Delhi District Court
Smt. Gurmeet Kaur vs Sh. Gopal Kishan Chandna on 24 August, 2016
IN THE COURT OF GAURAV RAO, SENIOR CIVIL JUDGECUMRENT
CONTROLLER, SOUTH EAST DISTRICT, SAKET COURT COMPLEX,
NEW DELHI
E No. 5197/16
CNR No. DLSE030002382013
Smt. Gurmeet Kaur
Widow of Shri Mahender Singh
R/o House No. 122/2A,
Govind Puri, Kalkaji, New Delhi ....Petitioner
Versus
Sh. Gopal Kishan Chandna
S/o Sh. Bansi Lal Chandna
M/s Kamal Industrial Electrical,
R/o 117/2A, Govind Puri,
Kalkaji, New Delhi. ....Respondent
Date of institution : 26.03.2013
Date of conclusion of arguments : 24.08.2016
Date of order : 24.08.2016
Decision : Eviction Petition allowed
JUDGMENT
1. The present petition for eviction and recovery of possession of one shop on the ground floor of premises no. 122/2A, Govind Puri, Kalkaji, New Delhi (hereinafter referred to as tenanted E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 1 of 50 premises) as shown in red colour in the site plan filed along with the petition has been filed u/s 14 (1) (e) r/w section 25B of Delhi Rent Control Act 1958.
Petition
2. It is the case of the petitioner that property no. 122/2A of which the tenanted premises is a part was constructed by her late husband Sh. Mahender Singh in 1994.
2.1. It is further her case that Sh. Mahender Singh sold various portions of the above property to different parties who are in possession thereof since then and ultimately he was left only with the ground floor including the tenanted premises and some portion of the first floor, as shown in green colour in the site plan, wherein the petition is residing along with her family members i.e. son Baljeet and daughter Kulbir Kaur.
2.2 It is further the case of the petitioner that the tenanted premises was let out by her husband Sh. Mahender Singh to the respondent, who is running his business of electrical goods, at a monthly rent of Rs. 3300/ per month. It is further her case that her E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 2 of 50 husband died on 14.10.2003 leaving behind the petitioner, two daughters and one son and consequent upon his death, the petitioner has become the owner of the premises shown in green colour in the site plan as well as the tenanted premises as shown in red colour in the site plan.
2.3. It is further her case that accordingly the respondent started paying rent to her at the agreed rate of Rs. 3300/ per month, however, he has not paid the rent now since July 2007 despite notices and reminder issued by the petitioner.
2.4 It is further her case that after receiving the notices from the petitioner, the respondent sent a cheque for a sum of Rs. 2700/ drawn on The Kangra Cooperative Bank Ltd at Main Road, Govindpuri, New Delhi 19 dated 22.05.2010 in favour of the petitioner towards arrears of rent but the cheque was not covering the entire arrears of rent due till date, therefore, the cheque was taken back by the respondent for issuance of new cheque covering the entire arrears which he failed to do so.
2.5 It is further her case that her son Sh. Baljeet Singh had filed an eviction petition against the respondent impleading his E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 3 of 50 brother Praveen Kumar, under a misleading advice, before the court of Sh. Balwant Rai Bansal, ARC (South), New Delhi but the same was withdrawn by him on 16.05.2012.
2.6 It is further her case that she had also filed an eviction petition bearing no. E50/212 against the respondent on 26.05.2012 U/s 14 D R/w Section 25 B of DRC Act before the court of Sh. Raj Kumar Tripathi, SCJRC (S), New Delhi and the respondent filed a petition U/s 25B (5) of DRC Act, 1858, for seeking leave to contest. It is averred that the said petition was legally incompetent and therefore, the same was withdrawn by the petitioner seeking liberty from the court to file a fresh petition on the same cause of action against the respondent.
2.7 It is further her case that she being the owner and landlady of the tenanted premises the same is bonafidely required by her for running a business therein with the help of her daughter Ms. Kulbeer Kaur and son Sh. Baljeet Singh who are jobless and dependent upon her for earning their bread, livelihood and shelter and the petitioner has no other reasonable accommodation except the tenanted shop and therefore, the petitioner since her husbands death has been requesting the respondent to vacate the tenanted premises E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 4 of 50 but the respondent has been dodging her with false promises. 2.8. It is further her case that although no notice is required but still she had served a notice dated 07.9.2009 to the respondent for vacating the tenanted premises and for payment of rent which was due since July 2007. It is averred that the respondent replied the notice on 22.09.2009 whereupon the petitioner sent a reminder to her notice on 04.11.2009 which was again replied by the respondent on 26.11.2009.
2.9. Hence the present petition has been filed on the ground of bonafide requirement.
3. The respondent was duly served with the petition and he consequently filed the application for leave to defend along with an affidavit on 03.04.2014. The petitioner filed the reply to the same along with additional affidavit and after hearing the arguments the application for leave to defend was dismissed by the Ld. Predecessor of this court vide orders dated 15.01.2015.
4. Thereafter, the respondent preferred a revision petition before the Hon'ble High Court of Delhi bearing no. RC.REV.118/15 E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 5 of 50 & CM No. 4377/2015 and the Hon'ble High Court of Delhi vide its order dated 21.05.2015 set aside orders dated 15.01.2015 passed by the Ld. Predecessor of this court and granted leave to defend to the respondent.
Written Statement
5. Thereafter the respondent filed his detailed written statement denying the contents of the petition. 5.1 It was pleaded that the petition is not maintainable and is liable to be dismissed particularly when the petitioner herself is not the sole and absolute owner of the tenanted premises. It was further pleaded that the eviction petition has been filed by the petitioner with a malafide intention in the most misconceived way, is mischievous and is thus not maintainable. It was further pleaded that in the affidavit filed by the petitioner along with the petition, she has gone to the extent of making wrong and perjure statements. 5.2 It was further pleaded that the eviction petition is not maintainable and is liable to be dismisses as petitioner has suppressed material facts and has not approached the court with clean hands. E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 6 of 50 Further, the petition has been filed to cause harassment to the respondent and to financially cripple him and there is no cause of action in favour of the petitioner or against the respondent. It was further pleaded that the petition is bad for non joinder of the proper parties and is thus liable to be dismissed.
