Delhi District Court
Sh. Dinesh Sethi vs Sh. Sanjay Nagpal on 14 October, 2020
IN THE COURT OF SHRI AJAY NAGAR,
ADDITIONAL RENT CONTROLLER (WEST), TIS HAZARI
COURTS, DELHI.
ARC No: 02/2018
1. Sh. Dinesh Sethi,
S/o Sh. Satdev Sethi,
R/o 5/3, West Patel Nagar,
New Delhi-110008.
2. Sh. Rakesh Sethi,
S/o Sh. Satdev Sethi,
R/o 5/3, West Patel Nagar,
New Delhi-110008.
......Petitioners
VERSUS
Sh. Sanjay Nagpal
S/o Late Sh. Ramji Das Nagpal
Shop No. 2,
5/3, West Patel Nagar,
New Delhi-110008. .....Respondent.
Date of filing : 06.01.2018 Date of Order : 14.10.2020 ORDER ON LEAVE TO DEFEND
1. By way of present petition, the petitioners are seeking eviction of respondent in respect of Shop No. 2 forming part of premises No. 5/3, West Patel Nagar, New Delhi which is more specifically shown in red in the site plan attached (hereinafter referred to as "Tenanted Premises"), Under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act").
ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 1 /232. The case of the petitioners is that the tenanted premises was given on rent by the grandfather of the petitioners namely Sh. Sita Ram to Sh. Ramji Dass Nagpal (Father of respondent) vide Rent Note dated 11.11.1963 and after the death of Sh. Ramji Dass Nagpal, respondent became tenant of the tenanted premises and is running his business therein as claimed by him to be the only LR of Late Sh. Ramji Dass Nagpal to run the shop as his legal heir. That the present petitioners are the owners and landlords of the tenanted premises and thus, there exists relationship of landlord and tenant between the petitioners and respondent. That the petitioner No.1 needs the tenanted premises bonafide for his use as retail sale counter. He has no other commercial accommodation within the vicinity of Patel Nagar as he is staying with his family in property bearing No. 5/3, West Patel Nagar, New-Delhi. Besides, neither the petitioners nor his father have any alternative commercial accommodation from where petitioner No. 1 could start his business of sale of stainless steel articles. That father of petitioners is having an industrial plot at Wazir Pur bearing No. A-99, Group Industrial Area, Wazir Pur, Delhi where petitioners are doing business of trading of stainless steel utensils and other gift items, in the name and style of M/s Sethi Stainless Steel. That they are also having a joint showroom in the said premises. However, business is being done jointly by both the brothers in the premises referred to above at Wazir Pur. However, one of the brothers, namely, Sh. Dinesh Sethi wants to have his own independent shop for sale of stainless steel utensils, gifts etc. Petitioner No.1 needs tenanted premises for said ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 2 /23 purpose. That petitioners have no other property in Delhi from where Sh. Dinesh Sethi could start his retail shop for sale of the stainless steel items, gifts etc. That the petitioners have filed a petition U/Sec. 14(1)(e) of D.R.C. Act against other tenants of the adjacent shop whereby they have claimed possession of the said shop admeasuring 14'9"X7'.0" in the aforesaid property where motor cycle garage in the site plan is mentioned. That it would not be sufficient for petitioner No. 1 to carry on his business and thus, due to bonafide need, the present eviction petition has been filed by the petitioners for bonafide need of petitioner no. 1. That filing of eviction petition by the petitioners against the other tenant does not create any bar in filing the present eviction petition on bonafide need of petitioner no. 1 against the present tenant, as both the shops would be merged for the purpose of carrying on the business activities by the petitioner No. 1.
3. Lastly, it is prayed by the petitioners that an eviction order may be passed in favour of the petitioners and against the respondent.
4. 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 filed his leave to defend application accompanied by affidavit.
