Delhi District Court
Sanatan Dharam Sabha vs Ms Ashoka Sweets on 16 March, 2024
IN THE COURT OF Ms. NAINA GUPTA
ACJ-CUM-CCJ-CUM-ARC
DISTRICT: SOUTH-EAST, SAKET COURTS, NEW DELHI
DLSE030010342016
RC ARC 5180/2016
SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS
Shri Sanatan Dharam Sabha
as society through its Secretary
Sh. Y.P. Ashok S/o Late Sh. J.C. Ashok
Shree Laxmi Narain Sanatan Dharm Mandir,
Shri Sanatan Dharam Sabha,
Lajpat Nagar-III,
New Delhi-110024 ............Petitioner
Versus
M/s Ashoka Sweets
Through its proprietor Sh. Krishan Kumar Dang
Shop no. 2,
Shree Laxmi Narain Sanatan Dharam Mandir,
Shri Sanatan Dharam Sabha,
Lajpat Nagar-III,
New Delhi-110024. ...........Respondent
PETITION UNDER SECTION 14(1) (e) R/W SECTION 25 (B) OF
THE DELHI RENT CONTROL ACT
Date of Institution : 30.05.2016
Arguments heard on : 12.02.2024
Date of pronouncement : 16.03.2024
JUDGMENT
1. The present petition has been filed u/s 14(1) (e) read with Section 25B of the Delhi Rent Control Act wherein the petitioner seeks eviction of the respondent from Commercial Shop bearing no.2, Shree Laxmi Narain Sanatan Dharam Mandir, Sanatan Dharam Sabha, Lajpat Nagar - III, New Delhi - 110024 built on a RC ARC 5180/2016 Digitally signed SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS NAINA by NAINA GUPTA page no.1 of 24 GUPTA Date: 2024.03.16 16:09:51 +0530 leasehold plot of land measuring 440 sq ft. approximately. (hereinafter referred to as tenanted premises). Pleadings of petitioner
2. The case of the petitioner is that the tenanted premises were let out to the respondent after an oral agreement and the last paid rent by the tenant was ₹2000 per month exclusive of electricity and water charges and also other outgoings if any. The petitioner is a society registered under the Societies Registration Act. The objects of the society are to protect the principles of Sanatan Dharam, to preach through the medium of lectures oral or otherwise on the doctrines of Sanatan Dharam, to protect the modesty and austerity of the ladies, and to establish pathshalas and mandirs for them and to carry on religious, social and cultural activities.
3. A plot of land near l block Lajpat Nagar 3 New Delhi 110024 was leased out by the Government of India to the petitioner society and the petitioner society raised mandir complex on the said plot of land which is now known as Shree Laxmi Narayan Sanatan Dharam Mandir, Shri Sanatan Dharam Sabha Lajpat Nagar 3 New Delhi 110024. It is averred that the petitioner society is the absolute owner of the property near L Block Lajpat Nagar 3 New Delhi 110024.
4. Within the plot of land allotted to the society 3 shops were constructed and one of the shops that is shop number 2 was rented out to the respondent and the respondent is running a sweets shop in the name of Ashoka Sweets. The ground area of shop is 440 sq feet however, before 2005 - 2006 the total area was 325 sq feet. The premises were renovated in 2005-06.
5. The executive committee of the petitioner society has unanimously decided to open a charitable pathology lab and diabetic and Digitally signed RC ARC 5180/2016 NAINA byGUPTA NAINA SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA 16:10:03 +0530 page no.2 of 24 Date: 2024.03.16 physiotherapy centre on the ground floor of the said property for which sufficient space is unavailable in the existing state. The members of the petitioner have also decided to extend the matrimonial service area further on the ground floor and for such activities area being used by the 2 shops including the tenanted premises is bonafidely required. It is stated that for its requirement the society cannot reconstruct, add or alter the shops on the ground floor without the premises being vacated by the respondent. Leave to defend application
6. After service of summons the respondent filed application seeking leave to defend. The application was allowed by the then learned Additional Rent Controller vide order dated 01.06.2017. The leave was granted to the respondent on the ground that there is no mention of any object for establishing medical centers, physiotherapy centers, matrimonial centres in the objects of the society. It is a triable issue whether the activities proposed by the society are ultravires the aims and objects of the society. Further it was also observed that as per the case of the respondent he is in possession of 2 shops that is shop number 2 and 4 and the petitioner is seeking eviction for only shop number 2 and the same is not permissible under law.
Written Statement /Pleadings of respondent
7. In his reply the respondent has stated that he is in possession of two shops no. 2 & 4 and the site plan filed by the petitioner is false as it is showing only three total shops whereas there are 4 shops including shop no.2 & 4 in the suit property. The respondent has filed site plan showing shop no.2 & 4 marked in red colour which are in possession of the respondents. It is alleged that the two shops having no.2 & 4 are being assessed separately for purpose of Digitally signed RC ARC 5180/2016 NAINA byGUPTA NAINA SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA 16:10:27 +0530 page no.3 of 24 Date: 2024.03.16 property tax. It is submitted on behalf of respondent that the petitioner has misrepresented that there was no rent agreement between the parties. It is submitted that a deed of lease agreement was duly executed between the petitioner and respondent for a period of 99 years. Copy of the lease deed has been filed along with reply.
