entitled for enhancement but in view of the family circumstances of the petitioner, they have decided to start their business as they have no source of income for the livelihood of the family and now they want to start their business as mentioned in the petition.

44. However any such contention is merely a bald assertion without any proof of the same. Moreover, it seems to be a desperate plea of the respondent. Reference may be made to Section 19(2) of the Rent Act which permits the tenant to, even after eviction, if finds the owner to be not putting the premises, possession of which has been recovered for self­ use, apply for repossession.

45. One more contention of the respondent is that at the time of creation of tenancy, respondent had paid premium/Pagree of Rs. 3,00,000/­ (Rupees Three Lacs only) in cash to the father of the RC ARC 84/21 Karamvir Tyagi v. Surinder Kumar Page 21 of 23 petitioner. No proof of payment of any pagri or premium has been placed on record by the respondent. Moreover, taking or receiving pagri amount is illegal under Section 5 (2) (a) of the DRC Act. Furthermore, in case of Satish Jain v. Tara Devi in RC. REV. No. 595/2012 decided on 05.11.2014, it has been held by the Hon'ble Delhi High Court that payment of pagree does not vests any right in the tenant. Section 13 of the Act provides that if a landlord has illegally received any monies in the form of premium, then within one year of making the payment, the tenant can seek recovery of the same and not thereafter. In any case even for sake of arguments we presume that pagree/premium was paid, nowhere does the law provides that after payment of such an amount, the tenant cannot be evicted from the suit premises, if there is found a bonafide need for the tenanted premises. Hence, this ground raised by the respondent is also rejected.

46. Thus, from the discussion made above, respondent has failed to raise any triable issue, which requires evidence to be proved. The petitioner, on the other hand, has clearly established her bonafide requirement regarding tenanted premises. Hence, the application for leave to defend filed by respondent is ordered to be dismissed. Consequently, eviction order is liable to be passed against the respondent u/s Section 25 B (4) of the Act. In view of above, petitioner is held entitled for recovery of the tenanted premises, i.e. private shop no.2, ground floor, measuring 10.8'x 18', comprising in property bearing no. WZ­47­B, Basai Darapur, Tyagi Market, New Delhi­110015 as shown in red color in the site plan RC ARC 84/21 Karamvir Tyagi v. Surinder Kumar Page 22 of 23 annexed with the petition. 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. Keeping in view the facts & circumstances, no order as to costs.

Announced in open Court                      (Susheel Bala Dagar)
on 16st Day of April 2022                    SCJ cum RC(West)
                                             Tis Hazari Courts, Delhi.

(This order contains 23 pages.)




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