5. Reply to leave to defend filed by the petitioners refuting the pleas taken by respondent in the leave to defend.
ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 3 /236. I have carefully and minutely gone through the petition, leave to defend application accompanied by affidavit, reply accompanied by counter affidavit, documents, written submissions, material on record and case law relied upon.
7. Perusal of record shows that the respondent has sought the leave to defend on several grounds which will be discussed exhaustively later on.
8. Reply to leave to defend was also filed by the petitioners 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 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 ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 4 /23 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 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.
ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 5 /23There 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.
9. I have carefully and minutely gone through eviction petition, leave to defend application accompanied by affidavit, reply/counter affidavit, documents and material on record as well as the written submissions and case law relied upon.
10. Some of the pleas taken by the respondents are that Sh. Ramji Dass Nagpal died leaving behind besides the respondent, one more son namely Sh Pawan Nagpal and five daughters namely Smt. Neelam Manchanda, Smt. Suraksha Sachdeva, Smt. Chandrakanta Arora, Smt. Asha Chopra and Smt. Rajni Arora as his legal heirs and tenanted premises is in possession of the aforesaid legal heirs, who all became the tenants in the tenanted premises. That the present petition having been filed not against all the tenants is not maintainable, That the petitioners have falsely alleged that the petitioners are the owners and landlords of the tenanted premises and there exists relationship of landlord and tenant between the petitioners and respondent. That the petitioners have falsely alleged that NDMC and ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 6 /23 L & D.O have mutated the suit property i.e. 5/3, West Patel Nagar, New Delhi in the name of petitioners. That the alleged mutations and conveyance deed, if any, have been manipulated by the petitioners by playing fraud upon NDMC and L & DO. That the tenanted premises were let out by Sh. Sitaram Sethi, the grandfather of the petitioners to the father of the respondent. That after the demise of Sh. Sitaram Sethi, his son Sh. Satyadev Sethi claimed to have become the landlord of the tenanted premises in the presence of the other natural heirs of Sh. Sitaram Sethi. Therefore, Sh. Ramji Dass Nagpal started paying rent to Sh. Satyadev Sethi from 1974 to 1992 for which the rent receipts were being issued by Sh. Satyadev Sethi. That Sh. Satyadev Sethi thereafter did not accept the rent with malafide intentions. That a suit for possession and rent/damages in respect of the tenanted premises was filed by the petitioners and Sh. Satyadev Sethi as plaintiffs and against Sh. Ramji Dass Nagpal falsely claiming in the said suit that the tentanted premises was a tin shed and temporary structure and D.R.C. Act was not applicable to the same. The tenancy of Sh. Ramji Dass was terminated by Smt. Budhwanti Sethi. That said suit was filed on the basis of claim of termination of tenancy vide notice dated 20.04.1999 alleged to have been served upon Sh. Ramji Dass Nagpal on behalf of Smt. Budhwanti Sethi and Sh. Satyadev Sethi but notice was never received by Sh. Ramji Dass Nagpal. Even otherwise, there was no relationship of landlord and tenant between Smt. Budhwanti Sethi and Sh. Ramji Dass Nagpal and as such Smt. Budhwanti Sethi has no right to issue any such notice. That copies of some of the rent receipts issued by Sh. Satyadev Sethi are being filed. That said suit ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 7 /23 was later on dismissed. That Sh. Satyadev Sethi is still alive and continues to be the landlord qua the tenanted premises. That there is no relationship of landlord and tenant between petitioners and legal heirs of Sh. Ramji Dass Nagpal. Hence, the petitioners have no locus standi to file the present petition. That present petition is not maintainable and is liable to be dismissed. That present petition is even otherwise bad for non-joinder of Sh. Satyadev Sethi.
That the petitioners have referred to a rent deed dated 11.11.1963 in the petition but no such rent deed was ever executed or ever claimed to have been executed by the petitioners at any time. That the alleged rent deed dated 11.11.1963 is a forged and fabricated document.