5.3 It was further pleaded that the respondent is a tenant and is in actual, physical possession of the shop/tenanted premises since 1986 and he had taken the shop from the husband of petitioner Sh. Mahinder Singh. It was further pleaded that Sh. Mahinder Singh died in the year 2002, leaving behind the petitioner, one son namely Baljeet Singh and two daughters.
5.4 It was further pleaded that the father in law of the petitioner was the owner of the tenanted premises and after his death all his legal heirs became coowners of the tenanted premises and there are petitioner's sister in law and brother in law who are the co owners of the shop/tenanted premises, hence, the petitioner is not competent to file the present petition in her personal/individual capacity. It was further pleaded that the petitioner is neither the owner nor the landlord of the tenanted premises.
E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 7 of 50 5.5 It was further pleaded that the property no. 122/2A comprises of basement, ground floor, first floor, second floor and third floor and the son of the petitioner has recently sold 15 shops out of 16 shops at the ground floor of the said premises and had purchased commercial property in Ludhiana, Punjab with a view to settle in Punjab. It was further pleaded that out of five flats, four flats have been sold and the petitioner with her son and unmarried daughter is residing in one of the said flats and now the petitioner and her family members are out to sell the remaining one flat and the tenanted premises with a view to settle in Ludhiana, Punjab and to leave Delhi and hence, the shop/tenanted premises is not required by the petitioner for her bonafide requirement/use. 5.6 It was further pleaded that the present eviction petition has been filed by the petitioner only with a view to sell the tenanted premises, after evicting the respondent, along with the flat at an exorbitant rate and thereafter to settle in Ludhiana, Punjab. It was pleaded that the petitioner wants to deprive the respondent and his family members from their only source of livelihood. 5.7 It was further pleaded that the allegations made in the E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 8 of 50 eviction petition are vague, baseless and self created and there is no evidence to claim rent of the tenanted premises @ Rs. 3,300/ per month and infact originally the rent of tenanted premises was Rs. 100/ per month excluding water and electricity charges which was illegally and forcefully enhanced to Rs. 300/ per month which the respondent has paid till 31.08.2009. It was further pleaded that since 01.09.2009 the petitioner and her family members have refused to accept the rent @ Rs. 300/ per month and had been consistently threatening the respondent to increase the rent to Rs. 3000/ per month instead of the existing rate of rent @ Rs.300/ per month and since the respondent refused to accede to such illegal and arbitrary demand of the petitioner, the petitioner has filed the present eviction petition with false allegations.
5.8 It was further pleaded that as regards the shop no. 117/2, Govindpuri, Kalkaji, New Delhi, the respondent has nothing to do with the said shop or the business being run therein in the name of M/s Hindustan Electrical and not in the name of M/s kamal Industrial Electrical as alleged.
5.9 It was further pleaded that the allegations made in the eviction petition are self contradictory to the allegations made in E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 9 of 50 notices dated 07.09.2009 and 04.11.2009 sent by the petitioner and her son which were otherwise refuted and controverted by the respondent vide replies dated 22.09.2009 and 26.11.2009. 5.10 It was further pleaded that the petitioner has deliberately and malafidely got the electricity supply disconnected and has failed to get the same restored despite sincere and consistent requests made by the respondent to the petitioner. It was further pleaded that the respondent used to pay the electricity charges to the petitioner without any default and the petitioner has intentionally and deliberately not paid the same to BSES Rajdhani Power Ltd and got the same disconnected.
5.11 It was further pleaded that Sh. Parveen Kumar i.e. his brother has nothing to do with the shop/tenanted premises and only the respondent is the lawful tenant and is in possession of the same. 5.12 It was further pleaded that the petitioner has failed to establish as to what sort of business she intends to start in the tenanted premises as the said tenanted premises is a very small shop. It was denied that the petitioner's son and daughter are jobless or that they are dependent upon the petitioner for earning their livelihood. E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 10 of 50 5.13 It was pleaded that since the petition is without any cause of action, is an abuse of the process of law and misuse of law of land, the same is liable to be dismissed moreso when her need is not bonafide but mere fanciful.
Replication
6. In the replication the petitioner denied and controverted all the allegations as leveled in the WS and reiterated and reaffirmed the facts as stated in the petition.
7. Thereafter, the parties led their respective evidence. Petitioner evidence
8. The petitioner examined herself as PW1, tendered her evidence by way of affidavit as Ex. PW 1/A and relied upon the following documents:
(a) Site plan as Ex. PW1/1
(b) Copy of legal notice sent to the respondent as Ex. PW 1/2, E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 11 of 50
(c) Copy of reply to legal notice sent by the respondent as Ex. PW1/3,
(d) photocopy of cheque sent by respondent as Ex. PW1/4 7.2 Thereafter PE was closed on 03.02.2016.
8. Respondent led his evidence as under: 8.1 Respondent examined himself as RW1, tendered his affidavit as Ex. RW1/A and he relied upon following documents:
(a) Copy of reply dated 22.09.2009 and 26.11.2009 as Ex.
RW1 (colly) (reply dated 22.09.2009 already exhibited as Ex. PW1/3).
(b) Copy of complaint dated 07.12.2007 as Mark A. 8.2 He also examined one HC Rajender as RW2.
8.3 Thereafter RE was closed vide statement of respondent dated 19.05.2016.
Findings
9. I have heard the learned counsels for the petitioner and E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 12 of 50 the respondent and have carefully gone through the record.
10. In order to succeed in a petition for eviction filed under section 14(1)(e) of the Delhi Rent Control Act the petitioner must establish that:
1. He/She is the owner and landlord/landlady in respect of the tenanted premises.
2. That he/she requires the premises bonafide for himself/herself or for any member of his/her family dependent upon him/her.
3. That he/she has no other reasonably suitable accommodation.
10.1 The scope of the section has been enlarged in view of the judgment of the Hon'ble Supreme Court titled as "Satyawati Sharma v. Union of India" reported as AIR 2008 SUPREME COURT 3148 so as to include premises let out for commercial purposes also within the scope and ambit of a petition under section 14(1)(e) of DRC Act.
Landlord/owner
11. The foremost requirement for a petitioner to succeed in a petition under section 14 (1) (e) is that he/she has to prove that he/she is the landlord/landlady and that there is a relationship of landlord/landlady and tenant between the parties and that she is the owner of the tenanted property/premises.
