Delhi District Court
Smt. Shama Trehan vs Smt. Reena Bajaj on 10 February, 2020
IN THE COURT OF SH. AJAY NAGAR
ADDITIONAL RENT CONTROLLER (WEST), TIS HAZARI
COURTS, DELHI.
ARC No.- 26210/2016
Smt. Shama Trehan
W/o Sh. Satish Trehan
R/o B-1/201, Janakpuri
New Delhi-110059. ...... Petitioner
VERSUS
Smt. Reena Bajaj
W/o Shri
Proprietor of
M/s Rajdhani X-ray
Pathology Lab,
103, Raja Garden,
New Delhi. .... Respondent
Date of Filing : 08.04.2010
Date of Judgment : 10.02.2020
JUDGMENT
1. Present case is a petition U/Sec. 14 (1) (e) of Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') for eviction of the respondent in respect of the tenanted premises, i.e. part ground floor of the property bearing No. 103, Raja Garden, Delhi, as shown in red colour in the site plan annexed with the petition (hereinafter referred to as 'tenanted premises').
2. In the present petition, it is averred by the petitioner that the petitioner and her family bonafide requires the tenanted premises for her and her family members (two grown up sons) for expansion of their current businesses and running their ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 1 of 24 separate businesses. That all the family members can not be accommodated in the portion/properties available with the petitioner. The petitioner is engaged in the business of Man Power Consultancy under the name and style of M/s Trehan International Consultants & Engineers Pvt. Limited of which she is a founder Director. The petitioner's husband is also involved in the said business which is being run from the remaining ground floor and first floor of the property bearing No.103, Raja Garden, New Delhi. The elder son namely, Sh. Anuj Trehan who is married and blessed with a son, wants the tenanted premises for running his own business of imparting technical training to the job-seekers who wish to settle abroad. Sh. Anuj is currently carrying out this business from the residence under the name and style of "M/s Nai Disha".
It is further averred by the petitioner that the entire property bearing No. 103, Raja Garden, New Delhi was purchased by the petitioner vide sale deed dated 01.05.2003. No commercial/non-residential property other than the property bearing No.103, Raja Garden, Delhi is available with the petitioner. The petitioner's elder son namely Sh. Anuj Trehan has already been running his separate business of a technical institute under the name of "M/s Nai Disha" for last three years but he has not been able to utilize his potentials and abilities due to paucity of space and is running the business from his home. Rather the family life is getting disturbed with passage of each day due to business being operated from the residence. Besides, the younger son of the petitioner (namely Sh. Nitin Trehan) who has crossed 22 years of his life and is highly ambitious, requires space to commence his own business in the nature of rendering services in the field of Canadian immigration ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 2 of 24 and education consultancy. As such, commercial space is bonafidely required by the petitioner for her grown up sons.
Lastly, it is prayed by the petitioner that an eviction order may be passed in favour of the petitioner and against the respondent.
3. Notice of the eviction petition was sent to the respondent. In response to which, the respondent filed detailed leave to defend application along with accompanied affidavit which was allowed ultimately and the respondent was given an opportunity to file Written Statement.
4. In the written statement, the respondent has inter-alia contended that besides major portion of ground floor, the first floor and second floor are completely constructed and the accommodations on these floors, is exactly the same as it exists on the ground floor, including the tenanted premises. Even the third floor is also partially constructed. The accommodation of 1st floor is partly used by the petitioner and the rest of the accommodation is lying vacant. The petitioner owns and is in possession of another commercial premises bearing No. 102, Raja Garden which is located/adjacent to the premises no. 103, Raja Garden. The premises no. 102, Raja Garden is a single story building constructed over an area of 186 sq. Yards. The petitioner has not mentioned as to what business she and her family member intend to start or to what extent the petitioner and her family members want to expand their current business.
