Delhi District Court
Dinesh Kumar vs Kuldeep Sharma on 30 March, 2024
IN THE COURT OF MS. SHRUTI CHAUDHARY
ACJ-cum-CCJ-cum-ARC, SHAHDARA
KARKARDOOMA COURTS, DELHI
DLSH030007022014
RC ARC No : 568/2016
Sh. Dinesh Kumar
S/o Late Sh. Jai Prakash,
R/o H. No. 6/165-166, Dhobi Bara,
Farsh Bazar, Shahdara, Delhi-32.
........Petitioner
Versus
1. Kuldeep Sharma,
S/o Sh. Jai Prakash Sharma,
R/o 28/59-A, Gali No. 15, Vishwas Nagar,
Near English Beer Shop, Shahdara, Delhi-32.
2. Sanjeev Jain @ Neelu,
C/o Hardware Shop, Ground Floor,
Bearing Part Property No. 6/165-166,
Dhobi Bara, Farsh Bazar,
Shahdara, Delhi-32.
........Respondents
APPLICATION FOR EVICTION UNDER SECTION 14 (1) (b) & (e) r/w
SECTION 25-B OF DELHI RENT CONTROL ACT, 1958
DATE OF INSTITUTION : 22.05.2014
DATE OF DECISION : 30.03.2024
RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 1 of 20
JUDGMENT
1. Vide this judgment, this Court shall adjudicate the petition filed by the petitioner under section 14 (1) (b) & (e) r/w section 25 (B) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the DRC Act) seeking eviction of the respondent no. 1 on the ground that the respondent no. 1 has sub-let the shop bearing part property no. 6/165-166, Dhobi Bara, Farsh Bazar, Shahdara, Delhi-32, as shown in the site plan in red (hereinafter referred to as "the demised premises" in short) to one Sanjeev Jain i.e. respondent no. 2, without taking permission from the petitioner and further on the ground of bona fide requirement.
2. It has been averred in the petition that the petitioner is the owner of the demised premises, measuring 5 ½ X 10 square yards, which was let out to the respondent no. 1 initially @ Rs. 3,000/- per month and the rent was agreed to be Rs. 4,000/- per month w.e.f 18.12.2010 and a notice dt. 06.12.2012 was issued to respondent no. 1 to this effect and the latter had replied to the same vide reply dt. 19.12.2012. The petitioner has further mentioned that the respondent no. 1 has not been seen sitting on the suit property but respondent no. 2 has been seen sitting there, making it obvious that the respondent no. 1 has sub-let the premises to respondent no. 2 without the consent of the petitioner. He has also averred that the rent is due from the respondent no. 1 to the petitioner w.e.f 18.12.2010 @ Rs. 3,000/- per month. He has further stated that the respondent no. 1 has sufficient residential as well as commercial premises at H. No. 28/59-A, Gali No. 15, Vishwas Nagar, Near English Bear Shop, Shahdara, Delhi-32 and apart from that is also having sufficient accommodation in Delhi and other buildings whereas the petitioner has no other shop except the suit property and being a senior citizen, the petitioner is of old age and is quite weak and would run the shop himself for his livelihood. Therefore, it is submitted that the petitioner needs the demised premises for the urgent need of the shop for himself and also seeks eviction of respondent no.
RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 2 of 201 on the above stated grounds. Hence, the present petition.
