Delhi District Court
Sushil Kumar vs Vijay Kumar on 12 January, 2022
IN THE COURT OF MS. SNIGDHA SARVARIA,
ACJ-cum-CCJ-cum-ARC, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI.
ARC No : 400/2017
Sushil Kumar
S/o Late Sh. Om Prakash
R/o B-11/2, Krishna Nagar,
Delhi-110051 ......... Petitioner
Versus.
Vijay Kumar
Working for gain at,
Shop No. 12, Ground Floor
of property bearing Municipal No. 508,
Subhash Road, Gandhi Nagar,
Delhi ......... Respondent
Order on application under S. 25 (B) of The Delhi Rent Control Act, 1958 seeking leave to defend
1. Vide this order I shall decide the application under S. 25 (B) of The Delhi Rent Control Act, 1958 (DRC Act) seeking leave to defend filed by the respondent.
2. The brief facts of the case are that the petitioner has filed the present eviction petition under S. 14 (1) (e) of the Delhi Rent Control Act on the grounds that petitioner is the owner/landlord of shops No. 3,4,5,6 and 12 at Ground Floor of property bearing Municipal No. 508, Subhash Road, Gandhi Nagar, Delhi. It is stated that shop No. 3 is occupied by tenant namely Madan Mohan Mishra, shop No. 4 and 5 are occupied by tenant namely Santokh Singh and shop No. 6 is in possession of petitioner from where the son of the petitioner is doing his business of property dealer. The first-floor portion of the said property is owned by the mother of the petitioner. It is stated that in December, 2014, the petitioner all of a sudden suffered a paralytic attack and remained under the treatment in Max Hospital and since that day, the petitioner is unable to move properly and petitioner cannot write or sign and there is no speech because of the same. It is further stated that due to paralytic attack to petitioner, the family of the petitioner ARC No : 400/2017 Sushil Kumar Vs. Vijay Kumar 1 of 18 was introduced to starvation as there is no earning member in the family and the only source of income for the family of the petitioner is rental income now. It is stated that prior to paralytic attack, the petitioner was running his business under the name and style of M/s Bitto Garments from shop No. 6 and storing his stock at property No. 9/515, Subhash Road, Gandhi Nagar, Delhi and presently the said business is being look after by the son of the petitioner and storing his stock. It is further stated that in order to raise funds, petitioner let out one shop bearing No. 3 at the ground floor to one person namely Sh. Madan Mohan Mishra. It is stated that wife of the petitioner is running her boutique from property no. 9/498, Subhash Road, Gandhi Nagar, Delhi. It is further stated that the daughter of the petitioner wanted to do/start her own business from shop bearing No. 12 which is situated at the main road as well as is larger in size. It is stated that the suit premises is the most suitable and reasonable accommodation for the daughter of the petitioner to start/run her business of boutique from the said shop and petitioner does not have any other suitable and reasonable accommodation for himself and his family members dependent upon him. It is prayed that eviction order may be passed in favour of the petitioner and against the respondent qua the aforesaid property/shop.
3. The respondents were summoned vide order dated 23.08.2017 and were served with the summons of this petition on 30.08.2017, thereafter, affidavit seeking leave to defend under S. 25 B of the DRC Act was filed by the respondent on 12.09.2017 and the petitioner filed reply to it on 24.03.2018.
