Sh. Gopal Kishan vs Sh. Kalu Ram on 15 December, 2018

[Cites 24, Cited by 0]

Delhi District Court

Sh. Gopal Kishan vs Sh. Kalu Ram on 15 December, 2018

     IN THE COURT OF SUDHIR KUMAR SIROHI, ACJ/CCJ/ARC SHAHDARA, 
                     KARKARDOOMA COURTS,DELHI.

ARC. No. 1281/16

Sh. Gopal Kishan 
S/o Sh. Rohtas Singh 
R/o 76/4B, Gali no. 12, 
East Azad Nagar, Krishna Nagar, 
Delhi 110031                                                                  .......petitioner

                                         VERSUS


Sh. Kalu Ram
Shop No. 21, F. F. Part of property no. IX/6301, 
Jain Mandir Gali, Gandhi Nagar, Delhi110031                                  ...... respondent

Date of institution : 21.11.2016 Date of order : 15.12.2018 ORDER ON LEAVE TO DEFEND THE FACTS:

1. The present petition U/Sec. 14 (1) (e) of Delhi Rent Control Act, 1958 has been filed by the petitioner against the respondent for his eviction from one shop bearing no. 21 at first floor part of property no. IX/6301, Jain Mandir Gali, Gandhi Nagar, Delhi 110031, (hereinafter called tenanted premises). It is averred by petitioner that petitioner is the owner of the tenanted premises by virtue of Sale deed duly executed in his favour. The tenanted premises was let out to the respondent at the rate of Rs. 70/ per month excluding other charges for non residential purpose and the same is being used as such. The petitioner requires the tenanted premises for bonafide use, for himself and for his family members ARC. No. 1281/2016 Gopal Kishan Vs. Kalu Ram Page 1/20 dependent upon him for commercial purpose. The petitioner has no other suitable accommodation that the tenanted premises under the tenancy of the respondent. Even otherwise a shop measuring area 8'X18' feet situated in property no. IX/6624, Mukharji Gali, Gandhi Nagar, Delhi and a residential property no. 74/4B, Gali no. 12, East Azad Nagar, Krishna Nagar, Delhi110051 wife of the petitioner Smt, Indira Devi is owner of the both property. The petitioner has no other property except the present property in Delhi as well as in NCR.

2. It is further averred that family of the petitioner consist, petitioner himself his wife, elder son Manish Goswami, Younger son Vinay Goswami, Daughters Manju Goswami (married) and Anju Goswami (married). The daughters of the petitioner are highly qualified as Manju Goswami is Msc. Biotech, and Anju Goswami is studying under Phd. (finance) from Roorki IIT and only one year remains for completion, husband of Anju Goswami is also pursuing MBA, hence Anju Goswami is completely depend upon petitioner. Petitioner is employed under DTC.

3. It is further averred that elder son of the petitioner is running a wholesale readymade garments shop No. IX/6624, Mukharji Gali Gandhi Nagar, Delhi, another son namely Vinay Goswami is still unemployed, two daughters of the petitioner are highly qualified and still unemployed. The petitioner wants to settle the business for his sons and daughters which is bonafide requirements of the petitioner at present. The sons and daughters of the petitioner are totally depends upon the petitioner for commercial accommodation. The area of the shop run by son Manish Goswami is 8X18 feet which is very less to run a whole sale shop, hence he also need a godown to maintain stock for his wholesale ARC. No. 1281/2016 Gopal Kishan Vs. Kalu Ram Page 2/20 shop, the suit property is very near to shop running by the petitioner son and it can be used for godown purpose. The daughters of the petitioner are highly educated and they wants to start a coaching center jointly for her bright future hence petitioner required a big space for his sons and daughter, the petitioner also going to file eviction petition against other tenants on the same grounds for his bonafide need. It is further averred that because of these reasons, petitioner wants the shop under the tenancy of the respondnet for smooth running of the business by his two sons and two daughters to meet financial challenges and to earn the livelihood for the family so that the sons may support the father/petitioner to carry on the burden of the family, hence petitioner's requirement of the tenanted shop is bonafidely. Apart from this, the petitioner has no other suitable shop/property available to him for commercial purpose. The said sons and daughters of the petitioner are totally dependent upon the petitioner in all respect, therefore bonafide requirement of the petitioner is for the petitioner's family member dependent upon him. Petitioner's requirement is not only to meet the financial challenges faced by the family but to secure a good future for his sons and daughters as well.