8. It is contended that the petition has not been filed after appropriate authorisation by the Society. It is stated that the petition has been filed in the month of May 2016 whereas the meeting of executive committee of the Sabha was held on 08.02.2016. It is submitted that minutes of meeting pertains to some other application and not the present application.
9. It is contended that opening of medical facilities and various other health related facilities including path labs, physiotherapy and diabetic centre is beyond the objectives of the Society. The minutes of meeting of the executive committee of the petitioner held on 09.12.2014 are beyond the scope of objectives of the Sabha. These minutes also do not include as to which official presided over the said meeting or designation of the members. It is submitted that petitioner Society is working for profit which is beyond its objectives.
10.It is contended that the petitioner has not disclosed that the Sabha has 8780 sq feet of surplus land available in which 12 rooms of around 120 sq feet each, 5 halls of 4000 sq feet, 2 open verandah of 2100 sq feet, 3 rooms of around 200 sq feet each, 14 rooms of which space is not known are there. It is alleged that the petitioner society is running a boutique hotel from the rooms available to it and the same is beyond the scope of its objects. It is submitted that the petitioner has adequate space for carrying out its activities and RC ARC 5180/2016 NAINA Digitally signed by NAINA GUPTA SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS Date: 2024.03.16 page no.4 of 24 GUPTA 16:10:35 +0530 there is no bonafide requirement for evicting tenanted premises of two shops comprising of 486.33 sq feet only.
11.It is is averred that petitioner has made the false submission that property tax is being paid by the Society. The respondent has submitted that property tax is being paid by him and he has placed on record following documents:-
(a) MCD Receipt No. CZ 620287 dt. 13.6.2011 for payment of property tax amounting to Rs. 25890/- for the years 2004-2005 to 2008-2009.
(b) MCD demand notice for payment of property tax amounting to Rs. 3274 paid by cheque / DD No. 708530 dt 18.4.2012. paid by respondent for the year 2012-2013.
(c) Property MCD demand notice for payment of property tax amounting to Rs. 3871 paid by cheque/DD No. 0321 dt 20.12.2013, paid by respondent for the year 2013- 2014
(d) MCD Receipt No. 8K 063802 dt. 7.4.2013 for payment of property tax amounting to Rs. 3275/- received by MCD for the years 2014-2015
(e) MCD Receipt No. 58889 dt. 6.8.2015 for payment of property tax amounting to Rs. 4126/- received by MCD for the years 2014-
2015.
(f) Tax Receipt dt. 16/5/2016 shows that the respondent has paid the property tax in respect of Shops No. 2 & 4 situated at the Ground Floor of Sanatam Dihaarm Mandir, Lajpatnagar Ward Amar Colony, Central Zone, vide cheque dt. 16.05.2016, drawn on Central Bank of India for a sum of Rs. 3244
(g) Property tax in respect of the leased shops has been paid for the period from 2015-2016 and the receipt filed with written statement.
RC ARC 5180/2016NAINA Digitally signed by NAINA GUPTA SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA Date: 2024.03.16 16:10:44 +0530 page no.5 of 24
12. It is admitted that agreed rent is at the rate of Rs.2000/- per month and the same is being regularly paid by the respondent to the petitioner.
13. It is submitted that the society has executed GPA in favour of the respondent as per which the respondent is to pay the property taxes and he is also entitled to execute agreement or deed to sell or dispose the said property.
14. It is contended that the petition U/s 14 (1) (e) of DRC Act is not maintainable as the petitioner is a juristic person and therefore, not covered as a landlord u/s 14 (1) (e) of the DRC Act. Rejoinder
15. In rejoinder to reply, the petitioner has submitted that as per the records the petitioner has let out only shop no.2 to the respondent and the respondent has made a partition in the same without permission of the petitioner and converted the one shop into two.
16. It is submitted that the petition has been filed after proper authorisation from the society and the petitioner has filed authorisation letter and minutes of meetings of its executive committee. It is reiterated that sufficient space is required for opening charitable labs and also to extend matrimonial services. It is averred that as per memorandum of Society its objective is public welfare and opening of pathology lab and extension of matrimonial services is part of its objective towards which petitioner Society is working.
PETITIONER'S EVIDENCE
17. In support of their case, petitioner got Mr. Deepak Dhawan examined as PW1. The witness reiterated and reaffirmed the facts mentioned in the plaint on oath. Certain documents were also exhibited which are as under :-
Digitally signed RC ARC 5180/2016NAINA by NAINA GUPTA SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA 16:10:52 +0530 page no.6 of 24 Date: 2024.03.16
1) Copy of Board Resolution/ Authorization Letter Ex.PW-1/A (OSR).