4. In the affidavit seeking leave to defend under S. 25 B of the DRC Act, the respondent has stated that the alleged bonafide of shop under tenancy of respondent shown by the petitioner for his daughter is his fanciful desire, fake, false and imaginary. It is stated that petitioner immediately 5 years after becoming the owner of the tenanted premises has preferred the present eviction petition which clearly reflects that it lacks bonafide. It is stated that the mother of the petitioner whom the petitioner claims to have gifted her the tenanted premises i.e. shop of the deponent and other shop, herself chose to purchase the shops in property bearing No. 508, Subhash Road, Gandhi Nagar, Delhi which were already under tenancy of respondent and other tenants at a throw away price only for the purpose to secure eviction of tenants with malafide intentions. It is further stated that the petitioner has concealed the fact that he has other reasonable suitable ARC No : 400/2017 Sushil Kumar Vs. Vijay Kumar 2 of 18 accommodations available with him and the accommodations which are already available with the petitioner are sufficient for his need and his family. The petitioner is a man of means and he along with his son is earning good profit through rent and garment business. It is stated that the petitioner has concealed the fact that he is the owner of residential property bearing No. B-11/22, Krishna Nagar, Gandhi Nagar, Delhi (3 storey) and owner of commercial properties bearing No. (1) 9/498, Subhash Road, Gandhi Nagar, Delhi (2) 9/515, Subhash Road, Gandhi Nagar, Delhi (3) Shop No. 3,4,5 & 6 & shops at first floor also in property bearing No. 508, Subhash Road, Gandhi Nagar, Delhi. It is stated that petitioner has also concealed the fact that he has sold few of his commercial properties in recent past within same vicinity and as such he cannot plead bonafide requirement of any premises. It is stated that petitioner with malafide motive has wrongly stated that his son is running a property dealer shop from shop No. 6, ground floor at property bearing municipal No. 508, Subhash Road, Gandhi Nagar, Delhi, whereas, the said shop is lying vacant from the last many years and the petitioner through his son has placed a board over it for letting it on rent. Further, the shop No. 6 has no electricity connection installed in it from the past many years which is also proof of the fact that the same is lying vacant and not being used for any property dealer office as alleged in the petition. It is stated that petitioner is not working for the last few years due to illness. It is stated that the only son of the petitioner Karan Goyal is already running business of his father under the name of Bittoo Garments from the property of petitioner i.e. 9/515, Subhash Road, Gandhi Nagar, Delhi which is a commercial property and the visiting card of his son also proves the same. It is stated that son of petitioner Karan Goyal is not doing any business of property dealer as alleged in the petition and is only running the showroom under the name of M/s Bittoo Garments from the above said property at ground, first and second floor of the property whereas the third floor and fourth floor of the above said property are lying vacant and is not under any use. It is further stated that petitioner has falsely alleged that his wife is running a boutique from his property bearing No. 9/498, Subhash Road, Gandhi Nagar, Delhi, whereas the entire property i.e. 9/498, Subhash Road, Gandhi Nagar, Delhi is lying vacant. It is stated that the property of the petitioner i.e. 9/4948, Subhash Road, Gandhi Narag, Delhi-110051 is also a commercial property (admeasuring around 35 sq. yds.) which is constructed upto 4 stories and having halls on each floor which are not under any use and are lying vacant. It is stated that the complete four storied building is ARC No : 400/2017 Sushil Kumar Vs. Vijay Kumar 3 of 18 already available with the petitioner for commercial purpose and no other additional space is required by him. It is stated that the petitioner has concealed the fact that apart from shop of the deponent, shop No. 6 which is near the shop of the deponent is lying vacant from the last many years and the same is built in the same property in which the shop of the respondent exists which is already available with the petitioner and can be used for any business purpose, if required. It is further stated that the petitioner has intentionally with malafide purpose not disclosed the period of letting shop No. 3, on the ground floor of property bearing municipal No. 508, Subhash Road, Gandhi Nagar, Delhi which has been let out by the petitioner to Mr. Madan Mohan Mishra after getting it evicted from its previous tenant and that Mr. Madan Mohan Mishra has been let out shop No. 3 by the petitioner in October 2016 @ monthly rent of Rs.21,000/- excluding electricity charges. It is stated that in case there had been any bonafide requirement of the shop for business purpose of daughter of petitioner, he would not have let the above said shop on rent to a new tenant. It is stated that the respondent do not have any other premises to run his business except the tenanted shop and the respondent is earning his livelihood by doing business from the tenanted shop which was taken by him on rent from Mr. Dinesh Kumar, Mr. Mahesh Kumar and Mr. Naresh Kumar who sold their rented shops to mother of the petitioner namely Smt. Vidya Devi in June, 2008.
5. The petitioner in his reply to application for leave to defend denied the averments made in the affidavit seeking leave to defend under S. 25 B of the DRC Act of the respondent. It is stated that it is an admitted case of the respondent that shop No. 6 has no electricity connection installed in it. It is stated that even if the averments of the respondent are admitted to be true and correct, the perusal of site plan clearly shows that shop No. 6 is situated at T-Point, last corner of the property and the suit property is situated at the rear side of the main road.
6. The respondent denied the averments of the petitioner, in reply of the petitioner, in his rejoinder and reiterated the averments of his application for leave to defend.
7. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
8. The Supreme Court had in "Inderjeet Kaur Vs.Nirpal Singh", [2000]Supp 5 ARC No : 400/2017 Sushil Kumar Vs. Vijay Kumar 4 of 18 SCR 707, laid down the following guidelines to be followed by the Courts while deciding the applications for leave to contest filed by the tenants under Section 25(4) of the Delhi Rent Control Act,1958:-
"11. As is evident from Section 25B(4) & (5) of the Act, burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in Clause (e) of the proviso to Section 14(1) of the Act, with which we are concerned in this case, are good enough to grant leave to defend.
12................................"
13. We are of the considered view that at a stage when the tenant seeks leave to defend, it is enough if he prima facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. It would not be right approach to say that unless the tenant at that stage itself establishes a strong case as would non-suit the landlord leave to defend should not be granted when it is not the requirement of Section 25B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act, Leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of a landlord to recover possession of the premises from a tenant under Clause (e) of the proviso to Sub-section (1) of Section 14, when as a matter of fact the requirement may not be bona fide. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to him and his family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction. At the stage of granting leave to defend, parties rely on affidavits in support of the rival contentions. Assertions and counter- assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend were either frivolous, untenable or most unreasonable. Take a case when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire. The ground under Clause (e) of the proviso to Sub- section (1) of Section 14 enables a landlord to recover possession of the tenanted premises on the ground of his bona fide requirement. This being an enabling provision, essentially the burden is on the landlord to establish his case affirmatively. In short and substance wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the Rent Controller by the statute itself to grant leave. At the stage of granting leave the real test should be whether facts disclosed in the affidavit filed seeking leave to defend prima facie show that the landlord would be disentitled from obtaining an order of eviction and not whether at the end defence may fail. It is well to remember that when a leave to defend is refused, serious consequences of eviction shall follow and the party seeking leave is denied an opportunity to test the truth of the averments made in the eviction petition by cross-examination. It may also be noted that even in cases where leave is granted provisions are made in this very Chapter for expeditious disposal of eviction petitions. Section 25B(6) states that where leave is granted to a tenant to contest the eviction application, the Controller shall commence the hearing of the application as early as practicable. Section 25B(7) speaks of the procedure to be followed in such cases. Section 25B(8) bars the appeals against an order of recovery of possession except a provision of revision to the High Court. Thus a combined effect of Section 25B(6), (7) and (8) would lead to expeditious disposal of eviction petitions so that a landlord need not wait and suffer for long time. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims.
"14. This Court in Charan Dass Duggal v. Brahma Nand (1983)1SCC301 while dealing with the question in the matter of granting leave to defend to contest the eviction petition filed on the ground of personal requirement, in para 5 has stated thus:
"5. What should be the approach when leave to defend is sought for? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong ARC No : 400/2017 Sushil Kumar Vs. Vijay Kumar 5 of 18 case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action (see Santosh Kumar v. Bhai Mool Singh). At the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counter- assertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought for on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively. If as it appears in this case, the landlord is staying at Pathankot, that a house is purchased, may be in the name of his sons and daughters, but there may not be an apparent need to return to Delhi in his old age, a triable issue would come into existence and that was sufficient in our opinion to grant leave to defend in this case."
15. In the same judgment, in para 7 it is further observed:
"7. The genesis of our procedural laws is to be traced to principles of natural justice, the principal amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and provide his own case. Summary procedure does not clothe an authority with power to enjoy summary dismissal. Undoubtedly wholly frivolous defence may not entitle a person leave to defend. But equally a triable issue raised, enjoins a duty to grant leave: May be in the end the defence may fail. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party by cross-examination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refuse to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through cross-
examination of witnesses who have filed their affidavits........................................................."
9. Same view has been reiterated by the Supreme Court in a judgment in "Rachpal Singh and Ors.Vs. Gurmit Kaur and Ors.", (2009)15 SCC 88, in para no.12 which is re-produced below:-
"12. If some triable issues are raised then the controversy can be properly adjudicated after ascertainment of truth through cross-examination of witnesses who have filed their affidavits and other material documents. Burden is on the landlord to prove his requirements and his assertion is required..........................."
10. In the present case, eviction petition has been filed under Ss. 14 (1) (e ) r/w S. 25- B of the Delhi Rent Control Act.
11. Proviso (e) to Section 14(1) is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bona-fide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso (e) of the Section 14(1) are : -
a) there exists landlord tenant relationship;
b) the premises were let out for residential or commercial purpose;
ARC No : 400/2017 Sushil Kumar Vs. Vijay Kumar 6 of 18
c)The said premises are bona-fide required by the landlord either for himself or for his dependant family member.
d) The landlord or the dependant family member has no other reasonable suitable accommodation.