E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 13 of 50 11.1 In the case at hand, a careful scrutiny of the pleadings of the parties would reveal that as far as relationship of landlady and tenant is concerned there is no real dispute regarding the same and the dispute if any has been raised by the respondent for the sake of it. In his WS the respondent vide para 16 of his preliminary objections stated as under: "16.That the answering respondent is a tenant in actual, physical possession of shop in question ever since 1986. The answering respondent had taken said shop from the husband of petitioner Sh. Mahinder Singh. That further Sh. Mahinder Singh died in the year 2002, leaving behind the petitioner, one son Baljeet Singh and two daughters. On death of Sh. Mahinder Singh, the petitioner, her son and daughters have become owners of said premises." 11.2 Similarly was repeated/averred in para 18 (a) of the reply on merits of the WS. Furthermore in para 19 (iv) and 19 (v) it was averred as under: "19 (iv)........However, on the other hand, it is submitted herein that despite of all efforts made by the answering respondent to tender the rent in favour of the petitioner, the petitioner herself did not accept the rent and further refused to accept the same.
19 (v)..............However on the other hand, it is submitted herein that it was the respondent who always requested the petitioner to accept the rent but the petitioner with her adamant attitude always misbehaved with the respondent and refused to accept the rent." 11.3 The above submissions made in the WS are enough E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 14 of 50 admissions of the relationship of landlady and tenant between the parties and no further proof is required. Reliance may be placed upon the law laid down in Gautam Sarup Vs. Leela Jetly and Others (2008) 7 SCC 85, Makhan Lal Bangal vs Manas Bhunia & Ors Appeal (civil) 4105 of 1999 decided on 3 January, 2000 and Badat and Co. vs. East India Trading Co ., 1964 (4) SCR 19 .
11.4 The petitioner nonetheless and notwithstanding the above admissions of the respondent proved on record reply of the legal notice as was got issued to the respondent as Ex. PW1/3. In the said reply, which was also proved by the respondent as Ex. RW1/1 (colly), particularly paragraph no. 1 and 2 the respondent further admitted the relationship of landlady and tenant between the parties in respect of the tenanted premises. Furthermore the respondent had also filed on record copy of previous eviction petition filed against him by the petitioner's son bearing no. E 493/09 as Ex. RW1/1 (colly) which was later on withdrawn by the petitioner's son vide proceedings dated 16.05.2012. Therein also the stand of the respondent was the same i.e. he had admitted the relationship of landlady and tenant.
E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 15 of 50 11.5 Controversy if any was put to rest in view of Ex. PW1/4 which is admittedly copy of the cheque tendered by the respondent to the petitioner towards rent which the petitioner had otherwise failed to accept.
11.6 Therefore the relationship of landlord/landlady and tenant between the parties stands admitted and proved. Ownership 11.7 As far as the ownership of the petitioner qua the tenanted premises is concerned there is also no real dispute or challenge whatsoever regarding the same. As already discussed above the relationship of landlady and tenant between the petitioner and the respondent stands proved/is admitted. As far as the ownership of the petitioner is concerned the respondent in para 16 of his preliminary objections in the written statement and para 18 (a) of the reply on merits, which have been discussed above, categorically admitted that after the death of the original landlord i.e. Mahinder Singh the petitioner and her son became the owner of the premises. Once the respondent admits that the petitioner is the owner of tenanted premises/has become the owner of the tenanted premises the other E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 16 of 50 averments made in the written statement wherein the ownership of the petitioner is denied loose their significance and rather appear baseless and flimsy.
11.8 Furthermore the relationship of landlady and tenant being admitted and the rent being tendered and offered to the petitioner, the present petition for eviction is maintainable by the petitioner. The law is well settled that to succeed in a petition under section 14 (1) (e) of Delhi Rent Control Act the landlord/landlady is not supposed to prove absolute ownership as required under the Transfer of Property Act. She/he is required to show that he/she is more than a tenant. 11.9 In Bharat Bhushan Vij Vs. Arti Techchandani 2008 (153) DLT 247, in para 4 and 5 it was held as under:
"the concept of ownership in a landlord tenant litigation governed by the Delhi Rent Control Act, has to be distinguished from the one in a title suit . If the premises was let out by a person and after the death , the premises has come in the hands of a beneficiary under a Will, the tenant has no right to challenge the title of such a beneficiary. If on the death of the original owner, the tenant has any doubt as to who was the owner of the premises , he is supposed to file an interpleader suit impleading all the legal heirs of the deceased and ask the court to decide as to who shall be the landlord / owner after the death of the original owner. Where no interpleader suit is filed by the tenant and the tenant continues in possession after the death of original owner without demur and without raising any objection against the person , who claims to have inherited the E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 17 of 50 property under Will, he later on cannot challenge the ownership of such a person. It is not the domain of the tenant to challenge the Will of the deceased landlord. If a landlord is able to show there is a testament in his / her favour, he is deemed to have discharged his burden of proving under the Act. If the tenant takes a frivolous objection about ownership, such an objection cannot be entertained unless the tenant comes forward as to who was the landlord / owner of the premises and to whom he has been paying rent after the death of original owner."
11.10 In Sushil Kanta Chakarvarty Vs. Rajeshwar Kumar, 79 (1999) DLT 210, it has been held as under:
"in case of a petition u/s. 14 (1) (e) of the Act, in order to show the ownership, it is not necessary to show absolute ownership. The legislature used the word "owner", in section 14 (1) (e) not in the sense of absolute owner, but it was used in contra distinction with a landlord as defined in the Act who is not an owner but who owns the property for the benefit of another person and merely collects the rent. If the person collected the rent for himself and for his own benefit and the property is his own even in the loose sense and no one is claiming rights over the property, then he is considered as owner for the purpose of section 14 (1) (e) of the Act. Even possessory rights over the property of a person have been given recognition as ownership visa vis tenant under Delhi Rent Control Act."
11.11 In Meenakshi Vs. Ramesh Khanna and anr. , 60(1995) DLT 524 it was held as under:
" mere denial of ownership is no denial at all. It has to be something more. The object of the requirement contained in clause (e ) that the petitioner should be the owner of the premises is not to provide an additional ground to the tenant to delay the proceedings by simply denying the ownership of E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 18 of 50 the landlord of the premises and thereby putting him to proof by way of a full fledged trial. The object seems to be to ensure that the provision is not misused by the people having no legal right or interest in the premises. In proceedings under section 14 (1) (e) of the Act, the tenant is never a contender for title to the property........For this first and foremost thing which has always been considered as a good guide is , does that tenant say who else is the owner of the premises, if not the petitioner? Thus the tenant has to specify about the actual owner, in case he denies the ownership of the petitioner / landlord."
