Delhi District Court
Sh. Hans Raj vs Sh. Raghuveer Dayal on 26 October, 2016
IN THE COURT OF SH. GAURAV RAO, SENIOR CIVIL
JUDGECUMRENT CONTROLLER, SOUTH EAST
DISTRICT, SAKET COURT COMPLEX, NEW DELHI
E No. 5060/2016 (Old no. E 12/2016)
CNR no. DLSE030002012016
Sh. Hans Raj,
S/o Late Sh. Dal Chand,
R/o 1825, Ravi Das Basti,
Kotla Mubarak Pur,
New Delhi - 110003. ....Petitioner
Versus
Sh. Raghuveer Dayal
S/o Late Sh. Ram Lal
Shop no. 1825/2, Udai Chand Marg,
Ravi Das Basti, Kotla Mubarak Pur,
New Delhi - 110003.
Also at:
R/o 1532/3 Wazir Nagar,
Kotla Mubarak Pur,
New Delhi - 110003. ....Respondent
Date of institution : 01.06.2016
Date of conclusion of arguments : 26.10.2016
Date of order : 26.10.2016
ORDER
1. Vide this order, I shall decide the application U/s 25(B) of the DRC Act (hereinafter referred as "the Act"), filed by E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 1 of 37 respondent praying therein that he be allowed to contest the eviction petition filed u/s 14(1)(e) r/w sec. 25B of the Act by the petitioner in respect of shop bearing no. 1825/2, Udai Chand Marg, Ravi Das Basti, Kotla Mubarak Pur, New Delhi 110003 (hereinafter referred to as the tenanted premises).
Petition 2 It is the case of the petitioner that the tenanted premises was let out to the respondent by Late Sh. Dal Chand, father of the petitioner in September 2000. It is further his case that after the death of his father he became the owner and landlord of the tenanted premises and the respondent paid the rent to the petitioner @ Rs. 560/ per month against receipt.
2.1 It is further his case that the tenanted premises is bonafidely required by him and his family which consists of 5 members. It is his case that his wife needs the tenanted premises for running a readymade garment shop and he has no other reasonable accommodation from where his wife could do the business.
Leave to defend application
3. The respondent contested the eviction petition by filing the leave to defend application on 23.06.2016.
E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 2 of 373.1 In the application seeking leave to defend which is accompanied with the affidavit of respondent, it is pleaded the tenanted premises is one room and kitchen situated at the first floor with common toilet situated at the ground floor.
3.2 It is further pleaded that the petitioner has not approached the court with clean hands, has suppressed material and relevant facts and therefore, the petition is liable to be dismissed. It is pleaded that the intention of the petitioner is only to get the tenanted premises vacated for letting out the same on higher rate of rent. It is further pleaded that the present petition has been filed after the failure of negotiations with the respondent whereby the petitioner had sought enhancement of rent.
3.3 It is further pleaded that the petition is bad for its institution as the tenanted premises is a commercial shop and the same was let out in the name of Sh. Raghvir Dayal Nitin Kumar & Sons and is running the shop in the name of Nitin Store but the present petition has been filed only in the name of Raghuveer Dayal.
3.4 It is further pleaded that the tenanted premises was taken on rent by the respondent from the deceased father of the petitioner namely late Sh. Dal Chand who expired in December 2015 leaving E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 3 of 37 behind his two sons and one daughter who are not a party to this petition and therefore, the petition is bad for nonjoinder of necessary parties. It is pleaded that the petitioner has neither filed any partition deed or family settlement which reflects that the petitioner has acquired the right in the tenanted premises nor any NOC from the other legal heirs of the deceased Dal Chand has been filed with the petition.
3.5 It is further pleaded that the respondent has taken the tenanted premises on rent in September 2001 from the deceased father of the petitioner by paying Rupees Four Lacs as salami (pagree) on a monthly rent of Rs. 400/ which is much lesser than the rent prevailing at that time with a promise that rent will be enhanced by 10 per cent every three years and the father of the petitioner will not get the tenanted premises vacated.
3.6 It is further pleaded that under a planned conspiracy, well guided advise as he intended to file the present petition, the petitioner demanded the rent from the respondent and for the first time issued a rent receipt on 29.04.2016 and thereafter filed the present petition on 27.05.2016 i.e. within 28 days of issuance of the receipt.
3.7 It is further pleaded that the petitioner is a government servant and till the time he is in government service no bonafide need of commercial space can accrue and further the petitioner has not E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 4 of 37 averred a single word about the alleged bonafide need except his wish to start a shop of readymade garments for his wife. It is further pleaded that the petitioner failed to explain the urgent and immediate need and urgency of the alleged bonafide need.
3.8 It is further pleaded that the petitioner has filed a defective site plan in order to mislead the court and has concealed material facts regarding other commercial accommodation available in the premises and under the occupancy of the petitioner or his family.
3.9 It is further pleaded that the petitioner has four shops having five shutters in the property no. 1825, Udai Chand Marg Ravi Dass Basti, Kotla Mubarakpur, New Delhi 110003. It is further pleaded that out of the four shops two shops were on rent and remaining two shops were available for the landlord which fact has been concealed by the petitioner.