It is further averred by the respondent that the present petitioner has reasonably suitable commercial accommodation ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 3 of 24 in her possession i.e. premises No. 102, Raja Garden, New Delhi which is a built property and further construction can be added thereon and also part of a ground floor, 1 st floor and the 2nd floor and 3rd floor of premises no. 103, Raja Garden besides the Multi Storied Building No. J-30, Lajpat Nagar-II, New Delhi which is also a property in commercial nature. That this property no. 102 is built on a plot of around 186 sq. yards and is located on a 30 feet vide road. That these facts are evident from the perusal of the sale deed of this property in favour of the petitioner. That the perusal of an advertisement by the petitioner in the Newspaper "The Times of India", dated 22.09.2010 would reveal that both the said premises (No. 102 & 103) are commercial premises. That the respondent has placed on record photocopy of the sale deed vide which the petitioner has purchased property no. 102, Raja Garden and the said fact has not been denied by the petitioner in his reply to the leave to defend or otherwise. That the petitioner has deliberately and clandestinely not filed the site plan of the entire portions/all the floors of premises No. 103, Raja Garden, New Delhi. That the 2nd floor is fit for running business by the petitioner's son or otherwise. That there is no tenant by the name of Sh. Rakesh Khanna or otherwise, on the second and third floor of property no. 103 and this fact is fortified by the fact that in the year 1990, the 3rd floor of property no. 103 was not in existence and on the 2nd floor there was only one room that too was self occupied by its owner. That the front side corner Shutter of the premises no. 103 always remains continuously closed, to the extent that the people are permanently parking their vehicles in front thereof. Both of her sons are gainfully employed as full time Directors and in control of day to day affairs of the company M/s Trehan ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 4 of 24 International. That deliberately, the petitioner has not filed the latest status report of M/s Trehan International showing the names of its current Directors in the records of Registrar of Companies. The copy of the list of Directors of the year 2001 is already attached with the rejoinder. Sh. Anuj Trehan is still the Director of the M/s Trehan International Consultant and Engineers. Both the sons of the petitioner are full time managing/running M/s Trehan International Consultants and Engineers Pvt. Ltd. and Sh. Anuj Trehan is also its full time Director.
Lastly, it is prayed by the respondent that present petition may be dismissed with costs.
5. Record reveals that replication has also been filed by the petitioner to the written statement filed by the respondent. The petitioner has denied all the allegations levelled by the respondent and reiterated and reasserted all the facts as stated in the petition.
6. Thereafter, after completion of pleadings, matter was fixed for Petitioner's Evidence/P.E. Petitioner examined her husband Sh. Satish Trehan as PW-1 as only witness and closed her evidence.
Evidence was also led by the respondent, who examined her son Sh. Dincur Bajaj as RW-3, who was cross examined at length by Ld. Counsel for the opposite party. The petitioner also summoned the record from Building Department SDMC, Property Tax Department, Registrar of Companies, Sub- Registrar office, Building department, Central Zone, SDMC, Lajpat Nagar, which was produced by respondent no. 1, 2,3, 4 ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 5 of 24 & 5 respectively.
It is pertinent to mention that same number i.e. RW-3 was given to the witness from Registrar of companies and Sh. Dincur Bajaj. Hence, for the purposes of distinction, Witness from the Registrar of Companies shall be treated as RW-3X and Dincur Bajaj shall be treated as RW-3.
Thereafter, Respondent's Evidence was closed and the matter was fixed for final arguments.
7. I have carefully gone through the testimonies, documents, Written arguments, material on record and case law relied upon.
8. It is expedient to reproduce the Section 14 (1)(e) of DRC Act which is as under:
"Section-14. Protection of tenant against eviction- (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 court or any 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 recovery of possession of the premises on one or more of the following grounds only, namely:-
"That the premises are required bonafide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation."
As such, followings are the ingredients of Section 14 (1)
(e) of D.R.C. Act:-
ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 6 of 24(i) There should be relationship of landlord and tenant between the petitioner and respondent.
(ii) Landlord should be the owner of the tenanted premises.
(iii) That the premises are required bonafide by the landlord for himself/herself or for any member of his/her family dependent upon him/her.
(iv) Landlord should not have other reasonable suitable accommodation.
9. Let us discuss the ingredients of Sec. 14(1)(e) of D.R.C. Act:-
(i) & (ii). Landlordship/Ownership:-
10. Perusal of record shows that in the present case, the petitioner has claimed to be owner and landlady of the tenanted premises. On the other hand, the respondent has not disputed the landlordship and ownership of the petitioner qua tenanted premises, as in paragraphs no. 1,2 & 3 of the reply on merits, it is submitted by the respondent that the averments made in paragraphs no. 1 to 3 of the eviction petition are not denied. Moreover, Written Statement itself shows that the respondent has not disputed the ownership of the tenanted premises as she herself has stated in the written statement that the petitioner is in possession of other floors of the building wherein tenanted premises is situated. Moreover, the respondent has not disclosed who is the owner of the premises, if not the petitioner.