3. The respondents were summoned by this court vide order dated 24.05.2014 and written statement on behalf of the respondents was filed in due course. In the said WS, the respondents have objected to the present petition stating that this court does not have jurisdiction to entertain the present petition because an earlier petition no. E- 145/2013 seeking eviction u/s 14 (1) (a) (b) & (e) R/w 25 B DRC Act was filed by the petitioner on 16.11.2013 and was later withdrawn by the petitioner on 15.03.2014 after the respondents herein appeared before the court concerned and challenged the jurisdiction of the court under DRC Act as the rent was stated to be Rs. 4,000/- per month. He submits that the petitioner has filed the present case on the same cause of action and cannot be allowed to fix rent according to his own convenience by filing false and frivolous petition. He has further stated in the WS that the petitioner has falsely averred that the respondent no. 1 has sub-let the premises or had parted possession of the same. He has further averred that the respondent no. 2 is working as an employee of respondent no. 1 and has no concern in any manner with the tenanted premises. It is also averred that the said shop has always been under the possession of respondent no. 1 who opens and closes the shop and keys of the said premises have always belonged to respondent no. 1 and the actual physical possession and control over the business carried out from the tenanted premises has always been under the full power and authority of respondent no. 1. He has further stated that the petitioner has suppressed true and material facts from this court with mala fide intention. He has further averred that the demised premises are a subject matter of Slum Area (Improvement and Clearance) Act, 1956 and since no permission has been obtained from the concerned authority u/s 19 of the said Act, the present petition is liable to be dismissed u/O 7 Rule 11 CPC. Lastly, he has averred that the petition does not dispose the bona fide requirement of petitioner as the petitioner has deliberately concealed the fact that he is selling milk and carrying out the business of a dairy farm in Bhopura, at RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 3 of 20 UP Border, having two cows and 8-9 buffalos, from which he is earning his livelihood. Further, he has denied all the averments of the petitioner made in the petition and has stated that rent @ Rs. 100/- per month has been deposited in the court of Sh. Naresh Kumar Laka, Ld. ARC, U/s 27 DRC Act vide petition no. 107/2014 for the period of 01.01.2011 to 31.03.2014. Therefore, he has prayed for dismissal of the present petition with heavy costs. Thereafter, pleadings stood complete and matter was listed for evidence.
4. In order to prove his case, the petitioner examined himself as PW1, relying upon his evidence by way of affidavit Ex. PW1/1 wherein, he reiterated the contents of his petition and also relied upon site plan Ex. PW1/A and copy of legal notice with receipt Ex. PW1/B (Colly.). PW1 was cross examined at length by the Ld. Counsel for the respondents. During the course of his cross examination, PW1 deposed that he cannot understand English fully and that the respondent has not been paying rent on time. He has also stated that he is not "physically well by his legs and cannot stand for more than 15-20 minutes" and therefore requires the shop for earning his livelihood. He has further stated that he did not remember the year in which shop was rented out to respondent no. 1 and has agreed that no agreement was executed at that time. He has also stated that initially the rent was fixed at Rs. 100/- per month but did not remember whether respondent no. 1 had paid the rent till December, 2010. He has stated that he was issuing rent receipts to the respondent no. 1 for the rent @ Rs. 100/- per month but cannot say whether he had the counterfoils for the rent paid till December, 2010. He has admitted that there is no mention of any arrears of rent in the notice dt. 17.04.2014 i.e. Ex. PW1/B. He has denied that he had wrongly mentioned the monthly rent of the shop in his petition as Rs. 3,000/- per month. He was confronted with notice dt. 06.12.2012 and reply dt. 19.12.2012 but denied having knowledge about the same. Said documents were taken on record as Mark PW1/D1 and Mark PW1/D2. He has denied RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 4 of 20 running a dairy in Bhopura and having 2-3 cows and 09 buffalos. He has also denied having two other properties in Shahdara. He has denied that the site plan Ex. PW1/A is not correct according to the site. He has further admitted that the complete site plan of the construction existing on ground, first and second floors has not been filed by him and has voluntarily stated that since the present case pertains only to the shop, he has not filed the site plan of the other floors. He has denied that the remaining portion of the ground floor, except the shop in question, was let out for commercial purposes to the other tenants and that a boutique shop was being run on the first floor of the building. He was shown photographs Mark PW1/R1 (Colly.), which he denied belonging to him. He has denied the suggestion that Sanjeev was the employee of Kuldeep and has voluntarily stated that he was told that Sanjeev was the partner of Kuldeep and therefore had reasons to believe that the shop was sub-let to Sanjeev by Kuldeep. He has stated that his source of income is the chakki being run by his wife. Lastly, he has denied having alternate premises available for his business and has further denied that he has filed a false case against the respondents. Thereafter, PE stood closed.
5. The respondent no. 1 examined himself as RW1 and relied upon the following documents: -
i) Evidence by way of affidavit Ex. RW1/A.
ii) Copy of petition No. E-145/2013 Ex. RW1/1.
iii) Reply to notices Ex. RW1/2 (Colly.).
iv) Copy of petition No. 107/2014 Ex. RW1/3 (Colly.).
v) Photographs Mark PW1/R1 (Colly.).
