Delhi District Court
Sh. Inderpal Singh Kochhar vs Sh. Davinder Kumar Khattar on 5 September, 2020
IN THE COURT OF SHRI AJAY NAGAR,
ADDITIONAL RENT CONTROLLER (WEST), TIS HAZARI
COURTS, DELHI.
ARC No: 140/2018
Sh. Inderpal Singh Kochhar
S/o Late Sh. Bhagat Singh Kochhar
R/o E-66, Jail Road, Guru Nanak Pura,
Hari Nagar, New Delhi-110058. ......Petitioner
VERSUS
1. Sh. Davinder Kumar Khattar
C/o M/s Creative Carpets
At E-67, Jail Road, Guru Nanak Pura,
Hari Nagar, New Delhi-110058.
2. Sh. Anil Kr. Khattar
C/o M/s Creative Carpets
At E-67, Jail Road, Guru Nanak Pura,
Hari Nagar, New Delhi-110058. .....Respondents
Date of filing : 01.11.2018 Date of Order : 05.09.2020 ORDER ON LEAVE TO DEFEND
1. By way of present petition, the petitioner is seeking eviction of respondents in respect of Shop on the Ground floor at property bearing No. E-67, Jail Road, Guru Nanak Pura, Hari Nagar, New Delhi-110058 as shown in red colour in the site plan (hereinafter referred to as "Tenanted Premises"), Under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act").
2. The case of the petitioner is that the petitioner is the owner and landlord of the tenanted premises. That initially property bearing No. E-66-67, Jail Road, Guru Nanak Pura, Hari Nagar, New Delhi- 110058 was owned by father of the petitioner. That the father of the ARC No: 140/2018 Sh. Inder Pal Kochhar Vs. Sh. Davinder Kr. Khattar & Anr. Page 1 /19 petitioner executed a registered Will dated 10.03.2003, whereby the property bearing No. E-66-67, Jail Road, Guru Nanak Pura, Hari Nagar, New Delhi-110058 consisting of First floor, Second floor, Third floor along with Ground floor and Basement were bequeathed in favour of the petitioner and his two brothers namely S. Gurnaam Singh Kochhar and S. Randhir Singh Kochhar. That father of the petitioner died on 04.03.2006 leaving behind petitioner along with his two above mentioned brothers and mother namely Smt. Satwant Kaur.
It is also averred by the petitioner that the mother of the petitioner also expired on 27.10.2006. Thereafter, the petitioner along with his two brothers entered into family settlement dated 16.04.2014, whereby the Ground floor portion wherein the tenanted premises is located came to the share of petitioner along with entire third floor. That the ground floor consisted of 06 shops including tenanted premises. Out of which one shop shown in green colour shown in the site plan is in possession of the petitioner which is being used by him for running his Insurance Agency and for earning his livelihood. The shop shown in yellow colour in the site plan is in occupation of the tenant. Another shop in pink colour has been let out to a tenant Sh. Ram Babu for running his furniture business. That one shop shown in blue colour attached with the site plan has been let out to a tenant namely Sh. Sachpreet Singh who is running his office in the name and style of Sachpreet Associates. That another shop on the ground floor shown in green colour is in possession of a tenant namely Sh. Raghuraj Singh Bedi who is running his business in the name and style of M/s Take Care Travels.
It is also averred by the petitioner that the third floor of the aforesaid property (E-66-67) shown in gray colour is being used for residence of the petitioner and his family including his married son.
ARC No: 140/2018 Sh. Inder Pal Kochhar Vs. Sh. Davinder Kr. Khattar & Anr. Page 2 /19That the portion shown in purple colour on the third floor is in occupation of tenants. That apart from the said property, the petitioner and his son do not own any other property in Delhi.
Lastly, it is prayed by the petitioner that an eviction order may be passed in favour of the petitioner and against the respondents.
3. Notice of this eviction petition was sent to the respondents in the prescribed format which was duly served on the respondents. In response to which, the respondents filed their leave to defend application accompanied by affidavits.