4. It is further averred by the petitioner that total area of the property is 264 sq. yards., property constructed up to third floor, 14 shops situated on ground floor, 9 shop situated on first floor, godown situated on second floor and three room situated on third floor. Out of the said shops 13 shops have already been sold out by the petitioner to different persons, last shop was sold out in the year 2008. 10 shops are in possession of different tenants including respondent, go downs on the second floor are also in possession of the tenants. Rooms situated on third floor are in possession of the petitioner. The petitioner is residing alongwith family at property No. 76/4B, Gali no. 12, East Azad Nagar, Krishna ARC. No. 1281/2016 Gopal Kishan Vs. Kalu Ram Page 3/20 Nagar, Delhi 110051, this property is constructed up to 2½ storey and situated in residential area which is impossible to convert in commercial. Hence, the petitioner has filed the present eviction petition.

5. Notice of this eviction petition was sent to the respondent in the prescribed format which was duly served on the respondent. In response to which the respondent had filed leave to defend application within limitation period.

6. Respondent in leave to defend application averred that present petition of the petitioner under Section 14 (1) (e) r/w 25 (B) of DRC Act is liable to the rejected and averred that the petitioner has rented out the private shop no. 11 with two shutters on ground floor to Mr. Prem Prakash in the month of March, 2016 at the rent of Rs. 20, 000/ per month and that too after evicting the earlier two tenants which were paying the total rent of Rs. 15,000/ per month to Mr. Ram Narain Maheshwari and Mr. Pawan Swami. Respondent has also averred that another shop on ground floor has been let out by petitioner to Mr. Shamshad in the year 2016 at monthly rent of Rs. 25, 000/ and petitioner in the month of April, 2016 itself let out the entire second floor to Mr. Prem Prakash for commercial purpose at rent of Rs. 60, 000/. Respondent has alleged that the respondent has annexed a CD which pertains to general conversation with the tenant on the ground floor namely, Mr. Naresh showing that nature and conduct of petitioner.

7. Respondent has further taken defence that respondent is employed in DTC and has not bothered about to mention his period of service and the son of petitioner is already running a business at IX/6624 Mukherjee gali, Gandhi Nagar, Delhi 31 and he does not require any accommodation and it is a case of ARC. No. 1281/2016 Gopal Kishan Vs. Kalu Ram Page 4/20 additional accommodation. Respondent has further averred that petitioner has not disclosed to the court that what is the family income of petitioner i.e. personal income from employment, rental income, income of son and petitioner requires the premises to meet financial challenges and earned livelihood.

8. Respondent has also taken defence that the elder son of petitioner is not unemployed rather the business at IX/6624 is run by both the sons of petitioner and respondent also filed a CD showing both the sons of respondent at the said shop.

9. Respondent further alleged that no document has been filed regarding the educational qualifications of the daughters at the time of filing the present case and younger daughter of the petitioner is still studying and no details have been provided by the petitioner where the daughters of petitioner have applied for services and reason for their unemployment. Respondent has further alleged that the complete third floor of the petitioner is vacant and the petitioner have not mentioned how the third floor is not suitable for alleged go down requirement of his elder son.

10. Respondent has further alleged that the petitioner has concealed the alternate available, suitable accommodation i.e. first and second floor of property bearing no. IX/6624 of Mukherjee gali, Gandhi Nagar, Delhi 31, similarly the alternate accommodation is bearing no. 74/4B Gali no. 2, East Azad Nagar, Krishna Nagar, Delhi 51 situated in residential area and the said property is situated in residential cum commercial area and is good for running the tuition business.

