Delhi District Court
Rc No. 6140/16 vs R. K. Kainth on 30 January, 2020
IN THE COURT OF SUSHANT CHANGOTRA
SENIOR CIVIL JUDGE/ RENT CONTROLLER
(SOUTH DISTRICT) SAKET COURTS, NEW DELHI
RC No. 6140/16
Swadesh Kumar Bhagi
S/o Late Mr. V. D. Bhagi
R/o S22, Green Park
Main Market, New Delhi16
Vinod Kumar Bhagi
S/o Late Mr. V. D. Bhagi
R/o S22, Green Park
Main Market, New Delhi16
Promila Kumari
Through LRs. Mr. Satish Chander
S/o Late Mr. Mathura Dass,
R/o Flat no. 3, DDA LIG,
Sector16B, Dwarka, New Delhi
............Petitioners
Versus.
R. K. Kainth
S/o Late Madho Ram
House no. 11D, PocketA,
Siddhartha Extension,
New Delhi
..........Respondent
PETITION UNDER SECTION 14(1) (e) DELHI RENT CONTROL
ACT, 1958
Date of Institution of the petition : 11.08.2008
Date of Pronouncement of Judgment : 30.01.2020
Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 1 of 23
JUDGMENT
1. The brief facts of the case of petitioner are that Sh. Vaishno Das Bhagi i.e. father of petitioners had inducted wife of respondent namely Smt. Satwant Kaur as a tenant in one shop at ground floor forming part of property no. S22, Green Park (Main) Market, New Delhi at a monthly rent of Rs. 150/ in terms of rent note dated 24.03.1962. Later on rent was increased and present rate of rent is Rs. 500/ excluding property tax.
2. Sh. Vaishno Das Bhagi threw the said property in common hotch potch of HUF of which he was manager and karta. He died on 08.10.2005 leaving behind two sons i.e. petitioners no. 1 & 2 and one daughter i.e. petitioner no. 3. After the death of Sh. Vaishno Dass Bhagi, it was settled amongst the petitioners no. 1 & 2 that one shop shall be retained by petitioner no. 2 and one shop i.e. tenanted premises shall be owned by petitioner no. 1. As per said agreement, the respondenttenant was attorned in favour of petitioner. The original tenant Smt. Satwant Kaur died in the year 1987 and after her death, her husband i.e. respondent became the tenant in the tenanted premises who has been paying the rent to the petitioner no. 1.
3. The petitioner was 65 years of age at the time of filing the petition and was employed as Assistant Manager in Reserve Bank of India. He retired on 31.12.2003. His wife Smt. Shashi Bhagi was also Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 2 of 23 employed in Dena Bank as Special Assistant and her age at the time of filing of petition was 60 years. They have one son and three daughters. His son was employed in software company as Software Engineer and one daughter namely Ms. Shilpa was married and other two daughters namely Ms. Ruchi and Ms Shruti were unmarried who were residing with the petitioner.
4. The petitioner no. 1 requires the tenanted shop bonafide for his own business purposes. The petitioner no. 1 wants to open a shop of Photostat and computer stationery etc. After his retirement, he became jobless and as such due to nonoccupation, he suffered severe stroke and his left side was paralyzed in December, 2004. His wife is also presently unemployed and has nothing to do. Presently, they are pensioners. Taking into consideration the needs and requirements in these days of inflation in the prices of goods, their pension is insufficient.
5. The petitioner no. 1 requires the tenanted shop for carrying out business so that they can supplement their income. The respondent no. 1 is residing at 1st Floor and the business in the tenanted shop which is situated on the ground floor of same building is most convenient to the petitioner no. 1 and his wife. The respondent is in arrears of rent w.e.f. 01.10.2006. The respondent is not using the property as he has illegally sublet, assigned and parted with the possession. Hence, the present eviction petition has been filed.
Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 3 of 23
6. In response to the aforesaid petition, respondent filed application u/s 25B of DRC Act for grant of leave to defend, which was allowed by the Ld. Predecessor of the Court vide order dated 25.02.2010.
7. Subsequently, respondent filed his written statement and took preliminary objections. He pleaded that petitioner is not the owner of tenanted premises. No title document has been filed by petitioner. The property in question was owned by V. D. Bhagi & Sons (HUF). Sh. Vaishno Dass Bhagi represented himself as care taker of the V. D. Bhagi & Son (HUF) and used to collect rent of the tenanted premises. Even after the death of Sh. Vaishno Dass Bhagi, the rent upto last rent receipt issued in September has been collected in the name of V. D. Bhagi & Sons (HUF). Rent was paid from 01.10.2006 upto 31.07.2008, but no rent receipt was issued.