4. Reply to leave to defend filed by the petitioner refuting the pleas taken by respondent in the leave to defend.
5. I have carefully and minutely gone through the petition, leave to defend application accompanied by affidavits, reply accompanied by counter affidavit, rejoinder, documents, material on record, written submissions and case law relied upon.
6. Perusal of record shows that the respondents have sought the leave to defend on several grounds which will be discussed exhaustively later on.
7. Reply to leave to defend was also filed by the petitioner which will also be discussed exhaustively later on.
THE LAW:
It is well settled that 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 ARC No: 140/2018 Sh. Inder Pal Kochhar Vs. Sh. Davinder Kr. Khattar & Anr. Page 3 /19 of the possession of the premises on the ground specified in clause
(e) are good enough to grant leave to defend.
It is further well settled 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. 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 25 B(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 landlord to recover possession of the premises from a tenant. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to her and her family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction.
It is also well settled 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 where either frivolous, untenable or most unreasonable.
It is also well settled that when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire.
In short and substance wholly frivolous and totally untenable ARC No: 140/2018 Sh. Inder Pal Kochhar Vs. Sh. Davinder Kr. Khattar & Anr. Page 4 /19 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. It would expeditious disposal of eviction petition so that a landlord need not to 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.
There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong 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.
8. I have carefully and minutely gone through eviction petition, leave to defend application accompanied by affidavits, reply/counter affidavit, rejoinder, documents and material on record as well as the written submissions and case law relied upon.
9. Some of the pleas taken by the respondents are that the respondents are doing the business in tenanted premises since 1979 when it was let out to the respondents by the father of petitioner but the petitioner has falsely stated that it was let out in the year 1991. That when the tenanted premises was let out to them Rs. 10,000/- was paid by them as Pagri to father of petitioner who assured them that the rent payable would be nominal. That the respondents tried to pay the rent to the petitioner but with the malafide intention, they ARC No: 140/2018 Sh. Inder Pal Kochhar Vs. Sh. Davinder Kr. Khattar & Anr. Page 5 /19 refused to accept it. That it is admitted fact that the rent of tenanted premises was Rs. 700/- Per Month excluding electricity charges. That the respondents have the only source of income from the tenanted premises. On the other hand, the petitioner has many source of income from various properties. That respondents are earning their livelihood from the tenanted premises by running the carpet business and if they are evicted, their livelihood would be affected adversely. That family settlement claimed by the petitioner is fabricated document. That petitioner himself has disclosed to the respondents that his son has taken a loan of Rs. 35,00,000/- from Laxmi Vias Bank against property in the year 2018 for running business by his son. This fact shows that the son of petitioner is already working/employed. That the petitioner has other properties and having handsome source of income and his son is attached with him. That apart from other shops, an approximately of same size as shown in yellow color is available with the petitioner but he has falsely concealed it. That no degree/certificate of training of his son has been produced by the petitioner. That no name of concern, firm or company, document or license regarding business of catering intended to be started by the son of the petitioner has been filed on record by the petitioner.
10. In reply, it is inter-alia submitted by the petitioner that the respondents have themselves admitted that it is respondent no. 1 only who is in possession of the tenanted premises and doing business.
The petitioner submits that it is wrong that the tenanted premises was let out after taking sum of Rs. 10,000/- as Pugry with the assurance to the respondents that despite price inflation or other fluctuations, the rent of the tenanted premises would be nominal.
ARC No: 140/2018 Sh. Inder Pal Kochhar Vs. Sh. Davinder Kr. Khattar & Anr. Page 6 /19That the respondents are habitual default in paying rent which is apparent from the reply wherein, it is admitted that the money order towards payment of rent for the period June 2017 to February 2019 has been sent only after receipt of the summons of the present petition. That the respondents have failed to give any specific properties which are alleged to be owned by the petitioner apart from the tenanted premises. It is also denied that the family settlement is a fabricated settlement and not valid in the eyes of law. It is also submitted that since the relationship of landlord and tenant is admitted by the respondents, the respondents are estopped from raising any plea towards ownership of tenanted premises. It is wrong and denied that the son of the petitioner is already running a business. It is denied by the petitioner that the petitioner has other properties and having handsome source of income. It is further denied that son of the petitioner is attached with the petitioner. It is further submitted that the petitioner has disclosed the entire portions of the property in his share and it is apparent from the site plan filed on record that the tenanted premises being on the main road and a corner shop is best suitable for the purpose of business to be started by the son of the petitioner.
