Delhi District Court
Sh. Parveen Kumar Jain vs Smt. Anita Jain on 25 January, 2022
IN THE COURT OF MS. SNIGDHA SARVARIA,
ACJ-cum-CCJ-cum-ARC, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI.
RC ARC No : 302/2018
Sh. Parveen Kumar Jain
s/o Sh. Nathu Ram Jain
r/o House no. 1754-E,
Gali no. 5, Near Sabi Mandi,
Kailash Nagar,
Delhi-110031 ......... Petitioner
Versus.
Smt. Anita Jain
w/o Sh. Salekh Chand Jain
r/o 9/1754, Gali no. 5,
Circular Road,
Kailash Nagar,
Delhi-110031
Also at :-
r/o 9/1775, Gali no. 1,
Circular Road,
Kailash Nagar
Delhi-110031 ......... 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 (DRC Act) seeking leave to defend filed by the respondent.
2. The brief facts of the case are that the petitioner has filed a petition for eviction of tenant/respondent u/s 14(1)(e) of DRC Act stating that property i.e. ground floor shop in house no. 1754-E, Gali no. 5, Near Sabzi Mandi, Kailash Nagar, Delhi-
Digitally
signed by
RC ARC No : 302/2018 Parveen Kumar Jain Vs. Anita Jain SNIGDHA
SNIGDHA
SARVARIA 1 of 18
SARVARIA Date:
2022.01.25
13:43:49
+0530
110031, is a residential-cum-commercial property with two shops on the ground floor (commercial in nature) and comprises of first floor, second floor, third and fourth floor. From the first floor to fourth floor, the entire property is residential where the family members of the petitioner stay except for one room on the first floor which is on rent. The only commercial area in the entire property are two ground floor shops which are under the tenancy of the respondent. It is stated that the shop under the tenancy of the respondent is required bonafidely by the petitioner as it is a shop which has much better location than the other tenanted shop. The shop required by the petitioner is 8'4" * 23'3" in measurement which makes it conducive for the requirement of the petitioner since son of the petitioner wants to start his business of wholesale stationary. It is stated that the other tenanted shop has a much smaller size and that a staircase is going through the shop which does not suit the requirement of the petitioner at the moment. The family of the petitioner consists of the petitioner, his wife, two sons i.e. Puneet Jain and Krishna Jain. It is stated that Puneet Jain is married and is currently unemployed while Krishna Jain is studying. The petitioner has three daughters i.e. Preeti Jain, Garima Gupta and Priya Jain. Smt. Garima Gupta is married and staying with her in-laws while Smt. Preeti Jain is married but is presently involved in marital dispute with her husband and due to that she is also staying with the petitioner and his family. Priya Jain is currently unmarried and is working along with petitioner and currently operating from the tenanted shop. It is stated that the wife of the petitioner has a small stationary shop at property bearing no. IX/2185, Gali no. 9, Kailash Nagar, Delhi which she operates on her own. The petitioner himself is operating from the small tenanted shop at property bearing no. IX/2202, Gali no. 9, Kailash Nagar, Delhi along with daughter Priya Jain also does some gifts and toys business. The landlord of the shop from where the petitioner operates his business has instructed the petitioner to vacate the said shop. It is stated that shop under the tenancy of the respondent is required bonafidely by petitioner since one of the sons namely Sh. Puneet Jain who is married and has a family to support and petitioner wants to settle his son so that he can start his own business of wholesale stationary. It has come to knowledge of the petitioner that respondent has a number of properties in this particular area itself and as such has RC ARC No : 302/2018 Parveen Kumar Jain Vs. Anita Jain Digitally signed 2 of 18 by SNIGDHA SARVARIA SNIGDHA Date:
SARVARIA 2022.01.25 13:44:20 +0530 sufficient alternate accommodation at her disposal. It is stated that apart from tenanted shop the respondent has another commercial property under her ownership at property bearing no. IX/1775, Gali no. 1, Kailash Nagar, Delhi wherein the respondent and her family is the owner of the above mentioned and has two shops on the ground floor as well as all the above floors under her possession in the said property. It is prayed that eviction order may be passed in favour of the petitioner and against the respondent qua the aforesaid premises.
