Delhi District Court
Narinder Kumar Gupta vs Ram Gopal Sharma on 12 January, 2024
RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma
In the Court of Ms. Neetu Nagar, JSCC cum Additional SCJ cum
Guardian Judge, South East District, Saket District Court, Delhi
(the then Additional Rent Controller-02, Central District,
Tis Hazari Courts, Delhi)
RC ARC No: 80140/16
E - 212/17/12
Sh. Narinder Kumar Gupta
S/o Sh. Krishan Chand
4228, Gali Bahuji
Pahari Dhiraj,
Delhi-110006. .... Petitioner
VERSUS
Sh. Ram Gopal Sharma
S/o Late Sh. Mool Chand
R/o 4228 (GF) Gali Bahuji
Pahari Dhiraj,
Delhi-110006
.... Respondent
***********
Date of Filing of petition : 06.08.2012
Date of reserving judgment : 05.12.2023
Date of pronouncement of Judgment : 12.01.2024
Decision of petition : Allowed
***********
JUDGMENT
1. Present petition has been filed under Section 14 (1) (e) read with section 25 (B) of Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') for eviction of the respondent in respect of the portion situated at the ground floor of property bearing no. 4228, (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.1 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma Gali Bahuji, Pahari Dhiraj, Delhi-110006 which is shown in red colour of the site plan attached with the present petition (hereinafter referred to as 'tenanted premises').
FACTS OF THE PETITION
2. The brief facts necessary for disposal of the present eviction petition are outlined as follows:-
2.1 It is the case of the petitioner that the petitioner is the owner / landlord of the tenanted premises which is in occupation/tenancy of the respondent and same is required bonafide for himself as well as his family members dependent upon him for residential purposes. It is submitted that the family of the petitioner consists of himself aged about 59 years, his wife aged 57 years, one unmarried son aged 31 years and one married daughter. The petitioner presently has got three rooms, one small store and one kitchen on the first floor, a tin shed and a barsati at the second floor shown in green colour in the site plan. The room marked "A" in the site plan is being used as bed room by the petitioner for himself and his wife, room marked "B" is being used as bed room by the son of the petitioner who is of marriageable age. Room marked "C" is being used a drawing room.
2.2 It is averred that the petitioner requires one guest room, separate dining room as well as a Pooja room as there is none. It is further stated that the daughter of the petitioner frequently visits the petitioner along with her husband and a son aged about 7 years and due to paucity of accommodation, they have to stay in the drawing room. The in-laws of the petitioner are residents of Haridwar (Uttranchal) and they stay in the drawing room as there is no separate guest room.It is further averred that the petitioner and his wife are (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.2 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma otherwise elderly persons and require the tenanted portion at ground floor for their comfortable stay as they are having difficulty to climb the first floor. It is stated that there are three other old tenants namely Shri Sachin Gupta and Shri Ashwani Jain on ground floor and one tenant namely Shri Bablu son of Shri Babu Ram on the first floor in respect of one godown each which portions have been shown in blue colour in the site plan. The Barsati at the second floor is in dilapidated condition and otherwise also it can not be used for residential purpose. 2.3 It is further stated that the petitioner himself is carrying on business of hosiery raw material items from a small shop on the ground floor shown in black colour whereas, his son is carrying real estate business from a rented shop in property bearing no. 4210/1 Gali Nihal Singh, Pahari Dhiraj, Sadar Bazar, Delhi. The portion shown in yellow colour on the ground floor is lying locked as there is no approach, on account of the partition wall as shown in dotted lines which has been raised by the owner of the adjoining portion Sh.
Mahinder Kumar. Moreover, the said portion is so small which can not be used for any purpose. Only after the suit premises is vacated, the said portion can be approached. The requirement of the petitioner is most bonafide and urgent. It is submitted that neither the petitioner nor any of his family member own any other suitable residential property in Delhi.
2.4 It is stated that a notice dated 09. 07. 2012 was sent to the respondent but he failed to comply with the same. It is averred that the predecessor of the respondent was an old tenant in the tenanted premises when the grand father of the petitioner namely Shri Ram Chander purchased the subject property vide registered sale deed dated 20.10.1970 from previous owner Smt. Sona Devi. The predecessor of respondent attorned in his favour and started paying (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.3 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma rent. Mr. Ram Chander bequeathed the subject property in terms of a registered Will dated 2.12.1977 and the petitioner became the sole and absolute owner of the subject property. Smt. Mansa Devi mother of the respondent used to pay the rent to the petitioner and after her death, the respondent became tenant but did not pay the rent despite repeated requests and demands.
2.5 It has been prayed for eviction of the respondent from the tenanted premises.
FACTS OF THE WRITTEN STATEMENT
3. Notice of the eviction petition was sent to the respondent. In response to which, the respondent filed the detailed leave to defend application which was allowed vide order dated 12.12.2014. Thereafter, the respondent was directed to file written statement. Written statement was filed on behalf of respondent. 3.1 It is submitted that the petitioner has suppressed the material facts/ documents such as original Site Plan attached with the alleged sale deed. It is averred that the property in dispute and in possession of the respondent was never sold by the owner Smt. Sona Devi to any one and same was given/gifted permanently to the mother of the respondent by her out of love, affection and being in close friendship. The said fact has been revealed to the respondent recently by a common friend of the petitioner and respondent, who took an undertaking/promise from the respondent not to disclose his name. It is stated that the mother of the respondent being owner of the property was paying house tax also. Notice was served from MCD for payment of property tax and another letter written by the mother of the respondent to the office of MCD which is duly acknowledged by the office of MCD.
3.2 It is further submitted that respondent is aged about 62 (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.4 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma years who has undergone heart operations and his wife who is aged about 60 years is also not good in health and suffers from different ailments. His only son who is unmarried has gone to Bombay in search of good employment since the year 2006-07. The respondent with great difficulty and to manage his livelihood is working intermittently as pigmy agent with Syndicate Bank and burdened with a loan amount of Rs. 1,50,000/-.