12. The thresholds hereinabove are to be satisfied conjunctively in order to attract the provisions of Section 14(1)(e) and the absence of even one of the said ingredients clearly makes the said provision inapplicable.
13. For the purposes of leave to defend, the respondent had to show some defence which would disentitle the petitioner of the relief claimed.
14. In the case at hand, the landlord tenant relationship is not disputed. Admittedly, the shop is question was let out for commercial purpose and the same is required for commercial purpose for daughter of the petitioner to run her boutique.
15. For S. 14 (1) ( e) DRC Act it has to be shown that premises are bona-fide required by the landlord either for herself or for his dependant family member and that the landlord or the dependant family member has no other reasonable suitable accommodation.
16. In order to evaluate whether the need of the petitioner is bonafide or not, let us understand the legislative and judicial connotation of the term, ' bonafide'. In landmark case Deena Nath v. Pooran Lal, (2001) 5 SCC 705 wherein the Supreme Court observed thus:
"The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in presenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in subsection (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is dutybound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable nonresidential ARC No : 400/2017 Sushil Kumar Vs. Vijay Kumar 7 of 18 accommodation in his occupation in the city/town is available. The judgment/order of the court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind that statutory mandate incorporated in Section 12(1)(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment."
Chambers 20th Century Dictionary defines bona fide to mean "in good faith and genuine". Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bonafide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the court. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. It is no concern of the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. The meaning of "bonafide" in the context appears to be in two folds. (a) the need of the landlord must be a genuine one and not a frivolous one. (b) landlord is not motivated by extraneous considerations in trying to recover the possession from the tenant with a view to let it out again to another tenant at a higher rent.
17. The Apex Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta reported in SCFBRC 1999 Page 330, has observed as under:
"In Prativa Devi (Smt.) v. T.V. Krishnan, 1996 (5) SCC 353, this Court has held that in considering the availability of alternative accommodation, not availability merely but also whether the landlord has the legal right to such accommodation has to be considered.
Reverting back to the case at hand, the landlord has been living on the ground floor of the Defence Colony house. It was conceded at the Bar that as on the day the family of the landlord consists of the landlord himself (a practicing doctor), his son (again a practicing doctor), the daughter-in-law and two grand children who are gradually growing in their age. Looking at the size of the family, available of three bed rooms in the premises in which the landlord may live, is a requirement which is natural and consistent with the sense of decency-not to talk of comfort and convenience. There is nothing unreasonable in a family with two practicing doctors as members thereof needing a room or two or a room with a verandah to be used as a residential-clinic divided into a consultation room and a waiting place for the patients. A drawing room, a kitchen, a living room and a garage are bare necessities for a comfortable living. The landlord has been living in Defence Colony locality for more than 35 years. The first floor which was let out to the tenant in the year 1978 as being an accommodation surplus with the landlord has with the lapse of time become a necessity for occupation by the landlord and his family members. More than ten years by now have been lost in litigation. The death of the wife of the landlord and the death of landlord's mother-in-law, are events which have hardly any bearing on the case of felt need of the landlord, The need as pleaded and proved by the landlord is undoubtedly natural sincere and honest and hence a bona fide need. There is no material available on record to doubt the genuineness of such need. It continues to subsist inspite of the two deaths. It is not the case of the tenant- appellant that while seeking eviction of the tenant the landlord is moved by any ulterior motive or is guided by some other thing in his mind. It will be most unreasonable to suggest that the landlord may continue to five on the ground floor of ARC No : 400/2017 Sushil Kumar Vs. Vijay Kumar 8 of 18 the Defence Colony house and some members of the family may move to Sarvodaya Enclave House if the whole family cannot be conveniently and comfortably accommodated as one unit in the Defence Colony house. It would be equally unreasonable to suggest that the entire family must shift to Sarvodaya Enclave House which is admittedly situated at a distance of about 7-8 kms. from Defence Colony. The landlord and his family are used to living in Defence Colony where they have developed friends and acquaintances, also familiarity with the neighbourhood and the environment. The patients usually visiting or likely to visit the residential clinic know where their doctor would be available. Shri Arun Jaitley, learned Senior Counsel for the respondent, has very rightly submitted that it could not have been the intendment of the Rent Control Law to compel the landlord in such facts an circumstances to shift to a different house and locality so to permit the tenant to continue to live in the tenanted premises. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself rightly into lesser premises protecting the tenant's occupancy."