3. The respondent was summoned vide order dated 25.09.2018 and was served with the summons of this petition on 02.11.2018, thereafter, affidavit seeking leave to defend under S. 25 B of the DRC Act was filed by the respondent on 16.11.2018 and the petitioner filed counter affidavit to it on 11.02.2019.
4. In the affidavit seeking leave to defend under S. 25 B of the DRC Act, the respondent has stated that the respondent took the shop in question on rent from its erstwhile owner namely Deepak Jain in the year 1989 and it was agreed between the parties that Sh. Deepak Jain will not get vacate the said shop from the respondent in any manner and he also assured that when he will sell the said person will also not get vacate the said shop from the respondent. It is stated that two shops are situated in the property in question out of which one is in possession of the respondent and another is in possession of Rakesh Jain which is the bigger shop than the shop of respondent. Smt. Poonam Jain has transferred the aforesaid property in favour of her husband i.e. petitioner and executed a sale deed in his favour and fraudulently she has not mentioned about the shop in question in sale deed with her ulterior motive, as such petitioner has no right to get vacate the shop in question from respondent. The respondent is having electricity connection in her name on the shop in question and she is paying electricity charges and house tax of the shop in question @ Rs.1350/- per annum. It is stated that the respondent is running the shop in question for her livelihood and she has no other commercial property of shop to earn her livelihood. The respondent is residing separately from her husband and her husband is not helping her in any manner and respondent is running the shop in question with her son Ravi Jain. The son of petitioner is RC ARC No : 302/2018 Parveen Kumar Jain Vs. Anita Jain Digitally signed by 3 of 18 SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:44:43 +0530 running a shop which is situated in property bearing no. 2185, Gali no. 9, Kailash Nagar, Gandhi Nagar, Delhi. The petitioner is having three shops. It is stated that the petitioner is having more than 10 tenants in his properties but he put his son in a rented accommodation with his ulterior motive to get vacate the shop in question from respondent. The respondent paid the rent till the year 2012 @ Rs.330/- per month and in the year 2013 the rent was @ Rs.370/- per month but in the year 2014, the petitioner intentionally and malafidely enhanced the rent to Rs.700/- per month, as such respondent was compelled to pay the said rent @Rs.700/- per month.
5. The petitioners in their counter affidavit 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.
6. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
7. The Supreme Court had in "Inderjeet Kaur Vs.Nirpal Singh", [2000]Supp 5 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 RC ARC No : 302/2018 Parveen Kumar Jain Vs. Anita Jain Digitally signed by 4 of 18 SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:45:02 +0530 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 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 RC ARC No : 302/2018 Parveen Kumar Jain Vs. Anita Jain Digitally 5 of 18 signed by SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:45:24 +0530 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........................................................."
8. 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..........................."
9. 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;
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.
10. 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.
11. For the purposes of leave to defend, the respondent had to show some defence which would disentitle the petitioner of the relief claimed.
12. The respondent has admitted that she is paying rent @ Rs. 700/- per month excluding electricity and other charges to the petitioner but has stated that the wife of the petitioner Poonam Jain has executed the registered sale deed dated 09.11.1995 qua RC ARC No : 302/2018 Parveen Kumar Jain Vs. Anita Jain Digitally 6 of 18 signed by SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:45:43 +0530 property no. 1754 E Gali no. 5 Near Sabzi Mandi, Kailash Nagar, Delhi-110031 in favour of the petitioner but has not disclosed about the shop in question therein so the petitioner is not entitled to file this petition. The petitioner on the other hand relies on the registered sale deed dated 09.11.1995 to contend that he is the owner of the property in question and has relied on rent reciepts to show landlord-tenant relationship between the parties. In this behalf, the judgment of Hon'ble Delhi High Court in PlastiChemicals Company v. Ashit Chadha and Anr 114 (2004) DLT 408, 2004 (76) DRJ 654 says that if a landlord is able to show by producing a document of his ownership on record, landlord is deemed to have discharged his burden of ownership vis-a-vis the Rent Control Act and such a document can at best be challenged by the heirs of the owner and not by the tenant. The fact that in the case herein the petitioner is claiming his ownership and thus landlordship of the tenanted premises in question by virtue of the registered sale deed dated 09.11.1995 executed by his wife in his favour, the tenants i.e. respondents herein cannot assail now that petitioner is not the landlord. Also, it has not been stated by the respondent that if the petitioner is not the owner/landlord then who is the owner/landlord of the tenanted premises in question. The respondent is estopped under S. 116 of the Indian Evidence Act from assailing the title of the landlord.