ARC. No. 1281/2016 Gopal Kishan Vs. Kalu Ram Page 5/20

11. Respondent has also filed an application for subsequent events submitting that during to the pendency of the petition, two shops has been sold to Mr. Anil Kumar Mundra vide registered sale deed dated 07.09.2017 and these two shops are those shops for which the eviction petition was filed against the tenants Mr. Anil Kumar Mundra and Mr. Deen Dayal.

12. Reply of leave to defend was filed by the petitioner in which he denied the averments made in leave to defend.

13. Ld. counsel for the petitioner has relied upon the following judgments:

1. Rajender Kumar Sharma and Ors. Vs. Smt. Leela Wati and Ors. (2008) 155 DLT 383

2. Krishan Kumr Gupta Vs. Swadesh Bhushan Gupta (2008) 152 DLT 556

3. Parbati Poddar Vs. Jogender Singh (2004) AD (Delhi) 247

4. Ambadas Khanduji Shinde & Ors. Vs. Ashok Sadashiv Mamukar & Ors. 2017 (3) Civil Court Cases 824 (S.C.)

5. Renu Bakshi Vs. Prem Parkash Sharma & Ors. 2017 (3) Civil Court cases 827 (P&H).

14. I have heard Ld. Counsels for the parties at length, perused the records and considered the judgments.

ARC. No. 1281/2016 Gopal Kishan Vs. Kalu Ram Page 6/20

The Law:

15. Before proceeding further it would be worthwhile to note that Chapter IIIA of Delhi Rent Control Act deals with summary trial of certain Applications expressly stating that every application by a landlord for recovery of possession on the ground specified in clause (e) of the proviso to sub section (1) of Section 14 of the Act, or under Section 14A or 14B or 14C or 14D shall be dealt with in accordance with the special provisions prescribed in Section 25B of the Act. The provisions in Chap. IIIA confer a real, effective and immediate right to obtain possession by confining the trial only to such cases, where the tenant has such a defence as would disentitle the landlord from obtaining an order for eviction under s.l4(1)(e) or under Sec. 14A. Chap. IIIA seeks to strike a balance between the competing needs of a landlord and a tenant and has therefore provided that the tenant shall have a right to apply for leave to contest. As per the broad scheme of this Chapter a tenant is precluded from contesting an application filed for eviction on the grounds mentioned in the aforementioned provisions unless he obtains leave from the Controller to contest the eviction petition. In default of obtaining leave to defend or leave is refused to him an order of eviction follows. It appears recourse to summary trial is adopted having due regard to nature of the grounds on which the eviction is sought with a view to avoid delay so that the landlord should not be deprived or denied of his right to immediate possession of premises for his bona fide use.The defence must also be bonafide and if true, must result in the dismissal of landlord's application. Defences of negative character which are intended to put the landlord to proof or are vague, or are raised mala fide only to gain time and protract the proceedings, are not of the kind which will entitle the tenant to the grant of leave. The Controller cannot set down the application for hearing without making an order in ARC. No. 1281/2016 Gopal Kishan Vs. Kalu Ram Page 7/20 terms of subs. (5) of s. 25B. The trial must be confined only to such grounds as would disentitle the landlord to any relief.

16. But at the same time, it is well settled and accepted position in law that no one shall be subjected to suffer a civil consequence like eviction from a premises resulting in hardship to him without providing adequate and effective opportunity to disprove the case against him and establish his case as pleaded.

17. Further, 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, then the same are good enough to grant leave to defend.

18. At the stage of seeking 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 a right approach to say that unless the tenant at that stage itself establishes a strong case as would nonsuit 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 subsection (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 ARC. No. 1281/2016 Gopal Kishan Vs. Kalu Ram Page 8/20 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. The ground under clause (e) of the proviso to subsection (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 crossexamination. It may also be noticed 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 ARC. No. 1281/2016 Gopal Kishan Vs. Kalu Ram Page 9/20 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.

19. Further, it is immaterial at this stage that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. It is distinctly possible that a tenant may fail to make good the defence raised by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown. In this view a balanced view is to be taken having regard to competing claims.