3.3 It is averred that the petitioner along with his younger brother connived to grab the property of the respondent and raised half portion wall without destroying the common area of the property. Later on, in a planned way, the petitioner sent false legal notice. It is further averred that despite all resistance and seeking help from police, the respondent could not save his rights to the lavatory which belongs to him and was in common area which was not sold to any one and now has been given to the brother of petitioner. However, the police has helped the respondent to the extent that the petitioner has agreed in writing to provide lavatory in his area to the respondent. It is stated that the brother of the petitioner has succeeded in building the flats by grabbing common area and with the undertaking with the petitioner by dividing the courtyard with the petitioner. However, petitioner could not build the flats due to the present case.
3.4 It is alleged that there is no privity of contact between the petitioner and the respondent and as such there exists no landlord- tenant relationship and documents filed by the petitioner are manipulated. It is asserted that the petitioner has not filed the copy of Probate or no objection from the other legal heirs of late Shri Ram Chander who has been alleged to be the purchaser of the subject property. It is averred that the petitioner is saving the court fee by not filing the suit for possession before the civil court, if he has got any (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.5 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma right in the disputed property. It is nowhere stated as to the persons / tenants occupying the other portions of the ground floor and first floor of the said property and since when. It is next alleged that the petitioner would not have let out the portions of the property in question to fresh tenants and would have utilized the same for his own needs and requirement, if the need of the petitioner been bona fide. 3.5 It is asserted that the petitioner has not come to this court with clean hands and has filed a false and frivolous site plan, wherein he has shown the front portion at Ground Floor and first floor as godown, whereas, the entire property was residential in nature and the portion marked Yellow was never purchased /owned by the petitioner. Similarly, the portion shown as godowns in the site plan, situated at the ground floor of the property in question, also used to be rooms for residential purposes. It is averred that the shop shown in the site plan filed by the petitioner with the petition, happen to be latrine & bathroom and the petitioner demolished the same and converted the same into a shop. It is averred that the entire petition is based on a site plan, where the nature of usage and existing constructions at the ground floor and first floor have been completely changed, is not maintainable.
3.6 It is submitted that the petitioner has previously filed an eviction petition against one Paras Dass Jain, on the ground of the bonafide residential requirement in respect of front room at the first floor, which is now been shown as a godown in the site plan annexed with the petition. After getting the same vacated from the said tenant somewhere in 2005-2006, the petitioner occupied and used the same for his residential requirement and has now let the same to one Bablu showing the said portion as godown. The petitioner cannot be permitted to create paucity of accommodation by converting the (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.6 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma residential portion of the property in question for commercial activities, letting out the same to new tenant and then proceeding against the other occupants of the property in question for seeking their eviction on bonafide requirements for his residential purposes. All such conversion of usage has been done as recently as in March- April 2012 itself and in view of the same, the petition is liable to be dismissed.
3.7 It is submitted that the respondent has got his separate electricity and water connection. It is further submitted that the partition wall has been raised against all objections by the respondent in connivance by the petitioner and his brother Sh.Mahinder Kumar to grab the property of the respondent by dispossessing him. 3.8 Rest of the contentions of the petition have been denied in toto. It has been prayed for dismissal of the present petition.
REPLICATION
4. Replication has been filed on behalf of the petitioner to the written statement of the respondent, wherein the averments made in the petition have been reiterated whereas the defence taken by the respondent in the written statement has been vehemently denied as false.
4.1 Additionally, it is submitted that the respondent has concocted a false and frivolous story and has not disclosed name of any such alleged common friend. It is pointed out that on account of the partition wall raised in the property, the passage and the stair case meant for the portion of the petitioner's property fallen to the share of Sh. Mahinder Kumar Gupta due to which the petitioner was compelled to make a separate passage in the area of the shop shown in black colour and to construct a toilet as well as a stair case in the courtyard as shown in the site plan attached. The respondent has (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.7 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma during the pendency of the case illegally encroached the portion shown in yellow colour in the earlier site plan, but the same is now treated as part of tenancy.
4.2 It is further stated that Mr. Paras Dass Jain vacated the portion in his possession on 03.05.2004. At that time in a portion of the ground floor the petitioner was carrying business of resale of yarn in the name and style of M/s. Kumar & Co. since 1976 which business continued till September 2007. The petitioner suffered huge losses in the business in the year 2007 and under compelling circumstances was forced to surrender Sales Tax Registration Certificate and let out one room on the first floor in the month of September 2007 to Mr. Babloo son of Mr. Babu Ram. It is denied that all such conversions and usages have been done as recently as in March-April, 2012. 4.3 It is submitted that Mr. Ashwani Jain has since vacated the godown of ground floor which is being used as godown by petitioner for his business from last about 3 years. It is further submitted that the petitioner has again started the business and has also obtained Sales Tax Registration certificate w.e.f. 01.06.2015 and using said godown.
4.4 It is further submitted that the earlier, store on the ground floor which was shown in black colour in the site plan filed with the petition, the part thereof has been made as a passage for entering into the property and a small portion thereof is used as a store. Separate stair case has been constructed in the courtyard, below which there is a small toilet. All the construction was necessitated on account of division of the courtyard of the property between the petitioner and his brother.
4.5 It is stated that the son of the petitioner has also got married during the pendency of the case and he has now got one (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.8 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma daughter aged about 1 and 1/2 year.
EVIDENCE OF PETITIONER
5. The petitioner Narinder Kumar Gupta has examined himself as PW-1 and tendered evidence by way of affidavit vide Ex. PW1/A and relied on the following documents:
Exhibit/Mark Document
Ex. PW-1/1 Site plan filed with replication
Ex. PW-1/2 Certified copy of judgment dated
12.04.2004
Ex. PW-1/3 Original letter dated 03.05.2004
Ex. PW-1/4 Copy of letter dated 15.11.1976
Ex. PW-1/5 Surrender of sales tax registration certificate
dated 10.09.2007
Ex. PW-1/6 Site plan filed with petition
Ex. PW-1/7 Certified copy of sale deed
Ex. PW-1/8 Copy of Will
Ex. PW-1/9 Letter of mutation issued by MCD
Mark A to C Copy of house tax payment receipt
Ex. PW-1/11 Copy of DVAT form
Ex. PW-1/12 Certified copy of inspection book of MCD
survey
Ex. PW-1/13 Copy of legal notice dated 09.07.2012
Ex. PW-1/14 Original postal receipt
Ex. PW-1/15 Tracking report regarding delivery of notice
5.1 However, this witness was not cross-examined by dint of
(NEETU NAGAR)
JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.9 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma order dated 28.08.2023 vide which the application for seeking permission to file affidavit of evidence on behalf of his wife Sarita as a witness was allowed on the basis of his medical documents.
