Delhi District Court
Najmuddin vs Wali Mohd @ Mohd Munna on 22 January, 2024
RC ARC No.332/2022 Najmuddin Wali Mohd @ Mohd. Munna
In the Court of Ms. Neetu Nagar, JSCC cum Additional SCJ cum
Guardian Judge, South East District, Saket District Court, Delhi
(the then Additional Rent Controller-02, Central District, Tis
Hazari Courts, Delhi)
E-110/22
New no. 332/22
In the matter of:
Najmuddin,
S/o late Mohd. Shäreef,
R/o 4728 & 4729, Ground Floor,
Gali Razia Begum, Hauz Qazi, Delhi-110006. ... Petitioner
Versus
Wali Mohd @ Mohd. Munna,
S/o Shri Noor Mohd.
R/o 4728 & 4729, FF and SF Gali Razia Begum,
Hauz Qazi, Delhi-110006. .... Respondent
ORDER
1. This order of mine shall decide the question whether the respondent be granted leave to contest the present eviction petition filed by the petitioner against the respondent under section 14 (1) (e) read with Section 25-B of Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act') in respect of part of first floor, second floor and third floor of property/subject property bearing no. 4728 and 4729 situated at Gali Razia Begum, Hauz Qazi, Delhi-110006, as shown in red colour in site plan (hereinafter referred as tenanted premises).
2. The brief facts necessary for disposal of leave to defend application can be enunciated as follows:
2.1 It is the case of the petitioner that the petitioner is the owner of the tenanted premises being the part of the subject property by virtue of the registered Sale Deed dated 21/01/2000 executed by Shri Mohd. Shareef S/o late Mohd. Hussain who had purchased the same (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 22.01.2024 Page no.1 of 18 RC ARC No.332/2022 Najmuddin Wali Mohd @ Mohd. Munna from Smt.Pushplata W/o Shri Prabhu Dayal and same is built on land measuring about 115 sq. yards. It is stated that the petitioner sold the portion, on the front side of the first floor, consisting of one room open roof, latrine bathroom and also the portion on the front side of the second floor of the above said property, consisting of one room, to the existing occupant namely Mr. Maqsood @ Babbu S/o late Shri Faswa Ali about 11 years ago.
2.2 It is averred that the respondent is the old tenant who was inducted by one of the previous owners namely Smt. Pushplata W/o Shri Prabhu Dayal @ 65/- per month exclusive of other charges which was then consisting of the portions / parts of the First and Second floor with roof of the second floor i.e. one room (15'x8'.2"), one store (6".5"x 8'.2"), kitchen (8'.5"x 8'.3" apprx.) (which was subsequently converted to a room), latrine and bathroom and open roof (14.2" x 11.6"
approximately) on the first floor and a room (9" .3" x18" .45"
approximately) with roof and open roof on the second floor of the subject property. Smt. Pushlata W/o Shri Prabhu Dayal also sent an attornment letter to the respondent when she sold the above said property to Shri Mohd. Shareef, who was the father of the petitioner. It is stated that the respondent paid rent to the father of the petitioner @ Rs.65/- per month exclusive of other charges till month of December, 1999 but he has not paid a single penny to the petitioner despite his several request and demands. The petitioner also sent a demand notice dated 04/10/2021 asking the respondent to pay arrears of rent along with interest @ 15% per annum with effect from January, 2000 but the respondent rather than paying arrears of rent gave false and frivolous reply.