3.10 It is further pleaded that the father of the petitioner had got vacated one adjoining shop in September 2015 from tenant Sh. Bhanwer Singh which is now in possession of petitioner's younger brother Sh. Prem Singh and therefore the said shop can be utilized for the alleged bonafide need of the petitioner's wife.
3.11 It is further pleaded that the wife of the petitioner is a E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 5 of 37 house wife since her marriage i.e. since 20 years and his eldest daughter is studying in 12 th Standard and there is no history that the petitioner's wife was ever in business.
3.12 It is further pleaded that the allegations made by the petitioner are wrong, sham, evasive, baseless, concocted and cooked up with a view to get the respondent evicted by hook or crook.
3.13 It is pleaded that the application raises triable issue and therefore leave to contest must be allowed.
Reply to leave to defend
4. In the reply it is pleaded that the relationship of landlord and tenanted is admitted as the tenant/respondent has paid the last rent from 11.12.2015 to 11.04.2016 @ Rs. 560/ per month excluding electricity charges to the petitioner vide the rent receipt.
4.1 It is denied that the tenanted premises is not bonafidely required by the petitioner or that the petitioner has any other commercial shop available with him.
4.2 It is denied that the petition is for bonafide need of one room and kitchen situated at first floor with common toilet situated at E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 6 of 37 ground floor and it is averred that the petition has been filed for bonafide need of one shop at ground floor under the tenancy of respondent.
4.3 It is averred that the petitioner issued the rent receipt in the name of Raghuveer Dayal and even otherwise the respondent has not claimed in the application that the tenanted premises is let out to a firm.
4.4 It is denied that Sh. Dal Chand took any money much less of Rupees Four Lacs. It is averred that the respondent has not filed any receipt of the alleged money (salami/pagri) and is talking in air.
4.5 It is denied that the petitioner is not the landlord and owner of the property or that the petition is bad for non joinder of parties. It is averred that Sh. Dal Chand executed a registered Will dated 15.10.2014 bequeathing the property between the two sons and the tenanted premises falls in the share of the petitioner.
4.6 It is averred that the father of petitioner expired in December 2015 and the half share of property came in the share of petitioner only after the death of his father and he collected the rent and issued rent receipt.
E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 7 of 374.7 It is admitted that the petitioner is a government servant. It is averred that the tenanted premises is required by the petitioner for his wife for running ready made garment business as the petitioner is having three daughters and the petitioner is a sole earning person as on date.
4.8 It is denied that the petitioner ever asked the respondent for enhancement of rent or that he has filed false site plan or has concealed facts.
4.9 It is denied that Sh. Dal Chand was having 4 shops. It is averred that he was the owner and in possession of half portion of west side of property no. 1825 and the other half portion i.e. eastern side belongs to Mr. Ramesh Vimal uncle of the petitioner. It is averred that eastern side two shops belongs to Mr. Ramesh Vimal and west side two shops belongs to Dal Chand. It is averred that Brij Mohan is the tenant under Sh. Ramesh Vimal.
4.10 It is averred that out of the two shops belonging to Sh. Dal Chand one of the shop is tenanted premises and the other shop was got vacated by the father of the petitioner for his younger son who is presently running a Graphic Design business from the said shop.
4.11 It is pleaded that the application does not disclose any E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 8 of 37 triable issue and is therefore liable to be dismissed.
Rejoinder
5. In the rejoinder the respondent reiterated and reaffirmed the averments as stated in his application seeking leave to defend while simultaneously denying the the contents of the reply.
6. Heard the Ld. Counsels for the parties and perused the records. I have also considered the case laws relied upon by the Ld. Counsel for the respondent and as detailed in the leave to defend application.
Findings
7. In order to succeed in a petition for eviction filed under section 14(1)(e) of the Delhi Rent Control Act the petitioner must establish that:
1. He is the owner and landlord of the tenanted premises.
2. That he requires the tenanted premises bonafide for himself or for any member of his family dependent upon him.
3. That he has no other reasonably suitable accommodation.
7.1 Furthermore the scope of the section has been enlarged in view of the judgment of the Hon'ble Supreme Court titled as E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 9 of 37 "Satyawati Sharma v. Union of India" reported as AIR 2008 SUPREME COURT 3148 so as to include premises let out for commercial purposes also within the scope and ambit of a petition under section 14(1)(e) of DRC Act.
7.2 As far as application for leave to defend is concerned while deciding the question of grant of leave, the court has to consider whether the tenant has raised any triable point / issue, the decision of which may disentitle the landlord from recovering possession of the premises or not. The Controller is not required to conduct a full fledged trial but only to see from the affidavit of the tenant, as to whether any triable point / issue the decision of which may disentitle the landlord from recovering the possession of the premises is disclosed. The Controller is not required to seek the proof of the defence of the tenant but only to see whether any triable issue is raised by the tenant or not. (Precision Steel and Engineering Works v. Prem Deva Niranjan Deva Tayal, AIR 1982 SC 1518 ).