18. Further, in another landmark case of Sarla Ahuja v. United India Insurance Co. Ltd ., reported as AIR 1999 SUPREME COURT 100, whereby 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 is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself....".
19. As regards alternate accommodation in Sarwan Dass Bange vs. Ram Prakash
-2010 IV AD (Delhi) 252, observations made by Supreme Court in Baldev Singh Bajwa V Monish Saini MANU/SC/1239/2005 (2005) 12SCC 778, have been quoted as under :
It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given right of restoration of possession; the landlord who evicts the tenant on the ground of his own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate inbuilt strong presumption that the need of the landlord is genuine;the restrictions and conditions imposed on the landlord make it virtually improbable for the landlord to approach the court for ejectment of tenant unless his need is bonafide 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 his inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his requirement shall be presumed to be genuine and bonafide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine. The tenant is required to give all necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the ARC No : 400/2017 Sushil Kumar Vs. Vijay Kumar 9 of 18 landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine.
20. In Adarsh Electricals & Ors. Vs Dinesh Dayal - MANU/DE/2782/2010, it was held that " the concept of alternate accommodation means that accommodation which is reasonably suitable for the landlord, and the court would not expect the landlord to sacrifice on his own comforts and requirements merely on the ground that the premises is with a tenant . The problem had to be approached from the point of view of a reasonable man and not that of a whimsical landlord. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need."
21. As regards shop No. 3, at Ground Floor of property bearing Municipal No. 508, Subhash Road, Gandhi Nagar, Delhi it is stated by the petitioner that it is occupied by tenant namely Madan Mohan Mishra. It is stated that in December, 2014, the petitioner all of a sudden suffered a paralytic attack and remained under the treatment in Max Hospital and since that day, the petitioner is unable to move properly and petitioner cannot write or sign and there is no speech because of the same. It is further stated that due to paralytic attack to petitioner, the family of the petitioner was introduced to starvation as there is no earning member in the family and the only source of income for the family of the petitioner is rental income now. It is further stated that in order to raise funds, petitioner let out one shop bearing No. 3 at the ground floor to one person namely Sh. Madan Mohan Mishra. It is stated by the respondent that the shop no. 3 was rented out to the present tenant in October 2016 @ monthly rent of Rs. 21,000/- after evicting the previous tenant and present case was instituted on 23.08.2017 so could have been used by the daughter of the petitioner for running her boutique. In reply to the application for leave to defend the petitioner has explained that for immediate money to run kitchen expenses the said property was let out in 2016. Obviously, a new business can take time to become profitable. The respondent has not brought forth any document to the contrary, therefore, it cannot be assumed that the requirement of the petitioner is not bonafide or that shop No. 3 at Ground Floor of property bearing Municipal No. 508, Subhash Road, Gandhi Nagar, Delhi are more suitable. Thus, this property cannot be said to be a suitable alternate accommodation for the daughter of the petitioner to run her boutique.
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22. As regards shop No. 4 & 5 at Ground Floor of property bearing Municipal No. 508, Subhash Road, Gandhi Nagar, Delhi, it is stated by the petitioner that they are occupied by tenant namely Santokh Singh. So the petitioner cannot be stated to have been concealing the said shops. There are no specific submissions of the respondent qua the said shops but it is merely stated that the said shops are also suitable alternate accommodation and have been concealed by the petitioner. It is well settled that it is no concern of the Courts or the tenant to dictate to the landlord how, and in what manner, he should live or why one shop is suitable and other is not. In the absence of any material having been brought on record by the respondent in this regard it cannot be assumed that the requirement of the petitioner is not bonafide or that shop No. 4 & 5 at Ground Floor of property bearing Municipal No. 508, Subhash Road, Gandhi Nagar, Delhi are more suitable. (See: Sarwan Dass Bange V. Ram Prakash 2010 IV AD (Delhi) 252). Thus, this property cannot be said to be a suitable alternate accommodation for the daughter of the petitioner to run her boutique.