Thereafter, RW1 was cross examined by petitioner at length. In his cross examination, RW1 has stated that he is 12 th pass and cannot read English. He has admitted that the petitioner is the owner of the shop i.e. demised premises, RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 5 of 20 which was given to him on rent. He has denied that it was verbally agreed between them that he would pay rent @ Rs. 4,000/- per month. He has stated that he did not receive any legal notice from the petitioner regarding rate of rent being Rs. 4,000/- per month. Upon being confronted with legal notice dt. 17.04.2014, Ex. PW1/B, he stated that he did not remember whether he received the said notice. He has admitted that site plan Ex. PW1/A is correct according to site. He has voluntarily stated that the petitioner had taken Rs. 3 lacs from him in advance when the shop was rented out to him in the year 1993 for commercial purposes and has stated that he did not have any receipt or document pertaining to the above mentioned Rs. 3 lacs. He has further voluntarily stated that the petitioner had fixed the rent of Rs. 100/- per month. He has stated that he has employed 5-7 people in his shop since its inception but did not recall their names. He has submitted that he did not file any salary register pertaining to said employees and did not maintain any such register. He has stated that Sanjeev Jain worked with him from 2011 to 2021-22 and has denied that the latter was still working with him. He has denied that he has sub-let the demised premises to Sanjeev Jain. He has admitted that the board on his shop was of "Sharma and Jain Hardware Store" which he had affixed in the year 2010, however, he has denied that he was still carrying out business under the same name. He has denied that Sanjeev Jain has been running his shop since 18.12.2010. He has further stated that he did not remember whether he had paid rent since 18.12.2010 as he had suffered from a brain stroke in 2019 and could not remember small details. He has admitted that the petitioner is a senior citizen and has denied that the petitioner was residing at H. No. 6/165-166, Dhobi Wara, Farsh Bazar, Shahdara, Delhi-32. He has voluntarily stated that the petitioner was residing at Kakrkari Gaon but could not remember the exact address. He has denied that the petitioner cannot travel up and down the stairs as he had sufferred from leg fracture in both legs and was unable to do any hard work. He has denied that the petitioner did not have any other shop or property apart from the shop in question. He has RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 6 of 20 admitted that the petitioner cannot be seen in any of the photographs relied upon by him i.e. Mark PW1/R1 (Colly.). He has admitted that he did not have any document showing that petitioner is having properties at Jumba Colony and Pandit Moholla, Bhopura, Loni, UP. He has denied that the entire building was not being used for commercial purposes or that boutique was not being run from the first floor. He has stated that petitioner did not reside in Hapur as per his knowledge and was also not running any flour mill business from Hapur. He has denied that only the demised premises was being used for commercial purpose and rest of the property is being used for residential purpose. He has further denied that rent @ Rs. 3,000/- per month was due since 18.12.2010 which he did not deposit and that he was deposing falsely.
6. Respondent no. 2 examined himself as RW2 and relied upon his evidence by way of affidavit Ex. RW2/A. He was cross examined at length by Ld. Counsel for the petitioner. In his cross examination, he has denied that the respondent no. 1 had sub-let the demised premises to him. He has stated that he was sitting in the shop since 18.12.2010, running the business and has voluntarily stated that respondent no. 1 was paying him salary of Rs. 6,000/- per month from 2010 to 2013, Rs. 8,000/- per month from 2013 to 2017 & Rs. 10,000/- per month from 2017 to 2022, after which he had left the shop. He has stated that he did not have any written proof of salary or that he was working as an employee / salesman with respondent no. 1. He has denied that he never worked as employee of respondent no. 1 and had taken the shop on rent from respondent no. 1. He stated that he did not have any written proof of leaving the employment with respondent no. 1. He has denied being the sub-tenant of respondent no. 1 or that he was deposing falsely. Thereafter, RE stood closed.
7. Arguments were advanced with equal vehemence on behalf of both the parties. I have heard the rival submissions and have perused the court record RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 7 of 20 thoroughly.
8. At the stage of arguments, Ld. Counsel for the petitioner has contended that he has proven his case on the scale of balance of probabilities inasmuch as he has established his bona fide requirement for securing eviction of the respondent from the demised premises. He has further argued that the petitioner is a senior citi- zen aged 65+ years and is facing problem while climbing stairs due to fracture in both his legs. He has also argued that the non-availability of a reasonably suitable commercial accommodation for the petitioner has also been shown by the petitioner by way of evidence led by the petitioner and that the bona fide requirement of the petitioner is genuine in nature. He has also stated that the respondent has admitted the case of the petitioner in his cross examination. Therefore, he has prayed for eviction of the respondent no. 1 from the demised premises.