2) Site Plan of the entire property Ex.PW-1/2 (Colly running into 3 pages)
3) Site plan of the suit property Ex.PW-1/3.
4) True copy of Minutes of meeting of the committee held on 09.12.2014, 28.12.2014 and 03.02.2012 collectively are Ex.PW-
1/4 (Colly)
5) Copy of Registration with Memorandum Ex.PW-1/5 (Colly running into 5 pages)
6) Copy of Legal notice dated 22.06.2015 and copy of receipt Ex. PW-1/6 (Colly)
7) Copy of reply dated 06.07.20215 Ex.PW-1/7 (Colly)
8) Photographs of the suit property Ex.PW-1/8 (Colly)
9) Copy of MOU dated 20.03.2018 Ex.PW-1/8 (Colly) The witness was cross-examined at length by the Ld. counsel for the respondent.
RESPONDENT'S EVIDENCE
18.In support of his case, respondent got Mr. Karan Dang examined as RW1. The witness reiterated and reaffirmed the facts mentioned in the WS on oath. Certain documents were also exhibited which are as under :-
a) Ex. RW-1/1 (2 pages OSR) - Rent receipts dt. 05.02.1978, 01.01.1978 & 15.07.1078
b) Mark RW-1/2 - Site Plan
c) Lease deed dated 01.08.1999 Ex RW1/3
d) Ex.RW-1/4 (9 pages OSR) - General Power of attorney dt. 01.08.1999
e) Ex.RW-1/5 (colly 4 pages) (OSR) - Property Tax receipts dt.RC ARC 5180/2016
NAINA Digitally signed by NAINA GUPTA Date: 2024.03.16 SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA 16:10:59 +0530 page no.7 of 24 18.04.2012, 20.12.2013, 06.08.2015 and 16.05.2016
f) Ex.RW-1/6 (colly 4 pages) - Letter dt. 30.06.2015 remitting rent by DD, copy of DD, Speed Post Envelop and Track report (objected to being photocopies and mode of proof)
g) Ex.RW-1/7 (Colly) - De-exhibited
h) Ex.RW-1/8 (Colly 3 pages) - Letter dt. 11.08.2015 remitting rent by DD, copy of DD and track report (objected to being photocopies and mode of proof)
i) Ex.RW-1/9 (Colly 4 pages) - Letter dated 24.09.2015 remitting rent by DD, copy of DD, Speed Post Envelop and track report (objected to being photocopies and mode of proof)
j) Ex.RW-1/10 (Colly 3 pages) - Letter dated 05.10.2015 remitting rent by DD, copy of DD and track report (objected to being photocopies and mode of proof)
k) Ex.RW-1/11 (Colly 2 pages) - Letter dated 20.11.2015 remitting rent by DD, copy of DD and track report (objected to being photocopies and mode of proof)
l) Ex.RW-1/12 (Colly 3 pages) - Letter dated 10.12.2015 remitting rent by DD, copy of DD and track report and postal (objected to being photocopies and mode of proof)
m) Ex.RW-1/13 (OSR) - Two receipts dt. 22.12.2015 (objected to being same are not receipts)
n) Ex. RW-1/14 (Colly 4 pages) - Letter dated 19.01.2016 remitting rent by DD, copy of DD, Speed Post envelop, track report and postal receipt (objected to being photocopies and mode of proof)
o) Ex.PW-1/15 (Colly 3 pages) - Letter dated 07.04.2016 remitting rent by DD, copy of DD, track report and postal receipt (objected to being photocopies and mode of proof) RC ARC 5180/2016 NAINA Digitally signed by NAINA GUPTA SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA Date: 2024.03.16 16:11:07 +0530 page no.8 of 24
p) Ex.RW-1/16 (Colly 4 pages) - Letter dated 19.07.2016 remitting rent by DD, copy of DD, track report and postal receipt (objected to being photocopies and mode of proof)
q) Ex.RW-1/17 (Colly 3 pages) - Letter dated 30.09.2016 remitting rent by DD, copy of DD, track report and postal receipt (objected to being photocopies and mode of proof)
r) Ex.RW-1/18 (Colly 4 pages) - Letter dated 07.01.2017 remitting rent by DD, copy of DD, track report and postal receipt (objected to being photocopies and mode of proof)
s) Ex.RW-1/19 (Colly 4 pages) - Letter dated 07.04.2017 remitting rent by DD, copy of DD, Speed Post envelop, track report and postal receipt (objected to being photocopies and mode of proof)
t) Ex.RW-1/20 & Ex. RW-1/21 were de-exhibited. The witness was cross-examined at length by the Ld. counsel for the petitioner.
Discussion and decision
19.In order to succeed in the case U/s 14 (1) (e) of DRC Act the petitioner is required to prove the following ingredients:
(a) Ownership in respect of tenanted premises
(b) Relationship of landlord and tenant between the parties;
(c) Petitioner bonafidely requires the tenanted premises;
(d) Petitioner does not have any other suitable alternative accommodation with him/her.