13. In Ramesh Chand vs. Uganti Devi reported as 157 (2009) DLT 450 the Hon'ble High Court of Delhi held:
".......... The imperfectness of the title of the premises cannot stand in the way an eviction petition under section 14 (1) (e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent acts dishonestly........."
14. Furthermore, since the rent had been paid by the respondent to the predecessor-in- interest of the petitioner i.e. previous owner Sh. Deepak Jain who had inducted the respondent as a tenant in the shop in question in the year 1989, as well as the petitioner, she is now estopped from denying the title of the petitioner under Section 116 of the Evidence Act. The Hon'ble Supreme Court in the case of Bansraj Laltaprasad Mishra v. Stanley Parker Jones (2006) 3 SCC 91 held that: Digitally signed by SNIGDHA SNIGDHA SARVARIA RC ARC No : 302/2018 Parveen Kumar Jain Vs. Anita Jain SARVARIA Date: 7 of 18 2022.01.25 13:45:59 +0530 ".....13. The underlying policy of section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement, then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said section.
14. The principle of estoppel arising from the contract of tenancy is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord situation taking undue advantage of the possession that he got and any probable defect in the title of his landlord. It is on account of such a contract of tenancy and as a result of the tenant's entry into possession on the admission of the landlord's title that the principle of estoppel is attracted.
15. Section 116 enumerates the principle of estoppel which is merely an extension of the principle that no person is allowed to approbate and reprobate at the same time......."
15. In another case titled as Atyam Veerraju v. Pechetti Venkanna (1996) 1 SCR 831, the Hon'ble Supreme Court quoted with approval the judgment of the Privy Counsel in Bilas Kunwar v. Desraj Ranjit Singh, wherein it was observed as follows:
" A tenant who has been let into possession cannot deny his landlords title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord."
16. The principle attracted herein is once a tenant always a tenant. The tenant cannot dispute the title of his landlord or his successor-in-interest. Since the predecessor-in- interest of the petitioner had inducted the predecessor-in-interest of the respondent as a tenant, the respondent is estopped from challenging the title of the petitioner, in view of the provisions of section 116 of the Evidence Act. Further, if the transfer of the landlord's title is valid, and even if the tenancy is not attorned in favour of the transferee, the lease continues. Thus, a transferee of the landlord's rights, steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. Attornment by the tenant is unnecessary to confer validity to the transfer of the landlord's rights and there is no such statutory requirement. Reference may be made to the case of Hajee K. Assainar vs. Chacku Joseph AIR 1984 Ker 113. In the case of Mahendra Raghunathdas Gupta vs. Vishvanath Bhikaji Mogul AIR 1997 SC 2437, it was held that attornment by tenant is not necessary though it is desirable.
17. Thus, the petitioner is the owner of the tenanted premises and that there is a relationship of landlord and tenant between the petitioner and the respondent herein in respect of the tenanted premises for the purpose of section 14 (1) (e) of Delhi Rent Control Digitally RC ARC No : 302/2018 Parveen Kumar Jain Vs. Anita Jain signed by 8 of 18 SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:46:15 +0530 Act.