9. On the other hand, Ld. Counsel for respondent has argued that the peti- tioner has failed to prove his genuine requirement either u/s 14 (1) (b) or 14 (1) (e) DRC Act. He has vehemently argued that the present petition has been filed with an ill motive in order to get the respondent no. 1 to vacate his shop and not for any genuine commercial requirement of the petitioner. He has argued that a similar peti- tion u/s 14 (1) (a) (b) & (e) DRC Act was filed by the petitioner earlier, which was withdrawn by him on 15.03.2014 after the respondents herein challenged the juris- diction of the court concerned as the monthly rent was mentioned as Rs. 4,000/- per month. He has further argued that the present petition has now been filed with a false averment that the monthly rent was Rs. 3,000/- per month earlier, in order to bring the case within the purview of DRC Act before this court and therefore the pe- tition must be dismissed on this ground alone. Further, he has argued that the peti- tioner has failed to show any bona fide requirement and has willingly filed a wrong site plan before this court in order to conceal from this court that all the floors of the RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 8 of 20 property had been let out for commercial purpose and that the petitioner is not resid- ing at the said property. Therefore, he has prayed for dismissal of the present peti- tion.
10. Before dwelling into the merits of the case, it is pertinent to refer to the relevant provisions of law applicable in the present case: -
The Delhi Rent Control Act, 1958:-
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 any court or Controller in favour of the landlord against a tenant Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-- ...
(b) - that the tenant has, on or after the 9th day of June, 1952, sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord ...
(e)- That the premises let for residential purpose are required bona fide by the landlord for occupation as a residence 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 the landlord or such person has no other reasonably suitable residential accommodation;RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 9 of 20
Section 25B- Special procedure for the disposal of applications for eviction on the ground of bona fide requirement: -
(1) Every application by a landlord for the recovery of possession of any premises on the ground specified in clause (e) of the proviso to sub-section (1) of section 14, or under section 14A [or under section 14B or under section 14C or under section 14D] shall be dealt with in accordance with the procedure specified in this section. (2) The Controller shall issue summons, in relation to every application referred to in sub-section (1), in the form specified in the Third Schedule.
(3) (a) The Controller shall, in addition to, and simultaneously with, the issue of summons for service on the tenant, also direct the summons to be served by registered post, acknowledgement due, addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works for gain and may ,if the circumstances of the case so require, also direct the publication of the summons in a newspaper circulating in the locality in which the tenant is last known to have resided or carried on business or personally worked for gain .
(b) When an acknowledgement purporting to be signed by the tenant or his agent is received by the Controller or the registered article containing the summons is received back with an endorsement purporting to have been made by a postal employee to the effect that the tenant or his agent had refused to take delivery of the registered article, the Controller may declare that there has been a valid service of summons.
(4) The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files and affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 10 of 20 appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid.
(5) The Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause (c ) of the proviso to sub- section (1) of section 14, or under section 14A. (6) Where leave is granted to the tenant to contest the application, the Controller shall commence the hearing of the application as early as practicable.
(7) Notwithstanding anything contained in sub-section (2) of section 37, the Controller shall, while holding and inquiry in a proceeding to which this Chapter applies, follow the practice and procedure of a Court of Small Causes, including the recording of evidence. (8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section:
Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit. (9) Where no application has been made to the High Court on revision, the Controller may exercise the powers of review in accordance with the provisions of Order XLVII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908).
(10) Save as otherwise provided in this Chapter, the procedure for the disposal of an application for eviction on the ground specified in clause (e) of the proviso to sub-
section (1) of section 14, or under section 14A, shall be the same as the procedure for the disposal of applications by Controllers.
RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 11 of 2011. In the facts of the present case, firstly it has been alleged by the respon- dent that the petitioner has not come before this court with clean hands as the peti- tioner has concealed material facts from this court. it is the contention of the re- spondent that the petitioner knowingly concealed the fact that he had earlier filed a petition under similar cause of action which was later withdrawn by him and that in said petition, the petitioner had mentioned that the rate of rent charged by him from the respondent was ₹4000/- per month. Now, the respondent has filed certified copies of the earlier petition, No. E-145/13, moved by the petitioner in which it is clearly stated that the rent charged by the petitioner was ₹4000/- per month. This averment has been supported by an affidavit on part of the petitioner. No explana- tion has been provided by the petitioner as to on what ground the said petition was withdrawn by him, on 15.03.2014. Although, it is clear that the court concerned had granted him the liberty to file the petition afresh, it is curious as to how the peti- tioner has mentioned the rent charged to be ₹3000/- per month in the present peti- tion. No explanation has been provided by the petitioner regarding the said disparity and on the basis of this concealment, Ld. counsel for respondent has vehemently prayed for dismissal of the present petition.