In reply to leave to defend, the petitioners have inter-alia denied all the allegations and averments made by respondent and have inter-alia submitted that filing of application for leave to defend on behalf of one of LRs is considered to be not only for self but for all the LRs of the deceased father of the respondent and appearance on behalf of any one of the LRs of the deceased would amount to putting appearance on behalf of all the LRs of the deceased. That Hon'ble Apex Court has held so in the case tilted Mst. Surayya Begum Etc. Vs. Mohd. Usman & Ors. Etc. reported in (1991) 2 SCR page 517. It is denied that there is no relationship of landlord and tenants between the petitioners and the legal heir of Sh. Ramji Dass Nagpal. It is denied that the alleged rent deed dated 11.11.1963 is a forged and fabricated document. That except two shops in respect of which the petitioners have filed eviction petition for bonafide need, there exist no other shop/ shops on the ground floor from where ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 8 /23 commercial activities are being carried on or are in possession of any tenant. That as petitioners are not owner of the property bearing No. A-99,Group Industrial Area, Wazirpur, Delhi, it was not necessary for the petitioners to disclose the existence of various floors on the said property. That filing of the eviction petition by the petitioners against the tenants of Shop admeasuring 14'9"X7'0" does not create any bar in filing present eviction petition for bonafide need of petitioner No. 1, against the respondent occupying the shop adjacent to the shop admeasuring 14'9"X7'0" as both the shops would be merged for the purpose of carrying on the business activities by petitioner No. 1. That the petitioner No. 1 wants to establish his independent sale counter in the tenanted premises and till then the petitioner No. 1 has to attend the business with his brother at Wazirpur Industrial Area, Delhi. That property in which tenanted premises is situated is not on the road which has been declared commercial and all the floors could not be used for commercial purposes. Even otherwise, the other portion of the property is being used for residential purposes and the respondent cannot dictate to the petitioners to use their residential portion for commercial use for satisfying bonafide need. That first floor of the property is being used as residence by petitioner No. 1 and his family. That apart from Ground floor and first floor, there exists no other floor in the property.
11. I have carefully gone through material on record. It is expedient to reproduce the relevant case law which are as under:-
In case titled as Jiwan Lal Vs. Gurdial Kaur & Ors. 1995 RLR 162 a Bench of Hon'ble High Court of Delhi while dealing with ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 9 /23 the concept of ownership in a pending eviction petition under Section 14(1)(e) of the DRC Act had noted as follows:
"There is a tendency on the part of tenants to deny ownership in cases under Section 14(1)(e). To test the substance of such a plea on the part of the tenants the Courts have insisted that they should state who else is the owner of the premises if not the petitioner. In the present case it is not said as to who else is the owner. Further these cases under Section 14(1)(e) are not title cases involving disputes of title to the property. Ownership is not to be proved in absolute terms. The respondent does not claim the owner of the premises."
Further, in the case titled as Smt. Shanti Sharma & Ors. Vs Smt Ved Prabha & ors 1987 AIR 2028, the Hon'ble Supreme Court observed :-
"That the meaning of term 'owner' is vis a vis the tenant i.e. the owner should be something more than the tenant."
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 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 ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 10 /23 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 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."ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 11 /23
In view of statute and law laid down by the Hon'ble Apex Court and Hon'ble High Court of Delhi, the tenant has no right to dispute the title or ownership of the landlord. The tenant has no right to raise such pleas being a tenant as admittedly, the respondent has not claimed himself as owner of the tenanted premises.
12. Other pleas of respondent are that the petitioners have filed a petition against a different tenant but in the said site plan, tenanted premises have not been shown. A copy of said petition and site plan are being annexed. That the petitioners have also falsely mentioned the other shops which are existing on the ground floor of the suit property as rooms in the site plan with malafide.