2.3 It is stated that the petitioner gave a written complaint to the police and the Commissioner, North DMC in respect of illegal and unauthorized construction in the tenanted premise on the second floor on (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 22.01.2024 Page no.2 of 18 RC ARC No.332/2022 Najmuddin Wali Mohd @ Mohd. Munna 30.01.2020. But when no action was taken against the respondent, the petitioner filed a civil suit bearing no. CSNo.381/20 for permanent and mandatory injunction against the respondent but due to Pandemic Covid- 19, the functioning of the courts came to standstill and the respondent raised illegal and unauthorized construction without the permission and consent of the petitioner and without obtaining sanctioned plan from the concerned authority and against Delhi Building Bylaws. During the pendency of the above said suit, the respondent made illegal and unauthorized construction in the property in question by demolishing the first floor portion and second floor portion under his occupation and tenancy and made fresh construction by covering the open roof on the first floor and covered the open roof of the second floor and constructed mumty, latrine and bathroom on the third floor (i.e. on the roof of the second floor) of the subject property. Now the respondent is in possession of the two rooms, a hall, open kitchen, latrine and bathroom on the first floor and three rooms, a hall, open kitchen, latrine and bathroom on the second floor and a mumty and latrine and bathroom on the third floor as shown in red in colour the site plan attached with the petition.
2.4 It is submitted that the petitioner is in possession of the entire ground floor consisting of one room (21'x7.10" apprx.), veranda (Dalan) (21'.0" x 8'.6" approximately), open court yard with veranda and open kitchen, latrine and bathroom and one room/workshop attached with a store. The petitioner is living in the back portion of the ground floor with his family members with great difficulty due to the paucity of space. The petitioner is also in possession of one room measuring about 9'.3" x 12'.6" apprx., kitchen and latrine on the first floor of the subject property. It is submitted that one room on the second floor is under the tenancy and occupation of Mr. Mohd. Ibrahim S/o Shri Chhuttan Mirza, who is the old tenant @ Rs. 1001- per month exclusive of other charges.
(NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 22.01.2024 Page no.3 of 18 RC ARC No.332/2022 Najmuddin Wali Mohd @ Mohd. Munna 2.5 It is further stated that the petitioner has wife namely Mst. Shahina, two sons namely Mohd. Shahrukh and Mr. Tanzeelur Rehman and one daughter namely Mst. Uniba Najam, a daughter-in-law namely Mst. Aisha Rehmani W/o Mohd. Shahrukh and a grand-daughter Ms. Barira and all of them are residing in the back portion of grand floor consisting of one room, verandah, open kitchen / laterine and bathroom. The younger son of the petitioner namely Mr. Tanzeelur Rehman aged about more than 22 years is unmarried and the petitioner wants him to get married but due to paucity of space, the petitioner is not able to have suitable match for him who is totally dependent upon the petitioner for his residential accommodation and his marriage is not being finalized. 2.6 It is averred that the petitioner requires bonafide three room set under the occupation and tenancy of the respondent for his married son namely Mohd. Sharukh, daughter-in-law namely Mst. Aisha Rehmani and granddaughter namely Ms. Barira who are fully dependent upon the petitioner for their residence and one room for her married daughter namely Mst. Uniba Najam W/o Shri Mohd. Irfan who often visits her parents, brothers etc. and stay with them for days and also for his guests.
2.7 It is submitted that the petitioner is doing the work of manufacturing and storing footwear and running workshop with both the sons in the front portion of the ground floor consisting of one room and a store. The petitioner is using one room on the first floor as his godown for keeping finished product / chappals etc. 2.8 It is averred that the petitioner has no other reasonably suitable residential accommodation in Delhi other than the tenanted premises which the petitioner requires bonafide for his sons who are totally dependent upon the petitioner for their residence as well as for daughter and guests.