11.12 From the above decisions, it is evident that the landlord /landlady is not supposed to prove absolute ownership. Therefore it is no more resintegra that in a suit between landlord and tenant, it is only the title as landlord/landlady which is relevant and not the title as "owner". She is only to prove that she is something more than tenant and is /was collecting rent not for someone else but for herself. In the present case, respondent has admitted the relationship of landlady and tenant and therefore it is not open for the respondent to challenge the ownership right of the landlady. In fact the law estops him from doing so.
11.13 In Capt. Praveen Davar (Retd.) & Another V Harvansh Kumari and Ors 2010 (119) DRJ 560, High Court of Delhi, it was held as under :
"15. From the aforesaid, in my opinion, there is no manner of E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 19 of 50 doubt that the learned trial court rightly decided issue No. 1 in favour of the respondents and against the appellants. Reliance placed in this regard by the learned trial court on the provisions of Section 116 of the Evidence Act and the following observations of the Supreme Court in Anar Devi v. Nathu Ram, 1994 (2) RCJ 103, conclusively clinches the issues:
"Section 116 of the Evidence Act applies and estops even a person already in possession as tenant under the landlord from denying the title of his subsequent landlord when once he acknowledges him as his landlord by attornment of conduct. Therefore, a tenant B. K. Nagpal & Anr. Vs. Mohan Gupta E.No. 28/12 of immovable property under landlord who becomes a tenant under another landlord by accepting him to be the owner who had derived title from the former landlord, cannot be permitted to deny the latter's title, even when he is sought to be evicted by the latter on a permitted ground."
11.14 In the judgment tiled as Ramesh Chand Vs. Uganti Devi reported as 157 (2009) DLT 450 the Hon'ble High Court of Delhi held:
"....It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent Control act, the Court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the Court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner, howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under Section 14(1)(e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 20 of 50 premises, to whom he is paying rent, acts dishonestly....."
11.15 In Sheela and ors Vs. Firm Prahlad Rai Prem Parkash, (2002) 3 SCC 375, it has been held:
"In rent matters the burden of proving ownership on a landlord is not that heavy as it is in a title suit and even a lessor quantum of proof may suffice for holding that the landlord is the owner of the premises in question."
11.16 In judgment tiled as Rajender Kumar Sharma vs Smt. Leela Wati reported as 155 (2008) DLT 383 the Hon'ble High Court of Delhi held:
".......It is settled law that for the purpose of Section 14(1)(e) of Delhi Rent Control Act, a 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. In this case, the landlady had placed on record the documents by which she became owner. The attornment given by the erstwhile landlord in her favour as well as an admission made by the tenant by filing petition under Section 27 of Delhi Rent Control Act acknowledging the landlordship of landlady. Thus, the conclusion arrived at by the ARC regarding ownership and relationship of landlord and tenant were based on sound legal position and the cogent material before it......"
11.17 The Hon'ble Supreme Court of India in Shanti Sharma and Ors. Vs. Ved Prabha and Ors 33 (1987) DLT 80 had the occasion to consider the import of word owner in context of section 14(1) (e) of Delhi Rent Control Act and observed as under: E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 21 of 50
"..................................................... this Act has been enacted for protection of the tenants. But at the same time it has provided that the landlord under certain circumstances will be entitled to eviction and bonafide requirement is one of such ground on the basis of which landlords have been permitted to have eviction of a tenant. In this context, the phrase "owner" thereof has to be understood, and it is clear that what is contemplated is that where the person builds up his property and lets out to the tenant and subsequently needs it for his own use , he should be entitled to an order or decree for eviction , the only thing necessary for him to prove is bonafide requirement and that he is the owner thereof. In this context what appears to be the meaning of the term "owner" is vis a vis with the tenant ie the owner should be something more than the tenant"..... It is not the concern of the tenant as to how the landlord acquired the property .
11.18 In T C Rekhi Vs. Usha Gujral, 1971 RCJ 322, at page 326 it was observed that :
"the word "owner" as used in this clause has to be considered in the background of the purpose and object of enacting it. Use of the word "owner" in this clause seems to have been inspired by the definition of word "landlord" as contained in section 2 (e) of the Delhi Rent Control Act which is wide enough to include a person receiving or entitled to receive the rent of any premises on account of or on behalf of or for the benefit of any other person."
11.19 Hence the petitioner definitely has ownership rights in respect of the tenanted premises for the purposes of section 14 (1) (e) of the DRC Act.
E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 22 of 50 Coowner not filing the petition 11.20 Though Ld. Counsel for the respondent had also argued that the other coowners i.e. the petitioner's son and daughters have not filed the present petition and the same is liable to be dismissed on this ground alone, however I find no merits in the same. Firstly, it is the respondent's own case that he has been tendering the rent to the petitioner. It is not his case that he has been tendering the rent to the petitioner's son or her daughter or that they have been accepting the same. Secondly, the law is well settled that one of the co owner can maintain a petition for eviction. Reliance may be placed upon the law laid down by Hon'ble Apex Court in Dhannalal vs Kalawatibai And Ors decided on 8 July, 2002 in Appeal (civil) no. 3652 of 2002 wherein it was held as under:
"It is well settled by at least three decisions of this Court, namely, Sri Ram Pasricha v. Jagannath and Ors., [1976] 4 SCC 184, Kanta Gael v. B.P. Pathan and Ors ., [1977] 2 SCC 814 and Pal Singh v. Sunder Singh (dead) by Lrs. and Ors., [1989] 1 SCC 444 that one of the coowners can alone and in his own right file a suit for ejectment of tenant and it is no defence open to tenant to question the maintainability of the suit on the ground that other coowners were not joined as parties to the suit. When the property forming subject matter of eviction proceedings is owned by several owners, every coowner owns every part and every bit of the joint property along with others and it cannot be said that he is only a part owner 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 tenant without joining the other coowners if such other coowners do E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 23 of 50 not object."
11.21 In M/s. India Umbrella Manufacturing Co. & Ors. Vs. Bhagabandel Agarwalla (dead ) by Lrs. And Ors. AIR 2004 Supreme Court 1321, Hon'ble Supreme Court observed that "one of the coowner can file a suit for eviction of a tenant in the property generally owned by the Coowners and this principle was based on doctrine of agency. One coowner filing a suit for eviction against the tenant does so, on his own behalf in his own right and also as an agent of the other coowners. The consent of other coowners is assumed as taken unless it is shown that the other coowners were not agreeable to eject the tenant".