That the petitioners have served a false notice dated 21.12.2017 upon the respondent. That said notice was false as petitioners were not the landlords of the tenanted premises at any time. That in the said notice, it was never averred that the petitioners required the tenanted premises. That non pleading of the same in the notice clearly establishes that the petitioners have now filed the petition by making concocted allegations regarding the requirement of the tenanted premises. That the rent last paid by Sh. Ramji Dass Nagpal to Sh. Satyadev Sethi was @ Rs. 120/- per month. That the rent was never enhanced from Rs. 120/- per month.
That petitioners have failed to disclose the dimensions or the scale of business being carried on by them from A-99, Group Industrial Area, Wazirpur, Delhi. That said property is constructed on a plot of land measuring 164.74 sq. yards and said plot is completely built up in its entirety on all the floors. That said property consists of ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 12 /23 a basement, ground floor, first floor and second floor. That practically all the properties in said area are being used as shops on all the floors for trading purposes. That petitioners have been running their business from the basement, ground floor and first floor of the said property for the last about 40 years and are having a flourishing business. That the basement and the ground floor of the said property are being used by the petitioners for trading of stainless steel articles under the name of "Sethi Stainless Steel" and the first floor of the said property is being used by the petitioners. That the said business cannot be run or managed by a single person and both the petitioners have to attend said businesses. That the petitioner no. 1 has no intention to stop attending the businesses being carried out from said property. That tenanted premises is a very small shop and petitioners are big businessmen having big business and are accustomed to run the business from large shops. That copies of the said two businesses have been downloaded by the respondent from the website of justdial.com. The petitioner No. 1 is well engaged in the business at A-99, Group Industrial Area, Wazirpur, New Delhi and has no intention to discontinue attending the said business. That even otherwise, the petitioners are in occupation of other alternative commercial accommodation on the ground floor of the suit property. That in the locality where the suit property is situated all the floors are being used for commercial/trading purposes practically. That the adjoining shop regarding which the petitioners have mentioned to have filed a petition under section 14(1)(e) read with Section 25-B DRC Act is commercial accommodation and is in possession of the petitioners.
ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 13 /23That said portion of the ground floor is lying vacant and unutilized by the petitioners. That the petitioners along with their family including their father have been residing on the upper floors of the suit property. That the petitioners are only interested in letting out the tenanted premises after getting the same evicted by hook or by crook. The petitioners have been pressurizing the respondent to accept them as their landlords. Since the respondent refused to accede to the said illegal demand, the petitioners have filed the present petition on false and concocted allegations.
13. I have gone through all the pleas raised by the respondent, reply thereto and material on record.
14. 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 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 ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 14 /23 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."
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 ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 15 /23
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."
15. It is not sufficient that any kind of the property should be available to the petitioner/landlord 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 ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 16 /23 suitable commercial accommodation.
16. It is also 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.
17. Moreover, as far as other properties as alleged are concerned, those are not available with the petitioners. And no reliable documents have been placed on record to show that these properties are owned by the petitioners only and available with them for satisfying the bonafide requirement as raised in the present petition. Even if it is assumed for the sake of arguments other properties are available in the streets and on the upper floors and can be used commercially, it is commonly known that footfall of the customers on the ground floor and main road is always on the higher side in comparison to the upper floors and streets and the Landlord of the suit property is not supposed to face the financial loss merely to save the tenancy of a tenant. Record manifestly shows that these pleas raised by respondent are not triable issue which could dis- entitle the petitioners to obtain the order of eviction against the respondent.
18. Other pleas of respondent are that the petitioners are interested only in re-letting out the tenanted premises after getting ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 17 /23 the same evicted by hook or by crook.
19. It is expedient to reproduce Sec. 19 of the D.R.C. Act, which is as under:-
"19. Recovery of possession for occupation and re-entry.
(1) Where a landlord recovers possession of any premises from the tenant in pursuance of an order made under clause (c) of the proviso to sub-section (1) of section 14 [or under sections 14A, 14B, 14C, 14D and 21], the landlord shall not, except with the permission of the Controller, obtained in the prescribed manner, re-let the whole or any part of the premises within three years from the date of obtaining such possession, and in granting such permission, the Controller may direct the landlord to put such evicted tenant in possession of the premises.