3. Summons were served upon the respondent who filed leave (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 22.01.2024 Page no.4 of 18 RC ARC No.332/2022 Najmuddin Wali Mohd @ Mohd. Munna to defend applications with document(s) alongwith separate detailed affidavit, by taking following grounds inter alia which can be outlined as follows:
3.1 It is averred that the petitioner has no bonafide requirement because he has sufficient accommodation and business premises available with him. It is averred that the entire ground floor is under the possession / occupation of Petitioner, where the Petitioner is illegally running a manufacturing unit of footwear in front portion of the said Ground Floor of subject property and resides at back portion of said floor. It is submitted that the Petitioner deliberately and with an intention to harass the Respondent and his family is not shifting his manufacturing unit from subject property to some other place. If the petitioner is in such dire need of space for his family, he has to shift the said manufacturing unit to other place and use the said premises for residential purpose. 3.2 It is averred that the petitioner is having a share in a house situated at Gali Shahtra, Ajmeri Gate, Delhi - 110006 and has other more properties and the same will be disclosed in the rejoinder. 3.3 It is stated that there is no relationship of landlord and tenant between the petitioner and the respondent. It is stated that initially Sh. Noor Mohd., the father of the Respondent was inducted as a tenant in the subject property in respect of first and second floor in the year 1947 by one Smt. Pushplata Bajaj wife of Sh. Prabhu Dayal and after the death of Sh. Noor Mohd., his son namely Sh. Munna @ Ali Mohd. i.e. Respondent is in physical possession of the property. It is further submitted that Smt. Pushplata Bajaj has left the subject property in the year 1996 and since then the Petitioner has no knowledge of her whereabouts. It is submitted that after 1996, neither anyone came to claim the rent of the property nor anyone claimed to be the legal heir qua the said property and the Respondent is in actual exclusive and uninterrupted physical possession of the Property since 1996. It is stated (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 22.01.2024 Page no.5 of 18 RC ARC No.332/2022 Najmuddin Wali Mohd @ Mohd. Munna that the Petitioner came in the Ground Floor portion/premises of subject property in the year 2003 but he neither asked for rent from the Respondent nor even claimed as owner of said property till 2020. It is averred that the petitioner has claimed as owner of the said property on the basis of fraud documents before Hon'ble Court. 3.4 It is stated that the Respondent is 74 year old man and he is residing in subject property along with his 2 sons namely Mohd. Salem and Mr. Ikram and they also have their respective families. It is submitted that the family of the respondent consists of 11 members including Respondent who all are residing in the subject property. The Respondent has no other accommodation except the said property.
4. Upon these grounds, the respondent prayed that there exists triable issue(s) that would disentitle the petitioner from obtaining an eviction order in respect of tenanted premises.
5. Reply to leave to defend application has been filed by the petitioner alongwith supporting affidavit wherein he has denied that the present petition is based on false and frivolous grounds and does not contain the ingredients of Section 14(1)(e) of DRC Act. The petitioner denied all the allegations and assertions made in the leave to defend application and affidavit.
6. Additionally, it is submitted that the petitioner keeps finished footwear stocks in the room on the first floor and keeps the cooking materials/utensils etc. in the kitchen store on the first floor as the petitioner has open kitchen on the ground floor and the latrine on the first floor is used by the workers/labours engaged by the petitioner from time to time.
7. Rejoinder was filed by the respondent to the reply of leave to defend application of petitioner reaffirming and reaverring the facts which he stated in the leave to defend application alongwith his detailed affidavit.
(NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 22.01.2024 Page no.6 of 18 RC ARC No.332/2022 Najmuddin Wali Mohd @ Mohd. Munna
8. Additionally, it is averred that the copy of the document purported to be the letter of attornment and its acknowledgment are patently false, forged and manufactured document as there is neither any postal dispatch receipt nor the signatures appearing on the purported acknowledgement are of the respondent, rather are forged.
9. It is submitted that there is a huge room at the first floor measuring 15' x 16' approximately which is lying vacant and quite spacious and sufficient to accommodate the family of the petitioner. Moreover, the petitioner's claim that the first floor room is used by his workers and the cooking material/utensils are kept there, shows that a sufficient space is available with the petitioner and the petitioner has no requirement bonafide or otherwise of the portion in occupation of the respondent.
10. It is further submitted that the respondent is in actual and exclusive possession of the first and second floor of the property in question and neither the petitioner nor anybody else has any access to same nor any article or belonging of the petitioner or his worker are kept or stored at the first floor.