18. It is stated by the respondent that the site plan is wrong as according to the site plan the petitioner has shown property built upto 5 th floor however the petitioner has raised illegal construction upto 6th floor. But the respondent has not placed on record any document in support of this contention and in the present case the respondent/tenant has not filed any site plan of her own. Mere bald averments in this regard is of no assistance to the respondent. Thus, the said submission is without any merits. Furthermore, it has been held in Rishal Singh Vs. Bohat Ram (2014) 144 DRJ 633 that when the tenant controverts the accuracy of the site plan filed by the landlord, he is required to file a copy of the site plan he believes to be correct so as to guide the Court in finding the discrepancies of the site plan filed by the landlord; without such site plan filed, mere contentions raised to this effect will be considered meritless. Hon'ble High Court of Delhi in Satish Kumar Vs. Subhash Chand Agarwal 2012 SCC OnLine Del 4447 (SLP (C) No.27431/2012 preferred where against was dismissed vide order dated 15th October, 2012) held that if a tenant does not file his site plan showing that the plan filed by the owner is incorrect, then, the site plan filed by the owner would be assumed to be correct. Reference can also be made to R.K. Bhatnagar Vs. Sushila Bhargava ILR (1987) II Delhi 607 and Ghanshyam Vs. Vijender 2014 SCC OnLine Del 3983 (SLP (C) No.3654/2015 preferred where plea was dismissed vide order dated 27th February, 2015), to the same effect. Thus, the respondent tenant, without filing a site plan of his own, cannot dispute the site plan of the landlord. (See: Anil Bhasin vs Imarti Devi decided on 6 November, 2017 by Hon'ble High Court of Delhi in Crl Rev 266/2017.)
19. The respondent has stated that the shop in which the respondent is a tenant is smaller to the other shop under the tenancy of Sh. Rakesh Jain but has not placed any material on record to show the same. Mere bald averments in this regard is of no assistance to the respondent. Thus, the said submission is without any merits.
20. The respondent has assailed the maintainability of this petition on the ground that the present petition has been filed under S. 14 (1) (b) of the DRC Act and thus the Digitally RC ARC No : 302/2018 Parveen Kumar Jain Vs. Anita Jain signed by 9 of 18 SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:46:33 +0530 provisions under S. 25 B DRC Act are not applicable and the plea of bonafide requirement is not sustainable for petition under S. 14 (1) (b) of DRC Act. This plea of the respondent is without any merits as the mistake of mentioning S. 14 (1) (b) DRC Act instead of S. 14 (1)
(e) DRC Act has already been rectified by the petitioner by filing amendment application, which was allowed vide order dated 25.09.2018 by the Ld. Predecessor.
21. The averment of the respondent that respondent cannot be evicted as previous landlord Sh Deepak Jain had inducted the respondent in the shop in question in 1989 and it was agreed that he and the subsequent owner shall not evict the respondent is without any merits as there is nothing on paper in this regard and also if it is believed that there existed such an agreement then previous owner Sh Deepak Jain could not have bound the subsequent owner of the property with such a restriction when petitioner/subsequent owner did not authorize him.
22. The case of the petitioner is that the family of the petitioner consists of the petitioner, his wife, two sons, i.e Puneet Jain & Krishna Jain. It is submitted that Sh.Puneet Jain is married and is currently unemployed while Krishna Jain is studying. The petitioner has three daughters, i.e Preeti Jain, Garima Gupta and Priya Jain. It is submitted that the Smt.Garima Gupta is married and staying with her in-laws whereas Smt. Preeti Jain is married but is presently involved in marital dispute with her husband and so she is also staying with the petitioner and his family. It is submitted that Priya Jain is currently unmarried and is working along with the petitioner. That the shop under the tenancy of the respondent is required bonafide by the petitioner since one of the sons namely Sh. Puneet Jain who is married and has a family to look after is unemployed. That the petitioner thus requires the shop under the tenancy to settle his son so that he can start his own business of whole sale stationary. The petitioner is himself carrying out a small business from tenanted accommodation and is being pressurized by his landlord to vacate the tenanted shop and as such there is no other place to carry out the business. That the shop is thus bonafide required by the petitioner for the aforesaid purpose to settle his unemployed son. Digitally signed by SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:46:50 +0530 RC ARC No : 302/2018 Parveen Kumar Jain Vs. Anita Jain 10 of 18
23. It is no more res integra that a son can be dependant on his parents for accommodation, residential or commercial or both. It is also settled principle of law that the landlord is entitled to seek eviction of tenanted premises not only for himself/herself, but for other dependant family members. There is no dispute that the parents are under moral obligation to help establish their son in business and can seek eviction of the tenanted premises for them. Reference in this regard can be made to the case of Joginder Pal v. Naval Kishore Behal, (2002) 5 SCC 397, where the Supreme Court held that:
"The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use......... 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 the 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."