12. Now, the doctrine of "clean hands" states that a litigant who has con- cealed a fact which has a material bearing on the issue in controversy must not be shown any sympathy. What remains to be examined in the present matter is that whether the concealment made by the petitioner has had a material bearing on the issue in controversy. The issue in controversy at this stage is not the rate of rent charged by the petitioner from the respondent but whether the petitioner is entitled to a decree of eviction either based on bona fide needs of the petitioner u/s 14(!)(e) of DRC Act or according to provisions of s. 14(1)(b) of DRC Act. It has been laid down in a catena of judgments that once the facts which are alleged to have been concealed have been brought to the knowledge of the court and the court has had an RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 12 of 20 occasion to consider the same and still holds favorably in favour of the landlord, the petition cannot be dismissed on the ground of concealment alone. Reliance is placed on the citation of Sunil Kumar Goyal vs. Harbansh Singh decided on 18.07.2017 in RC. Rev. 300/2017. In the present case also, it is not disputed that the petitioner had concealed the factum of filing of a separate petition under similar cause of ac- tion and the subsequent withdrawal of the same and has further failed to clarify the difference in rate of rent charged mentioned in the two petitions, however, the issue in controversy cannot be said to be negatively affected by the said concealment as the present case does not pertain to failure of the respondent in paying arrears of rent. Further, the petitioner has himself admitted in his cross-examination that ini- tially the rent was fixed @ ₹100/- per month. Therefore, it is the considered opinion of this Court that the concealment made by the petitioner has not caused prejudice to the respondent vis-à-vis the case at hand. Therefore, I do not deem it fit to dis - miss the petition on the ground of this concealment alone and I proceed to decide the case on merits.
13. Now, in order to bring a case within the contours of section 14 (1) (b) of DRC Act, the following enumerated conditions must be squarely met, which are as follows: -
a) there exists a landlord - tenant relationship between the parties;
b) that the tenant had sub-let or assigned or otherwise parted with the possession with the tenanted premises without obtaining the consent in writing of the landlord, on or after 09.06.1952.
14. Now, it is the burden of the petitioner to show that the tenant had committed the acts enumerated in section 14 (1) (b) of the Act. In order to prove the ingredients of section 14 (1) (b) DRC Act, the petitioner has simply stated in his evidence by way of affidavit Ex. PW1/1 that respondent no. 2 has been seen running the shop illegally as sub-tenant and that respondent no. 1 took rent from respondent RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 13 of 20 no. 2. In his cross examination, the petitioner has simply stated that it was told to him that respondent no. 2 was the partner of the respondent no. 1 and he had reasons to believe that the shop had been sub-let to respondent no. 2 by respondent no. 1. No evidence, either documentary or oral, has come on record on part of the petitioner in this regard. It is clear that the evidence given by the petitioner regarding sub-letting of the demised premises is a hearsay evidence as he has failed to bring into the knowledge of the court as to who had told him that respondents were working together as partners and that respondent no. 1 had sub-let the demised premises to respondent no. 2. The only averment made by the petitioner at the stage of cross examination of respondent no. 1 is that the respondent no. 1 had been running his shop earlier in the name of "Sharma and Jain Hardware Store" till the year 2010. This fact has not been mentioned by the petitioner either in his petition or in his evidence by way of affidavit and the said fact has been stated by the petitioner only at the belated stage of cross examination of respondent no. 1. Further, no evidence has been brought forward by the petitioner showing that the respondent no. 1 was still carrying on business under the same name after it was denied by respondent no. 1. Even so, had the petitioner been able to prove that the respondent no. 1 was carrying out his business under the name and style of "Sharma and Jain Hardware Store", it has nowhere been shown by the petitioner that any form of sub-letting ever took place between the respondents. The petitioner has also relied upon the averment of the respondent no. 1 made in his cross examination that he did not maintain any salary register or file the same in court, however, the business practices of respondent no. 1 is not under trial in the present case and therefore this line of argument of the petitioner holds no water. Therefore, in light of the above discussion, it is the considered opinion of this court that the petitioner has been unable to prove his case for eviction of respondent no. 1 from the demised premises u/s 14 (1) (b) DRC Act.
RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 14 of 2015. It is a rather entrenched position of law that to bring a case within the contours of section 14 (1) (e) of DRC Act, the following enumerated conditions must be squarely met, which are as follows: -
a) there exists a landlord - tenant relationship between the parties;
b) that the demised premises were let out for either residential or commercial purpose;
c) that the premises are required by the landlord for his bona fide need or for the need of his dependent family members;
d) that the landlord does not have any alternative suitable accommodation available to cater to his needs.
16. Guided by the foregoing legal tenets to the fact of the present case, it is profitable to note that the landlord - tenant relationship vis-à-vis demised premises is nowhere in dispute between the parties. Though the Act mentions only the premises let out for residential purpose, however the Hon'ble Supreme Court of India in the celebrated case of Satyawati Sharma V. Union of India (2008) 5 SCC 287 had obliterated the distinction between premises let out for residential and commercial use for the purpose of invoking provisions of section 14 (1) (e) of the DRC Act. The better title of the petitioner qua demised premises is also not in dispute nor is the fact that the suit property was let out by him to the respondent no. 1 for commercial use.
17. In order to evaluate whether the need of the petitioner is bona fide or not, an analysis of the legislative and judicial connotation of the term, "bona fide" is essential. In this context, it is relevant to recount the observations of the Hon'ble Supreme Court of India in the landmark case of Sarla Ahuja v. United India Insurance Co. Ltd., AIR 1999 SC 100, wherein 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 RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 15 of 20 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 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..."
18. It is apparent from the aforementioned observations that whenever a pe- tition for eviction on the ground of bona fide requirement is scrutinized and the landlord is able to show a prima facie case of such requirement, it is open to the court to draw a presumption that the requirement is bona fide.
19. Coming to the facts of the present case, it is clear that a presumption is created u/s 14 (1) (e) DRC Act, subject to the satisfaction of the rent controller qua bona fide need of the landlord, which is a rebuttable presumption and can be rebut- ted by the respondent with some material of substance to the extent of raising a tri- able issue. It is also settled law that before a presumption is drawn, the landlord is duty bound to place prima facie material supported by adequate averments before the court and only thereafter the presumption gets attracted and onus shifts upon the tenant. The respondent, by way of his pleadings and evidence led by him, has re- futed the bona fide requirement of the petitioner on three main grounds and same shall be discussed separately herein.
A. The petitioner has suitable alternative accommodation. The respondent has stated in his evidence that the petitioner is having sufficient accommodation in the ground floor of the demise premises and the RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 16 of 20 said shop oblique space oblique room has been left out for commercial purposes to some other tenants which is being used for godown purpose and the said space is sufficient and available to the petitioner. Further he has averred that the petitioner is not residing in Delhi and is living in Hapur, UP from where he is running his flour mill business. Apart from the same, Ld. counsel for respondent has given suggestions to the petitioner at the stage of his cross-examination that the petitioner is also running a dairy in Bhopura having 2 to 3 cows and nine buffaloes and also has one property in Pandit Mohalla, Bhopura as well as two other properties in Shahdara. In order to prove this, the respondent has relied upon certain photographs, Mark PW1/R1 (Colly.). In his cross-examination, however, the respondent has admitted that the petitioner cannot be seen in any of the said photographs. Further, the petitioner has denied having any connection with the properties shown instead photographs at the stage of his cross-examination. No other documents pertaining to any other properties allegedly being in the name of the petitioner has been relied upon by the respondent at the stage of his evidence.
It becomes relevant to discuss the case of Ramesh Chand Vs. Uganti Devi 157 (2009) DLT 405, wherein it has been clearly held that "a tenant who alleges that landlord has at his disposal other accommodation has to place before the Ld. ARC some material to show that the landlord has a specific alternative accommodation at his disposal. Mere bald allegation with respect to availability of additional accommodation with the petitioner does not hold any basis and cannot be a basis to deny the petitioner of his right to vacate the tenanted premises for his bonafide requirement".
RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 17 of 20Perusal of the above case clearly shows that a bald allegation regarding the availability of additional accommodation with the petitioner cannot be a basis to deny the petitioner of his right to vacate the tenanted premises for his bona fides re- quirement. Therefore, this court is of the view that the respondent has failed to prove that the petitioner is having any other suitable accommodation for his bona fide needs.