5.2 Smt. Sarita Gupta has been examined as PW2 and relied upon the following documents:
Exhibit/Mark Document
Ex. PW-2/1 Original site plan
Ex. PW-2/2 Certified copy of judgment passed by Hon'ble
High Court of Delhi
Ex. PW-2/3 Original letter dated 03.05.2004
Mark A Copy of sales tax registration
Mark B Computerized copy of letter issued by
Department of Trade and Taxes
Ex. PW-2/6 Original site plan
Ex. PW-2/7 True copy of sale deed
Ex. PW-2/8 Copy of Will
Ex. PW-2/9 Copy of mutation letter dated 20.06.2003
Mark C Copy of payment receipts
Ex. PW-2/11 Copy of certificate of VAT registration
Ex. PW-2/12 Certified copy of inspection book of MCD
Ex. PW-2/13 Original copy of notice
Ex. PW-2/14 Original postal receipt
Ex. PW-2/15 Copy of tracking report
5.3 Vide order dated 13.10.2023, evidence on behalf of
petitioner was closed.
(NEETU NAGAR)
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6. Perusal of file also shows that an order under Section 15(2) Of DRC Act was passed on 01.03.2016 and the respondent was directed to deposit rent in bank account of the petitioner w.e.f. 03.08.2009 at the rate of rent of Rs. 70/- per month alongwith interest @ 15% p.a. The respondent filed C.M.(M) no.393/2016 before Hon'ble High Court against the said order which was dismissed on 15.02.2019. Review application filed before the Hon'ble High court by the respondent was also dismissed on 13.5.2019. Thereafter, on an application filed under section 15 (7) of DRC Act, the defence of the respondent was struck off on 08.11.2019. Review application filed against the same was also dismissed on 22.8.2022.
ARGUMENTS
7. I have heard the arguments at length. Written arguments have also been filed on behalf of the petitioner and the respondent and contents thereof need not be reproduced for the sake of brevity and will be dealt in the reasoning part. I have also carefully gone through the testimonies of the witnesses, documents and material on record and case law relied upon.
REASONING AND ANALYSIS
8. At the outset, it is expedient to reproduce Section 14 (1)
(e) of DRC Act which is as under:
"Section-14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by court or any controller in favour of the landlord (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.11 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
"(e) That the premises are required bonafide by the landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation."
9. As such, followings are the ingredients of Section 14 (1)
(e) of D.R.C. Act:-
(i) There should be a relationship of landlord and tenant between the petitioner and respondent.
(ii) Landlord should be the owner of the tenanted premises.
(iii) That the premises are required bonafide by the landlord for himself/herself or for any member of his/her family dependent upon him/her.
(iv) Landlord/petitioner should not have other reasonably suitable accommodation.
10. Let us now discuss the ingredients of Section 14 (1) (e) of DRC Act one by one as applicable to the present facts and circumstances.
I OWNERSHIP AND LANDLORDSHIP:-
11. Before proceeding further, let us discuss the scope of (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.12 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma ownership in eviction petitions under DRC Act. Hon'ble Supreme Court has explained the scope of the term 'ownership' in matters under rent control in the decision of Smt. Shanti Sharma & Ors. Vs Smt Ved Prabha & ors 1987 AIR 2028, wherein it was observed that the meaning of term 'owner' is vis a vis the tenant i.e. the owner should be something more than the tenant.
12. Similarly, in the case of Jiwan Lal Vs. Gurdial Kaur & Ors. 1995 RLR 162, a Bench of Hon'ble High Court of Delhi while dealing with 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."
13. In Ramesh Chand Vs. Uganti Devi 157 (2009) DLT 450, the Hon'ble High Court of Delhi, it was held as under :
"...It is settled proposition of law that in order to consider the concept of ownership under Delhi Rent Control Act, the Court has to see the title and right of the landlord qua the tenant.The imperfectness of the title of the premises cannot stand in the way of an eviction petition under Section 14(1)(e) of DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.13 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma 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. Thus, the legal position is well established that in a proceeding under Rent Control Act, while the petitioner may not be able to establish a perfect title over the tenanted premises, what is required is that his title must reflect as better than that of the tenant. In simple terms, the title of the landlord must appear to be over and above the title of the tenant.
15. Having discussed the law, let us discuss the facts of the present case.
16. At the outset, it is pertinent to mention that the petitioner PW1 has been examined-in-chief on 21.05.2019. However, he could not appear for cross-examination as he suffered brain hemorrhage and an application in this regard was moved on behalf of the petitioner seeking permission to examine Smt. Sarita Gupta wife of petitioner who was allowed to be examined vide order dated 28.08.2023 and accordingly, she tendered her affidavit in evidence on 20.09.2023 and proved various documents on the same lines on which PW1 (petitioner) was examined. The said order has attained finality having not been challenged by the respondent. Also, section 120 of the Indian Evidence Act,1872 provides that in all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. Hence, the wife of the petitioner PW2 Sarita Gupta is a competent witness in the present case. It was argued on (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.14 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma behalf of the learned counsel of respondent that the examination-in- chief of PW1 cannot be taken into consideration without cross- examination. To my mind, there is no substance in the said contention as the petitioner could not be claimed for non cross-examination as it was beyond his control due to his illness. Reliance in this regard is placed on the case of Krishan Dayal vs Chandu Ram on 8 July, 1969: ILR 1969 DELHI 1090 and relevant extract is as under:
"...(11) Wigmore has laid down the following principle in dealing with the statement of a witness who dies before his cross examination :- "BUT, where the death or illness prevents cross-examination under such circumstances that no responsibility of any sort can be attributed to either the witness or his party, it seems a harsh measure to strike out all that has been obtained on the direct examination. Principle requires in strictness nothing less. But the true solution would be to avoid any inflexible rule, and to leave it to the trial Judge, to admit the direct examination so far as the loss of cross examination can be shown to him to be nto in that instance a. material loss. Courts differ in their treatment of this difficult situation; except that, by general concession, a cross-examination begun, but unfinished, suffices if its purposes have been substantially accomplished." (see page 765of Woodroffe and Ameer Ali's Law of Evidence, 11th Edition.)..."