(2) Where a landlord recovers possession of any premises as aforesaid and the premises are not occupied by the landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied are, at any time within three years from the date of obtaining possession, re-let to any person other than the evicted tenant without obtaining the permission of the Controller under sub-section (1) or the possession of such premises is transferred to another person for reasons which do not appear to the Controller to be bona fide, the Controller may, on an application made on him in this behalf by such evicted tenant within such time as may be prescribed, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit."
20. As such, statute clearly lays down that the petitioner/ landlord has to occupy the vacated tenanted premises within two months and landlord cannot re-let it to any person other than the evicted tenant within three years from the date of obtaining possession and in case ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 18 /23 he does so, the evicted tenant may approach the Rent Controller seeking direction to the landlord to put the tenant in possession of the premises. As such, the fear of the respondent is without any substance.
21. As far as, employment of petitioners and their family members is concerned, 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 No.1 wants to have the tenanted premises for the purpose of starting his own separate business for himself. Rather, said requirement seems to be bonafide as he wants to settle himself separately for earning his livelihood and the tenant cannot stop the landlord/family members of landlord from starting separate business for his livelihood. The bonafide requirement of a landlord does not become malafide just because petitioner No.1 wants to run business separately 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 petitioners and family members are already doing some work as alleged by the respondent, in my view, they cannot be expected to remain idle till the disposal of the eviction petition to show their 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 ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 19 /23 economic growth of Nation. Moreover, tenant cannot dictate terms to the landlord to use the property in a particular manner or jointly with the other family members only. If one of the brothers wants to have separate business, there is nothing new in the metropolitan like Delhi where everyone wants to establish himself /herself in his /her life and does not want to remain dependant upon others including on his/ her family members. As such, these are not triable issues which could dis-entitle the petitioners to obtain the order of eviction against the respondent.
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 ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 20 /23 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 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 ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 21 /23 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."
22. As such in my considered view keeping in view of material on record and exhaustive discussion as earlier, petitioners are not having the alternative reasonably suitable commercial accommodation with them to satisfy the bonafide requirement as raised in the present petition. Moreover, the respondent has not been able to prove on record that the petitioners are having malafide and alternative reasonably suitable commercial accommodation to satisfy the bondfide need as raised in the present eviction petition.
23. As far as plea of the respondent in respect of incorrect site plan is concerned, the respondent had the right and opportunity to file his own site plan.
24. Perusal of record and well settled proposition of law manifestly show that all the pleas raised by the respondent do not raise triable issues which could disentitle the petitioners from obtaining an order of eviction against him.
25. 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 by the respondent do not assist the respondent in view of the exhaustive discussion as earlier, peculiar facts of the case, settled law and material on record.
ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 22 /23CONCLUSION:-
26. In view of the above discussion, I find no triable issue in the leave to defend application of the respondent which could dis-entitle the petitioners to obtain an eviction order in their favour. The application for leave to defend filed by the respondent is thus, dismissed.
27. Hence, as a consequence thereof, an eviction order is passed U/s. 14 (1) (e) of DRC Act in favour of petitioners and against the respondent in respect of the tenanted premises i.e. Shop No. 2 forming part of premises No. 5/3, West Patel Nagar, New Delhi which is more specifically shown in red in the site plan attached and is marked as Mark- P1 (Put by the court for the purpose of identification).
28. 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.
29. File be consigned to the Record Room after due compliance. Digitally signed by AJAY Announced in open court AJAY NAGAR on 14th October, 2020 NAGAR Date:
2020.10.14 (This order contains 23 pages) 17:29:07 +0530 (AJAY NAGAR) Additional Rent Controller, West District, THC/Delhi.ARC No. 02/2018 Sh. Dinesh Sethi & Anr. Vs. Sh. Sanjay Nagpal Page 23 /23