11. I have heard learned counsel for both the parties and have gone through the material on record carefully. I have given my thoughtful consideration to the submissions made on behalf of both the parties.
12. The present petition for eviction is under clause (e) of proviso to sub-section (1) of section 14 of Act 59 of 1958 which after the judgment of Hon'ble Supreme Court in "Satyawati Sharma Versus Union of India", on 16.04.2008 reads as under :-
14.(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 and court or Controller in favour of the landlord against a tenant:Provided (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 22.01.2024 Page no.7 of 18 RC ARC No.332/2022 Najmuddin Wali Mohd @ Mohd. Munna 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:-
* * *
(e) that the premises are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation :
13. In order to succeed in a petition for eviction filed under section 14 (1) (e) of the DRC Act, the petitioners must establish the following ingredients:-
(i) That he is the owner of the tenanted shop and there exits relationship of landlord and tenant between him and the respondent.
(ii) That tenanted shop is required bonafide by the petitioner for himself or for any member of his family dependent upon him.
(iii) Petitioner does not have any other alternate, reasonable and suitable accommodation.
14. It is now well settled that while deciding the question of the grant of leave to contest under the provisions of section 25B of Act 59 of 1958, the Rent Controller should see the affidavit filed by the tenant and the counter affidavit filed by the landlord. The Controller is not required to conduct a full fledged trial and should only see that if the affidavit of the tenant raise any triable point the decision on which may disentitle the landlord from recovering possession of the premises. At the time of the decision on the question of leave, the Controller is not required to seek the proof of the defence of the tenant. The tenant should only disclose such facts in his affidavit that would disentitle the landlord (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 22.01.2024 Page no.8 of 18 RC ARC No.332/2022 Najmuddin Wali Mohd @ Mohd. Munna from recovering possession of the disputed premises. At the stage of granting the leave to defend, the Rent Controller should confine himself to the affidavit and reply, if any. The controller does not have the task of testing the veracity of the issues raised by the tenant, since that stage of the case will arise only after a leave to defend application has been allowed . The level of proof at this stage is that of a prima facie case. Reference at this point can be made to the landmark judgment of the Apex Court in "Precision Steel Engineering Works and Anr. Versus v. Prem Deva Niranjan Deva Tayal, 1982 (2) RCR 544: AIR 1982 Supreme Court 1518", wherein it was held that:-
"If the averments in the affidavit disclose such facts which, if ultimately proved to the satisfaction of the Court, would disentitle the landlord from recovering possession, that by itself makes it obligatory upon the Controller to grant leave.
It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. It is distinctly possible that a tenant may fail to make good the defence raised by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown."
15. Further, the above cited case also poses a statutory duty on the Controller to grant leave to defend, if the tenant is able to disclose certain facts which would have to be tested at a later stage. Relevant paragraphs of the judgment are as under:
"Statutory duty is cast on the Controller to give leave as the legislature uses the expression 'the Controller shall give' to the tenant leave to contest if the affidavit filed by the tenant discloses such fact as would disentitle the landlord for an order for recovery of possession. The (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 22.01.2024 Page no.9 of 18 RC ARC No.332/2022 Najmuddin Wali Mohd @ Mohd. Munna Controller has to look at the affidavit of the tenant seeking leave to contest. Browsing through the affidavit if there emerges averment - of facts which on a trial, if believed, would non-suit the landlord, leave ought to be granted. Let it be made clear that the statute is not cast in a negative form by enacting that the Controller shall refuse to give to the tenant leave to contest the application unless the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order etc.... The language of sub-section 5 of section 25B casts a statutory duty on the Controller to give to the tenant leave to contest the application, the only precondition for exercise of jurisdiction being that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of 13; possession of the premises on the ground mentioned in section 14(1)
(e)."