8. There does not exist any relationship of landlord and tenant between the parties. The petitioners have not claimed themselves to be the members of V. D. Bhagi & Sons (HUF). Even otherwise, the member of HUF has no right to sue and cannot let out property or evict the tenant from the property belonging to HUF. The father of petitioner was owner of property, but he surrendered the property in the common pool of the HUF and property in question became an HUF property. The petitioner has not filed any document pertaining to the HUF as the same could disclose various other source of income and properties belonging Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 4 of 23 to HUF. The HUF i.e. V. D. Bhagi & Sons never attorned anyone to be landlord.
9. The premises in question was taken for nonresidential purposes by the wife of respondent from V. D. Bhagi & Son (HUF) and since inception it is used as a shop for carrying on business. After the death of Smt Satwant Kaur i.e. wife of respondent, all the legal heirs of Smt. Satwant Kaur inherited the tenancy rights in the tenanted shop and the petition without impleading all the legal heirs is not maintainable.
10. The petitioner has retired in the year 2003 and his wife also retired from Dena Bank and both get good pensions from their respective departments. The petitioner has never done any business nor has any kind of business experience/ qualification for the work alleged by them. The petitioner had suffered paralysis attack due to which his left side of his entire body had paralyzed. The petitioner cannot speak properly due to the effect of paralysis on his face. A person suffering from such serious body disorders and ailments is not in position nor can do any kind of business.
11. The adjoining shop of the same size as the tenanted premises is with the petitioner no. 1. The said shop mostly remains closed. The petitioner no. 1 has made one book seller cum newspaper vendor sit in front of the verandah on the road and the petitioner no. 1 charges Rs. 200/ per day from the said book seller. The petitioner no. 1 has Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 5 of 23 concealed that he is in occupation of one office measuring 14 x 5 covered verandah and store 8 x 8 and WC behind the two front shops on the ground floor which has independent entry from the backside. The said space is lying vacant and the said space could have been used by petitioner no. 1.
12. Section 14 (1) (e) r/w section 25B of DRC are only applicable in respect of the premises let out for residential purposes. The petitioner has not filed the correct plan of the premises in occupation of the respondent. The petitioner no. 1 is owner and in possession of flat no. 307 B Bhikaji Cama Bhavana, Bhikaji Cama Place, New Delhi. The said flat has been let out to a corporation at the monthly rent of Rs. 30,000/ per month. The petitioner no. 1 is also owner of shop no. R4/4, Green Park New Delhi. The said shop is on main Mehrauli Road.
13. The son of the petitioner is owner and he is in possession of HIG apartment bearing no. 23, Sector10 plot no. 21, Dwarka. The petitioner has intentionally concealed accommodations. The petitioner no. 1 & 2 own commercial space measuring about 1200 sq. feet bearing no. GF1A, B11, Ranjeet Nagar Commercial Complex, New Delhi and the petitioners used to get more than Rs. 35000/ as rent. The said space was vacated by the tenant in December, 2007 and is lying locked. The rental income of the petitioner no. 1 from properties is more than Rs. One Lakh per month.
Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 6 of 23
14. The petitioner no. 1 is owner of property no. C118 in Daya Nand Colony, Lajpat Nagar, New Delhi measuring 75 sq. yards which has a shop on the ground floor and residential accommodation on the upper floors. The petitioner no. 1 owns one shop measuring 20 x 25 in premises no. 5, Block C, Arjun Nagar, New Delhi. The said shop is lying locked. The petitioner is also owner of one shop bearing private no. 4, measuring 10 x 10, in premises no. 43, East of Kailash, Behind Sapna Cinema, New Delhi. The said shop is also lying locked since its purchase.
15. The respondent is running a small business of repair of electronic goods and sale of CD's and cassettes etc from the tenanted shop. The shop is the only source of livelihood of respondent. On merits, respondent denied the remaining averments of petition and prayed that petition may be dismissed.
16. The petitioners filed replication to the written statement of respondent and thereby denied the averments of written statement and reiterated the averments of petition. They further pleaded that they do not have suitable alternative accommodation.