20. Further, it is held time and again by Hon'ble Supreme Court that 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. 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 ARC. No. 1281/2016 Gopal Kishan Vs. Kalu Ram Page 10/20 raised and the controversy can be properly adjudicated after ascertainment of truth through crossexamination of witnesses who have filed their affidavits. Burden is on the landlord to prove his requirements and his assertion is required to be tested.

21. In order to suceed in the cases U/Sec. 14(1)(e) of D.R.C. Act, the petitioners is required to prove the following ingredients:

(a). Ownership in respect of tenanted premises;

(b). Relationship of landlord and tenant between the parties;

(c). petitioners bonafidely requires the tenanted premises;

(d). petitioners does not have any other alternative accommodation with him/her.

The Findings:

22. With this background, this court turns to the facts of the case in hand. The respondent has raised many issues in the leave to defend application which have been stated to be triable issues. At this stage, it would be appropriate to note that each individual petition decision depends on the peculiar facts, circumstances and material placed on record in that particular petition.

Ownership and relationship of landlord and tenant:

23. The respondent has not denied the landlord tenant relationship and the meaning of word owner vis a vis the tenant is that the owner should be sometime more than the tenant (Milk Food Ltd. V. Kiran Khanna, 51 (1993) DLT 141 (Delhi). Accordingly, the landlord and tenant relationship between the petitioner and respondent has been established with ownership of the petitioner.

Bonafide Requirement as well as alternative accommodation: ARC. No. 1281/2016 Gopal Kishan Vs. Kalu Ram Page 11/20

24. The respondent has taken the plea that the petitioner has recently in 2016 has given shop no. 11 on rent to Mr. Prem Prakash at the rate of rent of Rs 20, 000/ per month and another shop on ground floor also let out in 2016 to Mr. Shamshad at monthly rent of Rs. 25, 000/ per month, in addition to this, the entire second floor was let out to Mr. Prem Prakash at the rent of Rs. 60, 000/ per month. Petitioner in reply to leave to defend has stated that the tenant Mr. Prem Prakash was inducted in shop no. 11 and second floor of the property no. IX/6301 Jain Mandir, Gandhi Nagar, Delhi three years ago and not in March, 2016 while Mr. Shamshad was inducted as tenant in the abovesaid property on ground floor shop seven years ago and not in April, 2016. Respondent has filed one CD of conversation with one tenant Mr. Naresh to show the conduct of petitioner with respect to the abovesaid averments of respondent but petitioner in reply to leave to defend has stated that the tenant Naresh is in collusion with the respondent and another tenant Mr. Nikhil Baldev and CD is forged and fabricated. It is pertinent to mention that Mr. Naresh though is tenant of petitioner but Mr. Naresh is not the tenant of the shops which were alleged to be given on rent in March and April, 2016. Moreover, no CD of conversation with the tenant Prem Prakash and Mr. Shamshad has been filed by respondent to show that the shops were given on rent to Mr. Prem Prakash and Mr. Shamshad in 2016. If respondent can record the conversation with another tenant Mr. Naresh then why he cannot record the conversation with tenant Mr. Prem Prakash and Mr. Shamshad, therefore this averment of respondent does not raise a triable issue.

25. Respondent has further taken defence that both sons of petitioner are running business at IX/6624 Mukherjee Nagar, Delhi 31 and they do not require any accommodation and it is the case of additional accommodation. Moreover the third floor of the property no. IX/6301 Jain Mandir Gali, Gandhi ARC. No. 1281/2016 Gopal Kishan Vs. Kalu Ram Page 12/20 Nagar, Delhi 31 is lying vacant, therefore the requirement of elder son of petitioner for go down can be fulfilled by the third floor of the said property. Respondent has also filed CD and photograph to show that both sons of respondent are sitting at the shop no. IX/6301 Jain Mandir, Gandhi Nagar, Delhi