As such, these two ingredients of Section 14(1)(e) of D.R.C. Act regarding landlordship and ownership are satisfied.
ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 7 of 24(iii) & (iv). Bonafide requirement and Alternative accommodation:-
11. It is expedient to discuss some case law on these ingredients which are as under:-
In the case titled as Sarla Ahuja Vs United India Insurance Co. Ltd. AIR 1999 SC 100, the Hon'ble Supreme Court has held that:-
"The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in 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."
In Shiv Sarup Gupta Vs Dr. Mahesh Chand Gupta AIR 1999 SC 2507, at pg-2512 in para 14 & 15, Hon'ble Supreme Court held that:-
"14. The availability of an alternate accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bonafides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the Court drawing an inference that the need of the landlord was not a felt ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 8 of 24 need or the state of mind of the landlord was not honest, sincere, and natural. Secondly, another principal ingredient of Clause (e) of Sub-section (1) of Section 14 which speaks of non- availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied. Wherever another residential accommodation is shown to exist as available than the court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the court that the alternate residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant fact Ors. While considering the totality of the circumstances, the court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come."
In the case titled as Ragavendra Kumar Vs Firm Prem Machinery AIR 2000 SC 534, it was observed as under:-
"It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter, (See: Prativa Devi (Smt.) v. T.K Krishnan, [1996] 5 SCC 353. In the case in hand the plaintiff- landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted."
The moral duty of a father/mother to help establish his/her son/daughter was also recognized by the Hon'ble Apex Court in "Joginder Pal Singh Vs. Naval Kishore Behal" [AIR 2002 SC 2256] in the following words:
"24........Keeping in view the social or socio-religious ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 9 of 24 milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord. If the requirement is of actual user of the premises by a person other than the landlord himself the Court shall with circumspection inquire : (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close inter-relation or identify nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the overlaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent."
In case titled as "Labhu Lal Vs. Sandhya Gupta"
[2011(1) RCR,(Rent) 231 (Delhi)], it has been held that the children are very much dependent on the landlord for the purpose of setting up their business and such a requirement is a bonafide one.
In the judgment of Hon'ble Supreme Court in case titled as Raghunath G. Panhale (dead) through L.Rs. Vs. Chagan Lal Sundarji & Co. (1999) 8 SCC 1 wherein it was held that:-
"It will be seen that the trial court and the appellate court had clearly erred in law. They practically equated the test of "need or requirement" to be equivalent to "dire or absolute or compelling necessity". According to them, if the plaintiff had not permanently lost his job on account of the lockout or if he had not resigned his job, he could not be treated as a person without any means of livelihood, as contended by him and hence not entitled to an order for possession of the shop. This test, in our view, is not the proper test. A landlord need not lose his existing job nor resign it nor reach a level of starvation to contemplate that he must get possession of his ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 10 of 24 premises for establishing a business. The manner in which the courts have gone into the meaning of "lockout" in the Industrial Disputes Act, 1947 appears to us to be nothing but a perverse approach to the problem. One cannot imagine that a landlord who is in service should first resign his job and wait for the unknown and uncertain result of a long-drawn litigation. If he resigned his job, he might indeed end up in utter poverty. Joblessness is not a condition precedent for seeking to get back one's premises. For that matter assuming the landlord was in a job and had not resigned it or assuming that pending the long- drawn litigation he started some other temporary water business to sustain himself, that would not be an indication that the need for establishing a grocery shop was not a bona fide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant".
In the case titled as Ram Babu Agarwal vs. Jay Kishan Das 2009(2) RCR 455, the Hon'ble Apex Court observed as under:-
"However, as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to do footwear business in the premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also."