Merely for the reason that the cross- examination has not been concluded does not make a witness's statement in examination-in chief inadmissible.Hence, the examination-in-chief of PW1 can be taken into consideration as PW1 could not be cross-examined due to (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.15 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma his illness and the order dated 28.08.2023 has attained finality.
17. Moving further, in order to prove ownership of the tenanted premises, PW1 and PW2 relied on certified copy of sale deed Ex. PW1/7 / Ex.PW 2/7 dated 20.10.1970 executed by the previous owner Smt. Sona Devi in favour of late Shri Ram Chander. Hence, the ownership of Sh. Ram Chander stands duly proved by the said registered sale deed. It is not in dispute that the petitioner is related to the erstwhile owner Shri Ram Chander being his grandson. The petitioner has proved the Will dated 02.12.1977 in favour of the petitioner executed by Sh. Ram Chander vide Ex. PW1/8 / Ex. PW2/8. It is trite law that a registered Will of the deceased cannot be subject matter of challenge in eviction proceedings. Even if the said will is not taken into consideration, still the petitioner can be treated as a co- owner and it is settled law that a co-owner can file an eviction petition. Hence, the contention of learned counsel of respondent that other legal heirs of late Sh. Ram Chander are not impleaded has no substance in it.
18. The petitioner has then relied on Mutation letter dated 20.6.2003 Ex. PW1/9 / Ex. PW2/9 in favour of the petitioner. As per the said document, the name of petitioner Narinder Kumar stands mutated in respect of property bearing no. 4228/XIII, Gali Bahuji Pahari Ghiraj, Delhi. It is clear position of law that mutation is not proof of title of person as rightly argued by learned counsel of the respondent but in a rent petition, it is not required to prove absolute ownership as discussed above. Moreover, the respondent has not proved any document to show his alleged ownership. Thus, the respondent cannot dispute the ownership of the petitioner as the respondent is having better claim than the respondent qua the tenanted premises.
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19. It is also pertinent to mention that in the affidavit seeking leave to defend, a plea of adverse possession was raised by the respondent whereas, in preliminary objection of the written statement, it was claimed that Smt. Sona Devi had gifted the subject property to the mother of the respondent. However, there is nothing on record to prove the same. Further, the plea of adverse possession and gift are totally contradictory to each other. In fact, the alleged fact of gift by erstwhile owner Smt. Sona Devi in favour of mother of the respondent out of love and affection has been revealed to the respondent by some common friend. However, neither the name of the said common friend has been divulged by the respondent nor he or Smt. Sona Devi or her legal heirs, if any has been examined for the reason best known to the respondent. In these circumstances, the entire version of the respondent having acquired rights in the subject property by way of gift from Smt. Sona Devi is belied. Further, there is no challenge to the title documents of the petitioner by the respondent or by Smt. Sona Devi or her legal heirs, if any in any civil proceeding. Even otherwise in the present eviction proceedings, the petitioner has only to establish that he has better title than the respondent which the petitioner has successfully proved.
20. As far as relationship of landlord and tenant is considered, the petitioner has relied on certified copy of inspection book of MCD dated 16.10.1969 i.e. Ex.PW1/12 / Ex. PW2/12 wherein Smt.Mansa Devi, mother of the respondent has been shown as a tenant and name of Smt. Sona Devi has been struck off and substituted by Sh. Ram Chander and Sh. Kishan Chand. It was argued on behalf of learned counsel of the respondent that no witness from the MCD has been summoned to prove the said document. It is apt to reproduce section 493 and 494 of Delhi Municipal Corporation Act, 1957 which (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.17 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma are relevant here and read as follows:
"493. Admissibility of document or entry as evidence A copy of any receipt, application, plan, notice, order or other document or of any entry in a register in the possession of any municipal authority shall, if duly certified by the legal keeper thereof or other person authorised by the Commissioner in this behalf, be admissible in evidence of the existence of the document or entry, and shall be admitted as evidence of the matters and transactions therein recorded in every case where, and to the same extent to which, the original document or entry would, if produced, have been admissible to prove such matters and transactions."
Further section 494 reads as follows:
"494. Evidence of Municipal officer or employee No municipal officer or other municipal employee shall, in any legal proceedings to which the Corporation is not a party, be required to produce any register or document the contents of which can be proved under section 493 by a certified copy, or to appear as a witness to prove any matter or transaction recorded therein save by order of the court made for special cause."
21. Since the petitioner has proved certified copy of inspection book of MCD vide Ex. PW2/12, hence, there was no requirement to summon the official concerned from MCD as per the mandate of section 493 and 494 of Delhi Municipal Corporation Act as rightly argued by learned counsel of the petitioner. Merely for the (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.18 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma reason that the serial numbers are not properly written in the said document is no reason to consider the same as forged / fabricated without an iota of evidence in this regard by the respondent. It was contended on behalf of the respondent that the said document Ex.PW 2/12 is doubtful because from the perusal of the same, it has transpired that there are three owners of the said property namely Smt.Sona Devi, Sh. Ram Chander and Sh. Kishan Chand, and it is not proved by the said document that Mansha Devi is the tenant. It was highlighted that in the cross-examination of PW-2, she admits that Sh.Ram Chander and Sh. Kishan Chand have separate registries in their name. Hence, even from this angle as well, it stands proved that the said persons are co-owners qua the subject property and it is trite law a co-owner can file a suit for eviction. However, the said argument is not correct as name of Smt. Sona Devi has been struck out and that of Sh. Ram Chander and Sh. Kishan Chand have been added.