31. The petitioner in the petition itself stated that the elder son of the petitioner is running a wholesale garments shop IX /6224 Mukherjee Nagar Gali, Gandhi Nagar, Delhi and this fact is not denied by the respondent that the said shop is not run by the son of petitioner rather the respondent has taken defence that the said shop is run by both sons of the petitioner. If a shop is run by a person then a person always require a go down to store the extra material which can be readily available to the shopkeeper unless he has store in the shop itself but in this present case area of shop size of Mr. Manish is 8' x 18" feet, therefore it cannot be said that the requirement of the elder son of the petitioner is of additional accommodation. Respondent has alleged that both sons of respondent are running the said wholesale readymade garments shop. Both sons of respondent are individual identity and both have their constitutional right as per article 19 of Indian Constitutional to practice any profession, or to carry on any occupation, trade or business. Therefore, even if the younger son of petitioner was available at the said shop then it does not mean that the younger son of the petitioner does not have right to open his separate shop. It is not disputed fact that the sons of the petitioners are not major, therefore the requirement of younger son of the petitioner is in addition to the shop which is being run at IX/6624 Gandhi Nagar, Delhi. Petitioner in the petition itself stated that the rooms situated on third floor are in possession of the petitioner and in reply to leave to defend in para G, the petitioner stated that the third floor of the property in question is not vacant but petitioner has not disclosed for what purpose the rooms on the third floor has to be used by the petitioner, therefore the requirement of the petitioner for ARC. No. 1281/2016 Gopal Kishan Vs. Kalu Ram Page 13/20 godown of his elder son can be fulfilled from third floor of property no. IX/6301 Jain Mandir Gali, Gandhi Nagar, Delhi. Now still the petitioner has requirement for his younger son Mr. Vijay and two married daughters Mrs. Manju Goswami and Mrs. Anju Goswami.

26. The respondent has mentioned that the petitioner has not mentioned his family income i.e. the income of the petitioner, rental income, income of the son of the petitioner. Petitioner has sought recovery of possession of the ground for bonafide requirement of his elder son for go down, younger son of the petitioner who is unemployed, two daughters of the petitioner who are highly educated. Non filing of family income does not raise a triable issue as the requirement of sons of petitioner, daughters of petitioner has to be seen separately and they cannot be expected to be remain dependent on the petitioner forever.

27. Respondent has alleged that the petitioner has concealed alternative suitable accommodation i.e. first floor and second floor of property bearing no. IX/6624 Gali Mukherjee Nagar, Gandhi Nagar, Delhi 31 and property no. 74/4B, gali n. 2, East Azad Nagar, Delhi. Petitioner has denied that the said abovesaid property's first and second floor of IX/6624 Mukherjee Gali, Gandhi Nagar, Delhi belongs to petitioner rather stated that only the shop on the ground floor of property bearing no. IX/6624 is in possession of son of petitioner and belongs to wife of petitoner. Respondent has not filed any document to show that the whole property bearing no. IX /6624 Gandhi Nagar, Delhi belongs to respondent and it is mere averment of the respondent without any documentary proof. Property no. 76/4B Gali no. 12 East Azad Nagar Krishna Nagar, Delhi is residential property of petitioner in the name of his wife but the respondent has ARC. No. 1281/2016 Gopal Kishan Vs. Kalu Ram Page 14/20 mentioned the said property as 74/4B Gali no. 2. No photograph of the property no. 76/4B has been filed by the respondent to show that the said property is having shops or the shops are present near the property no. 76/4B, Gali no. 12 East Azad Nagar, Krishna Nagar, Delhi so that the same property can be used for commercial purpose and if the respondent wants to say that the property number is 74/4B Gali no. 2, East Azad Nagar, Krishna Nagar Delhi and not 76/4B then he has not filed any document of the property no. 74/4B in the name of petitioner and it is merely averment of the respondent without any proof.