17. After completion of pleadings, matter was fixed for petitioner's evidence. In support of their case, petitioners examined petitioner no. 1 as PW1. He tendered his affidavit Ex. PW1/A and relied upon documents Ex. PW1/1 to Ex. PW1/8 and PW1/13 and Ex. PW1/14 Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 7 of 23 and Mark X & Y. PW2 Sh. Vinod Kumar Bhagi also tendered his affidavit Ex. PW2/A and relied upon documents Ex. PW1/4 to Ex. PW1/8. They were crossexamined at length. PE was closed on 20.07.2012
18. RW1 Sh. Kashmira Singh tendered his affidavit Ex. RW1/A. RW2 Sh. Rakesh Kainth tendered his affidavit Ex. RW2/A and relied upon documents i.e. rent receipts dated 13.11.96 and 04.08.2002 Ex. RW2/1 and photographs Ex. RW1/1. RW3 Om Prakash Sharma tendered his affidavit Ex. RW3/A. These witnesses were also cross examined at length. RE was closed on 22.07.2019.
19. I have heard the arguments of ld. counsel for petitioners and also of ld. Counsel for respondent. I have also gone through the written submissions and evidence on record very carefully.
20. The present petition has been filed u/s 14 (1) (e) DRC Act. Section 14 (1) (e) DRC is reproduced below: "Section 14 (1) (e): Notwithstanding anything to the contrary contained in any other law or contract, no order of 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, Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 8 of 23 namely:
(e) That the premises let for residential purposes are required bona fide by the landlord for occupation as a residence 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 reasonable suitable residential accommodation."
21. In order to succeed in the case u/s 14 (1) (e) of DRC Act, the petitioners are required to prove the following ingredients:
(a) Ownership in respect of tenanted premises;
(b) Relationship of landlord and tenant between the parties;
(c) Petitioners require the tenanted premises for their bonafide need and necessity or necessity of their family members;
(d) Petitioners do not have any other alternative accommodation with them/him/her.
OWNERSHIP IN RESPECT OF TENANTED PREMISES AND RELATIONSHIP OF TENANTED PREMISES:
22. As per case of petitioners, Sh. Vaishno Das Bhagi was the owner of the tenanted premises. He merged the tenanted premises in hotch potch of HUF and had let it out to Smt. Satwant Kaur. Sh. Vaishno Das Bhagi passed away in the year 2005. After his death, petitioners no.
Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 9 of 23 1 & 2 divided the assets of the HUF out of which the tenanted premises fell into the share of petitioner no. 1.
23. The respondent has largely harped upon the assertion that since the HUF was the landlord of tenanted premises, therefore, the petition on behalf of individuals i.e. petitioner no. 1 to 3 is not maintainable.
24. There is no denial that petitioners are the children of Sh. V. D. Bhagi i.e. original owner of tenanted premises. The petitioners have taken a specific stand that after the death of Sh. Vaishno Das Bhagi, they had divided the properties inter se themselves. There is no contradictory evidence to that effect. The said assertion means that the joint family property stood divided. Therefore, the petitioner no. 1 could have instituted the petition in his personal capacity only and he was not even required to join the other legal heirs of Sh. Vaishno Das Bhagi.
25. Moreover, in Seshasyana Rao & Ors Vs. Manuri Venkatesa Rao & Ors AIR 1954 Madras 531, it has been held that, "When a building belonging to a joint family is leased, the landlord is not an abstract juristic entity called 'joint family', but the members who constitute that family. When a coparcener, therefore, applies for possession under section 7 (3) (a) (I), he will be entitled to an order......
......13. I am unable to agree with this contention. Though it may be possible to regard a Hindu joint family as a juristic person for Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 10 of 23 some purpose, it cannot, in my opinion, be held to be a landlord for purposes of section 7 (3) (a) (I) of the Act. That section enacts that the landlord may apply for possession of a residential building, if he requires it for his own occupation, provided he is not occupying a residential building of his own, in the same place. Now a juristic person cannot, in the context, be aptly described as occupying a residential building; it is only in the case of a natural person that the question of residence can arise. A joint family regarded as a juristic entity, can, therefore, have, as such, no residence. It is only its members that can reside in a building. This is further made clear by the use of the word 'he' in the section; a joint family as juristic person is neither a 'he' nor a 'she'. The true position is, that when a building belonging to a joint family is leased, the landlord is not an abstract juristic entity called 'joint family', but the members who constitute that family. When a corparcener, therefore, applies for possession under section 7 (3) (a) (I), he will be entitled to an order, if he establishes that he requires the house for his ow occupation, and he is not disentitled to that relief by reason of the fact that the family owns another house and members of the family are residing there, if he is himself not in occupation of it."