In the case titled as Lajpat Rai Vs Raman Jain 2012 Law suit (Del) 1439, it was observed by Hon'ble High Court as under:-
"The facts have been disclosed by the petitioners himself in the eviction petition; the petitioners also being a commerce graduate from the Shri Ram College of Commerce seeks an independent business of his own; thus this need to set up a business of his ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 11 of 24 own cannot be in any manner be said to be imaginative or a need which is moonshine; it is a genuine need; the present petitioners having inherited this shop from his grandmother by virtue of the aforenoted Will wishes to set up his own business of rubber and latex which he was earlier carrying on with his father and in which he has gained expertise and knowledge. Thus in no manner can it be said that this need of the landlord is not a bonafide need. The landlord is the best judge of his requirement; it is not for the tenant to dictate terms to him; neither the Court tell him the manner he wishes to set up his business."
12. Perusal of record shows that in the present case, the petitioner has sought the tenanted premises for bonafide commercial requirement of her two grown up sons for expansion of their current businesses and running their separate businesses and it is further claimed by the petitioner that the petitioner is not having the alternative suitable commercial accommodation for such purposes.
On the other hand, the respondent has claimed that the petitioner does not have any bonafide requirement for her sons as they are already settled and the respondent has also claimed that the petitioner is having other alternative accommodation i.e. in upper floors of same property i.e. 103, Raja Garden, New Delhi, property No. 102, Raja Garden, New Delhi, property No. J-30, Lajpat Nagar-II, New Delhi.
On the other hand, the petitioner has denied the pleas and contentions of the respondent and reiterated her bonafide requirement in respect of her sons.
13. I have carefully and minutely gone through the testimonies of all the witnesses. It is expedient to reproduce the relevant portion of evidence of RW-3 Sh. Dincur Bajaj son of the respondent, which is as under:-
ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 12 of 24"It is correct that the suit property bearing No. 103, Raja Garden New Delhi is a three side open property with one side facing the main ring road of Delhi. I can not tell about the width of side streets of the suit property. Vol. One side there is a road and one side is a gali/service lane. I can not tell even approximately the width of the side road or the gali/service lane. All the main entrance into the suit property are only from the ring road. Vol. There are two more entrance, one from side road and one from the side gali but the main entrance is only from the ring road. The main entrance for M/s Rajdhani Xray Pathology Lab is from main ring road. Occasionally, the side entrance are used by the tenant, as and when required......
... It is correct that there is a iron gate at points C to D in the service lane and the same was installed by the colony RWA for security purposes. Vol. It does open and whenever we want to open it we have to request the officials of RWA as the same remains under the lock and key of RWA. At points E to F also exist security gate installed by the RWA of the colony. In the street behind gate E-F there are about 15-17 houses on each side. The said street is open at the other end. There is no gate colony RWA on that other end of the said street. The main entrance for property No. 102, Raja Garden, New Delhi is in the street shown at point A in the site plan Ex.PW1/2. I mean to say by Street is Road. I have no idea about the access to property No.102 from the back lane. It is correct that property no. 103 is facing the main ring road. It is correct that property no. 102 immediately behind the property no. 103. I have no idea what is no. of the property behind property no. 102. I am not aware what is the status of the property next to property no.102, whether residential or commercial. I can not tell the property no. which is at the other end of the same street/road in the property no. 102 is situated. I can not tell whether the properties in the same street/road are residential or commercial. Vol. There are two-three offices and shops in the said street/road. I can not tell the name of the said offices or shops nor can I tell the names of their owners nor the property numbers....
....Neither I nor the respondent filed any site plan on the judicial record. There is a entry to the property no.103 from the road/street side at point A somewhere in the middle of the property. I have not filed any site plan to show there is a entry to the property no.103 from the side street/road at point A.....ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 13 of 24
.....Q. Have you seen the property No. 102 as referred to in your affidavit Ex.RW3/A? Ans. I have seen the property No. 102 only from outside.
Q. Can you identify the same in its photographs? Ans. I can not identify the said property from its photographs as I have seen it long time back. Q. Have you filed any photograph of property No. 102 as referred in para no.7 of your evidence affidavit Ex.RW3/A?
Ans. I do not remember. I will have to peruse the record for the same.
Q. Does the gate now encircled A in the photograph Mark Z1, the same gate in the service lane as was referred by you in your last cross examination, being the RWA gate adjoining the tenancy premises?
Ans. I am not sure.
Q. Do you have any photograph of the two RWA gates adjoining the property in question I.e. property No. 103, Raja Garden, New Delhi?
Ans.No. Q. Can you produce any latest photographs of both the RWA gates?