16. Let us now discuss the facts and circumstances of the present case keeping the principle of law as discussed above.
I. Ownership of the petitioner over the tenanted premises as well as existence of landlord-tenant relationship between the petitioner and the respondent.
It is contended on behalf of the petitioner that the petitioner is the sole owner of the subject property having inherited the same from his father late Mohd Shareef who purchased the same from the erstwhile owner namely Smt.Pushplata. It is not disputed by the respondent that Smt.Pushplata was the original landlord and owner of the subject property. However, the ownership of the petitioner qua subject property is disputed by the respondent. In order to substantiate the same, the petitioner has relied on the registered sale deed dated 21.01.2000 (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 22.01.2024 Page no.10 of 18 RC ARC No.332/2022 Najmuddin Wali Mohd @ Mohd. Munna executed by Mohammed Shareef in favour of Najmuddin i.e. the present petitioner and also placed on record registered sale deed dated 24.11.1997 executed by Smt. Pushpalata Bajaj in favour of Mohammed Shareef. A perusal of the said sale deed makes it crystal clear that Mohd. Shareef is the owner of the subject property. Further, the name of the tenants namely Mohammed Munna son of Noor Mohammed and Mohammed Ibrahim have been categorically mentioned therein. The rate of rent has been reflected as ₹65 per month in respect of the portion of the tenanted premises occupied by the tenant Mohammed Munna son of Noor Mohammed, who is admittedly father of the respondent. It is not in dispute that the petitioner is the son of Mohd. Shareef. Hence, there is a triable issue regarding the fact that the respondent is tenant qua the premises in question.
17. It is contended by the learned counsel on behalf of the respondent that the respondent never attorned to the present petitioner and the copy of the attornment letter is false and forged as the same is neither dated not accompanied by any postal receipts. Even if the said contention on behalf of the respondent is taken into consideration, same is meritless as by operation of law, the transferee gets into the shoes of the erstwhile owner and no attornment is thus required. According to Section 109 of the Transfer of the Property Act ,on transfer of the property, the transferee succeeds to the rights and liabilities of the lessor in respect of covenants which run with the land. By virtue of Section 109 the tenant is bound to pay the rent to the transferee and he cannot deny the rent merely on the ground that there is no privity of contract.
18. In Mohd. Ilyas & Another vs Mohd. Adil & Others, AIR 1994 Delhi 212 it was explained that "to attorn" merely means to agree to become a tenant of the owner or landlord of a property previously owned or held by another or to agree to recognizing a new (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 22.01.2024 Page no.11 of 18 RC ARC No.332/2022 Najmuddin Wali Mohd @ Mohd. Munna owner of the property and promise to pay the rent to him. Black's Law Dictionary, Legal Glossary (1988 Edition) issued by the Ministry of Law & Justice defines "attorn" as "to agree to become tenant to one owner or landlord of any estate previously held by another". In the Concise Oxford Dictionary, the word "attorn" means 'transfer: make legal acknowledgment of new landlord. Thus, "to attorn" merely means to acknowledge the relation of a tenant to a new landlord. It merely means acceptance of the new owner as landlord and estoppes the tenant to dispute the landlord's title thereafter. It was held that attornment by the tenant of the landlord is not required.