7.3 In the judgment titled as Nem Chand Daga v. Inder Mohan Singh Rana reported as 94 (2001) DLT 683 the Hon'ble High Court of Delhi held:
".....That before leave to defend is granted, the respondent must show that some triable issues which disentitled the applicant from getting the order of eviction against the respondent and at the same time entitled the respondent to leave to defend existed. The onus is prima facie on the E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 10 of 37 respondent and if he fails, the eviction follows........"
7.4 Ram In the judgment titled as Sarwan Dass Bange Vs. Prakash reported as 167 (2010) DLT 80 the Hon'ble High Court of Delhi referring to the judgment of Baldev Singh Bajwa v. Monish Saini reported as (2005) 12 SCC 778 held as under:
".......It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given a right of restoration of possession; the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant unless his need is bona fide no unscrupulous landlord in all probability, under this Section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that this inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his requirement shall be presumed to be genuine and bona fide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine.."
Relationship of Landlord and Tenant
8. The foremost requirement for petitioner to succeed in a petition under section 14 (1) (e) is that he has to prove that he is the E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 11 of 37 landlord, there is a relationship of landlord and tenant between the parties and that he is the owner of the tenanted premises.
8.1 In the case at hand, a careful scrutiny of the leave to defend application would reveal that as far as relationship of landlord and tenant is concerned there is no real dispute and the dispute if any has been raised for the sake of it. The pleadings cut out a clear cut admission of relationship of landlord and tenant between the petitioner and the respondent. Denial if any is not specific and in fact there are implied admissions of landlord and tenant. Para 10, 11 and 16 of the affidavit/leave to defend application wherein the issuance of the rent receipt by the respondent in favour of the petitioner and the landlordship of petitioner's father has been mentioned/admitted are just few examples of the implied admissions. A meaningful reading of the affidavit would reveal the other admissions which are not repeated herein for the sake of brevity. Reliance may be placed upon the law laid down in Badat and Co. v. East India Trading Co ., AIR 1964 SC 538 wherein it has been held that "If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary."
8.2 The petitioner has filed the rent receipt dated 29.04.2016 on record wherein name of owner is mentioned as Hansraj i.e. the petitioner and the the name of tenant is mentioned as Raghuveer Dayal i.e. the respondent. The respondent's signatures appears on the E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 12 of 37 rent receipt and the fact that the issuance of rent receipt is admitted, genuineness of the rent receipt is not disputed, itself clinches the controversy if any.
8.3 Though Ld. Counsel for the respondent had argued that the rent receipt was obtained by the petitioner in a well planned manner and under proper guidance as the same was obtained just around a month prior to filing of the present petition however I fail to understand how the said argument or the circumstances have any bearing on the relationship of landlord and tenant or the present petition. The genuineness of the rent receipt is not disputed. Even if the sole purpose of obtaining the rent receipt was to file the present petition there is nothing wrong in the same. There is no illegality nor any malafide can be imputed to the petitioner. Being the landlord the petitioner has/had the right to obtain the rent receipt. If the petitioner is not the landlord and there is no such relationship of landlord and tenant between the parties the respondent would have not issued the rent receipt. Purpose, intention behind the rent receipt is absolutely immaterial. What is material is that there is indeed an admitted relationship of landlord and tenant between the parties and the rent receipt is a recognization of that relationship.
8.4 Even otherwise the petitioner is admittedly the son of the erstwhile landlord. Respondent had admittedly taken the tenanted premises on rent from petitioner's father Sh. Dal Chand who expired E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 13 of 37 in 2015. The respondent along with his affidavit filed one rent receipt dated 11.09.2000 issued by him in favour of the petitioner's father in respect of the tenanted premises acknowledging him as a landlord/owner. Copy of the said receipt was also filed by the petitioner. He had also filed one receipt dated 22.09.2015. Therefore being the class I legal heir of Late Sh. Dal Chand the petitioner is the landlord of the tenanted premises.
Ownership of tenanted premises 8.5 As far as ownership of the petitioner qua the tenanted premises is concerned same is also not disputed. The respondent has not claimed that someone else is the owner of the tenanted premises nor has he set up his own ownership.
8.6 Nonetheless the petitioner has filed the copy of the registered Will of Late Sh. Dal Chand whereby the property was bequeathed by Sh. Dal Chand upon the petitioner. The Will duly registered on 15.10.2014 categorically states that one shop on the east side on the ground floor of property no. 1825 i.e. tenanted premises shall belong to his son Hansraj i.e. the petitioner. This Will thus bestows enough title in favour of the petitioner to maintain the present eviction petition.
8.7 The law is well settled that if a landlord is able to show E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 14 of 37 that there is a testament in his favour (Will in this case) then the landlord is deemed to have discharged his burden of ownership visa vis the Rent Control Act and such a testament can at best be challenged by the heirs of the owner and not by the tenant. Reliance may be placed upon the law laid down in Plastichemicals Company Vs. Aashit Chadha and anr. 114 (2004) DLT 408 and Ram Chander Vs. Ram Pyari 109 (2004) DLT 388.