Ans. No. It is wrong to suggest that I am deliberately not producing the photographs of the property No 102, Raja Garden, New Delhi and that of the two RWA gates adjoining the property No. 103, Raja Garden, New Delhi as the same shall go against the defence raised by the respondents. It is wrong to suggest that I am deliberately avoiding to identify the property no. 102, Raja Garden, New Delhi in the photographs Mark Y and Mark Z as the same depict that the said property is not fit for commercial purposes. Vol. I can not identify the said property in the photographs as I had seen that property long time back. Vol. I can not identify the gates in the photographs as all the RWA gates are lookwise similar. Vol. The property no. 102 is fit for commercial use. It is wrong to suggest that the street adjoining the tenancy premises in which street the property no. 102 is situated has only residential properties. I have visited the said streets number of times. Vol. Long back....
....Q. Can you run the business of Rajdhani X ray and pathology from property no. 102, Raja Garden, New Delhi instead of suit property?
(Objected to on the point of relevancy. Heard. Perused. Question Allowed.) Ans. I do not know.
It is wrong to suggest that I am deliberately avoiding to answer the previous question as the property ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 14 of 24 no.102 is not fit for commercial purposes. Vol. Property no. 102 is fit for commercial purpose but there are various other aspects which need to be considered for running a business of pathology lab which I am not aware if the said property no. 102 can meet those aspects. The deposition in para 13 of my evidence affidavit Ex.RW3/A is based on my personal visit long time ago to property no.J-30, Lajpat Nagar-II, New Delhi. I do not remember when I lastly visited the said property. I can not respond in affirmative or negative to the suggestion that the said property no. J-30 is not situated on the main road. Vol. I do not remember. Vol. The said property is situated in the main market. I do not remember the status of construction of the said property. I can not say if the said property is partly built a single storey building. When I visited the said property I kept seated in the car. I can not tell even by approximation as to how many years ago I visited the said property. It is correct that I had not paid any visit to the said property in recent past. I do not remember if the said property is situated behind a park. I am not sure if I visited the property shown encircled in the photograph Mark Z5 to Z7. I am not sure if any photographs of said property at Lajpat Nagar has been filed on judicial record by me. Vol. I have to peruse the record to answer this question. It is wrong to suggest that I am deliberately avoiding to identify the property No.J- 30A, Lajpat Nagar-II (as referred upon in para 13 of my affidavit) in the photographs Mark Z5 to Z7 as the same depict that the said property is residential and not fit for the commercial purposes. Q. What is your answer to the offer of shifting your business of Rajdhani X ray to this property at Lajpat Nagar from the present tenancy premises in question, which property has been pleaded by you as alternate suitable accommodation? (Objected to on the point of relevancy. Heard. Perused. Question Allowed.) Ans. I do not know.
It is wrong to suggest that I am deliberately avoiding to answer the previous question as the property no.J-30A is not fit for commercial purposes. Vol. Property no. J-30A, Lajpat Nagar is fit for commercial purpose but there are various other aspects which need to be considered for running a business of pathology lab which I am not aware if the said property no. J-30A can meet those aspects. It is wrong to suggest that neither the property no. 102, Raja Garden, nor the property No.J-30A Lajpat Nagar are commercial as the same are situated in residential locations. It is wrong to suggest that the ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 15 of 24 said properties can not be used for commercial purposes despite the deposition of conversion charge by the petitioner as permission in this regard is not granted by the concerned department. Vol. The deposition of the conversion charge for 102 and 103, Raja Garden being the suit property have been paid by the same receipt and applied on the same grounds considering both the properties as the single unit."
14. Perusal of testimony of RW-3/ son of respondent Sh. Dincur Bajaj clearly shows that the respondent has claimed that property No. 102, Raja Garden, New Delhi is in possession of the petitioner and this fact has not been disputed by the petitioner, but the stand of the petitioner is that the property No. 102 is not an alternative reasonably suitable commercial accommodation for satisfying the bonafide commercial requirement of her two sons. Although, the respondent has claimed that the petitioner is in possession of property no. 102 during the cross examination but the respondent/ RW-3 has impliedly admitted that the property No. 102 is not a suitable property for the purposes of using it commercially as when he was given option to shift to the property No. 102, he gave a evasive reply by saying "I do not know." Although, he further replied that "property No. 102 is fit for commercial purposes, but there are various other aspects which need to be considered for running a buinsess of Pathology Lab which I am not aware if the said property No. 102 can meet these aspects."