22. Further, legal notice of demand of rent was also sent to the respondent vide Ex. PW1/13 / Ex. PW2/13. PW1 and PW2 proved original postal receipt vide Ex. PW1/14 / EX.PW2/14 and copy of tracking report vide Ex. PW1/15 / Ex. PW2/13. It has been denied on behalf of the respondent that the said legal notice has not been served
23. It is pertinent to reproduce section 27 of General clauses Act which is as under :-
Section-27--Meaning of service by post--where any central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used then, unless a different intention appears, the service shall be deemed to be effected by (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.19 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
24. In the case titled as K. Bhaskaran vs. Sankaran Vaidhyan Balan 1999 A.I.R SC 3762, the Hon'ble Supreme court observed :-
"The principle incorporated in section 27 can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service."
25. Further, section 114 of Indian Evidence Act, 1972 lays down as under:-
114: Court may presume existence of certain facts. That the court may presume existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations: The court may presume-
XXXXX
(f) That the common course of business has been followed in particular cases; -
XXXXX but the court shall also have regard to such facts as the following, in considering whether such (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.20 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma maxim do or do not apply to the particular case before it:-" As to illustration (a).....
XXXXX As to illustration (f): The question is whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;
XXXXX ".
26. I have carefully and minutely gone through the record which shows that the respondent has merely made bald averments in respect of non receiving of such legal demand notice given by the petitioner but has done nothing to prove it. It was the duty of the respondent to prove that he was not served by such notice, but he failed to rebut the evidence and documents of petitioner in respect of legal demand notice.
27. As such, service of legal demand notice is also proved being presumed service under section 27 of General Clause Act. Since the same has not replied despite service, contents thereof stands admitted. It was next urged on behalf of the respondent that the legal notice Ex. PW-2/13 has not been proved as PW2 could not have proved the same as it was not given under the instruction of PW2. It was further urged that the whole statement as well as affidavit by way of evidence of PW2 is hearsay, which is not admissible in court as per law. To my mind, even if this contention is accepted the said documents stands proved in the examination-in-chief of PW1 and no objection was raised qua copy of legal notice Ex. PW1/13 and original postal receipts Ex. PW1/14 at the time of tendering the same. Hence, the legal notice Ex. PW1/13 and postal receipt Ex. PW1/14 stand duly (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.21 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma proved.
28. It was further contended on behalf of the respondent that the total area of the property 4228, Gali Bahuji, Pahari Dheeraj, Delhi of Smt. Sona Devi is about 390 Sq. Yds. as clear from the site plan placed on record, the total area sold by the Smt.Sona Devi to Sh. Sh.Ram Chander and Sh. Krishan Chand is about 293 Sq. Yds. and rest of the area is about 97 Sq. Yds. which is in the possession of the respondent from the last 70 years which has been handed over by Smt. Sona Devi to Smt.Mansa Devi and not the petitioner. It was contended that neither the grandfather nor the petitioner is owner of this 97 Sq. yds. But there is nothing on record to prove the said contentions raised by learned counsel of the respondent except for self serving statements.
29. It was next contended on behalf of the respondent that the second site plan has been filed without seeking leave of the court. Perusal of file shows that the second site plan has been filed by the petitioner with the replication. It has been highlighted by learned counsel of the petitioner that at the time of filing of the petition, tenanted portion was shown in red colour in the original site plan Ex. PW2/6 whereas, yellow portion was lying locked as it had no approach on account of partition wall raised. However, later on the respondent encroached part of the yellow colour portion and the same was treated as part of the tenancy as mentioned in replication and shown in site plan Ex.PW-2/1. However, no rejoinder has been filed by the respondent thereto. Hence, it seems that the respondent has waived any objection thereto.It was further contended that the site plan Ex. PW-2/1 and Ex. PW-2/6 are the site plans of the disputed property, which are drawn by Sh. R.S. Yadav Associates, Typist Block, Civil Side, Tis Hazari Court and the said witness has not been (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.22 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma examined due to which the same have remained unproved on record It was urged that PW-2 also cannot prove the site plan as it does not bear her signature and the said document could have been proved only by the architect who has drawn the same. To my mind, PW1 has proved the site plan during his examination-in-chief. Merely for the reason that this witness has not been cross-examined does not mean that his examination-in-chief will be effaced as discussed above. Further, the said site plan has been filed with replication which was allowed to be filed by the court. Hence, objection of any rent at a later stage could not have been taken by the respondent.
30. The next contention of the learned counsel of the respondent is that the other site plan filed with the replication are totally different from each other. A careful perusal of both the site plans shows that there is no material difference as such except the later construction depicted after partition which is not disputed by the respondent.To my mind, the landlord can not be expected to not raise construction or do repair work during the pendency of the case. The same has been duly elaborated in the replication. But no rejoinder thereto has been filed by the respondent to controvert the same. Hence, the contents of the replication to that extent stands admitted.
31. The next contention of the Learned counsel on behalf of the respondent is that the petitioner has concealed material facts and has not come to the court with clean hands. It was pointed out that the petitioner has filed the incomplete sale deed of the property No. 4228, Gali Bahuji, Pahari Dheeraj, Delhi-110006. It was contended that the petitioner has not intentionally filed the annexures of the sale deed such as map as alleged in Para No.2 of the sale deed without which the court can not come to the decision how much area and appropriate location of the property was sold by Smt. Sona Devi to grandfather of (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.23 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma petitioner namely Sh. Ram Chander as the Map is part and parcel of the sale deed in the eye of law. To my mind, there is no basis in the said argument of learned counsel on behalf of the respondent as the said sale deed is a registered document. Furthermore, neither Smt. Sona Devi nor her legal heirs have ever challenged the said sale deed. Furthermore, there is no title document in favour of the respondent. The sale deed gives sufficient description of the property. Merely for the reason that the list of tenants has not been filed along with the sale deed does not mean that the present respondent was not a tenant as the same is clear from the certified copy of inspection book of MCD vide Ex. PW2/12.