8.8 In fact as discussed above the petitioner being the Class I legal heir of the erstwhile owner/landlord has the ownership rights independent of the Will of Sh. Dal Chand to maintain the present petition. (Krishan Lal Vs. Rajan Chand Khanna AIR 1993 Delhi 1).
8.9 In fact once the respondent admits the relationship of landlord and tenant, the existence/ genuineness of rent receipt, the respondent is estopped from raising any dispute regarding the ownership of the petitioner. Reliance in this regard may be placed upon the law laid down in Sushil Kanta Chakarvarty Vs. Rajeshwar Kumar, 79 (1999) DLT 210, Meenakshi Vs. Ramesh Khanna and anr. 60(1995) DLT 524 and T C Rekhi Vs. Usha Gujral, 1971 RCJ
322. 8.10 Further the law is well settled that to succeed in a petition under section 14 (1) (e) of Delhi Rent Control Act the landlord is not E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 15 of 37 supposed to prove absolute ownership as required under the Transfer of Property Act. He is required to show that he is more than a tenant.
8.11 In Bharat Bhushan Vij Vs. Arti Techchandani 2008 (153) DLT 247, in para 4 and 5 it was held as under:
"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 the death, the premises has come in the hands of a 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 the death of original owner without demur and without raising any objection against the person , who claims to have inherited the property under 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 there is a testament in his / her favour, he is deemed to have discharged his burden of proving 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 original owner."
8.12 In the judgment tiled as Ramesh Chand Vs. Uganti Devi reported as 157 (2009) DLT 450 the Hon'ble High Court of Delhi held:
"....It is settled preposition 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 only thing to be seen by the Court is that the landlord had been receiving rent for his own benefit and not for and on behalf of E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 16 of 37 someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner, howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under Section 14(1)(e) of the 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 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....."
8.13 In Sheela and ors Vs. Firm Prahlad Rai Prem Parkash, (2002) 3 SCC 375, it has been held:
"In rent matters the burden of proving ownership on a landlord is not that heavy as it is in a title suit and even a lessor quantum of proof may suffice for holding that the landlord is the owner of the premises in question."
8.14 In judgment tiled as Rajender Kumar Sharma vs Smt. Leela Wati reported as 155 (2008) DLT 383 the Hon'ble High Court of Delhi held:
".......It is settled law that for the purpose of Section 14(1)(e) of Delhi Rent Control Act, a landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show only that he is more than a tenant."
8.15 The Hon'ble Supreme Court of India in Shanti Sharma and Ors. Vs. Ved Prabha and Ors 33 (1987) DLT 80 had the occasion to consider the import of word owner in context of section 14(1) (e) of Delhi Rent Control Act and observed as under:
E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 17 of 37"...................In this context what appears to be the meaning of the term "owner" is vis a vis with the tenant ie the owner should be something more than the tenant"..... It is not the concern of the tenant as to how the landlord acquired the property."
8.16 Therefore the petitioner indeed has ownership rights to maintain the present petition.
Coowner 8.17 Though Ld. Counsel for the respondent had also argued that there are other coowners of the tenanted premises i.e. other legal heirs of Sh. Dal Chand and therefore the present petition being not filed by all the coowners is not maintainable, however I do not agree with either of the contentions of Ld. Counsel for respondent.
8.18 Firstly, no question of coownership arises in view of the registered Will. Vide the registered Will the tenanted premises has been bequeathed solely to the petitioner and to the exclusion of other legal heir i.e. son Prem Raj or for that matter any other legal heir if any.
8.19 Secondly, the law is well settled that one of the coowner can always maintain an eviction petition. Reliance may be placed E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 18 of 37 upon the law laid down by Hon'ble Apex Court in Dhannalal vs Kalawatibai And Ors decided on 8 July, 2002 in Appeal (civil) no. 3652 of 2002 wherein it was held as under:
"It is well settled by at least three decisions of this Court, namely, Sri Ram Pasricha v. Jagannath and Ors., [1976] 4 SCC 184, Kanta Gael v. B.P. Pathan and Ors ., [1977] 2 SCC 814 and Pal Singh v. Sunder Singh (dead) by Lrs. and Ors., [1989] 1 SCC 444 that one of the coowners can alone and in his own right file a suit for ejectment of tenant and it is no defence open to tenant to question the maintainability of the suit on the ground that other coowners were not joined as parties to the suit. When the property forming subject matter of eviction proceedings is owned by several owners, every coowner owns every part and every bit of the joint property along with others and it cannot be said that he is only a part owner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of tenant without joining the other coowners if such other coowners do not object."
8.20 In M/s. India Umbrella Manufacturing Co. & Ors. Vs. Bhagabandel Agarwalla (dead ) by Lrs. And Ors. AIR 2004 Supreme Court 1321, Hon'ble Supreme Court observed that "one of the coowner can file a suit for eviction of a tenant in the property generally owned by the Coowners and this principle was based on doctrine of agency. One coowner filing a suit for eviction against the tenant does so, on his own behalf in his own right and also as an agent of the other coowners. The consent of other coowners is assumed as taken unless it is shown that the other coowners were not agreeable to eject the tenant".