20. In the present case the leave to defend has been granted in favour of the respondent on the ground that the petitioner has not been able to show that there is no other suitable alternate accommodation available for its requirement and also on the ground there is no bonafide requirement as the activities for which purpose the petitioner is seeking eviction are beyond its aims and Digitally signed RC ARC 5180/2016 NAINA by NAINA GUPTA SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA Date: 2024.03.16 16:11:14 +0530 page no.9 of 24 objects. The onus of proving the twin requirement of bonafide need and lack of any other suitable alternative accommodation is on the petitioner and the petitioner must discharge this burden on the scale of preponderance of probabilities. The respondent has also contended that the petition is not maintainable as the petitioner has failed to mention that there are 2 shops in the tenanted premises and not 1. Further, it is contended that the petitioner has concealed material facts from the court. Maintainability of the petition
21. The respondent has also challenged the maintainability of the petition on 3 grounds. They are taken up number wise as below.
22. Petition not maintainable u/s 14 (1) (e) of the Act: The respondent has challenged the maintainability of the petition on the ground that the petitioner being a society could not have filed the present petition u/s 14 (1) (e) of the DRC Act. The question whether such a petition is maintainable or not is pending before the Division Bench of the Hon'ble High Court of Delhi after a reference made by the Single Bench of the Hon'ble High Court in the case of K.S. Bhandari v. International Security Printers Pvt. Ltd. dated 22.12.2017 RC Rev. 18/2016. Hon'ble Justice Rajiv Sahai Endlaw has opined that the procedure available u/s 22 DRC and u/s 14 (1) (e) is different as under s. 14 (1) (e) a summary procedure has been given. In the facts of the present case, no orders for eviction have been passed summarily in favour of the petitioner. A full-dress trial has taken place between the parties.
23. It has been held by the Hon'ble High Court of Delhi in the case of Madan Mohan Lal Sri Ram Pvt. Ltd. v P. Tandon (1981)2 DRJ 308 that if the facts exist on record, it is immaterial whether in the Digitally signed RC ARC 5180/2016 NAINA by NAINA GUPTA SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA Date: 2024.03.16 16:11:20 +0530 page no.10 of 24 application, the petitioner has written section 14 (1) (e) or section
22. In the facts at hand, the petitioner has sought eviction on the ground that premises are required to extend its activities. Since trial has already taken place, the case of the petitioner can be taken to fall u/s 22 DRC Act as well. The Ld. Counsel for the respondent has further argued that the case of the petitioner cannot be taken to fall u/s 22 DRC Act as eviction on ground of bonafide requirement is available only to a public institution. No evidence has been led by the respondent to the effect that the petitioner which is a registered society running temple Shree Laxmi Narain Sanatan Dharam Mandir is not a public institution within the meaning of section 22 of the DRC Act.
24. In the case of Chuni Lal v. University of Delhi 1970 RCR Rent 742 it has been held by the Hon'ble High Court that a landlord falling under section 22 DRC Act may avail of the grounds stated there in, in addition to the grounds given in section 14 (1) (e) of the DRC Act. In view of the discussion above, it is held that the present petition is maintainable.
25. Petition not instituted as per law: The petitioner has placed on record copy of Board Resolution/ Authorization Letter Ex.PW-1/A (OSR) authorizing Sh. YP Ashok, Secretary of Shri Sanatan Dharam Sabha to file the present petition dated 08.02.2016 and signed by the president of the society namely Sh. Prem Juneja. In view thereof it is held that the petition has been instituted after authorization on behalf of the society. The petitioner has submitted that as per minutes of meeting dated 08.02.2016, decision was taken to file the present application. Ld counsel for the respondent submits that the petition was filed only on
26. Petitioner has not described the tenanted premises correctly:
RC ARC 5180/2016NAINA Digitally signed by NAINA GUPTA SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA Date: 2024.03.16 16:11:28 +0530 page no.11 of 24 The petitioner has filed for eviction of tenant from shop number 2 measuring 440 square feet shown in site plan exhibit PW 1/3 as well as site plan exhibit PW 1/4. The respondent has contended that in the said shop there are actually 2 shops number 2 and 4 and the total area of the shops is 486.33 square feet. In rejoinder to the reply filed by the respondent the petitioner stated that originally only one shop in L shape was given on rent to the respondent however during the duration of the tenancy the respondent has unauthorisedly split the shop into 2 shops by making a partition in the same without permission of the petitioner. The site plan filed by the respondent Mark RW1/2 has been perused. In the site plan filed on behalf of the respondent it appears that if shop number 2 and shop number 4 are seen collectively, it appears that they are in L shape.