B. The petitioner is not suffering from leg fracture and is not unable to do hard work.
Ld. Counsel for the respondent has passionately argued that no medical prescription of the petitioner has been proved before this court by the petitioner and that the petitioner has been unable to show that he cannot climb up the stairs or that he suffered from both leg fracture. However, this contention of Ld. Counsel for the petitioner falls flat in view of the clear admission by the respondent in his cross-ex- amination that the petitioner is a senior citizen. Once this fact has been admitted by the respondent, the petitioner is no longer burdened with the onus to prove the same. There was no requirement for the petitioner to separately prove his medical prescriptions as the old age of the petitioner has not been challenged by the respon- dent and it is settled law that old age in itself is a disability. Reliance is placed on the case of Dev Raj Bajaj vs. R. K. Khanna 1996 RLR 125. Therefore, I do not find any merit in the present argument.
C. The petitioner has not filed complete site plan of construction existing on ground, first and second floor.
Ld. Counsel for the respondent has argued that the complete site plan of the property was not filed by the petitioner in order to conceal the fact from this RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 18 of 20 Court and therefore the requirement of petitioner of the demised premises is not genuine. It has been rightly rebutted by Ld. Counsel for petitioner that since the case does not pertain to the other floors, the site plan of the same need not be filed. Further, the entire case of the petitioner is that owing to his bad legs and his old age, he seeks to use the ground floor shop in order to earn his livelihood. Therefore, I am of the opinion that the site plan of the other floors of the property was not essential to be filed by the petitioner. Again, the respondent was a liberty to file a counter site-plan in this regard, if he wished for this Court to draw on opinion on the merits of the present case based on the site plan of other floors of the property in question, but he has failed to do so. It is settled law that non-disclosure of properties that are not suitable to meet the requirements of the petitioner is not fatal to the case of the petitioner. Reliance being placed upon case titled Shri Sukhbir Singh Vs. Dr. I.P. Singh, RC Rev. 261/2010. Therefore, I find no merit in this argument made by the respondent.
20. It is a settled proposition of law that a tenant cannot dictate the manner in which landlord can use his available accommodation as it is the sole prerogative of the landlord to decide as to which accommodation would be most suited for his intended purpose. In this context, reference may be made to the observations of the Hon'ble Supreme Court in the matter of Sait Nagjee Purushotham & Co. Ltd. vs. Vimalabai Prabhulal & Ors (2005) 8 SCC 252 wherein it was held that:
"It is always the prerogative of the landlord that if he requires the premises in question for his bona fide use... 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 choose the nature of the business and the place of busi- ness..."
21. In this regard reference may also made to a recent judgment passed by the Hon'ble high court of Delhi in the matter of Manmohan Singh v. Arjun RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 19 of 20 Uppal & Anr. decided on 29.11.2023 wherein it has been observed by the Hon'ble High Court that:-
"Landlords cannot be deprived of the beneficial enjoyment of their property. Further, the Court is not to sit in the arm chair of the land- lords to dictate as to how the property should be utilized. It is the sole discretion of the landlords to get all the tenanted premises va- cated and use as per their need."
22. Having heard the Ld. Counsels for the parties, perused the record and ap- preciated the relevant provisions of the law governing the field, this Court is of the con- sidered view that the petitioner has clearly established his bona fide requirement for seeking eviction of the respondent from the demised premises as all the requisite ingre- dients therefor have been satisfied in the present case. That said, the respondent Kuldeep Sharma is liable to be evicted from the demised premises, part property no. 6/165-166, Dhobi Bara, Farsh Bazar, Shahdara, Delhi-32, as shown in the site plan, Ex.PW1/A, in red.
23. Accordingly, the petition filed by the petitioner under section 14 (1) (e) r/w section 25B of the DRC Act is hereby allowed, subject to provisions u/s 19 of the DRC Act. It is however made clear that the petitioner would not be entitled to initiate execu- tion proceedings for recovery of possession of the demised premises before the expiry of six months from today in view of the legislative mandate envisaged in Section 14 (7) of the DRC Act. No order as to costs.
Pronounced in the open Court on 30.03.2024, this judgment consists of 20 signed pages.
Digitally signed by SHRUTI SHRUTI CHAUDHARY
CHAUDHARY Date: 2024.03.30
16:59:56 +0530
(SHRUTI CHAUDHARY)
ACJ-CCJ-ARC/Shahdara,
KKD/Delhi
RC ARC 568/2016 Dinesh Kumar vs Kuldeep Sharma Page 20 of 20