26. The standard of proof required for establishing title in the eviction petition varies from the standard of proof required in the civil suit. In Rajender Kr. Sharma & Ors. Vs. Leela Wati & Ors. 155 (2008) Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 11 of 23 DLT 383; it was held "For the purpose of Sec. 14(1)(e) of the D.R.C. Act, the landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show only that he is more than a tenant." It has been further held by the Hon'ble Supreme Court in Smt. Shanti Sharma & Ors. Vs. Smt. Ved Prabha & Ors. AIR 1987 SC 2028; "For the purpose of Sec. 14(1)(e) of the Act, ownership is not to be understood as absolute ownership but only a title better than the tenant. So what is to be seen is whether on the basis of aforesaid facts it can be said that the petitioner has any title to the property better than the respondent."
27. In the present case, the other legal heirs of Sh. Vaishno Das Bhagi have also joined as petitioners. As per the remaining petitioners, there is no dispute qua the inheritance of Sh. Vaishno Das Bhagi. Further, the respondent has neither pleaded nor led any evidence to show that there was any other person of the HUF who is having serious title dispute with petitioners. In Sri Ram Pasricha vs. Jagannath 1976 RCR (Rent) 832, (1976) 4 Supreme Court cases 184, Kanta Goel vs. D.P. Pathak, 1979 (1) RCR (Rent) 485; (1977) 2 Supreme Court cases 814 and Pal Singh vs. Sunder Singh 1989 (2) RCR (Rent) 331; :
(1989) 1 Supreme Court cases 444; that "One of the coowners can alone and in his own right file a suit for ejectment of the tenant and it is Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 12 of 23 no defence open to the tenant to question the maintainability of the suit on the ground that the other coowners were not joined as parties to the suit. When the property forming the subject matter of the eviction proceedings is owned by several owners every coowner owns every part and every bit of the joint property along with others and it can not be said that he is only a partowner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of the tenant without joining the other coowners if such other coowners do not object......".
28. Moreover, in the written statement and application for leave to defend, the respondent took a plea that petitioners have been pressurizing the respondent to increase the rent of the tenanted shop. The said pleading by itself is an admission of the existence of landlord and tenant between the parties.
29. The respondent has not denied that he is only a tenant. Section 116 of Indian Evidence Act bars the tenant from disputing the title of landlord who had inducted him as tenant. It is reproduced below: "Section 116No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 13 of 23 person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given."
Thus, the respondent is estopped from disputing the title of petitioners.
30. The respondent has also taken a plea that after the death of Smt. Satwant Kaur i.e. wife of respondent all the legal heirs of Smt. Satwant Kaur had inherited tenancy rights and the petition without impleading all of them is not maintainable. In this respect, it is necessary to note that as mentioned above, the respondent in his written statement as well as in application for leave to defend has admitted himself to be the tenant.
31. In Neelam Sharma Vs. Ekant Rekhan 256 (2019) DLT 750, the Hon'ble Delhi High Court has held that, "The landlord is not under obligation to prove absolute ownership in eviction petition". It has been further held that, "The landlord is not required to implead all the LRs of deceased tenants, as interests of all the legal heirs who have inherited the tenancy as joint tenants can be duly represented by one legal heir who rather acts as an agent of others. The legal heirs are not tenants in common, thus if any of the legal heirs is not made a party to the proceedings, the heir who is on board would represent the tenancy".
32. Hence, in view of the aforementioned discussion, it has to be concluded that petitioners have proved to the preponderance of Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 14 of 23 probability that there exists relationship of landlord and tenant between them and respondent as well as the fact that they are owners of tenanted premises.
PETITIONER REQUIRES THE TENANTED PREMISES FOR BONAFIDE NEED AND THE PETITIONER DOES NOT HAVE ANY OTHER ALTERNATIVE ACCOMMODATION WITH HIM.
33. The petitioners have pleaded that they require the tenanted premises for the bonafide need of petitioner no.1. The case of petitioners is that petitioner no. 1 as well as his wife have retired from bank. Petitioner no. 1 needs the tenanted premises for starting his own business of photostat/xerox and computer stationery.
34. The respondent has taken several pleas to the effect that need of petitioners is not bonafide. First of all, the respondent has taken a plea that petitioner no.1 and his wife are drawing handsome pension. Therefore, their need cannot be considered as bonafide.