24. In Kharati Ram Khanna & Sons. vs. Krishna Luthra, 2010 (172) DLT 551, it was observed that the requirement of the landlord to settle down her two sons separately and independently was found to be genuine and bonafide. In Labhu Lal vs. Sandhya Gupta, 2010 (173) DLT 318, it was observed that the landlord's son and daughter in law are dependent for accommodation on respondent the requirement of the landlord's son and daughter in law for expanding clinic being run in premises in question is genuine. In Sh. Ravinder Singh v Sh. Deepesh Khorana (RC. Rev. No.3/2011, Date of decision:
10th December, 2012), it was observed that the son of the respondent is unemployed and is dependent on respondent for his livelihood. It is nothing but bona fide for the respondent to require the suit shop to set up a computer business for his son and to help him find a source of income and subsequently settle down in life. In Brij Mohan vs. Shri Pal Jain, 49 (1993) DLT 543, it was observed that it is settled law that grown up children require separate rooms to live in a manner he or she likes. In Ram Babu Aggarwal v. Jay Kishan Das, 2009 (2) RCR 455, the court recognized the right of the landlord for possession of his property for setting up a business for his son.
25. In view of the aforesaid discussions and case laws, the requirement of the RC ARC No : 302/2018 Parveen Kumar Jain Vs. Anita Jain Digitally signed by SNIGDHA SARVARIA 11 of 18 SNIGDHA Date:
SARVARIA 2022.01.25 13:47:07 +0530 petitioner as mentioned herein above is found to be genuine and bonafide and son of the petitioner is held to be dependant on the petitioner for the premises in question to run his business.
26. 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 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 Digitally RC ARC No : 302/2018 Parveen Kumar Jain Vs. Anita Jain signed by SNIGDHA 12 of 18 SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:47:25 +0530 tenant with a view to let it out again to another tenant at a higher rent.
27. 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 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."
28. 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 RC ARC No : 302/2018 Parveen Kumar Jain Vs. Anita Jain Digitally signed 13 of 18 by SNIGDHA SARVARIA SNIGDHA Date:
SARVARIA 2022.01.25 13:47:47 +0530 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....".
29. It is stated by the respondent that the son of the petitioner Puneet Jain is not unemployed and is doing business from shop in property no. 2185, Gali no. 9, Kailash Nagar, Gandhi Nagar, Delhi in the name and style of Garima Selection and has relied on photograph of the said business and premises wherein on the business board name of Puneet Jain is written. In this regard the petitioner stated that the wife of the petitioner has a small stationary shop at property bearing no.IX/2185, Gali No.9, Kailash Nagar, Delhi which she operates on her own. Mere mentioning on board the name of the son Puneet Jain is not sufficient to show that he has earnings from the said business. the photographs showing Puneet Jain sitting in the stationary shop also does not show that he is earning from business run by his mother. Even otherwise Puneet Jain can start his own independent business of wholesale stationary items for which the petitioner has shown the bonafide requirement.
30. It is stated by the respondent that the petitioner has 3 shops and also has shops in property no. 2202, Gali no. 9, Kailash Nagar, Gandhi Nagar, Delhi in the name of Garima Selection. It is stated that there are 10 tenants in the said property owned by the petitioner but he has kept his son Puneet in tenanted premises with ulterior motive in order to evict the respondent but this plea is of no assistance to the respondent as she has not shown by placing any material on record in this regard and mere bald averments in this regard are not sufficient. In this regard it is stated by the petitioner that the petitioner himself is operating from the small tenanted shop at property bearing no.IX/2202, Gali No.9, Kailash Nagar, Delhi along with her daughter Priya Jain and also does some gifts and toys business. The landlord of the shop from where the petitioner operates his business has instructed the petitioner to vacate the said shop. Also, in the reply to the application for leave RC ARC No : 302/2018 Parveen Kumar Jain Vs. Anita Jain Digitally signed by 14 of 18 SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:48:07 +0530 to defend it has been stated by the petitioner that the said tenanted shop in property bearing no.IX/2202, Gali No.9, Kailash Nagar, Delhi has been vacated by the petitioner. The photograph of Puneet Jain as per the respondent is of the stationary shop, which as per the petitioner is run by his wife, but the board carrying Puneet Jain's name is of Garima Selection ie the business of the petitioner which he was doing with his daughter and both the businesses were run from different premises, therefore, clearly, the submissions qua employment of Puneet Jain is vague and contradictory. There is nothing on record to show that apart from the 2 shops in 1754-E, Gali no. 5, Near Sabzi Mandi, Kailash Nagar, Delhi-110031 the petitioner owns any other property which is suitable for Puneet Jain, son of the petitioner, to run his business.