8.21 Further reliance may placed on the law laid down in Mohinder Prasad Jain Vs. Manohar Lal Jain AIR 2006 SC 1471, Shri Ram Pasreja Vs. Jagan nath and ors. AIR 1976 SC 2335, E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 19 of 37 Laxmi Shankar Hari Shankar Bhatt Vs. Yashram Vasta (dead) by LRs AIR 1993 SC 1587, Krishan Lal Vs. Rajan Chand Khanna AIR 1993 Delhi 1 and Fibre Bond (Sales) Pvt.Ltd. Vs. Smt. Chand Rani 1993 (1) RCR 492.
8.22 Therefore as far as the relationship of landlord and tenant as well as ownership of tenanted premises is concerned the respondent could not raise any triable issue.
Bonafide requirement and non availability of reasonably suitable alternate accommodation
9. The prime question to be answered is as to whether the tenanted premises is required bonafide by the petitioner and that the petitioner has no other/alternative reasonably suitable accommodation for his bonafide need.
9.1 In the case at hand the petitioner has claimed that he requires the tenanted premises for his wife as she wants to start a readymade garment shop. It is the petitioner's case that he is a government servant, the sole earning member of the family which consists of 5 members and his meager salary is not sufficient to fulfill even the basic needs of his entire family therefore he needs the tenanted premises so that his wife can start the readymade garment business from there and thus augment the family income.
E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 20 of 379.2 As far as law regarding bonafide is concerned in Shiv Gupta v. Dr. Mahesh Chand Gupta , 1999 AIR (SC) 2507 , it was held by Hon'ble Apex Court that:
12. Chambers 20th Century Dictionary defines bonafide to mean 'in good faith : genuine'. The word 'genuine' means 'natural : not spurious : real; " pure : sincere'. In Law Dictionary, Mozley and whitley define bonafide to mean 'good faith, without fraud or deceit'. Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contra distinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the Court.
The judge of facts should place himself in the arm chair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest".
9.3 The Hon'ble Supreme Court observed in Raghunath G. Panhale (Dead) by LRs. Vs. Chaganlal Sundarji and Co. (1999) 8 SCC 1 that:
"The word "reasonable" connotes that the requirement or need is not fanciful or unreasonable. It cannot be a mere desire. The word "requirement" coupled with the word reasonable means that it must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. A reasonable and bona fide requirement is something in between a mere desire or wish on one hand and a compelling or dire or absolute necessity at the other end. It may be a need in praesenti or within reasonable proximity in the future.E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 21 of 37
It was further held in above judgment as under: " a landlord need not lose his existing job , nor resigned it , nor reached a level of starvation to contemplate that he must get possession of his premises for establishing a business. . 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 ones premises. For that matter assuming the landlord was in a job and had not resigned it or assuming that pending the longdrawn litigation he started some other temporary water business to sustain himself, that would not be an indication that his need for establishing a grocery shop was not a bonafide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant. It is not necessary for the landlord to adduce evidence that he had money in deposit in a bank nor produce proof of funds to prove his readiness and willingness as in a suit for specific performance of an agreement of sale of immovable property".
9.4 In Jaswinder Singh Vs. Surinder Kaur, 204 (2013) DLT 716 , in para no. 14, it has been held as follows:
"14. As per law, bonafide requirement has to be seen and considered from the perspective of the landlord and tenant cannot be allowed to dictate the terms in which portion the landlord should reside."
9.5 In Sarla Ahuja Vs. United India Insurance Company Ltd. AIR 1999 SC 100, it was held that ".....The crux of the ground envisaged in Clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be 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 E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 22 of 37 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."
9.6 In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta , 1999 (6) SCC 222 it has been observed that:
" ............ The judge of facts should place himself in the arm chair of the landlord and then ask the question to himself - whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural , real , sincere, honest . If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or , in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord is merely attempting at finding out a pretence or pretext for getting rid of the tenant , would be enough to persuade the court certainly to deny its judicial assistance to the landlord.
9.7 In Sait Nagjee Purushotham & Co. Ltd. Vs. Vimlabai Prabhulal & Ors, (2005) 8 SCC 252 , it has been held in para 4 as follows:
" It is always the prerogative of the landlord that if, he requires the premises in question for his bonafide use for expansion of business, this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not a genuine need. It is not the tenant who can dictate the terms to the landlord and advice him what he should do or what he should not. It is always the privilege of the landlord to choose the nature of business and the place of business. ".
9.8 From the above judgments, it is evident that landlord is the best judge of his requirements. It is well settled law that the E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 23 of 37 requirement or need should not be fanciful or unreasonable. It cannot be a mere desire and must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. It may be a need in praesenti or within a reasonable proximity in the future.