11. It is expedient to discuss some relevant relevant case law which is as under:-
In the case titled as Sarla Ahuja Vs United India Insurance Co. Ltd. AIR 1999 SC 100, the Hon'ble Supreme Court has held that:-
"The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are ARC No: 140/2018 Sh. Inder Pal Kochhar Vs. Sh. Davinder Kr. Khattar & Anr. Page 7 /19 satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
In Shiv Sarup Gupta Vs Dr. Mahesh Chand Gupta AIR 1999 SC 2507, at pg-2512 in para 14 & 15, Hon'ble Supreme Court held that:-
"14. The availability of an alternate accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bonafides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the Court drawing an inference that the need of the landlord was not a felt need or the state of mind of the landlord was not honest, sincere, and natural. Secondly, another principal ingredient of Clause (e) of Sub-section (1) of Section 14 which speaks of non- availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied. Wherever another residential accommodation is shown to exist as available than the court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the court that the alternate residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant fact Ors. While considering the totality of the circumstances, the court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come."ARC No: 140/2018 Sh. Inder Pal Kochhar Vs. Sh. Davinder Kr. Khattar & Anr. Page 8 /19
In the case titled as Ragavendra Kumar Vs Firm Prem Machinery AIR 2000 SC 534, it was observed as under:-
"It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter, (See: Prativa Devi (Smt.) v. T.K Krishnan, [1996] 5 SCC
353. In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted."
The moral duty of a father/mother to help establish his/her son/daughter was also recognized by the Hon'ble Apex Court in "Joginder Pal Singh Vs. Naval Kishore Behal" [AIR 2002 SC 2256] in the following words:
"24........Keeping in view the social or socio-religious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord. If the requirement is of actual user of the premises by a person other than the landlord himself the Court shall with circumspection inquire : (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close inter-relation or identify nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the overlaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent."
In the case titled as Sri Ram Pasricha Vs. Jagan Nath & Ors 1976 AIR 2335, the Hon'ble Apex Court observed :-
"the relationship between the parties being that of landlord and tenant,only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped ARC No: 140/2018 Sh. Inder Pal Kochhar Vs. Sh. Davinder Kr. Khattar & Anr. Page 9 /19 from questioning the title of the landlord Under section 116 of the Indian Evidence Act. The tenant can not deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between the landlord and tenant question of title to the leased property is irrelevant."
Furthermore, in the case titled as Subhash Jain vs. Ravi Sehgal in RC Rev. No. 292/2013, the Hon'ble High Court of Delhi observed as under :-
"The other objection of the petitioner is also without any force that the sale deed dated 29th March, 1993 is a sham document. The petitioner cannot object the history of ownership of the suit property in view of the provisions of Section 116 of the Indian Evidence Act, as the tenant has no right to challenge the ownership of the landlord as he has not a contender to the suit property."
In the case of Ramesh Chand vs. Uganti Devi, 157 (2009) DLT 450 and Shanti Sharma vs. Ved Prabha, 1987 RLR 526 SC, wherein it was held that it is not the concern of the tenant as to how the landlord acquired the property.
In the case of Bharat Bhushan Vij vs. Arti Techchandani, 2008 (153) DLT 247 in paras 4 and 5 it was held as under :
"4. 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 his death, the premises has come in the hands of 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 ARC No: 140/2018 Sh. Inder Pal Kochhar Vs. Sh. Davinder Kr. Khattar & Anr. Page 10 /19 owner. Where no interpleader suit is filed by the tenant and the tenant continues in possession after death of the original owner without demur and without raising an objection against the person, who claims to have inherited the property under the 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 that there is a testament in his/her favour, he/she is deemed to have discharged his/her burden of proving the ownership 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 the original owner."
In view of the law laid down by the Hon'ble Apex Court and Hon'ble High Court of Delhi, the respondents have no right to dispute the title or ownership of the landlord. Moreover, it is well settled that the petitioner/landlord should be something more than the tenant and he is not required to prove his ownership in the absolute terms. It is sufficient for him to show that he is something more than the tenant.