32. Perusal of file further shows that the respondent has not filed any site plan of the subject property. No counter site plan has been placed on record by the respondent. Hence, the site plan filed by the petitioners are assumed to be correct. Reliance can be placed in this regard on decision of the Hon'ble High Court of Delhi in Satish Kumar Vs. Subhash Chand Aggarwal, 2012 SCC Online Del 4447 (SLP © No. 27341/2012), wherein it has been held that :
"if a tenant does not file his site plan showing the site plan filed by the owner is incorrect, then, the site plan filed by the owner would be assumed to be true. In the present matter also, no such site plan has been filed by the respondent. Therefore, he has no right to question the site plan filed by the landlord to be incorrect. Hence, in view of the judgments and observations made above, this contention of the respondent is vague and untenable."
33. As a matter of fact since the defence of the respondent has already been struck off, he cannot be permitted to challenge the (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.24 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma site plan filed by the petitioner.
34. It was next urged on behalf of the respondent that the present eviction petition has been filed for part of the premises. It is noteworthy that in the replication, the petitioner has treated the portion in the illegal occupation of the respondent as part of the tenancy. Hence, the contention on behalf of the respondent that a civil suit should have been filed for the alleged encroachment holds no merit when the said fact has not been denied by the respondent by filing rejoinder. Hence, the contention in this regard is unsustainable and the argument that the present petition is not sustainable for part eviction is devoid of any merit.
35. It was further contended on behalf of the respondent that the respondent is in the possession of the subject property for last so many years without paying any rent to anyone in this world. It was urged that there is no proof placed on record by the petitioner that Smt. Mansa Devi has attorned grandfather of the petitioner as her landlord.
36. The concept of attornment is contained in Section 109 of the Transfer of Property Act, 1982 which reads as under:
Rights of lessor's transferee - If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.25 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma to him:
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.
Hence, according to Section 109 of Transfer of Property Act, on transfer of the property, the transferee succeeds to the rights and liabilities of the lessor in respect of covenants which run with the land. By virtue of Section 109 the tenant is bound to pay the rent to the transferee and he cannot deny the rent merely on the ground that there is no privity of contract.
37. It has been held in Nalakath Sainuddin Vs. Koorikadan Sulaiman (2002) 6 SCC 1, Mahendra Raghunathdas Gupta Vs. Vishwanath Bhikaji Mogul (1997) 5 SCC 329 and Mohar Singh Vs. Devi Charan (1988) 3 SCC 63 that on transfer of tenanted premises by the landlord, the transferee automatically becomes the landlord of the tenant by operation of law and the coming into being of the relationship of landlord and tenant between the transferee and tenant is not dependent upon any overt act on the part of the tenant.
38. In Mohd. Ilyas & Another vs Mohd. Adil & Others, AIR 1994 Delhi 212, it was explained that "to attorn" merely means (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.26 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma to agree to become a tenant of the owner or landlord of a property previously owned or held by another or to agree to recognise a new owner of the property and promise to pay the rent to him. Black's Law Dictionary, Legal Glossary (1988 Edition) issued by the Ministry of Law & Justice defines "attorn" as "to agree to become tenant to one owner or landlord of any estate previously held by another". In the Concise Oxford Dictionary, the word "attorn" means 'transfer: make legal acknowledgment of new landlord. Thus, "to attorn" merely means to acknowledge the relation of a tenant to a new landlord. It merely means acceptance of the new owner as landlord and estoppes the tenant to dispute the landlord's title thereafter. It was held that attornment by the tenant of the landlord is not required.
39. In Mohar Singh (through LRs) vs. Devi Charan & others, 1988 AIR 1365, it was explained that under the general law such an assignment effects a severance, and entitles the assignee on the expiry of the term to eject the tenant from the land covered by the assignment. Section 109 of Transfer of Property Act provides a statutory exception and enables an assignee to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject to the other covenants running with the land. There is no need for a consensual attornment as it is brought about by operation of law. It has the same effect as contractual attornment so that because of a transfer of the lease property, the transferee ipso facto acquires all the rights of the lessor and a new relationship is created between the transferee and the lessee. Letter of attornment is not necessary to complete title to the assignment of the reversion under Section 109 of the Transfer of Property Act. Title of the assignee is complete on the execution of the deed of assignment and is not postponed till the notice of the assignment is given right to (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.27 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma ejectment which is inherent in ownership. Section 109 embodies the principle "Qui in jus deminiumve alterius succedit jure ejus uti debet"
i.e. rights and liabilities attached to the property (arising out of possession and control of that property) pass with the property as observed in Shankar Sahai vs. Kamal 1971 MP LJ 436. It was further observed that there is nothing in Section 109 of Transfer of Property Act which provides attornment as a condition precedent for the owner to be so. No attornment of the landlord by the tenant is therefore necessary. Reference may also be had to Brij Bihari Prasad & Another vs. Smt. Deoki Devi & Another, AIR 1978 Pat 117 and Hajee K. Assainar & Company vs. Chacko Joseph, AIR 1984 Ker
113.
40. Hence, the claim of the respondent that he never attorned to the petitioner as his owner/landlord is of little consequence. The contention in this regard fails totally. To conclude, it is established that petitioner is the owner/Landlord of the property in question by virtue of statutory attornment under Section 109 of the Transfer of Property Act and no formal attornment by the tenant is mandated by law. The tenant is estopped under S.116 of evidence Act from challenging the title of the owner. The argument raised by the respondent about the doubt about the ownership of the petitioner is without merit.
41. Herein, the petitioner has duly proved by preponderance of probabilities that he is the owner of the tenanted premises and there exists relationship of landlord and tenant between the parties to the present petition.