9.9 In S N Kapoor Vs Basant Lal Khatri, VII (2001) SLT 648 (2002) 1 SCC 329 it was held:
"that to contend that no material has been brought on record and no proof has been made by the tenant by any positive material that the requirement of the landlord is neither genuine nor bonafide or reasonable but a mere excuse to get ride of the tenant. Though the choice or proclaimed need cannot be whimsical or merely fanciful, yet a certain amount of discretion has to be allowed in favour of the landlady too and the courts should not impose their own wisdom forcibly upon the landlady to arrange her own affairs, according to their perception carried away by the interest or hardship of the tenant and the inconvenience that may result to him in passing an order of eviction. So far as a claim under Section 14 (1) (e) is concerned, the very requirement has to be shown not only to be bonafide but the move of the landlord/ landlady to seek eviction of the tenant must be genuine."
9.10 In the judgment titled as Ragavendra Kumar v. Firm Prem Machinary reported as AIR 2000 SUPREME COURT 534 the Hon'ble Supreme Court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Reference may also be made to the judgment titled as Prativa Devi (Smt) v.
T.V. Krishnan reported as (1996) 5 SCC 353.
E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 24 of 379.11 Therefore not only the petitioner is at absolute liberty to carry on the business which he desires but he also has the absolute right to choose the premises from which he intends to carry on the business. No embargo can be there on either the choice of the business or the place from where he intends to carry on the business. That is not the domain of the court or not something that the tenant can dictate. Only safeguard is that the need should be bonafide.
9.12 In the case at hand the petitioner has disclosed the business his wife intends to carry on once the premises is made available to her i.e. readymade garment business. There is no reason to doubt his bonafide or assume that his intentions are malafide. The law is well settled that even otherwise also the petitioner is under no obligation to give minute details of the proposed business and he cannot be compelled to do any particular kind of business. (Tarsem Singh Vs. Gurvinder Singh RCR 137/2010 and Balwant Singh Chowdhary & anr Vs. Hindustan petroleum Corporation Ltd., 2004 (1) RCR 487) 9.13 In Gurcharan Lal Kumar Vs. Srimati Satyawati and Ors 200 (2013) DLT 20 it was observed that "merely because the exact nature of business has not been described would not take away their bonafide need to carry out a business. It was observed that if the business need is not disclosed this would not wipe away the bonafide E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 25 of 37 need of the landlord as has been pressed under Section 14 (1) (e) of the DRCA, 1958."
9.14 In Raj Kumar Khaitan and ors Vs. Bibi Zubaida Khatun AIR 1995 SC 576 it was held that it was not necessary for the landlord to state or indicate in the pleadings, the precise nature of the business he proposes/intends to start. Even if the nature of business would have been indicated nobody could bind the landlord to start the same business in the premises after it was vacated.
9.15 It has been held by Hon'ble Supreme Court in Rishi Kumar Govil Vs. Maqsoodan, 2007 (1) RCR (Rent) 405 "It is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter."
9.16 In Mohd. Ayub and anr Vs. Mukesh Chand (2012) 2 SCC 155 wherein it has been held that "........It is well settled the landlord's requirement need not be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start..........".
E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 26 of 37Wife is a housewife and has no business experience.
9.17 Though ld. Counsel for the respondent argued that the wife of the petitioner is a housewife and she has no experience in any business much least readymade garment business and therefore this itself creates doubt upon her bonafide need, however I find no merits in the said contentions. In the judgment tiled as Ram Babu Aggarwarl v. Jay Kishan Das reported as 2009(4) R.C.R.(Civil) 748 (SC) , the Hon'ble Supreme Court observed:
".......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...."
Financial status of the landlord is irrelevant 9.18 Though Ld. Counsel for the respondent had also argued that the petitioner is financially sound, is a government servant earning reasonable salary and therefore there is no bonafide need to start the business of readymade garment, however I find no merits in the same. Financial status of the petitioner or for that matter his family has nothing to do with his/their bonafide need. Even if the petitioner is gainfully employed, generating some income it does not mean that he is not entitled for eviction of the tenanted premises for E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 27 of 37 starting his wife's independent business.
9.19 In Shamshed Ahmad and ors Vs. Tilak Raj (deceased), 152 (2008) DLT 301, the Hon'ble Supreme Court affirmed the order of the trial Court which was reversed by the High Court that " the requirement of Section 14 (1) (e) is bonafide requirement and it has to be seen as per the requirement of the petitioner (landlord), even if the petitioner is very rich and having other properties at different places that does not affect his requirement of the premises, as alleged in the petition and the leave to defend application was dismissed."
9.20 It is not the requirement of law that before the landlord seeks eviction of the tenanted premises to start his/his wife's business he/they have to starve himself/themselves or curtail all sources of income or become absolutely unemployed or jobless. In Ramkubai & Ors V Hajarimal Dhokalchand Chandak & ors. JT 1999 (5) SC 630 it was observed that :
" B was unemployed on the date of filing of the suit but in the meanwhile started some business and in that context , their lordships held that he cannot be expected to idle away the time by remaining unemployed till the case was finally decided. It was held that if the eldest son was carrying on business along with his mother, that does not mean that his need has not been established for starting his own business."