27.The respondent has placed on record property tax receipts Ex. RW1/5 Colly (OSR) to buttress argument that there are 2 shops. The receipts show that the tax has been paid by the respondent for two shops no. 2 and 4. However, the perusal of the receipts also clearly shows that the shops are being assessed for tax together. During the course of trial the petitioner has stated that the shop no. 2 has been split into two shops by the respondent. Thus, at present existence of 2 shops is admitted. The landlord tenant relationship between the parties is admitted. The petitioner states that one single shop in L shape was given and the respondent states 2 shops both collectively forming L shape were given. In my view, the description of shops as 2 or 1 is not a material inconsistency in the case of the petitioner, since there is consensus ad idem on the fact that the same portion as shown in their site plans was given on rent.
RC ARC 5180/2016NAINA Digitally signed by NAINA GUPTA SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA Date: 2024.03.16 16:11:36 +0530 page no.12 of 24
28.At the stage of granting leave to defend, the then Ld. ARC has observed vide order dated 01.06.2017 that petitioner cannot be permitted to split the tenancies into two parts and seek eviction from for only shop no. 2 leaving shop no. 4 with the respondent. Petitioner should have sought eviction from the entire tenanted premises. However, during trial it has come before the court that the petitioner is not splitting the tenancies into two. He is seeking eviction of the respondent from the entire area given to the respondent on rent. Therefore, the petition cannot be rejected on this ground alone.
The ownership of the petitioner and Landlord tenant relationship between the parties
29. The ownership of the petitioner over the tenanted premises is admitted. The landlord - tenant relationship between the parties is admitted. The petitioner states that there is an oral tenancy between the parties and the last paid rent is ₹2000. The respondent admits that there is landlord tenant relationship between the parties but has stated that instead of an oral tendency there was a lease deed executed between the parties on 01.08.1999. It is also stated that general power of attorney was also executed by the petitioner in favour of the respondent along with the lease deed. The lease deed is Ex. RW 1/3 (OSR) and General Power of Attorney is Ex. RW1/4. The fact that the last paid rent was ₹2000 per month only is undisputed. The respondent has placed on record the receipts as well as copies of demand drafts showing that the rent has been paid by the respondent regularly.
Bonafide requirement of the petitioner
30. It is contended on behalf of the respondent that the requirement of the petitioner is not bonafide because the sole aim of the petitioner RC ARC 5180/2016 NAINA Digitally signed by NAINA GUPTA SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA Date: 2024.03.16 16:11:44 +0530 page no.13 of 24 society is to protect the principles of Sanatan Dharam. The society has not been established for the purposes of making profits. It is the case of the petitioner that the society through its executive committee has decided to open charitable pathology lab and diabetic/ physiotherapy centre for senior citizens and general public. Reliance is placed upon minutes of meeting of the executive committee held on 28th December 2014 and on 3rd February 2015 exhibit PW 1/4 colly. The Ld. counsel for the respondent has objected to Ex. PW1/4 on the ground that they have not been proved as per law and are therefore not admissible. Further the respondent has also challenged the genuineness of the document.
31. The petitioner in his cross examination admitted that minutes of meeting dated 09.12.14 do not bear the signatures of Mr Prem Juneja at serial number 1. He also admitted that minutes of meeting related 28.12.2014 also do not bear the signatures of Mr Shyam Sabarwal at serial number 8.
32. Perusal of the minutes of meetings Ex. PW1/4 shows that they are only copy. The petitioner has not produced the original minutes duly signed by the members of the executive committee before the court. The petitioner has also not sought the permission of the court to lead secondary evidence to prove the minutes of the meetings and no case for taking on record secondary evidence has been made out by the petitioner. Thus, the minutes of the executive committee meeting on the basis of which the petitioner is claiming that there is requirement of the society to open charitable pathology lab and diabetic/ physiotherapy centre are not proved and cannot be read into evidence.
33. During arguments learned counsel for the respondent has RC ARC 5180/2016 NAINA Digitally signed by NAINA GUPTA SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA 16:11:51 +0530 Date: 2024.03.16 page no.14 of 24 submitted that the opening of charitable institute for pathology lab and diabetic centre is beyond the object of the society. To counter the same counsel for the petitioner had submitted that the society through its executive committee had passed resolution for opening of the charitable pathology and diagnostic centre. The petitioner could not prove the minutes of meeting as per law.
34. Further, admittedly the objects of the society are to protect the principles of Sanatan Dharam, to preach through the medium of lectures oral or otherwise on the doctrines of Sanatan Dharam, to protect the modesty and austerity of the ladies, and to establish pathshalas and mandirs for them and to carry on religious, social and cultural activities. There is a procedure prescribed in the Societies Registration Act for alteration of purposes and objects of the society in the Societies Registration Act. Section 12 of the Societies Registration Act requires a society to pass a special resolution with three fourth votes of its members to alter its purposes. The petitioner has not placed on record any Special Resolution passed by the society amending or altering the objects of the society to include running of such medical services. PW 1 during his cross examination stated that the petitioner has not made any amendment in the aims and objectives of the society.