12. One of the pleas taken by the respondents is that the family settlement claimed by the petitioner is fabricated document. On the other hand, the petitioner has denied the same.
It is well settled law that the respondent/tenant has no right to challenge the partition, family settlement or Will in favour of petitioner. It is the prerogative of the legal heirs to challenge the partition, Will etc. or to raise objections in filing such eviction petition. The respondent/tenant has no right to raise objection in this regard. Nothing has been placed on record to substantiate the plea that the other legal heirs have objected to filing of such eviction petition ARC No: 140/2018 Sh. Inder Pal Kochhar Vs. Sh. Davinder Kr. Khattar & Anr. Page 11 /19 before the court. It is also well settled that even a co-owner can file the eviction petition U/S 14(1)(e) of DRC Act even without impleading the other co-owners and the eviction petition can not be non-maintainable unless and until the objections are filed by the other co-owners in the eviction petition.
13. One of the contentions raised by the respondents is that the respondents have the only source of income from the tenanted premises. On the other hand, the petitioner has many source of income from various properties. That respondents are earning their livelihood from the tenanted premises by running the carpet business and if they are evicted, their livelihood would be affected adversely.
In the case titled as Raj Kumar Khanna vs. Parduman Singh passed in RC Rev. No. 548/2012 and C.M. No. 18936/2012 on 04.10.2013; the Hon'ble High court of Delhi observed as under:-
"17. In the case of Mohd. Ayub vs. Mukesh Chand (2012) 2 SCC 155 it was observed that the hardship appellants would suffer by not occupying their own premises would be far greater than the hardship the respondent would suffer by having moved out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be sole determinative factor."
In my considered view, the respondents certainly draw the sympathy of this court but it is also well settled that this kind of pleas are not to be weighed while deciding the leave to defend application filed U/S 14(1)(e) of DRC Act.
As such, in my view, this plea of the respondents also does not raise any triable issue which could disentitle the petitioner to obtain the eviction order in his favour.
ARC No: 140/2018 Sh. Inder Pal Kochhar Vs. Sh. Davinder Kr. Khattar & Anr. Page 12 /1914. As far as, employment of son of petitioner is concerned, it is well settled that a person is not supposed to remain unemployed till the disposal of the eviction petition. Furthermore, this Court is of the opinion that there is nothing malafide if the petitioner wants to have the tenanted premises for the purpose of settling his son in the business. Rather, the said requirement seems to be bonafide as he wants to settle his son for his livelihood and the tenant cannot stop the landlord/family member of landlord from starting any business for livelihood. The bonafide requirement of a landlord does not become malafide just because the son of petitioner wants to run business for his livelihood from his own property. The consequent hardship to tenant from eviction order could also not convert otherwise bonafide requirement into malafide requirement. In my view, it is a right of every person to excel in his/her life and a person is not supposed to be remained in same position. Even if it is assumed for the sake of arguments that the son of the petitioner is already doing some work as alleged by the respondents, in my view, he cannot be expected to remain idle till the disposal of the eviction petition to show his bonafide and the paucity of alternative commercial accommodation. In my considered view, every citizen in the country has not only the right but also the duty to work and to enhance the economic growth of Nation. As far as availing of loan from Laxmi Vias Bank for settling the business of his son by the petitioner or his son is concerned, no reliable material has been placed on record. Even if it is assumed for the sake of arguments that the petitioner or his son has availed such loan from the bank as alleged by the respondents, it does not show the malafide but the bonafide on the part of petitioner and his son as the petitioner wants to settle the business for his son at any cost so that he may earn the livelihood. As such, it is not a triable issue which could dis-entitle the petitioner to obtain the order of eviction ARC No: 140/2018 Sh. Inder Pal Kochhar Vs. Sh. Davinder Kr. Khattar & Anr. Page 13 /19 against the respondent.
In case titled as "Labhu Lal Vs. Sandhya Gupta" [2011(1) RCR,(Rent) 231 (Delhi)], it has been held that the children are very much dependent on the landlord for the purpose of setting up their business and such a requirement is a bonafide one.