19. In Mohar Singh (through LRs) vs. Devi Charan & others, 1988 AIR 1365, it was explained that under the general law such an assignment effects a severance, and entitles the assignee on the expiry of the term to eject the tenant from the land covered by the assignment. Section 109 of Transfer of Property Act provides a statutory exception and enables an assignee to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject to the other covenants running with the land. There is no need for a consensual attornment as it is brought about by operation of law. It has the same effect as contractual attornment so that because of a transfer of the lease property, the transferee ipso facto acquires all the rights of the lessor and a new relationship is created between the transferee and the lessee. Letter of attornment is not necessary to complete title to the assignment of the reversion under Section 109 of the Transfer of Property Act. Title of the assignee is complete on the execution of the deed of assignment and is not postponed till the notice of the assignment is given right to ejectment which is inherent in ownership. Section 109 embodies the principle "Qui in jus deminiumve alterius succedit jure ejus uti debet" i.e. rights and liabilities attached to the property (arising out of possession and control of that property) pass with the property as (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 22.01.2024 Page no.12 of 18 RC ARC No.332/2022 Najmuddin Wali Mohd @ Mohd. Munna observed in Shankar Sahai vs. Kamal 1971 MP LJ 436. It was further observed that there is nothing in Section 109 of Transfer of Property Act which provides attornment as a condition precedent for the owner to be so. No attornment of the landlord by the tenant is therefore necessary. Reference may also be had to Brij Bihari Prasad & Another vs. Smt. Deoki Devi & Another, AIR 1978 Pat 117 and Hajee K. Assainar & Company vs. Chacko Joseph, AIR 1984 Ker 113. Hence, the claim of the respondent that he never attorned to the petitioner as his owner/landlord is of little consequence. Consequently , the subject property is owned by the father of the petitioner meaning thereby that the ownership has devolved upon the petitioner being his son and same is further substantiated by sale deed executed by his father Mohd. Shareef in favour of the petitioner vide 21.01.2000.
20. It is next averred on behalf of the respondent that Smt. Pushpalata Bajaj has left the subject property in the year 1996 and since then he has been in actual and uninterrupted physical possession of the said property. Perusal of the file shows that there is nothing on record from which it can transpire that either Smt. Pushpalata Bajaj or her legal heir ,if any ever challenged the registered sale deed 24.11.1997. Moreover, it stands admitted by the respondent himself that he is the tenant in the subject property. It is settled law that once a tenant always a tenant. Hence, the tenant cannot take the defence of adverse possession in respect of the property in question when the petitioner has shown better title in the shape of sale deeds. Even otherwise in the rent petition, the landlord is only required to show better claim than the tenant and the petitioner has shown the same. Hence, it seems that the dispute regarding ownership and landlord -tenant relationship has been raised by the respondent only for namesake.
21. Hence, from the perusal of the sale deed it has transpired (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 22.01.2024 Page no.13 of 18 RC ARC No.332/2022 Najmuddin Wali Mohd @ Mohd. Munna that the petitioner is the owner of the subject property and there exists relationship of landlord and tenant between the parties to the present petition by operation of law. Hence, there is no triable issues regarding the same.
II. Bonafide need and availability of alternate reasonable accommodation
22. As far as bona fide need of the petitioner is concerned, it has been stated that the petitioner requires the tenanted premises under the occupation of the respondent for residential purposes. Same is disputed by the respondent. It is admitted by the respondent himself that the petitioner is actually residing in one room at the ground floor of the subject property. There is no dispute regarding the family members of the petitioner consisting of himself, his two sons, daughter-in-law, granddaughter and his married daughter. It cannot be expected that the petitioner along with his family should reside in one room only whereas, the tenant occupies the entire premises comfortably. Hence, the need of the petitioner is bonafide. It has been further contended on behalf of the respondent that the petitioner is having illegal manufacturing unit in the front portion of the ground floor of the subject property and the same can be used for residence by shifting the manufacturing unit from the subject property to some other place. To my mind, the said contention on behalf of the respondent amounts to dictating to the landlord what is to be done and what is not to be done. It is well settled law that it is the petitioner himself/ herself, who is the best person to explain as to what is his/ her bona-fide necessity and the tenant cannot dictate him what to do. Reliance in this regard can be placed on case law titled as Sudesh Kumari Soni v. Prabha Khanna, 2008 SCC OnLine Del 1128, inter alia, it held as under:-
"25. It is often said by Courts that it is not for the tenant to (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 22.01.2024 Page no.14 of 18 RC ARC No.332/2022 Najmuddin Wali Mohd @ Mohd. Munna dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.