23. As regards shop No. 6 at Ground Floor of property bearing Municipal No. 508, Subhash Road, Gandhi Nagar, Delhi, it is stated by the petitioner that at present is in possession of petitioner from where the son of the petitioner is doing his business of property dealer. As regards property No. 9/515, Subhash Road, Gandhi Nagar, Delhi it is stated that prior to suffering paralytic attack in December 2014 , the petitioner was running his business under the name and style of M/s Bitto Garments from shop No. 6 and storing his stock at property No. 9/515, Subhash Road, Gandhi Nagar, Delhi and presently the said business is being look after by the son of the petitioner and storing his stock. Respondent submitted that shop no. 6 is lying vacant for several years and board of letting it on rent has been put on this shop no. 6 by Karan Goyal, son of the petitioner, and also that this shop has no electricity connection so the petitioner has concealed this suitable alternate accommodation and thus need of the petitioner is not bonafide. It is stated by the petitioner that there is no electricity in this shop but his son is doing his own business of property and petitioner's business of Bittoo Garments from this shop. He also stated that this shop even otherwise is not suitable as is situated at a T point, last corner of the property and shop no. 12 is on the rear side of the main road and bigger in size as compared to the shop no. 6. Considering that to run a boutique one needs place ARC No : 400/2017 Sushil Kumar Vs. Vijay Kumar 11 of 18 for tailor and helpers/employees and space for stock etc and nothing has come on record to show that shop no. 6 is a bigger shop so it cannot be assumed that the requirement of the petitioner is not bonafide or that shop No. 6 at Ground Floor of property bearing Municipal No. 508, Subhash Road, Gandhi Nagar, Delhi is more suitable. As regards photographs showing a portion of shutter where a paper 'available for rent shop no. 6, Property no. IX/508, GR Floor, Subhash Road, Gandhi Nagar, Delhi-110031 Contact Karan Goyal (M) 88........' is pasted on shutter and is filed by the respondent same does not show the entire façade of the shop and cannot be stated to be the photograph of shop no. 6, Property no. IX/508, GR Floor, Subhash Road, Gandhi Nagar, Delhi-110031. In ordersheet dated 05.01.2019 it is mentioned that the petitioner was ready to exchange shop no. 6 with shop no. 12 but in ordersheet dated 15.02.2019 submission of the respondent has been recorded wherein the respondent refused to exchange shop no. 12, in his possession, with the vacant shop no. 6 of the petitioner. Once, the respondent himself did not find shop no. 6 to be a sufficient alternate accommodation then it cannot be a sufficient alternate accommodation for running business of the petitioner. (See: Anil Bajaj vs Vinod Ahuja - 210 (2014) DLT 58 (SC))
24. Similarly, as regards property No. 9/515, Subhash Road, Gandhi Nagar, Delhi, it is stated by the respondent that son of the petitioner is doing business of Bittoo Garments from Ground Floor, I Floor & II Floor of property No. 9/515, Subhash Road, Gandhi Nagar, Delhi whereas the third floor and fourth floor of the above said property are lying vacant and is not under any use. The petitioner has filed GST registration qua business of Bittoo Garments, wherein business address is of property No. 9/515, Subhash Road, Gandhi Nagar, Delhi. Petitioner has stated that the entire property No. 9/515, Subhash Road, Gandhi Nagar, Delhi is used for storing stock of Bittoo Garments. The respondent has not brought on record to show that any portion of the said property is lying vacant and how the same are better suited to the boutique business of the daughter of the petitioner. . It is well settled that the tenant is required to give all necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine. (See:
ARC No : 400/2017 Sushil Kumar Vs. Vijay Kumar 12 of 18 Sarwan Dass Bange V. Ram Prakash 2010 IV AD (Delhi) 252). Thus, this property cannot be said to be a suitable alternate accommodation for the daughter of the petitioner to run her boutique.
25. As regards shop No. 12 at Ground Floor of property bearing Municipal No. 508, Subhash Road, Gandhi Nagar, Delhi it is stated by the petitioner that it is let out to the respondent but daughter of the petitioner wanted to do/start her own business from shop bearing No. 12 which is situated at the main road as well as is larger in size. It is stated that the suit premises is the most suitable and reasonable accommodation for the daughter of the petitioner to start/run her business of boutique from the said shop and petitioner does not have any other suitable and reasonable accommodation for himself and his family members dependent upon him. Considering that the petitioner being head of the family suffered paralysis and is now not in a position to work so obviously each of the family member has to look after themselves and work on their own. It is well settled that it is the responsibility of the parents socially to make children stand on their feet when they are dependant for shop/accommodation. The contention of the respondent that it has not been disclosed if the daughter of the petitioner is married or not is irrelevant for the purpose of dependency for a shop/accommodation. Nothing has been brought on record by the respondent to show that the daughter of the petitioner is not dependant for the shop upon the petitioner. The contention of the respondent that the present petition is not maintainable as the petitioner has not disclosed the name, age, educational qualification etc of daughter is without any merits as they are not material for deciding this application as only dependency of the family member is to be seen. Also, for running a boutique business a person is not required to have a particular qualification.