11.22 Though it was also loosely argued that the father in law of the petitioner is the owner of the property however same could not be even remotely substantiated or proved by the respondent. In fact as discussed above the ownership of petitioner stands admitted. Therefore and petitioner being the wife and one of the legal heir of the erstwhile landlord is one of the co owner of the property and as such is entitled to file the eviction petition. Further reliance may placed on the law laid down in Shri Ram Pasreja Vs. Jagan nath and ors. AIR 1976 SC 2335, Laxmi Shankar Hari Shankar Bhatt Vs. Yashram Vasta (dead) by LRs AIR 1993 SC 1587, Krishan Lal Vs. Rajan Chand Khanna AIR 1993 Delhi 1 and Fibre Bond (Sales) E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 24 of 50 Pvt.Ltd. Vs. Smt. Chand Rani 1993 (1) RCR 492.
Bonafide requirement and non availability of reasonably suitable alternate accommodation
12. The prime question to be answered is as to whether the tenanted premises is required bonafide by the petitioner and that the petitioner has no other reasonably suitable alternative accommodation.
12.1 The most essential requirement to be proved by the petitioner to succeed in the eviction petition is that the tenanted premises is required by her for her bonafide needs. In the case at hand the bonafide need/requirement raised by the petitioner is that she requires the tenanted premises for herself and for her unemployed son and daughter. It is her case that she requires the premises to start a business with the help of her unemployed son and daughter who are dependent upon her for their breadbutter and livelihood. 12.2 As far as law regarding bonafide is concerned in Shiv Gupta v. Dr. Mahesh Chand Gupta , 1999 AIR (SC) 2507 , it was held by Hon'ble Apex Court that:
E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 25 of 50
12. Chambers 20th Century Dictionary defines bonafide to mean 'in good faith : genuine'. The word 'genuine' means 'natural : not spurious : real; " pure : sincere'. In Law Dictionary, Mozley and whitley define bonafide to mean 'good faith, without fraud or deceit'.
Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the Court. The judge of facts should place himself in the arm chair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest". 12.3 The Hon'ble Supreme Court observed in Raghunath G. Panhale (Dead) by LRs. Vs. Chaganlal Sundarji and Co. (1999) 8 SCC 1 that:
"The word "reasonable" connotes that the requirement or need is not fanciful or unreasonable. It cannot be a mere desire. The word "requirement" coupled with the word reasonable means that it must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. A reasonable and bona fide requirement is something in between a mere desire or wish on one hand and a compelling or dire or absolute necessity at the other end. It may be a need in praesenti or within reasonable proximity in the future."
12.4 In Jaswinder Singh Vs. Surinder Kaur, 204 (2013) E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 26 of 50 DLT 716 , in para no. 14, it has been held as follows:
"14. As per law, bonafide requirement has to be seen and considered from the perspective of the landlord and tenant cannot be allowed to dictate the terms in which portion the landlord should reside."
12.5 In Sarla Ahuja Vs. United India Insurance Company Ltd. AIR 1999 SC 100, 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 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."
12.6 In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta , 1999 (6) SCC 222 it has been observed that:
" ............ The judge of facts should place himself in the arm chair of the landlord and then ask the question to himself - whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural , real , sincere, honest . If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or , in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord is merely attempting at finding out a pretence or pretext for getting rid of the tenant , would be enough to persuade the court certainly to deny its judicial assistance to the landlord."E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 27 of 50
12.7 In Sait Nagjee Purushotham & Co. Ltd. Vs. Vimlabai Prabhulal & Ors, (2005) 8 SCC 252 , it has been held in para 4 as follows:
" . It is always the prerogative of the landlord that if, he requires the premises in question for his bonafide use for expansion of business, this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not a genuine need. It is not the tenant who can dictate the terms to the landlord and advice him what he should do or what he should not. It is always the privilege of the landlord to choose the nature of business and the place of business. ".
12.8 From the above judgments, it is evident that landlord/landlady is the best judge of his/her requirements. It is well settled law that the requirement or need not be fanciful or unreasonable. It cannot be a mere desire and must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. It may be a need in praesenti or within a reasonable proximity in the future.
12.9 In S N Kapoor Vs Basant Lal Khatri, VII (2001) SLT 648 (2002) 1 SCC 329 it was held:
"that to contend that no material has been brought on record and no proof has been made by the tenant by any positive material that the requirement of the landlord is neither genuine nor bonafide or reasonable but a mere excuse to get ride of the tenant. Though the choice or proclaimed need E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 28 of 50 cannot be whimsical or merely fanciful, yet a certain amount of discretion has to be allowed in favour of the landlady too and the courts should not impose their own wisdom forcibly upon the landlady to arrange her own affairs, according to their perception carried away by the interest or hardship of the tenant and the inconvenience that may result to him in passing an order of eviction. So far as a claim under Section 14 (1) (e) is concerned, the very requirement has to be shown not only to be bonafide but the move of the landlord/ landlady to seek eviction of the tenant must be genuine."
12.10 In the judgment titled as Ragavendra Kumar v. Firm Prem Machinary reported as AIR 2000 SUPREME COURT 534 the Hon'ble Supreme Court held that 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. In fact even the court cannot thrust its own choice on the needy. Reference may also be made to the judgment titled as Akhileshwar Kumar and ors Vs. Mustaqin and ors SC CA no. 3226 of 1999 dated 12.12.2002 and Prativa Devi (Smt) v. T.V. Krishnan reported as (1996) 5 SCC 353. 12.11 Therefore the petitioner has the absolute right to choose the premises from which she wants to give her dependent son for the purpose of his business. No embargo can be there on her choice. That is not the domain of the court or not something that the tenant can dictate. Only safeguard is that the need should be bonafide. E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 29 of 50 Reliance may be placed upon the law laid down in M.L. Prabhakar Vs. Rajiv Singhal (2001) 2 SCC 355 and Prativa Devi Vs. T.V. Krishnan 1996 SCC 353.