35. During cross examination PW1 also stated that opening of medical facilities or opening of path labs is part of social welfare activities carried out by the petitioner in terms of aims and objectives of the society. I have gone through the aims and objectives of the society placed on record and also quoted above. In my view opening of path labs and diabetic centers is beyond the scope of aims and objectives of the society which are to preach principles of Sanatan Dharam by establishing pathshalas and mandirs.
RC ARC 5180/2016 NAINA Digitally signed
by NAINA GUPTA
Date: 2024.03.16
SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA 16:11:58 +0530 page no.15 of 24
36. During cross examination the witness examined on behalf of the petitioner was asked for what purpose the tenanted premises are required. He stated that the petitioner society is running a charitable dispensary and Shri Sanatan Dharam Sabha Rotary Charitable Diagnostic Centre and matrimonial services in the mandir compound. Thus the petitioner is already running a diagnostic centre in the premises.
37. Once the bonafides of the requirement of the petitioner society have been challenged by the respondent and leave to defend has been granted in favour of the respondent, it was upon the petitioner to prove that there is bona fide requirement. The petitioner society is already running a path lab and physiotherapy centre in the temple complex. There is no averment as to how there is lack of space to run the same. In the entire petition or the evidence affidavit of the petitioner it is not stated how much space is required for the need of the petitioner to open the charitable physiotherapy, diagnostic and diabetic centre.
38. The onus of proving bona fide requirement of the society is upon the society itself. In view of the reasons stated above it is held that the petitioner has failed to prove that there is bonafide requirement of the society to open a charitable pathology lab and diabetic centre.
39.The case of the petitioner is also that the additional space is required for expansion of the matrimonial service provided by the society. It has been averred that there isn't sufficient space available for the extension of matrimonial service area in the ground floor. The Ld. counsel for the respondent has advanced arguments that the petitioner has not produced anything on record to show that there were enough number of persons availing the RC ARC 5180/2016 NAINA Digitally signed by NAINA GUPTA SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA Date: 2024.03.16 16:12:05 +0530 page no.16 of 24 matrimonial service at the temple and that the space available was inadequate. The number of persons availing the matrimonial service and the requirement of the society for more space is a fact especially within the knowledge of the petitioner society.
40. The burden of proving that there is requirement of space for expansion of matrimonial service is upon the petitioner as the same is within the knowledge of the petitioner only. Reliance is placed upon section 106 of the Indian Evidence Act. Reliance is placed upon the judgment of the Hon'ble High Court of Delhi in the case of Vinod Kumar v. Ajay Kumar Singhal, 2016 SCC OnLine Del 3243 wherein it was held that the petitioner had failed to prove bona fide requirement and lack of alternate suitable accommodation in absence of documents to show that the business for which eviction was sought was being actually run by the petitioner.
41.For the reasons discussed above, it is held that the petitioner has failed to prove on record that the tenanted premises are required by the petitioner society for its bonafide requirement. Availability of other suitable accommodation
42. The petitioner's case is that for opening charitable pathology lab anti diabetic and physiotherapy centre sufficient space is unavailable in the existing state. The respondent has challenged the case of the petitioner by stating that the petitioner society has enough space to carry out its activities. The respondent has contended that the Sabha has 8780 sq feet of surplus land available in which 12 rooms of around 120 sq feet each, 5 halls of 4000 sq feet, 2 open verandah of 2100 sq feet, 3 rooms of around 200 sq feet each, 14 rooms of which space is not known are there.
43. In rejoinder to the reply filed by the respondent, the petitioner has RC ARC 5180/2016 NAINA Digitally signed by NAINA GUPTA Date: 2024.03.16 SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA 16:12:12 +0530 page no.17 of 24 merely denied the above said averments. In its petition as well as rejoinder the petitioner has not clearly stated how much is the available space and how the area as pointed out by the respondent is being utilised by the society and is reasonably not suitable for the requirement of the society. To seek eviction on the ground of bona fide requirement the petitioner must aver that no other alternative reasonably suited accommodation is available to the petitioner. Once the respondent had shown in its reply that some other properties were available and were suited for the requirement of the petitioner, it was upon the petitioner to show that the properties as stated were either not available or not suitable for the requirement of the petitioner. In the rejoinder the petitioner has not given any explanation of any sort and has only merely denied the availability of the space.
44. The petitioner has only stated that the respondent cannot dictate how the petitioner shall use its own property. It was duty of the petitioner to come to the court with clean hands showing that no other property was reasonably suited for the requirement of the petitioner. Reliance is placed upon the judgment of the Hon'ble High Court of Delhi in Om Prakash v. Vijay Shri Pvt. Ltd., 2012 SCC OnLine Del 5317. Relevant paragraph from the judgment is reproduced for ready reference:
"There is no doubt that a tenant cannot dictate to his landlord as to how he should adjust himself and how to meet his requirement of accommodation but in such like petitions for the eviction of tenants the landlord is required to satisfy the Controller that except for the premises from which the tenant is sought to be evicted he did not have any other alternative accommodation to meet his requirement."