35. It is necessary to note that the petitioners have specifically pleaded that they are drawing meager pension and they need extra income. Even if it is assumed that the petitioners have been receiving a huge amount as pension after their retirement from the Govt. Job and are living a comfortable life as contended by the respondent, it does no mean that petitioners do not need to do any business. It cannot be expected that petitioners should sit idle after their retirement. If the petitioners Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 15 of 23 want to engage themselves after their retirement, the respondent cannot be heard saying that since the petitioners have source of income from pension, they do not need to do any business.
36. In Shamshad Ahmad & Ors Vs. Tilak Raj Bajaj & Ors 2008 (2) RCR 347, it has been held that, "If landlords belonged to a higher strata of society it did not mean that throughout they should not do any work." Further, in Shmyama Bai Vs. Murlidhar 2008 (2) RCR 119, it has been held that, "Bonafide requirement - Landlady having sufficient income from rent and pension - Landlady entitled to evict tenant from shop if she wanted to earn more income by starting the business, she cannot be forced to live with the limited income which she is receiving."
37. So far the contention of the respondent that children of the petitioners are highly educated, very well placed and earning handsomely who are maintaining many vehicles and are supporting the petitioners in a comfortable living is concerned, the petitioners in the reply have denied that their children are supporting them financially. Even otherwise, if the children of the petitioners are earning handsomely and are supporting the petitioners financially, the petitioners cannot be denied to live independently with dignity.
38. It is also necessary to note that law is well settled that landlord is the best judge of his requirements. In M/s John Impex Pvt.
Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 16 of 23 Ltd. Vs. Dr. Surender Singh & Ors. 135 (2006) DLT 265), it has been held that, "The landlord is the best judge of his requirements and a tenant cannot dictate the terms on which the landlord should live." Further, in Sudesh Kumar Soni & Anr. Vs. Prabha Khanna & Anr 153 (2008) DLT 652, it has been held that, "24. 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.
25. Suitability has to be seen from the convenience of the landlord and his family members and on the basis of the circumstances including their profession, vacation, style of living, habits and background."
Therefore, to say that petitioners should be satisfied with whatever pension they are drawing would be against the said principles of law. Hence, I do not find merit in the aforementioned ground raised by respondent.
39. Secondly, it has been pleaded that since petitioners have not done any business and they do not have any experience, therefore, their need is not bonafide. I also do not find merit in the aforementioned submissions. A person never stops to learn and to expect a person to stop Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 17 of 23 evolving and exploring something in his life would very much be against the tenets of humanity.
40. In M/S Seth & Sons Private Limited vs Arjun Uppal & Anr 2017 (2) RCR (Rent) 479, Hon'ble High Court held that, "Prior experience in running of a business or disclosure of nature of the same is not necessary for filing an eviction petition. This aspect has no bearing on the bonafide of the landlord." In Ram Babu Agarwal vs Jay Kishan Das 2009 (2) RCR (Rent) 455, Hon'ble Supreme Court held 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".
41. Therefore, in light of the aforementioned facts and law discussed above, the need of petitioners cannot be termed as lacking bonafide on the abovementioned score.
42. The respondent has also taken a plea that since petitioner no.1 had suffered paralysis attack, he cannot speak properly, he is also suffering from serious bodies disorders and ailments, therefore, he cannot do any kind of business.
43. In this regard, it is necessary to note that admittedly, the petitioner no. 1 had suffered paralytic attack during the pendency of Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 18 of 23 petition. As per averments of petition, the petitioner no. 1 required the tenanted premises for running the business alongwith his wife. There is no dispute that his wife is still hale and hearty and is therefore competent to run and manage the business. Even otherwise, a person may engage or take the service of any helper or employee for running the business and there is no stopping the landlord from opening a business with the help of third person i.e. employee etc. Hence, there is no merit in the aforementioned contention as well.
44. The ld. Counsel for respondent had also argued that the entire property except the tenanted premises is in possession of petitioners. Admittedly, the entire ground floor of property is commercial. There is also one office/ verandha behind the tenanted shop which is admittedly lying vacant. If the petitioner actually intended to start a business, they could have started the business from the said office as business of photostat and computer stationery is not such which cannot be run from said office which opens towards the backstreet. He has further argued that the area of said office at verandha is more than the area of tenanted premises.
45. In Adarsh Electricals & Ors. vs. Dinesh Dayal 173 (2010) DLT 518, it has been held that, "It is settled law that, "the question of accommodation, actually in possession of the landlord, being 'reasonably suitable' is to be judged solely in the context of physical Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 19 of 23 sufficiency of the accommodation and that the Court may hold that accommodation is insufficient having regard to various circumstances, such as, the social status of the family or traditions and customs observed by it. As long as the landlord is able to establish that he in good faith and genuinely wishes to occupy the premises in possession of the tenant and that good faith or genuineness is of a reasonable man, it would not be open to the Controller to weigh the claim of the landlord in a fine scale. The law does not require the landlord to sacrifice his own comforts and requirements merely on the ground that the premises is with a tenant."