12.12 In the case at hand the petitioner requires the premises for starting the business along with her unemployed son and daughter. It is her case that the son as well as the daughter are jobless and they have no fixed source of income. In fact the petitioner claimed during her testimony that she earns her livelihood by stitching clothes, her unmarried daughter does some tuition classes and her son works on daily wages and this is how they feed themselves. The respondent could not contradict the stand of the petitioner. Respondent could not prove that the son or the daughter are gainfully employed somewhere or that the petitioner has some other source of income. No doubt that the petitioner is getting rental income however the same as per the case of respondent is Rs. 300/ per month though the petitioner claimed that it to be Rs. 3300/ per month. Whether Rs. 300/ or Rs. 3300/ the rental income is insufficient even for the basic needs of the petitioner's family. It is unimaginable to survive with such income. In fact in the absence of anything being proved to the contrary it is apparent that petitioner is somehow just managing to survive and it is E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 30 of 50 almost amounting to starvation.
12.13 I find no reasons to doubt her bonafide or assume that her intentions are malafide. In Labhu Lal Vs. Sandhya Gupta, 2010 (173) DLT 318, it was held that:
"the requirement of the respondents son and daughter in law for expanding their clinic being run in the premises in question is most bona fide and genuine since they are dependent for accommodation on the respondent".
12.14 Reliance may be placed upon the law laid down in John Impex vs. Dr. Surinder Singh 2007 DLT, 265 wherein it has been held that the plea of the petitioner is that the property in question is required for starting the business by his son as such appears that petitioner wants to establish his son separately and independently in his property, then by no stretch of imagination it can be said that requirement of petitioner are neither bonafide nor genuine. Similarly held in G.C. Kapoor Vs. Nand Kumar Bhasin & Ors. (2002) 1 SCC
610. 12.15 In Joginder Pal Singh Vs. Naval Kishore Behal AIR 2002 SC 2256 it has been held as under:
"24.......... Keeping in view the social or 'socioreligious milieu and practices prevalent in a particular section of society or a particular region, E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 31 of 50 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 interrelation 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."
12.16 It has also been held by the Hon'ble Supreme Court in Mohd Ayub Vs. Mukesh Chand 2012 (1) RCR (Rent) 56 (SC) that the Court shall consider the need of the landlord for his self employed son or married or unmarried or widowed or divorced or judicially separated daughter or a male lineal descendant as a bona fide need while dealing with an application for eviction under Section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.
12.17 In Kharati Ram Khanna & sons. Vs. Krishna Luthra 172 (2010) DLT 551, it was held that landlord's requirement of two separate shops for funning business by her two sons separately and independently is bona fide and genuine requirement. It is a settled E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 32 of 50 law that landlord can seek eviction for bona fide need of himself or his family members. Being a father, he is under an obligation to settle his son.
12.18 In Ramkubai & Ors V Hajarimal Dhokalchand Chandak & ors. JT 1999 (5) SC 630 it was observed that :
" B was unemployed on the date of filing of the suit but in the meanwhile started some business and in that context , their lordships held that he cannot be expected to idle away the time by remaining unemployed till the case was finally decided. It was held that if the eldest son was carrying on business along with his mother, that does not mean that his need has not been established for starting his own business."
12.19 Further reliance may be placed upon the law laid down in Ram Babu Aggarwarl v. Jay Kishan Das reported as 2009(4) R.C.R. (Civil) 748 (SC) , wherein the Hon'ble Supreme Court held that a landlord is entitled to eviction order in respect of tenanted premises for setting up his son's footwear business.
12.20 It is also no more resintegra that it is perfectly open to the landlord to choose a more suitable premises for carrying on the business by himself or his dependent and the landlord cannot be dictated by the tenant as to from which shop his son should start the business (Anil Bajaj & Anr. Vs. Vinod Ahuja 2014(6) SCALE 572). E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 33 of 50 12.21 Though the Ld. Counsel for respondent vehemently argued that the real motive behind the filing of the eviction petition is that the petitioner wants to sell off the same after getting it evicted and wants to permanently settle in Ludhiana, Punjab however apart from this bare allegation/averment the respondent could not prove anything on record which could substantiate the said claim. Nothing could be proved on record to establish that the petitioner intends to sell the tenanted premises or that she has entered into any agreement with somebody in this regard or that she is in talks with somebody for sale of the tenanted premises. It has to be remembered that in case the petitioner does not use the tenanted premises for the purpose as claimed by her, the respondent can always take recourse to the provisions of Section 19 of the DRC Act. Reliance may be placed upon the law laid down in Baldev Singh Bajwa v. Monish Saini reported as (2005) 12 SCC 778 wherein it was held that:
"........ if there is any breach by the landlord, the tenant is given a right of restoration of possession............. It was held that these restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant unless his need is bona fide no unscrupulous landlord in all probability, under this Section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that this inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 34 of 50 requirement shall be presumed to be genuine and bona fide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine.."
12.22 Ld. Counsel for respondent had also argued that admittedly certain portions of the property of which the tenanted premises is a part have been sold by the petitioner after the death of her husband and she has not placed on record the copy of those transactions done by her and also of the transactions whereby her husband had sold the other portions of the property during his lifetime however I fail to understand the significance behind the above line of arguments of the Ld. Counsel for the respondent. At the outset the contentions that numerous shops and flats have been sold by petitioner's son is mere bald plea. It is not supported by any documentary proof or details i.e. year when the shops and flats were sold or the names of their purchasers. During her cross examination respondent (RW1) in this regard stated as "It is correct that I have not identified any such property which the petitioner has sold after the death of her husband in my affidavit Ex. RW1/A." Even if the petitioner or for that matter her son has sold certain portion of the property I fail to understand how those transactions can affect the maintainability of the present petition or create doubts on the genuineness of the petitioner's claim or the bonafide needs as claimed E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 35 of 50 by her. Furthermore it has been discussed above the respondent could not prove that the petitioner or her son were/are gainfully employed somewhere or have a reasonable source of income. Therefore if to meet out her family's daily/basic needs and to survive she had sold certain portions of the property I find nothing wrong in the same. She being the owner has the absolute right to deal with the property in the manner she wants. She cannot be compelled to starve or beg. She has a right to live a life full of dignity and respect and take all legal recourses in that regard. Sale of certain properties available with her is one of them. Furthermore the petitioner categorically stated that there were certain debts on her husband and she had to sell the property to settle those debts. In fact this came up as a suggestion during her cross examination wherein she stated as "It is correct that after the expiry of my husband I had sold the one half portion of my property as my husband had to pay certain amounts taken from some people and this thing was settled even 23 years prior to his death. In this regard, my husband had already cleared the way in which his liabilities had to be settled." The court can very well imagine the plight of a widow lady who has one jobless son, who is also a drug addict as per the respondent's own case and one unmarried daughter to maintain with no source of income or a very meager source of income.