In the judgment of Hon'ble Supreme Court in case titled as Raghunath G. Panhale (dead) through L.Rs. Vs. Chagan Lal Sundarji & Co. (1999) 8 SCC 1 wherein it was held that:-
"It will be seen that the trial court and the appellate court had clearly erred in law. They practically equated the test of "need or requirement" to be equivalent to "dire or absolute or compelling necessity". According to them, if the plaintiff had not permanently lost his job on account of the lockout or if he had not resigned his job, he could not be treated as a person without any means of livelihood, as contended by him and hence not entitled to an order for possession of the shop. This test, in our view, is not the proper test. A landlord need not lose his existing job nor resign it nor reach a level of starvation to contemplate that he must get possession of his premises for establishing a business. The manner in which the courts have gone into the meaning of "lockout" in the Industrial Disputes Act, 1947 appears to us to be nothing but a perverse approach to the problem. One cannot imagine that a landlord who is in service should first resign his job and wait for the unknown and uncertain result of a long-drawn litigation. If he resigned his job, he might indeed end up in utter poverty. Joblessness is not a condition precedent for seeking to get back one's premises. For that matter assuming the landlord was in a job and had not resigned it or assuming that pending the long-drawn litigation he started some other temporary water business to sustain himself, that would not be an indication that the need for establishing a grocery shop was not a bona fide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant".
In the case titled as Ram Babu Agarwal vs. Jay Kishan Das 2009(2) RCR 455, the Hon'ble Apex Court observed as under:-
"However, as regards the question of bonafide ARC No: 140/2018 Sh. Inder Pal Kochhar Vs. Sh. Davinder Kr. Khattar & Anr. Page 14 /19 need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to do footwear business in the premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also."
In the case titled as Lajpat Rai Vs Raman Jain 2012 Law suit (Del) 1439, it was observed by Hon'ble High Court as under:-
"The facts have been disclosed by the petitioners himself in the eviction petition; the petitioners also being a commerce graduate from the Shri Ram College of Commerce seeks an independent business of his own; thus this need to set up a business of his own cannot be in any manner be said to be imaginative or a need which is moonshine; it is a genuine need; the present petitioners having inherited this shop from his grandmother by virtue of the aforenoted Will wishes to set up his own business of rubber and latex which he was earlier carrying on with his father and in which he has gained expertise and knowledge. Thus in no manner can it be said that this need of the landlord is not a bonafide need. The landlord is the best judge of his requirement; it is not for the tenant to dictate terms to him; neither the Court tell him the manner he wishes to set up his business."
15. One of the pleas taken by the respondents is that the rent of tenanted premises was Rs. 700/- Per Month excluding electricity charges. That the respondents are doing the business in tenanted premises since 1979 when it was let out to the respondents by the father of petitioner but the petitioner has falsely stated that it was let out in the year 1991. That when the tenanted premises was let out to them Rs. 10,000/- was paid by them as Pagri to father of petitioner who assured them that the rent payable would be nominal. That the ARC No: 140/2018 Sh. Inder Pal Kochhar Vs. Sh. Davinder Kr. Khattar & Anr. Page 15 /19 respondents tried to pay the rent to the petitioner but with the malafide intention, they refused to accept it.
It is well settled proposition of law that Pagri is not admissible in the eyes of law as D.R.C. Act itself prohibits it. As far as refusal of acceptance of rent by the petitioner is concerned, D.R.C. Act itself provides remedy against it. As such, these are not triable issues which could dis-entitle the petitioner to obtain the order of eviction against the respondents.
16. Some of the pleas taken by the respondents is that apart from other shops, an approximately of same size as shown in yellow color is available with the petitioner but he has falsely concealed it. That no degree/certificate of training of his son has been produced by the petitioner. That no name of concern, firm or company, document or license regarding business of catering intended to be started by the son of the petitioner has been filed on record by the petitioner.
On the other hand, the petitioner has denied the fact of availability of alternative reasonably suitable commercial accommodation for satisfying the bonafide need as raised in the present eviction petition.