As such, he himself has not shown the interest in the property No. 102, Raja Garden, Delhi. No plausible reasons have been given by respondent/RW-3 for not shifting to property No. 102 and made the vague and evasive reply. The abovementioned reply clearly shows that on the one hand, the RW-3/ respondent is claiming that there are various other ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 16 of 24 aspects which need to be considered for running a business of Pathology Lab but on the other hand, he himself is deposing that he is not aware of those aspects. Moreover, it is admitted by the respondent during the cross examination that the tenanted premises is three side open and the main entrance for the tenanted premises is from main Ring Road. Moreover, it is also admitted fact that the property no. 102, Raja Garden does not open on the main Ring Road.
It is well settled that location of a commercial property matters a lot for enhanced footfall. There is always very likelihood of a large number of footfall in such kind of commercial properties which have the prominent location. On the other hand, those properties which are situated in streets or inner roads do not attract the people a lot.
During the cross examination, respondent/RW-3 has himself admitted that the main entrance for property No. 102, Raja Garden, New Delhi is in the street/ road whereas the property No. 103 is facing the main Ring Road. Although, during the cross-examination RW-3 has claimed that there are 2-3 offices and shops in the said street/road, but he did not tell the names of those offices and shops and names of owners thereof. Moreover, he has also admitted that he has not filed any site plan on the judicial record to prove this fact.
15. I have also gone through the testimony of the respondent recorded on 16.01.2020 which shows that he refused to identify the property No. 102, Raja Garden, New Delhi on the ground that it was seen by him a long time ago. Moreover, although he has claimed that property no. 102, Raja Garden, New Delhi is a fit property for commercial use but as discussed earlier, he was ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 17 of 24 not keen to shift his pathology lab to property No. 102, Raja Garden, New Delhi which refuted his own statement of suitability of 102, Raja Garden, New Delhi for commercial use.
16. As far as property No. J-30, Lajpat Nagar-II, New Delhi is concerned, testimony of RW-3/ respondent clearly shows that he has merely made the vague defence of suitability of this property to satisfy the bonafide need of sons of petitioner as during the cross-examination he himself did not argue to shift the pathology lab to this place. Moreover, testimony of RW-3 on this aspect clearly shows that it is not a commercial property which can be used to satisfy the need of sons of petitioner. During the cross-examination, he replied in the same way as mentioned above in respect of property No. 102, Raja Garden, New Delhi.
As far as upper floors of property no. 103, Raja Garden, are concerned, it is a matter of common knowledge that the ground floor is always preferable to the upper floors for the commercial use and there is always a better scope on the ground floor for commercial activities. As such, even if it is assumed for the sake of arguments that upper floors are available to the petitioner/landlord, it cannot be considered to be suitable commercial accommodation.
17. It is pertinent to mention that to exclude the petitioner/landlord from having the benefit of Section 14(1)(e) of the D.R.C. Act, the respondent has to prove that the petitioner is having alternative reasonably suitable accommodation.
It is well settled proposition of law that it is not sufficient that any kind of the property should be available to the ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 18 of 24 petitioner/landlord to rule out the benefit of 14(1)(e) of D.R.C. Act. The property available with the petitioner/landlord should also be reasonably suitable property. If the petitioner/landlord has filed the eviction petition for commercial bonafide requirement but the property available with the petitioner is residential one, it cannot be said that the petitioner is having the alternative reasonably suitable commercial accommodation.
It is well settled whether the property available with the petitioner is convenient and suitable or not is to be determined from the point of view of the petitioner/landlord and not from the point of view of the tenant/respondent. The respondent/tenant cannot dictate the terms to the petitioner to use the property in the particular manner. The petitioner/landlord is the best judge of his requirement.
18. In view of observations made by Hon'ble Supreme Court; it is well settled that a person is not supposed to remain unemployed till the disposal of the eviction petition. Furthermore, this Court is of the opinion that there is nothing malafide if the sons of the petitioner want to expand their businesses. Rather, the said requirement seems to be bonafide as they want to earn their livelihood and the tenant cannot stop the landlord/family member of landlord from starting any business for livelihood. The bonafide requirement of a landlord does not become malafide just because they want to run business for their livelihood from their own property. The consequent hardship to tenant from eviction order could also not convert otherwise bonafide requirement into malafide requirement. In my view, it is a right of every person to excel in his/her life and a person is not supposed to be remained in ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 19 of 24 same position.