9.21 In Raghunath G. Panhale (Dead) by LRs (Supra) it was further held as under:
"a landlord need not lose his existing job , nor resigned it, nor E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 28 of 37 reached a level of starvation to contemplate that he must get possession of his premises for establishing a business. . 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 ones premises. For that matter assuming the landlord was in a job and had not resigned it or assuming that pending the longdrawn litigation he started some other temporary water business to sustain himself, that would not be an indication that his need for establishing a grocery shop was not a bonafide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant. It is not necessary for the landlord to adduce evidence that he had money in deposit in a bank nor produce proof of funds to prove his readiness and willingness as in a suit for specific performance of an agreement of sale of immovable property".
Eviction required not for self but for wife 9.22 It was also one of the arguments of the ld. Counsel for the respondent that the petitioner does not require the premises for himself but for his wife, therefore there is no bonafide need of the petitioner and thus he is not entitled to any eviction, however I find no merits in the same. Need of the petitioner's wife is the petitioner's need. The income generated from the business run by the wife will augment the family income, increase the family pool and finances. Petitioner has three daughters to marry. With the cost of living increasing day by day it is unreasonable to expect that the petitioner shall be able to not only meet family's need, provide them with a decent living, education but also shall be able to marry them (daughters) off reasonably with just one (his) salary. Salary of the petitioner, he being the sole employed member of the family, in my E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 29 of 37 considered opinion is insufficient to meet the family needs.
9.23 Furthermore it is well settled law that the wife and other legal heirs i.e. grown up children are dependent upon their parents financially as well as for the accommodation. Reliance may be placed upon the law laid down in Kharati Ram Khanna & sons. Vs. Krishna Luthra 172 (2010) DLT 551, Mohd Ayub Vs. Mukesh Chand 2012 (1) RCR (Rent) 56 (SC), Labhu Lal Vs. Sandhya Gupta (2010) 173 DLT 318 and Ram Babu Aggarwal Vs. Jay Kishan Dass 2009 (2) RCR 455.
9.24 In Joginder Pal Singh Vs. Naval Kishore Behal AIR 2002 SC 2256 it has been held as under:
"24.......... Keeping in view the social or 'socioreligious 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."
9.25 Therefore no triable issue could be raised by the respondent challenging the bonafide need of the petitioner.
E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 30 of 37Alternative accommodation
10. As far as the availability of other/alternate reasonably suitable accommodation is concerned the petitioner has categorically stated that he has no other reasonably suitable accommodation except for the tenanted premises to start his wife's business. Though the Ld. Counsel for respondent argued that the petitioner has numerous other suitable accommodations to commence the business, however I differ with Ld. Counsel for the respondent.
10.1 The Ld. Counsel for the respondent argued that there are three other shops adjoining/adjacent to the tenanted premises which can be utilized by the petitioner for his/his wife's bonafide need and therefore there is no such bonafide need of the tenanted premises however I find no merits in the arguments of Ld. Counsel for respondent.
10.2 It has been the case of the petitioner that he owns only one shop i.e. the tenanted premises which was bequeathed to him by his father vide registered Will dated 15.10.2014. Though there are three other shops on the ground floor of property bearing no. 1825 apart from the tenanted premises however the petitioner categorically stated that none of those shops belongs to him and are not available to him for his bonafide need. The petitioner's claim has merits and the E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 31 of 37 respondent failed to establish otherwise so as to raise any triable issue in this regard. It is to be seen that out of three shops one shop belongs to the petitioner's brother namely Prem Raj as per Will dated 15.10.2014 and the said brother of the petitioner is carrying on the business of Graphic designing from the said shop. The said fact is not disputed, in fact it is admitted by the respondent. The said shop belongs to the brother, he is carrying on the business from there and therefore the said shop cannot be/is not available to the petitioner as he has no right in the same.
10.3 As far as remaining two shops are concerned it has been the stand of the petitioner that those two shops belong to his uncle Sh. Ramesh Vimal i.e. younger brother of his father. Will dated 15.10.2014 categorically stipulates/lays down that Sh. Dal Chand is the owner of only West side portion of property no. 1825 and he had accordingly executed Will in respect of West side portion only as the East side belongs to his brother namely Sh. Ramesh Vimal. There are only two shops in the West side, one with Sh. Prem Raj and the other being the tenanted premises. Remaining two shops are in the eastern side of the property/in the portion of Ramesh Vimal. Had Dal Chand been the owner of all the four shops he would have executed Will in respect of all the four shops and not just two shops. Moreover out of even these two shops one has been admittedly let out to one SRV Associates as is evident from the photographs filed by the respondent and as stated in the para 21 of the affidavit accompanying the leave to E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 32 of 37 defend application. Therefore these shops not belonging to the petitioner they cannot be held to be available to him as other reasonably suitable accommodation.