E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 36 of 50 12.23 Though Ld. Counsel for respondent also argued that the petitioner has not mentioned or given details of the proposed business and therefore this creates doubts upon her bonafide needs however I do not agree with the Ld. Counsel for the respondent. No embargo can be there on either the choice of the business or the place from where she intends to carry on the business. That is not the domain of the court or not something that the tenant can dictate. In Raj Kumar Khetan Vs. Bibi Zubaida Khatun, (1997) 11 SCC 411, it was held that it was not necessary for the landlord to state in the pleadings, the nature of the business he proposed to start.
12.24 In Sait Nagjee Purushotham (Supra) it has been held in para 4 as follows:
" It is not the tenant who can dictate the terms to the landlord and advice him what he should do or what he should not. It is always the privilege of the landlord to choose the nature of business and the place of business. ".
12.25 In the judgment tiled as Ram Babu Aggarwarl (Supra) the Hon'ble Supreme Court observed:
".......6. 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 E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 37 of 50 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...."
12.26 In Mohd. Ayub (Supra) it has been held as under:
"........It is well settled the landlord's requirement need not be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start..........".
12.27 Though it was also argued that the petitioner is a senior citizen, quite aged and not in a position to carry on any business therefore this also casts doubts upon her bonafide need that she intends to start a business from the tenanted premises however I find no merits in the said contentions. In Raj Kumar Khetan Vs. Bibi Zubaida Khatun, (1997) 11 SCC 411, it was held that "......... Further the age cannot be a limiting factor or detriment in the endeavor of the human beings.". In the case at hand the petitioner intends to carry on the business along with her son and daughter. From her very appearance she appears hale and hearty. Respondent could not prove that she is suffering from any old age ailments which can prove as a handicap in the proposed endeavor. Furthermore it is E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 38 of 50 not necessary that she has to undertake physical exertion. She can always play a supervisory role and lend a helping hand to her son and daughter.
12.28 Though it was also argued that the bonafide need as claimed by the petitioner is rendered highly doubtful in view of the earlier eviction petition i.e. E 493/09 Ex. RW1/1 (colly) wherein the petitioner's son had claimed the bonafide need for residential purposes as against the bonafide need for starting a business as claimed in the present petition. However I find no merits in the same. Firstly, the previous petition was filed by the petitioner's son and the petitioner was not the party. Secondly, the petition having been withdrawn it is not an embargo as against the maintainability of the present petition. Thirdly, need of an individual keeps on varying with time and circumstances. Need as such is always varying and never static. What is a need today may no longer remain so tomorrow. Fourthly, I have gone through the said eviction petition which otherwise was filed by son of petitioner. In the said eviction petition it has been categorically mentioned in para 18 (a) and 19 that the premises is required for residential as well as for business purposes for the family for their survival.
E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 39 of 50 12.29 Ld. Counsel for the respondent had also argued that the petitioner's bonafide and genuineness are doubtful on account of her shaky testimony and wavering stand taken by her for example in her affidavit she claimed that neither she nor her son had sold any portion of the property after her husband's death however during her cross examination she admitted that she had sold one half of the property after her husband's death. Furthermore during the cross examination of RW1 a similar suggestion regarding sale of property was given to cover up the false averments made in the affidavit. It was argued that therefore the demeanor of the witness casts grave doubt on her genuineness and bonafide and in fact amounts to perjury. However I do not agree with the contentions raised by Ld. Counsel for respondent for numerous reasons. Firstly, the petitioner is 68 years old lady who has studied upto only 5th standard. She cannot understand the intricacies of the legal proceedings. A bare glance at her testimony would reveal that she is quite rustic. Secondly, even the respondent stand as emerges from the cross examination is contrary to the affidavit filed by him. Same is writ large from the first line of cross examination of RW1. Thirdly, it is a well known fact that during cross examination a witness is liable to get confused, or mixed E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 40 of 50 up when grilled by the other side. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. Reliance may be placed upon the observations made by the Hon'ble Apex Court in case titled as Rana Pratap v. State of Haryana, AIR 1983 SC 680, Hari Singh v. Sukhbir Singh, (1988)4 SCC 551), Leela Ram (Dead) through Duli Chand v. State of Haryana, (SC) 1999(4) R.C.R.(Criminal) 588, Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753, Sohrab v. State of Madhya Pradesh, AIR 1972 SC 2020 and State of U.P. v. Anil Singh, AIR 1988 SC 1998 . The law is well settled that discrepancies/ inconsistencies which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with undue importance. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. One cannot come across a witness E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 41 of 50 whose evidence does not contain some exaggeration or embellishments. Sometimes there could be even be a deliberate attempt to offer embellishment and sometime in their overanxiety they may give slightly exaggerated account. Court can sift the chaff from corn and find out truth from the testimony of witnesses. Evidence is to be considered from the point of trustworthiness. If this element is satisfied they ought to inspire confidence in mind of the court. Fourthly, in the judgment titled as Santokh Singh v. Izhar Hussain" reported as AIR 1973 SUPREME COURT 2190 it was held as under: "......Every incorrect or false statement does not make it incumbent on the court to order prosecution. The court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. Too frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely, that the court should direct prosecution. ....." In the judgment titled as "Chajoo Ram v. Radhey Shyam"
reported as AIR 1971 SUPREME COURT 1367 it was held:
".....The prosecution for perjury should be sanctioned Courts only those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 42 of 50 inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge....."
12.30 Therefore the need of the petitioner is utmost bonafide and I have no reasons to doubt the same.
Alternative accommodation
13. As far as the availability of other/alternate reasonable suitable accommodation is concerned the petitioner categorically stated that she has no other reasonable suitable accommodation except for the tenanted premises to run the proposed business. 13.1 The respondent has not been able to point out any other property belonging to the petitioner or her family which can be termed as a reasonable suitable accommodation available to the petitioner or her family to start the proposed business. The respondent has failed to provide the details of any other property belonging to or owned by the petitioner or her family which can meet out their E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 43 of 50 requirements/needs.