19. One of the pleas taken by the respondent during the arguments that petitioner herself has not entered the witness box to prove her bonafide requirement and the adverse inference may be taken against her.
In Man Kaur (Dead) By LRs vs Hartar Singh Sangha on 5 October, 2010 in CIVIL APPEAL NOS. 147-148 OF 2001, it was observed as under:-
"12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 20 of 24
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his `state of mind' or `conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his `bona fide' need and a purchaser seeking specific performance who has to show his `readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or `readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
20. Perusal of record shows that in the present case, Sh. Satish Trehan, PW-1 has appeared in the witness box on behalf of the petitioner to prove the bonafide requirement of her wife/petitioner. Moreover, in the case cited above also, the Hon'ble Apex Court has observed that husband can depose in the petition to prove the bonafide requirement on behalf of his wife/petitioner. Interestingly, in the present case, the respondent herself has not appeared in witness box to give testimony and she has produced her son RW-3 Sh. Dincur Bajaj on her behalf.
Hence, this contention of the respondent does not have ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 21 of 24 any merit.
21. It is well settled that the Presiding Officer of the Trial Court should place himself in the place of landlord to determine whether in the given facts on record, the need to occupy the premises by the landlord can be said to be natural, real, sincere and honest. And the concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life.
It is well settled that the need/requirement of a landlord/petitioner should be bonafide, genuine, honest and conceived in good faith.
Though the choice and the proclaimed need cannot be whimsical or merely fanciful yet a certain amount of discretion has to be allowed in favour of the landlord also and the courts should not impose their own wisdom forcibly upon the landlord/petitioner to arrange his/ her own affairs according to their perception carried away by the interest or hardship of the tenants and the inconvenience that may result to him in passing an order of eviction.
22. I have placed myself in the place of landlord to determine whether in the given facts on record, the need to occupy the premises by the landlord can be said to be natural, real, sincere and honest. And I have also applied a practical approach instructed by the realities of life on the concept of bonafide need or genuine requirement. In view of discussions as earlier and well settled proposition of law, I am of the considered view that the need/requirement of a landlord/petitioner in the present case is bonafide, genuine, honest and conceived in good faith.
ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 22 of 2423. In my considered view, in view of the discussions earlier, the petitioner is not having the alternative reasonably suitable commercial accommodation with her to satisfy the bonafide need of her sons as mentioned in present petition. As such, the respondent has not been able to prove on record that the petitioner is having malafide and alternative reasonably suitable commercial accommodation with her.
24. Perusal of record shows that the respondent as well as petitioner have relied upon a number of judgments of Hon'ble High Court and Hon'ble Supreme Court.
I have gone through the entire case law relied upon by Ld. Counsels for the parties. The case law relied upon the respondent do not assist the respondent in view of the exhaustive discussion as earlier, peculiar facts of the case, settled law and material on record.
CONCLUSION:-
25. Keeping in view all the facts and circumstances of the present case, material on record, settled position of law and the reasons as discussed earlier, I am of the considered view that the petitioner has been able to prove all the ingredients of Sec. 14(1)(e) of D.R.C. Act. As such, the present eviction petition is allowed and an eviction order is passed in favour of petitioner and against the respondent in respect of the tenanted premises i.e. Part ground floor of the property bearing No. 103, Raja Garden, Delhi, as shown in red colour in the site plan annexed with the petition Ex. PW-1/2.
ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 23 of 2426. However, this judgment shall not be operative before the expiry of six months from today keeping in view Sec. 14(7) of D.R.C. Act.
27. File be consigned to Record Room after due compliance.
Digitally signed Announced in the open Court on 10th February, 2020 AJAY by AJAY NAGAR Date: (This judgment contains 24 pages) NAGAR 2020.02.10 16:54:13 +0530 (Ajay Nagar) Additional Rent Controller, West District, THC, Delhi. ARC No. 26210/2016 Smt. Shama Trehan Vs Smt. Reena Bajaj Page 24 of 24