28. Respondent has also taken defence that during pendency of the proceedings, two shops have been sold to one Mr. Anil Kumar Mundra vide registered sale deed 07.09.2017 and with respect to these shops, eviction petitions were filed by the petitioner against the tenants Mr. Anil Kumar Mundra and Mr. Deen Dayal. Petitioner has replied to the said defence that at the time of filing of petition, the younger son of the petitioner Mr. Manish was unmarried but suddenly the engagement of Manish was fixed and date of marriage was fixed as 23.11.2017, accordingly the petitioner was in need of money for marriage of his son, therefore the petitioner has sold two shops to the existing tenant Mr. Anil Kumar Mundra and Mr. Deen Dayal and Mr. Deen Dayal is brother in law of Mr. Anil Kumar Mundra, therefore single sale deed was prepared of two shops in favour of Mr. Anil Kumar Mundra and the second shop was vacated by Mr. Ashwani. Petitioner also replied that both the shops were sold for the amount of Rs. 16, 50, 000/ just to bear expenses of marriage ceremony of his son Mr. Manish and also filed a copy of the marriage card of Mr. Manish with Ms. Shikha and the date of marriage was 23.11.2017. The fact of marriage of son of petitioner Mr. Manish is not denied by the respondent, therefore it is a admitted fact that the son of petitioner Mr. Manish got married on 23.11.2017. In the judgment of "Amba ARC. No. 1281/2016 Gopal Kishan Vs. Kalu Ram Page 15/20 Das Khanduji Shinde & ors. Vs. Ashok Sadashiv Mamukar & Ors. 2017 (3) Civil court cases 824 (S.C), it was held that sale of two shops by the landlords on 24th September, 2004 and 13th May 2005 was admittedly to existing tenants in occupation of the shops. This is not a case where the landlord has obtained vacant possession of shops which were earlier given on rent and thereafter sold them as vacant units to a third party in an armslength transaction. The fact that the sale by the landlord was to existing tenants is an important circumstance which supports the finding of the trial court that in such a situation the sale would be by reason of financial need or in compelling circumstances" . In the present case also, the two shops have been sold to the existing tenant Mr. Anil Kumar Mundra and even the marriage card of younger son of petitioner has been placed on record to show that the abovesaid shops were sold to meet financial expenditure of marriage of Mr. Manish. In Indian society, marriage is very sacrosanct and people used to spend lot of money on marriage some times even beyond their limit and even after taking financial help from others and every submissions of landlord must not be looked with suspicion applied the test of criminal jurisprudence to prove beyond reasonable doubt [John Impex Private Limited Vs. Dr. Surender Singh and Ors. (2006) 135, DLT 265], therefore I do not find any triable issue in this submissions of respondent as the petitioner has sufficiently explained his financial needs for marriage of his son and for that he sold two shops.

29. The respondent has averred that the education documents of the daughters of petitioners have not been placed on record and it is also not placed where the daughters of petitioners have applied for services. Respondent has nowhere categorically denied that the daughter of petitioner Ms. Manju Goswami ARC. No. 1281/2016 Gopal Kishan Vs. Kalu Ram Page 16/20 is not M. Sc Biotech and another daughter Ms. Anju Goswami is not doing Phd (finance) from Roorkee, IIT and only one year was remaining for completion at time of filing of petition on 09.11.2016. The term 'family' must always be liberally and broadly construed so as to include near relatives of the head of the family. It would include not only the members of the landlord's family but also those persons who are dependent on him and whose responsibility he has accepted (Kanhaiyalal v. Bapurao, 1989 (1) RCJ 161). The word 'dependent' is not restricted to persons financially dependent but is comprehensive enough to include persons who are dependent on landlord for residential accommodation. Meaning thereby that if a family member is financially not dependent upon the landlord then it does not mean that he is not dependent upon the landlord for residence (Gobind Dass v. Kuldip Singh, AIR 1971 Delhi 151 DB). Dependent member of landlords family means dependent for accommodation and not financially (M.M. Mehta v. Chaman Lal, ILR1980 (1) Del 94. Hon'ble Supreme Court had held that the word 'family; has to be given not a restricted but a wider meaning so as to include not only the head of the family but all members of descendents from the common ancestor who are living together in the same house (Baldev Sahai Bangia v. R. C. Bhasin, AIR 1982 SC 1091).