45. The ld. counsel for the petitioner has advanced arguments that the petitioner has placed on record the site plan Ex. PW 1 /2 to depict the usage of the available space. Admittedly, there are no RC ARC 5180/2016 NAINA Digitally signed by NAINA GUPTA SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA Date: 2024.03.16 16:12:20 +0530 page no.18 of 24 pleadings or statements on oath in relation to the usage of the space on behalf of the petitioner. The Ld. counsel for the respondent has contended that the site plan has not been proved as per law. Perusal of the site plan Ex. PW1/2 shows that the name of the person who has prepared it has not been mentioned. The petitioner has not examined the author of the site plan. The site plan is a computer generated document and the requisite certificate u/s 65B of the Indian Evidence Act has also not been filed on behalf of the petitioner. The witness examined on behalf of the petitioner PW 1 is not the author of the site plan nor he has stated that he has prepared the same. In view of the reasons stated above, it is held that the site plan depicting the usage of the property is not proved as per law.
46. The petitioner has also placed reliance upon the photographs of the suit property Ex. PW1/7 colly to show how the suit property has been utilised. The Ld. Counsel for the respondent has objected to the photographs on mode of proof and admissibility. Perusal of the photographs shows that they are print outs of photos digitally taken. They are not accompanied by the requisite certificate u/s 65 B Indian Evidence Act of the person who has taken print out. Further the photographer has also not been examined. In view thereof it is held that the photographs are not proved as per law. The photographs also do not show to which area of the temple compound they pertain to. Without any description of such nature, it cannot be said that the entire area of the temple compound is being utilised as shown in the photographs.
47. The petitioner is already running the said facility of pathology and physiotherapy centre. This is a case of requirement of additional accommodation. The petitioner had to prove that additional space RC ARC 5180/2016 NAINA Digitally signed by NAINA GUPTA SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA Date: 2024.03.16 16:12:27 +0530 page no.19 of 24 is required and there is no other alternative suitable accommodation available to him. The petitioner did not place on record any document to show that more space is required and there is not other alternate reasonably suitable accommodation available. This creates suspicion on the case of the petitioner. In view of the reasons stated above, it is held that the petitioner has failed to prove that there is lack of alternate suitable accommodation available to it.
Malafide concealment of alternate accommodation by the Petitioner
48.The Written Statement/ Reply, it has been contended on behalf of the respondent that the petitioner has misrepresented before the court on four aspects. Firstly, that he has wrongly described the tenanted premises as a single shop instead of two shops. This issue has already been dealt by me in paragraphs no. 27 and 28. Secondly, that the petitioner concealed that there was lease deed dated 01.08.1999 executed between the parties Ex RW1/3. Thirdly, that the petitioner has misrepresented that the property tax has been paid by the petitioner whereas it is the respondent who is paying property tax. Fourthly, the petitioner has concealed the alternate available space in the lease hold property.
49. It is settled law that not every concealment is fatal to the case of the petitioner. When during trial all the materials come on record and the parties understood each other, it cannot be said there was prejudice caused to the tenant. Reliance is placed upon the judgments of the Hon'ble Supreme Court in the cases of Ram Narain Arora v. Asha Rani, (1999) 1 SCC 141, M.L. Prabhakar v. Rajiv Singal, (2001) 2 SCC 355.
50.The respondent has placed on record property tax receipts Ex. RW1/5 Colly (OSR) to show that the tax Digitally is being signed paid by the NAINA by NAINA GUPTA RC ARC 5180/2016 SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA Date: 2024.03.16 16:12:34 +0530 page no.20 of 24 respondent. During cross examination PW1 was confronted with the property tax receipts and he admitted them to be correct. In my view, the non disclosure of lease deed or misrepresentation regarding payment of property tax are not concealments material in nature, given that the relationship of landlord and tenant between the parties was always admitted by the respondent. The legal relation between the parties does not change and it does not in any way impact the case of the petitioner or respondent as the present petition is for eviction on the ground of bonafide requirement. Further, these facts emerged during trial and the parties became aware of the same, thus no prejudice is there to any party.
51. However, the issue of concealment of available space is on a different footing, as the petitioner was required to prove that there was no other alternate suitable accommodation available. Th e petitioner in its petition had stated that the suit property is built on a leasehold plot of land measuring 440 sq ft. The respondent in the leave to defend application contended that the petitioner has 8780 sq feet of surplus land available in which 12 rooms of around 120 sq feet each, 5 halls of 4000 sq feet, 2 open verandah of 2100 sq feet, 3 rooms of around 200 sq feet each, 14 rooms of which space is not known are there. The petitioner merely denied the availability of space in its reply to the written statement filed by the respondent. It did not come forth with how the space as alleged was available by the respondent was being utilized. The petitioner did not also disclose how much space was available to it.