Perusal of record shows that although the respondents have taken the plea of availability of accommodation in yellow colour as shown by the petitioner in his site plan but no site plan has been filed by the respondents in the present eviction petition. Moreover, this plea taken by the respondents is a vague plea. No details thereof has been given by the respondents in his leave to defend. Moreover, no reliable document has been placed on record to fortify this plea by the respondents.
It is well settled proposition of law that it is not sufficient that any kind of the property should be available to the petitioner/landlord ARC No: 140/2018 Sh. Inder Pal Kochhar Vs. Sh. Davinder Kr. Khattar & Anr. Page 16 /19 to rule out the benefit of 14(1)(e) of D.R.C. Act. The property available with the petitioner/landlord should also be reasonably suitable property. If the petitioner/landlord has filed the eviction petition for commercial bonafide requirement but the property available with the petitioner is residential one, it cannot be said that the petitioner is having the alternative reasonably suitable commercial accommodation.
It is well settled whether the property available with the petitioner is convenient and suitable or not is to be determined from the point of view of the petitioner/landlord and not from the point of view of the tenant/respondent. The respondent/tenant cannot dictate the terms to the petitioner to use the property in the particular manner. The petitioner/landlord is the best judge of his requirement.
Moreover, as far as other properties available with the petitioner is concerned, even if it is assumed for the sake of arguments that other properties are available on the upper floor and can be used commercially, it is commonly known that footfall of the customers on the ground floor and main road are always on the higher side in comparison to the upper floors and arteries and the Landlord of the suit property is not supposed to face the financial loss merely to save the tenancy of a tenant.
As such in my considered view, the petitioner is not having the alternative reasonably suitable commercial accommodation with him to satisfy the bonafide requirement as raised in the present petition. Moreover, the respondents have not been able to prove on record that the petitioner is having malafide and alternative reasonably suitable commercial accommodation.
As far as filing of certificate/degree in respect of training/ experience of the son of the petitioner is concerned, law does not require it.
ARC No: 140/2018 Sh. Inder Pal Kochhar Vs. Sh. Davinder Kr. Khattar & Anr. Page 17 /19As far as mentioning of name of company to be started or nature of work is concerned, it is also not mandatory to disclose. It is well settled proposition of law that the petitioner can start a different type of business in the tenanted premises after its vacation and he is not bound to start the same business or profession as stated in his petition U/Sec. 14(1)(e) of D.R.C. Act.
As far as plea in respect of inception of tenancy is concerned, this could be an issue but not a triable issue which could dis-entitle the petitioner to obtain the order of eviction against the respondents as the landlordship of the father of the petitioner and also of the petitioner is admitted by the respondents in the present eviction petition.
17. Perusal of record shows that some case law have been relied upon by the parties. I have gone through the case law relied upon by Ld. Counsel for the parties. The case law relied upon the respondents do not assist the respondents in view of the exhaustive discussion as earlier, peculiar facts of the case, settled law and material on record.
CONCLUSION:-
18. In view of the above discussion, I find no triable issue in the leave to defend application of the respondents which could dis-entitle the petitioner to obtain an eviction order in his favour. The application for leave to defend filed by the respondents is thus, dismissed.
19. Hence, as a consequence thereof, an eviction order is passed U/s. 14 (1) (e) of DRC Act in favour of petitioner and against the respondent in respect of the tenanted premises i.e. Shop on the ARC No: 140/2018 Sh. Inder Pal Kochhar Vs. Sh. Davinder Kr. Khattar & Anr. Page 18 /19 Ground floor at property bearing No. E-67, Jail Road, Guru Nanak Pura, Hari Nagar, New Delhi-110058 as shown in red colour in the site plan which is marked as Mark- P1 (Put by the court for the purpose of identification).
20. However, this order shall not be operative before the expiry of six months from today keeping in view Sec. 14(7) of D.R.C. Act.
21. File be consigned to the Record Room after due compliance.
Announced in open court on 5th September, 2020 (This order contains 19 pages) (AJAY NAGAR) Additional Rent Controller, West District, THC/Delhi.
ARC No: 140/2018 Sh. Inder Pal Kochhar Vs. Sh. Davinder Kr. Khattar & Anr. Page 19 /19