30. In the judgment Rajender Kumar Sharma and Ors. Vs. Smt. Leela Wati and Ors. (2008) 155 DLT 383 it was held that the requirement of the married daughter is on the same footage as requirement of the son. In view of the abovesaid judgment it can be said that in Indian Society, the child is dependent upon parent for requirement of the immovable property even if the child is not financially dependent upon the parents. Accordingly, nowhere it has come on record that the daughters of petitioner are working somewhere and they do not ARC. No. 1281/2016 Gopal Kishan Vs. Kalu Ram Page 17/20 require the space in question. Daughters of the petitioner want to open a tuition centre and both of them are highly educated, therefore the averment of respondent does not raise a triable issue.

31. Respondent is living in the tenanted premises for the last 30 years and the premises was not sought by the petitioner for the last 30 years and respondent enjoyed the tenanted premises for the last 15 years and now the petitioner has requirement, therefore he has filed the eviction petition against the respondent.

32. The fact remains that the petitioners is the best judge of his own requirements as also held by the Hon'ble Supreme Court time and again. It was held in Pavitra Devi (Smt.) vs. T.V. Krishnan (1996) 35 SCC 353; that the landlord is the best judge of his residential requirement. He has a complete freedom in the matter. 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. Moreover, in the judgment titled as Ragavendra Kumar v. Firm Prem Machinary [AIR 2000 S.C.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.

33. Furthermore, In the judgment tiled as "Sarla Ahuja v. United India Insurance Co. Ltd." [AIR 1999 S.C. 100] it was held:

"...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 ARC. No. 1281/2016 Gopal Kishan Vs. Kalu Ram Page 18/20 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...."

34. As such, I hold that the requirement of the petitioner for settling the business of his younger son Mr. Manish and coaching centre jointly by two daughters namely, Mrs. Manju Goswami and Mrs. Anju Goswami is bonafide requirement. Moreover, respondent has also failed to show that the petitioner has other suitable accommodation for his bonafide requirement.

35. Therefore, in view of above mentioned position of law, the present contention of the respondent does not raise any triable issue of such a nature that would disentitle the landlord from obtaining an order for the recovery of possession of the suit premises.

Conclusion:

36. In view of the above discussion, I am of the considered opinion that no purpose would be served, even if, the petitioners is compelled to appear in the witness box. The position would be no different than it is today. For this ARC. No. 1281/2016 Gopal Kishan Vs. Kalu Ram Page 19/20 reason also, I find no triable issue in the leave to defend application of the respondent.

37. Thus, if the court is satisfied that though in the pleadings, an issue is raised but that is not a triable issue, then the court is justified in refusing the leave to defend. The defence, which is practically a Moonshine, sham or illusory cannot be held to be raising a triable issue, as the whole purpose behind enacting a provision for granting leave to defend, and not permitting a contest unless leave was granted, would stand defeated.

38. In the facts and circumstances of the case noticed herein above, it is clear that the respondent has failed to raise any triable issues.

39. For the foregoing reasons, the application seeking leave to defend is hereby dismissed and as a necessary consequence thereof an eviction order is passed in favour of the petitioner and against the respondent for his eviction from shop no. 21 at first floor part of property No. IX/6301, Jai Mandir Gali, Gandhi Nagar, Delhi 110031, as shown in red in site plan filed with the petition, which is marked as Mark P1 (put by the court for the purpose of identification). However, in the light of Section 14 (7) of the DRC Act, the aforesaid eviction order shall not be executable for a period of six months from the date of this order. The parties are left to bear their own costs. File be consigned to the Record Room after due compliance.

Announced in open Court                                            (SUDHIR KUMAR SIROHI)
today on 15.12.2018                                                ACJ/CCJ/ARC/Shahdara
       SUDHIR                    Digitally signed by SUDHIR
                                 KUMAR SIROHI                    Karkardooma Courts/Delhi
       KUMAR                     Location: Shahdara
                                 Karkardooma Courts, Delhi
                                 Date: 2018.12.17 15:59:03
       SIROHI                    +0530
ARC. No. 1281/2016                    Gopal Kishan Vs. Kalu Ram                                            Page 20/20

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Delhi District Court

Sh. Gopal Kishan vs Sh. Kalu Ram on 15 December, 2018