10.4 Though Ld. Counsel for the respondent argued that as per the Will dated 15.10.2014 there is one more property bearing no. 1765, Arya Basti, Kotla Mubarakpur, New Delhi which belongs to the petitioner and the petitioner can utilize the same for his/his wife's bonefide need, however I do not find any merits in the said arguments. The said property is a residential property as is writ large from the Will. Furthermore it is an undivided property between petitioner's father (now the petitioner and his brother), Netram and Ramesh Vimal (petitioner's uncles). The property being yet to be divided, shares yet to be ascertained the said property cannot be held to be available to the petitioner or his wife for the bonafide need expressed by the petitioner. Moreover the respondent has not been able to show in his leave to defend application that how the said property, which portion of said property can be utilized by the petitioner for the bonafide need expressed by him.
10.5 It has been held in Prativa Devi Vs. T.V. Krishnan (1996) 5 SCC 353 that "in considering the availability of alternative accommodation, the court has to consider not merely whether such accommodation is available but also whether the landlord has a legal right to such accommodation".
E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 33 of 3710.6 Furthermore even if the said property is available, though there is nothing to suggest the same, it has been held in Mumtaz Begum and ors Vs. Mohd. Khan MANU/DE/0014/2010 as ".......The position of law is clear that the landlord is entitled to make a choice of the property which he chooses to occupy, there is no mandate of law requiring the landlord to mention all the properties owned by him and it is for the tenant to take such pleas and the landlord is entitled to give his explanation with respect thereto in his replication/rejoinder."
10.7 It is the landlord's prerogative and law should not and cannot prevent the preferences of the landlord. The court would not thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodations must be accepted by the landlord to satisfy his needs. The landlords subjective choice has to be respected by the court. Neither can the tenant be allowed to dictate terms to the landlord as same would be unjust. (Ragavendra Kumar Vs. Firm Prem Machinery and Company (2000) SCC 679, Prativa Devi Vs. T.V. Krishnan (1996) 5 SCC 353), Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222, Sarla Ahula Vs. United India Insurance Co. Ltd. (1998) 8 SCC 119 and Viran Wali Vs. Kuldeep Rai Kochar 2010 (2) RCR 571).
E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 34 of 3710.8 Apart from the shops and the property no. 1765 as discussed above the respondent has not claimed in the leave to defend application, not given any details whatsoever of any other property which according to him is available to the petitioner and which can be utilized for the bonafide need expressed by the petitioner. Therefore as far as alternate accommodation is concerned the respondent could not raise any triable issue in this regard also.
10.9 Though Ld. Counsel for the respondent had argued that the sole purpose of present eviction petition is to get it vacated so as to let it out at a higher rent however suffice would be to say that I have no reasons to believe so. Nothing stated in the leave to defend application corroborates the said arguments. Further in case the petitioner does not use the tenanted premises for the purpose as claimed by them, the respondent can always take recourse to the provisions of Section 19 of the DRC Act. Reliance may be placed upon the law laid down in Baldev Singh Bajwa (supra).
HARDSHIP
11. It was also argued by Ld. counsel for respondent that since tenanted premises is the only means of earning and livelihood of respondent and his family, a lot of hardship shall be caused to him, if the eviction is allowed. However I find no merits in the same. The E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 35 of 37 law is well settled that the concept of comparative hardship has no application so far as ground of eviction U/s. 14 (1) (e) of the Act is concerned. The tenanted premises is with the respondent since 2000 i.e. for the last 16 years. It is quite a long period. Nothing has been disclosed/ stated by the respondent as to whether the respondent has acquired or any attempt was made by him to get alternate accommodation or that he failed to get such accommodation. I am not inclined to believe that respondent has no other property for carrying on the business or that he did not make any effort all this while to find the alternate accommodation. Furthermore in Subhash Jain Vs Ravi Sehgal decided on 04.02.2014, Hon'ble High Court of Delhi has observed :
"we are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. But in our opinion, in the facts of this case, that circumstance cannot be the sole determinative factum . That hardship can be mitigated by granting him longer period to move out of the premises in his occupation so that in the meantime he can make alternative arrangement"
11.1 Reliance may also be placed upon the law laid down in Om Parkash Arora Vs. Ratan Mala Jain 2013 (1) AD (Delhi) 253 and Mohd. Ayub Vs. Mukesh Chand (2012) 1 AD (SC) 473.
11.2 Hence no question of any hardship whatsoever being caused to the respondent arises or can be taken into consideration.
12. In view of above discussion, the leave to defend E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 36 of 37 application stands dismissed as no triable issues have been raised by the respondent. The petitioner is entitled to recover the possession of the tenanted premises i.e. shop bearing no. 1825/2, Udai Chand Marg, Ravi Das Basti, Kotla Mubarak Pur, New Delhi - 110003. The eviction petition is allowed accordingly. The petitioners, however shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of this order.
13. File be consigned to record room.
Announced in the open court (Gaurav Rao)
on 26th October 2016 SCJCumRC(SouthEast)
Distt.Courts, Saket, New Delhi.
E No. 5060/16 Hans Raj Vs. Raghubir Dayal Page 37 of 37