52. In the facts of the present case, the petitioner did not explain the utilization of the space even in its reply to the written statement filed by the respondent after grant of leave to defend. When the RC ARC 5180/2016 NAINA Digitally signed by NAINA GUPTA SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA Date: 2024.03.16 16:12:41 +0530 page no.21 of 24 respondent had pointed out available space, it was duty of the petitioner to come clean before the court and explain how the space was either unavailable or not suitable. The petitioner merely denied the availability of space.
53. Hon'ble Justice Girish Kathpalia in a recent judgment of the Hon'ble High Court in the case of Kanta Gupta v. Goverdhan Dass Daga, 2024 SCC OnLine Del 902, observed that the test of whether concealment is prejudicial to the opposite party is that the court would have allowed the petition based on incomplete facts if the respondent had not appeared before the court. The relevant paragraphs from the judgment are reproduced for ready reference.
"15. The core issue in the present cases being concealment of vital facts, it needs to be understood that not every failure to disclose facts amounts to concealment. It is non-disclosure of only the vital facts, which is tantamount to concealment. The test is as to whether the court would have allowed the petition or plaint, as the case may be, on the basis of incomplete facts, had the respondent or defendant, as the case may be, had not appeared or not contested the proceedings. In a case where the respondent/defendant on appearing before the court discloses certain vital facts which would non-suit the petitioner/plaintiff and which facts were not disclosed in the originally filed petition/plaint, it would be a case of concealment. Such concealment, being a fraud attempted on a court vitiates any order which could be obtained by the petitioner/plaintiff in such proceedings.
16. The requirement of tenanted premises by the landlord approaching the court under Section 14(1)(e) of the Act has to be bona fide requirement and not a mere fanciful desire or evil design to recover possession of the tenanted premises with an object to make unjust financial gains. Concealment of vital facts is anathema to bona fide. In case, the landlord is found to have concealed vital facts, the requirement of tenanted premises projected by him cannot be accepted as a bona fide requirement.
17. In the present cases, the petitioner/landlord did not disclose in her eviction petitions, vital facts on the nature and expanse of business of her son and availability of a number of other premises from where her son could start or expand his business. Had the respondents/tenants failed to appear and/or failed to timely file applications for leave to contest, disclosing those vital facts, the eviction petitions would have been allowed. Merely because during trial, those vital facts came up before the court, it cannot be said that the petitioner/landlord had not concealed those facts in the eviction petitions."
RC ARC 5180/2016 NAINA Digitally signed
by NAINA GUPTA
SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA Date: 2024.03.16
16:12:48 +0530 page no.22 of 24
54.In view of the discussion above, it is held that the petitioner is not entitled to eviction on the ground of bona fide requirement because it concealed facts before the court. The petitioner projected before the court that the entire leasehold area on which suit property has been built was only 440 sq ft. During trial it came before the court that petitioner is in possession of area much more than 440 sq ft.. The petitioner never stated before the court how much space other than the tenanted premises was available to it and no satisfactory explanation how the space available to it was being utilized by the petitioner was given. If the respondent had not appeared before the court, an order of eviction in favour of the petitioner would have been passed believing that the petitioner only had possession of 440 sq ft. available space.
Other arguments advanced by the parties
55. The ld. counsel for the petitioner advanced argument that the testimony of the witness examined on behalf of the respondent RW1 cannot be read into evidence. RW1 is the son of the respondent and it is contended that the respondent could not have authorized his son to appear and depose before the court on his behalf. Reliance has been placed upon the judgment of the hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani & Anr vs Indusind Bank Ltd. & Ors on 6 December, 2004, AIR 2005 SUPREME COURT 439. I am in complete agreement with the Ld. counsel for the petitioner on this. However, the testimony of the witness to the extent he had deposed on his own behalf on the basis of his own personal knowledge can be relied upon by the court. Testimony given by RW1 as a witness on his own personal knowledge can be considered by the court. Further in this case, the RC ARC 5180/2016 NAINA Digitally signed by NAINA GUPTA SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS GUPTA Date: 2024.03.16 16:12:57 +0530 page no.23 of 24 burden of proof had shifted upon the petitioner once the respondent had discharged the reverse onus upon him at the stage of grant of leave to defend. Therefore, even if the entire testimony of RW 1 is discarded by the court, it does not change the finding that the petitioner has failed to prove his case.
56. In view of the discussion above it is held that the petitioner has failed to prove his case on the scale of preponderance of probabilities because he could not prove his bonafide requirement and lack of alternate suitable accommodation and concealed facts from the court. Accordingly, the petition for seeking eviction is dismissed. The parties are directed to bear their own costs.
57. File be consigned to Record Room after due compliance.Digitally signed
NAINA by NAINA GUPTA GUPTA Date: 2024.03.16 16:13:03 +0530 Announced in open Court on 16th March, 2024 (NAINA GUPTA) ACJ-cum-CCJ-cum-ARC (South - East) Saket Courts, New Delhi RC ARC 5180/2016 SANATAN DHARM SABHA Vs. M/S ASHOKA SWEETS page no.24 of 24