13.2 Though Ld. Counsel for respondent argued that the petitioner is admittedly having one portion shown in green colour Marked as A, B, C and D in the site plan Ex. PW1/1 available with her and same can be utilized by her to start the proposed business however I find no merits in the same. Firstly, the tenanted premises which is shown in red in the site plan Ex. PW1/1 is more suitable and more ideally located for starting the proposed business as compared to the green portion. The tenanted premises has a large entrance/front/opening in the gali/road as compared to the green portion. In fact the front of the green portion is half of the tenanted premises. It is well known that a commercial establishment/business/shop requires a bigger entrance/front/opening to appear more appealing and approachable. Secondly, the green portion is L shape and more like a narrow passage/gali as compared to the tenanted premises which is a rectangular one having ideal dimensions to start a business. Thirdly, the law is well settled that tenant cannot dictate terms to the landlord as to how and which property the landlord should occupy and use for the intended purpose. While deciding the question of bonafides of requirement of the E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 44 of 50 landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted. Reliance may be placed upon the law laid down in Anil Bajaj (Supra), Sait Nagjee Purushotham (Supra) and Sudesh Kumar Soni and anr Vs. Prabhu Khanna and anr. 153 (2008) DLT 652 .
13.3 In M. L. Prabhakar (Supra) it has been held that the Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for his purpose, the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need.
13.4 It is held by Hon'ble Supreme Court in Rishi Kumar Govil Vs. Maqsoodan, 2007 (1) RCR (Rent) 405 "It is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter." 13.5 Though Ld. Counsel for respondent had also argued that the the petitioner has also got certain portions on the first floor as E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 45 of 50 shown in green colour in the site plan Ex. PW1/1 and which can be utilized by the petitioner for her bonafide needs however I find no merits in the same. Firstly, the first floor portion is being utilized by the petitioner as her residence. She cannot be compelled to use the same for setting up her business because the tenant does not want to vacate the tenanted premises. That would be absolutely unjust. There are three family members in the petitioner's family and the space as is available i.e. green portion is already cramped. The respondent as discussed above has not been able to show that there is some other portion available with her. Secondly, it is a matter of common knowledge that a premises on the ground floor is more suitable for commercial/business purposes than one on the first floor. A customer would prefer a shop on ground floor and would hesitate to go to the shop if the same is on the first or second floor. This is natural human tendency. The business on the ground floor attracts more customers than one on the first floor. Reliance may be placed upon the law laid down in Rajesh Jain Vs. Quazi Sammin Ahmad and ors, 2015 (2) Rajdhani Law Reporter 438 wherein it has been held as under: "23.......Since eviction was sought for commercial purposes, it was rightly held that ground floor of the property would be more suitable....." 13.6 In Viran Wali Vs. Kuldeep Rai Kochhar 2010 (174) E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 46 of 50 DLT 328 it has been held as under:
34. .....Even if the basement is available with the respondent, then why respondent who is the landlord of the premises should be forced to work from the basement, when he can get the tenanted premises vacated which is more suitable and also situated on the ground floor, for running his business."
13.7 In K.B. Watts Vs. Vipin Kalra 2015 (220) DLT 402 it has been held as under: "28.....Admittedly the son and wife of Vipin Kalra own the 2nd, 3rd and 4th floor, however it is also wellsettled that for a profession or business ground floor premises are always more suitable. It is trite law that the tenant cannot dictate the landlord as to how he should utilize the premises."
13.8 In Surinder Singh Vs. Jasbir Singh 172 (2010) DLT 611 it has been held by Hon. High Court of Delhi as under:
"14. With regard to the availability of basement of first floor, it is contended that these portion are not suitable for business, as tenanted shop is situated on the main road and that too on the ground floor. No customer would like to go to the basement or first floor. Moreover, petitioner has not filed any counter site plan.......................
31 (b) As far as the objection to the effect that the petitioner can enhance his business by using the basement or first floor of the property no. 228 is concerned, the premises or the space available at the basement or at the first floor, can in no way substitute the commercial space available at the ground floor of a given property.
13.9 The petitioner wants to start a business with her son and daughter. Though the exact nature of the business has not been mentioned in the petition however during the cross examination she E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 47 of 50 had stated that may be she starts a tea business/tea shop with her son and eventually do other businesses if the finances improves. For the said business the tenanted premises is undoubtedly much more suitable than the portion shown in green colour whether on the ground floor or the first floor.
HARDSHIP
14. It was also argued by Ld. counsel for respondent that since tenanted premises is the only means of earning and livelihood of respondent and his family, a lot of hardship shall be caused to him, if the eviction is allowed or the suit of the petitioner is decreed. However the law is well settled that the concept of comparative hardship has no application so far as ground of eviction U/s. 14 (1) (e) of the Act is concerned. The tenanted premises was let out to the respondent in the early 1990s i.e. more than 2 decades back. Nothing has been disclosed/ stated by respondent as to whether the respondent has acquired or any attempt was made by him to get alternate accommodation or that he failed to get such accommodation. I am not inclined to believe that respondent has no other property for carrying on the business or that he did not make any effort all this while to find E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 48 of 50 the alternate accommodation.
14.1 In Subhash Jain Vs Ravi Sehgal decided on 04.02.2014, Hon'ble High Court of Delhi has observed :
"we are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. But in our opinion, in the facts of this case, that circumstance cannot be the sole determinative factum . That hardship can be mitigated by granting him longer period to move out of the premises in his occupation so that in the meantime he can make alternative arrangement"
14.2 Reliance may also be placed upon the law laid down in Om Parkash Arora Vs. Ratan Mala Jain 2013 (1) AD (Delhi) 253 and Mohd. Ayub Vs. Mukesh Chand (2012) 1 AD (SC) 473. Hence no question of any hardship whatsoever being caused to the respondent arises.
15. In view of above discussion the petitioner is entitled to recover the possession of the tenanted premises i.e. one shop on the ground floor of premises no. 122/2A, Govind Puri, Kalkaji, New Delhi as shown in red colour in the site plan attached with the petition. The eviction petition is allowed accordingly. The petitioner, however shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of this E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 49 of 50 order.
16. File be consigned to record room.
Announced in the open court (Gaurav Rao)
on 24th August 2016 SCJCumRC(SouthEast)
Distt.Courts, Saket, New Delhi.
E No. 5197/16 Gurmeet Kaur Vs. Gopal Kishan Chandna Page 50 of 50