31. It is stated by the respondent that the shop adjacent to the shop in question in the same property was let out to Rakesh Jain in 2015 and the petitioner could have used the adjacent shop for his business or for business of his son Puneet Jain. This plea is without any merits as there is nothing on record to show that in 2015 the petitioner required a shop/accommodation. Even otherwise, the petitioner has already explained as mentioned hereinabove that the said shop under tenancy of Rakesh Jain is not suitable for starting the business for his son although he may require it later on.
32. 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 RC ARC No : 302/2018 Parveen Kumar Jain Vs. Anita Jain Digitally signed by 15 of 18 SNIGDHA SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:48:53 +0530 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 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.
33. In Adarsh Electricals and others 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."
34. The respondent has raised the plea that the petitioner has alternative suitable premises and thus this petition is not maintainable is without any merits as neither the respondent has brought forth any material to show an alternative suitable accommodation nor details of such alternative suitable accommodation is given. Clearly, this is a sham defence. 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).
35. Landlord is the best judge of his needs. It is well settled that it is not for the tenant Digitally RC ARC No : 302/2018 Parveen Kumar Jain Vs. Anita Jain signed by SNIGDHA 16 of 18 SNIGDHA SARVARIA SARVARIA Date:
2022.01.25 13:49:11 +0530 to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. From the aforesaid submissions of the petitioner, clearly, his need is bona fide. Herein the son of the petitioner is adult and need to stand on his feet and earn his own living. The respondent has not brought any material on record that the need or requirement of the petitioner is not genuine and bonafide. Also, there is no material on record to show that there is any alternative suitable accommodation for the petitioner apart from the tenanted premises in question. The petitioner-owner of the premises in question, is clearly not expected to accommodate himself and his family in tenanted shop when he bona fide requires the tenanted premises. In Mahendra Trivedi Vs. Jai Prakash Verma, 157 (2009) DLT 690 and Sudesh Kumar Soni & Anr. Vs. Prabhas Khanna & Anr. 153 (2008) DLT 652, it is held that If landlord wishes to live with comfort in a house of his own, law does not common or compel him to squeeze himself lightly into lesser premises protecting tenants occupancy.
36. The pleas qua other premises owned by the respondent, payment of rent, property tax, electricity meter in the name of the respondent and payment of elelctricity charges are not relevant for petition under S. 14 (1) (e) DRC Act and thus are not dealt with.
37. 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.
38. Conclusion:
In these circumstances, the applications for leave to defend filed by the respondent is dismissed and the respondent Anita Jain is liable to be evicted from the tenanted premises i.e. ground floor shop in house no. 1754-E, Gali no. 5, Near Sabzi Mandi, Kailash Nagar, Delhi-110031 as shown in red colour in the site plan (now exhibited as Ex P1) filed with the present petition. 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 would not be entitled to initiate execution RC ARC No : 302/2018 Parveen Kumar Jain Vs. Anita Jain Digitally signed 17 of 18 by SNIGDHA SARVARIA SNIGDHA Date:
SARVARIA 2022.01.25 13:49:28 +0530 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: 2022.01.25 13:49:44 +0530 Announced through VC (SNIGDHA SARVARIA) on 25th Day of January, 2022. ACJ/ARC/CCJ [This judgment contains 18 pages.] (SHAHDARA) KKD, DELHI.
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