III. BONAFIDE REQUIREMENT
42. At this juncture, it is necessary to discuss law regarding bonafide need which has been made clear by Hon'ble Apex Court titled as "Sarla Ahuja v. United India Insurance Co. Ltd., reported (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.28 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma as AIR 1999 SUPREME COURT 100", 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 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...".
43. It is a settled law that that while deciding the question about bonafide need, Court would look into the broad aspects of the need. In the Hon'ble Supreme Court decision of Prativa Devi v. T.V. Krishnan, (1996) 5 SCC 353, it was held that the landlord is the best judge of his requirement and Courts have no concern to dictate to the landlord as to how and in what manner he should live. Bona fide personal need was a question of fact and should not be normally interfered with.
44. It is also apt to reproduce the observations of Hon'ble Delhi High Court in case titled as "Vidyawati Vs. Shri Gautam Mahajan & Ors. decided on 21.08.2020".
(NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.29 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma "21. Moreover, 'Bonafide' requirement under the DRC Act does not imply a situation of 'dire' or 'distressed' necessity. Reference in this regard may made to the decision of the Supreme Court in Raghunath G. Panhale (Dead) by LRs. vs. Chaganlal Sundarji & Co. MANU/SC/0657/1999. Consider a scenario where a landlord's dependant is not in dire straits and may even be in a position to purchase or rent premises, whether for residential or commercial purposes, from her own resources. However, a landlord may have suitable premises available for residential or commercial purposes; and may wish to give that premises to the dependant, so as to obviate the need for the dependent to spend her resources to purchase or rent other premises. The landlord may not want the dependent to needlessly deploy her own resources to buy or rent premises from a third-party, while leaving the landlord's premises in the use of an incumbent tenant. Even this kind of requirement would fall within the concept of bona fide requirement of the landlord or a family member dependant on the landlord and a tenant cannot contend that while the tenant should continue to enjoy the landlord's premises, the landlord's dependant should acquire her own premises through other resources. Any other view would mean that while deciding bona fide requirement of a landlord for a dependent, the independent resources of the dependent would also have to be considered in detail before accepting the plea of bona fide requirement."
(NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.30 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma
45. The bonafide need must be seen by the whole set of circumstances. It has been held by the Hon'ble Supreme Court in Siddharth Viyas v. Ravi Nath Misra, decided on 25.11.2014 that the context of bonafide need, that Rent Control Acts must be interpreted in balanced manner keeping in mind the interest of the landlord also. It has also been held that tenants as a class cannot be treated to be weaker section (Prabhakaran Nair v. State of Tamil Nadu, AIR 1987 SC 2117) hence sympathetic or equitable view in the favour of the respondent need not be taken.
46. It is trite law that the term 'need' or 'requirement' should not be artificially extended nor its language so unduly stretched or strained as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act.
47. In light of the references made above, it is clear that it is the prerogative of the landlord to utilize his premises the way he desires. He is entitled to assert that he requires the property for his own use or that of his family members.
48. Having discussed the legal position regarding bonafide need, let us revert back to the facts of the present case. The petitioner has contended that he requires the tenanted premises for himself and his family members for residence purposes. The requirement of the petitioner is for the ground floor portion in occupation of the respondent due to old age as well. The petitioner has claimed that there is no other suitable accommodation in and around Delhi.
49. Per contra, the bonafide need of the petitioner has been contested by the respondent. It was vehemently argued that the petitioner is in the nature of getting the premises vacated from the tenants on bonafide requirement falsely and get the same re-let to the (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.31 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma other persons, which shows that the petitioner is not in bonafide requirement of the tenanted premises. It was urged on behalf of the respondent that earlier also eviction petition was filed on similar grounds and the same has been allowed. It is clear that the eviction order against the previous tenant Sh. Paras Jain was passed on 12.04.2004 and the present eviction petition is filed on 06.08.2012. There is a long gap in filing present petition since the date of the said order hence, no malafide can be attributed to the petitioner if the said portion is not utilized for the purpose mentioned therein. Further, no application under section 19 DRC Act has been filed by the said tenant within stipulated period. Moreover, perusal of the present petition shows that the present petition has not only been filed for the requirement of guest room, pooja room and dining room which was earlier also pleaded and prayed in earlier litigation decided on 12.04.2004 but also for the difficulty which is being faced by the petitioner and his wife being senior citizens as they are residing on the first floor and have to climb up and down a number of times daily. Perusal of the file shows further that at the time of filing of the petition, the petitioner himself was aged about 59 years and his wife Sarita Gupta was aged about 57 years. More than 11 years have since passed as the present petition has been filed on 06.08.2012 and both of them have become senior citizens and presently can be taken as aged 70 years and 68 years respectively. Hence, naturally they will face difficulties in climbing stairs. Reference can be made to case law titled as Dev Raj Bajaj vs. R.K.Khanna, 1996 RLR 125, it was observed that :
"Where a landlord or his wife were unable to climb the stairs due to old age ailments and wanted to shift to the ground floor, such a need of the landlord was bonafide.
(NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.32 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma A landlord can ask for ground floor for his convenience and comfort of his health."
50. The next contention of learned counsel of the respondent is that the grounds mentioned in the petition that the petitioner is in need of the property in question for his guests etc.is not a ground of bonafide requirement as guests are supposed to come and go and stay for few days which can be adjusted with love and affection by heart. To my mind, the said contention is without any substance as the tenant cannot dictate to the landlord where his guests should stay.
51. In Prativa Devi (Smt.) v. T.V. Krishnan, [1996] 5 SCC 353 it was held that the landlord is the best Judge of his requirement and Courts have no concern to dictate the landlord as to how and in what manner he should live. The bonafide personal need is a question of fact and should not be normally interfered with.
52. In Balwant P. Doshi Vs Shantaben Dhirailal Shah &Ar 2003(2) BomCR 190, the coordinate bench has held that the Courts cannot ordinarily doubt the bonafide need of the landlord nor the Courts can dictate to the landlord as to how the premise owned by him should be used. It is sufficient for the landlord to express his desire to occupy the premises owned by him. It is not necessary for the landlord to establish the dire necessity but it is enough to show that some need exists. Hence, no malafide can be imputed to the petitioner.