26. The First Floor of property bearing Municipal No. 508, Subhash Road, Gandhi Nagar, Delhi portion of the said property is owned by the mother of the petitioner and in this regard copy of registered gift deed dated 27/1/2012 is also filed on record. The gift deed clearly shows that petitioner is owner only of shop Nos. 3, 4, 5, 6 & 12 at Ground Floor of property bearing Municipal No. 508, Subhash Road, Gandhi Nagar, Delhi. Nothing contrary to it has been brought on record by the respondent. It is well settled that the tenant is required to give all necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the ARC No : 400/2017 Sushil Kumar Vs. Vijay Kumar 13 of 18 controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine. (See: Sarwan Dass Bange V. Ram Prakash 2010 IV AD (Delhi) 252). The respondent has not brought on record to show that petitioner is owner of First Floor of property bearing Municipal No. 508, Subhash Road, Gandhi Nagar, Delhi.
27. As regards property no. 9/498, Subhash Road, Gandhi Nagar, Delhi, it is stated by the petitioner that after he suffered paralysis in 2014, shop no. 3 was rented out for livelihood and that wife of the petitioner started running her boutique from property no. 9/498, Subhash Road, Gandhi Nagar, Delhi, which is owned by her/wife of the petitioner and copy of registered sale deed dated 20.01.2011 is also placed on record. It is stated by the respondent that the wife of the petitioner is not doing any boutique business and the said property is built upto 4 floors and is lying vacant as wife of the petitioner remains ill and is a housewife taking care of her family. The respondent has filed photograph of closed shutter in this regard. Contrary to this the petitioner has filed GST documents and invoices concerning business of the wife of the petitioner. The said photograph of the respondent to state that the wife of the petitioner is not running a boutique is falsified from the documents on record filed by the petitioner i.e. GST documents and invoices concerning business of the wife of the petitioner i.e. copy of printed tax invoice dated 10/1/18; copy of printed tax invoice dated 5/1/18; copy of handwritten tax invoice dated 10/11/17; copy of handwritten tax invoice dated 5/11/17; registration of GST no. 07AACPN2167M1ZH dated 16.03.2018. The contention that GST registration is of the year 2018 is of no assistance to the respondent as the Goods and Service Tax Act was passed in the Parliament on 29th March 2017 and came into effect on 1st July 2017. Also, the GST no. on the invoices is different from registration of GST no. 07AACPN2167M1ZH dated 16.03.2018. There is nothing on record to show that the wife of the petitioner is not using portions of this property to run her boutique and that remaining upper floors are not residential. Thus, this property cannot be said to be a suitable alternate accommodation for the daughter of the petitioner to run her boutique. Also, it is well settled that the upper floors are not suitable for running a business in comparison to a place on the ground floor. (See: Anil Bajaj vs Vinod Ahuja - 210 ARC No : 400/2017 Sushil Kumar Vs. Vijay Kumar 14 of 18 (2014) DLT 58 (SC))
28. Also, it is well settled that the landlord is the best judge of his requirement and has complete freedom in this matter. It is not a concern of the court or the tenant to dictate to a landlord how and in what manner he should live and maintain standard of living.
29. As regards property no. 9/4948, Subhash Road, Gandhi Nagar, Delhi, nothing has been brought on record by the respondent to show it is own or occupied by the petitioner and how it is a suitable alternate accommodation. It is well settled that the tenant is required to give all necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine. (See: Sarwan Dass Bange V. Ram Prakash 2010 IV AD (Delhi) 252).
30. As regards residential property no. B-11/22, Krishna Nagar, Gandhi Nagar, Delhi it is stated by the petitioner that he has mentioned the said address as residential address in the memo of parties in this case and has not concealed it. Even otherwise in Bhairab Chandra Nandan vs Ranadhir Chandra Dutta (1988) 1 SCC 383 it has been held that petition for eviction cannot be dismissed for concealment once court comes to know of the facts concealed, which although is not a case herein, and had an occasion to consider it hand rules in favour of the landlord. It is stated by the respondent that the petitioner has concealed this property with malafide and is a suitable alternate accommodation for daughter of the petitioner to start her boutique. Also, it is stated by the petitioner that it is admitted by the respondent in his application for leave to defend that the said property is a residential property so obviously cannot be used for commercial purpose by the daughter of the petitioner. There is force in the submissions of the petitioner in this regard since it is a residential property, the said property cannot be said to be a suitable accommodation for running boutique by the daughter of the petitioner.