46. It is matter of common knowledge that a person would want to start a business in a property which is likely to attract more customers. The tenanted shop on the ground floor facing market is obviously a better option for starting a new business than the space which is towards the back side. Thus, office/ verandah behind the tenanted premises cannot be held to be suitable alternative accommodation for the petitioner no. 1 to start his own business.
47. The ld. Counsel for respondent had also argued that there is no pleading that the petitioners do not have any other alternative and suitable accommodation. However, perusal of paragraphs no. 17 and 34 of the replication show that petitioners had specifically stated that petitioner no. 1 is not having suitable alternative accommodation. It is Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 20 of 23 settled proposition of law that replication is a part of pleadings. Therefore, I do not find force in this argument of ld. Counsel for respondent.
48. The respondent has also taken a plea that the petitioners are having other property i.e. the shop adjoining to the tenanted premises which is lying locked. As per case of petitioners, the said shop has fallen to the share of petitioner no. 2 who is stated to be carrying his business in it. The respondent had placed reliance on the photographs to show that the said shop is locked. The aforementioned photographs by themselves do not establish that no business is being carried out in the said shop, because the person may not open his shop for a day or two in a week or even for more days. Therefore, it has to be concluded that from the pleadings and evidence of petitioners, it has been established that the said shop has fallen to the share of petitioner no. 2 and therefore, is not available to the petitioner no. 1 qua whose need the present petition has been filed.
49. It has also been pleaded by respondent that petitioners are owners of shop bearing no. R4/4, Green Park New Delhi. However, respondent has not led any documentary evidence to show that the said shop is owned or possessed by petitioner no. 1. The respondent had examined RW1 Sh. Kashmira Singh, who deposed in his examination in chief that petitioners have aforementioned shops. The said witness stated Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 21 of 23 himself to be the employee of respondent. He deposed that respondent had told him that petitioner no. 1 is owner of aforementioned shop. His statement clearly shows that it was merely a hearsay evidence as all the said information is stated to have been derived from respondent himself. Thus, his testimony to that effect cannot be relied.
50. RW3 Sh. Om Prakash in his examination in chief stated that Sh. Rajan Gupta was tenant in the aforementioned shop i.e. shop bearing no. R4/4, Green Park New Delhi, under Sh. Swadesh Kumar Bhagi. In his crossexamination, RW Om Prakash stated that he used to work in the shop of Rajan Gupta for serving tea. However, he did not produce any document to show that he was ever associated with said Rajan Gupta nor he produced any document to show said Rajan Gupta was tenant of shop bearing no. R4/4, Green Park New Delhi under the petitioner no. 1. Therefore, oral testimony of such witness cannot be a reasonable base for concluding that petitioner no.1 is owner of shop bearing no. R4/4, Green Park New Delhi.
51. Hence, it has to be said that respondent has levelled mere bald assertion without any documentary evidence or cogent oral evidence. Therefore, the respondent has failed to establish that petitioner no. 1 has other suitable alternative accommodation to start his business.
52. Thus, it has to be concluded that the petitioners have established that they are the owners of tenanted premises, there exists Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 22 of 23 relationship of landlord and tenant between them and respondent and petitioner no. 1 requires tenanted premises for his bonafide need and he does not have reasonably suitable alternative accommodation for starting a new business.
53. In view of the aforesaid discussion, it is held that the petitioners have proved all the ingredients of section 14 (1) (e) of the D.R.C. Act and they are entitled for an eviction order. Therefore, an eviction order is passed in favour of petitioners and against the respondent in respect of property i.e. shop at ground floor of property bearing no. S22, Green Park (Main) Market, New Delhi shown in red colour in site plan Ex. PW1/2. This order shall not become operative before the passage of six months from today. File be consigned to the Digitally Record Room. SUSHANT signed by SUSHANT CHANGOTRA CHANGOTRA Date:
2020.02.04 15:12:20 +0530 (Announced in the open court) (SUSHANT CHANGOTRA) on 30th January, 2020 SCJ/RC (SOUTH)/ SAKET COURTS NEW DELHI Case no. 6140/16 Swadesh Kumar Bhagi Vs. R. K. Kainth 23 of 23