53. Similarly, in Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai Prabhulal, (2005) 8SCC 252, the Supreme Court has held as under:
"4. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.33 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma choose the nature of the business and the place of business."
54. In Sudesh Kumari Soni v. Prabha Khanna, 2008 SCC OnLine Del 1128, inter alia, it held as under:-
"25. 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.
26. Suitability has to be seen from the convenience of the landlord and his family members and on the basis of the circumstances including their profession, vocation, style of living, habits and background. Landlord is the best judge of his residential requirement. In view of well settled law, I hold that accommodation available with the petitioner is insufficient as against total family members. Hence the petitioner has made out a case under Section 14(1)(e) of Delhi Rent Control Act and is entitled for relief claimed."
55. In Balwant Singh @ Bant singh V Sudarshan Kumar, 2021 SCC Online SC 114, it was held that 'the adequacy or otherwise of the space available with the landlord for the business in mind is not for the tenant to dictate'.
56. It was next argued by learned counsel of the respondent that the present case is a classic case of self induced lack of suitable accommodation. In order to see the landlord's bona fide one has only to see whether the landlord is seeking to get eviction for an ulterior (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.34 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma purpose i.e. to let out the property for higher rent to someone else. To my mind, there is no merit in the said arguments as it is well settled that if the the landlord does not occupy the tenanted premises/shop and does not use the tenanted premises within three years, it is always open to the tenants to invoke Section 19 of the Delhi Rent Control Act, 1958 for getting back the possession of the tenanted premises/shop. Section 19 of DRC Act which reads as follows:-
"Where a landlord recovers possession of any premises 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, relet to any person than the evicted tenant without obtaining the permission of the Controller such tenant can be put back to the premises or can be paid such compensation as the Controller thinks fit."
57. Hence, if the requirement of landlord is not bonafide and if a landlord abuses the process of the court, obtains an order of eviction, subsequently lets out the property or sells the same, the tenant can always apply for restitution under section 19 of the DRC Act.
58. Hence, the evidence adduced by the respondent is not sufficient to strike out the bonafide need of the petitioner. The facts in hand show that the petitioner genuinely requires the tenanted premises for residence purposes as discussed above and therefore, the bonafide need stands duly established by the petitioner. Once it is proved to the satisfaction of the court that need is really bonafide then adverse (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.35 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma inference cannot be drawn. Hence, this court is of the view that need of the petitioner is bonafide, which the petitioner has proved on record.
IV. AVAILABILITY OF ALTERNATE REASONABLE SUITABLE ACCOMMODATION WITH THE PETITIONERS.
59. The availability of alternative accommodation clause is not be read cannot be read literally and it is does not mean that the landlord should have no other accommodation available. The need is to be seen with respect to the suitability of such accommodation for the said purpose of the tenant. The bar applies only when the accommodation available to the landlord is suitable. Reference be made to the decisions by the Hon'ble Supreme Court in Boorgu Jagadeshwaraiah v. Pushpa Trading Co., 1998 (5) SCC 572 and Rasik Auto Stores v. Navin V. Hantodkan, AIR 1999 SC 113. It was held in the case of in Bega Begum v. Abdul Ahad Khan (AIR 1979 SC 272 that the question as to whether in a given circumstance alternative accommodation is available or not is not a matter of which any judicial notice can be taken but is one which had to be proved by evidence as has been emphasized.
60. The petitioner has duly explained the fact about letting of the godowns to various tenants who were inducted about 5 to 6 years before filing of the petition in the petition. Hence, the same are not available. As far as godown vacated by Mr. Ashwani is considered, the same has been elaborated by the petitioner in the replication to the effect that it is being used as a godown for his business. No rejoinder has been filed to the replication filed by the petitioner,hence, there is no specific denial to the said averments of the petitioner and the same is deemed to be admitted by the respondent.Even if for the sake of arguments it is assumed that the said godown is taken as available for (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.36 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma residence purposes, the need of the petitioner is much more and hence, the same cannot be considered as suitable.
61. There is nothing on record if there is another property which is vacant and available to the petitioner but the petitioner has not availed the same for malafide reason. Mere contentions in this regard on behalf of the respondent is not sufficient without any iota evidence in this regard. Hence, these contentions on behalf of the respondent fails miserably being unsustainable.
62. Therefore, in view of the above discussion, in the light of above cited judgments, pleadings, evidence and the entire material placed on record, the respondent has miserably failed to prove on record that the petitioner has any other alternate reasonable suitable accommodation to satisfy bonafide need of the petitioner. Therefore, it can be said that no other reasonable suitable alternate accommodation is available with the petitioner.
CONCLUSION
63. Hence, in view of the discussion made above, the petitioner is able to prove all the ingredients of Section 14 (1) (e) of the DRC Act. Accordingly, eviction petition filed by the petitioner against the respondent under section 14 (1) (e) read with Section 25 (B) of the DRC Act is allowed. The petitioner is thus entitled to the eviction order in respect of the portion situated at the ground floor of property bearing no. 4228, Gali Bahuji, Pahari Dhiraj, Delhi-110006 which is shown in red colour of the site plan attached with the present petition Ex. PW 2/6.However, the petitioner would not be entitled to initiate execution proceedings for recovery of the possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act.
(NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.37 of 38 RC ARC No: 80140/16 Narinder Kumar Gupta Vs. Ram Gopal Sharma
64. Keeping in view the facts and circumstances of the case, no order as to costs.
65. File be consigned to record room.
Digitally signed by NEETUAnnounced in the open Court NEETU NAGAR
on 12.01.2024 NAGAR Date:
2024.01.12
(This judgment contains 38 pages) 14:12:21 +0530
(Neetu Nagar)
JSCC-ASCJ-GJ/South East
Saket Courts: New Delhi
(the then ARC-02, Central
District,Tis Hazari Court, Delhi)
(NEETU NAGAR)
JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 12.01.2024 Page no.38 of 38