31. The contention of the respondent that there are few shops sold in vicinity by ARC No : 400/2017 Sushil Kumar Vs. Vijay Kumar 15 of 18 the petitioner are of no assistance to him as the details of the said sold off property has not been disclosed. It is well settled that the tenant is required to give all necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine. (See: Sarwan Dass Bange V. Ram Prakash 2010 IV AD (Delhi) 252).
32. The contention of the respondent that there are few vacant shops in vicinity of the shop in question owned by the petitioner are of no assistance to him as the details of the said shops/ property has not been disclosed. It is well settled that the tenant is required to give all necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine. (See: Sarwan Dass Bange V. Ram Prakash 2010 IV AD (Delhi) 252).
33. The contention that the petitioner has concealed other shops and properties in the facts of the present case and discussion herein above is of no assistance to the respondent as they are not suitable for running business of the daughter of the petitioner and same cannot be a concealment. (See: Harbant Singh vs Vinod Sikari - 189 (2012) DLT 215.)
34. Furthermore, in Freddy Fernandes Vs. P.L. Mehra ILR 1973 Delhi 682 noticed that the landlord had an economic reason why he did not want to occupy the Jangpura house in preference to the Nizamuddin house. The desire to seek economic gain was held to be legitimate and not amounting to making the need of the landlord mala fide.
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35. The decisions in (i) S.P. Chengalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by LRs and others AIR 1994 Supreme Court 853, (ii) Charan Dass Duggal Vs. Brahma Nand 1982 RLR 243 (Supreme Court), (iii) Santosh Devi Soni Vs. Chand Kiran AIR 2000 SCW 4916 (Supreme Court),
(iv) D.N. Gupta Vs. Jaswant Singh AIR 1982 Delhi 250, (v) Khem Chand & Ors. Vs. Arjun Jain & Ors. 2014 (1) RLR 11, (vi) Sanjay Chugh Vs. Opender Nath Ahuja 2015 (3) RLR 223, (vii) Joginder Dev Vs. Uzma Sazid 2020 (2) RCR (Rent) 535, (viii) Hari Sharma Vs. Amarjit Singh 1999 Rajdhani Law Reporter 427, (ix) Sh. Ziaullah Vs. Raghuvanshi Mani Sharma 2020 (1) RCR (Rent) 139, (x) Sudesh Kumar Bansal Vs. Ajay Saini & Ors. 2020 (1) RCR (Rent) 138 and (xi) Rajinder Kumar Goyal Vs. Raj Hans Realtors 2016 (159) DRJ 680; relied upon by the respondents is of no assistance to the respondents as it has been decided on different fact situation and cannot be applied like a Euclid's theorem.
36. In view of the above discussion and the documents filed by the parties, there is no triable issue between the parties which entitles the respondents for leave to contest the present application for eviction. The applications for leave to contest are without merits.
37. Conclusion:
In these circumstances, since leave to defend is dismissed, and considering the petitioner has shown bonafide and fulfilled the requisites of S. 14 (1) (e) DRC Act, petitioner has become entitled to eviction. Consequently, eviction order is liable to be passed against the respondent u/s Section 25 B (4) of the Act. In these circumstances, the application for leave to defend filed by the respondent is dismissed and the respondent Vijay Kumar is liable to be evicted from the tenanted premises i.e. shop no. 12 on the ground floor of property bearing No. 508, Subhash Road, Gandhi Nagar, Delhi as shown in red colour in the site plan filed with the present petition by the petitioner (now marked as Ex P1). Accordingly, the petition filed by the petitioner u/S. 14 (1) (e) r/w S. 25B of the DRC Act is allowed, subject to provisions u/s 19 of the DRC Act. However, the petitioner ARC No : 400/2017 Sushil Kumar Vs. Vijay Kumar 17 of 18 would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act. No orders as to costs.Digitally signed by SNIGDHA
SNIGDHA SARVARIA
SARVARIA Date: 2022.01.02
12:26:19 +0530
Announced through VC (SNIGDHA SARVARIA)
on 12th Day of January, 2022. ACJ/ARC/CCJ
[This judgment contains 18 pages.] (SHAHDARA) KKD, DELHI.
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