26. Suitability has to be seen from the convenience of the landlord and his family members and on the basis of the circumstances including their profession, vocation, style of living, habits and background. Landlord is the best judge of his residential requirement. In view of well settled law, I hold that accommodation available with the petitioner is insufficient as against total family members. Hence the petitioner has made out a case under Section 14(1)(e) of Delhi Rent Control Act and is entitled for relief claimed."
23. Thus ,the bonafide requirement for residence purposes of the family of the petitioner can not be doubted.In this regard, reliance can be placed on case tiled as Balwant P. Doshi Vs Shantaben Dhirailal Shah &Ar 2003(2) BomCR 190, wherein the coordinate bench has held that the Courts cannot ordinarily doubt the bonafide need of the landlord nor the Courts can dictate to the landlord as to how the premise owned by him should be used. It is sufficient for the landlord to express his desire to occupy the premises owned by him. It is not necessary for the landlord to establish the dire necessity but it is enough to show that some need exists.
24. It has been next argued that the petitioner is having various other properties but there is nothing on record to prove the same. Mere vague pleas has been raised by the respondents in this regard. Merely alleging the number of the properties is not sufficient, it was required to be stated by the respondent that said properties despite availability is not (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 22.01.2024 Page no.15 of 18 RC ARC No.332/2022 Najmuddin Wali Mohd @ Mohd. Munna occupied by the petitioner. Further, no document has been placed on record by the respondent in this regard. Hence, in these circumstances, the need of the petitioner not only seems to be genuine but greater than the respondent. It is also now well settled that the leave to defend is not to be granted to the tenant on the basis of bald affidavit and bald averments and assertions. Only those averments in the affidavit are to be considered by the Rent Controller which have some substance in it and are supported by some material. The respondent has not placed anything on record to contradict the submissions put forth by the petitioners or to support the submissions put forth by the respondent.
25. It was further urged on behalf of the respondent that the petitioner has concealed one room on the first floor and has not even mentioned the measurement thereof and the same can be used for residence purpose. Whereas, the petitioner has denied the same and has stated that there exists one storeroom and one kitchen store on the first floor which is being used by workers/labourers engaged by the petitioner from time to time. To my mind even if the existence of the said first floor room is assumed, the same is totally insufficient for the residence of the family members as the petitioner is having two sons and one of them is married and the other is of marriageable age. Hence, the availability of the said room, if any on the first floor is also not sufficient for the petitioner as the petitioner at least requires three rooms for himself and his two sons. Hence, even if the arguments of learned counsel of the respondent is considered, the need of the petitioner stand unfulfilled and in fact supported by the contention of the respondent. Hence, the alleged room on the first floor of the subject property cannot be treated as sufficient and alternate accommodation. Hence, there is no triable issue regarding the same.
26. It is well settled that once the petitioner is able to show (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 22.01.2024 Page no.16 of 18 RC ARC No.332/2022 Najmuddin Wali Mohd @ Mohd. Munna that he is the owner and landlord of the demised premises and the premises in question are required for his bonafide necessity, the court shall not view the bonafide necessity of the petitioner with suspicion. In so far as the question of necessity is concerned, the law is well settled that the landlord is the best judge of his necessity and he has got complete freedom in the matter. Therefore, a tenant cannot dictate terms to the landlord regarding his necessity. Merely for the reason that the subject property is the only place of residence of respondent wherein he has been living with his family since long can not be a ground to ignore the bonafide need of the petitioner.
27. It was next contended on behalf of the respondent that the petitioner wants to sell/let out the tenanted premises. Here it would be relevant to state that the said apprehension is already taken care of in the DRC Act itself by our legislative forefathers while enacting the laws who have already considered possibility of misuse in the hands of unscrupulous landlords and thereby inserted Section 19 of DRC Act which reads as follows:-
"Where a landlord recovers possession of any premises and the premises are not occupied by the landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied are, at any time within three years from the date of obtaining possession, re let to any person than the evicted tenant without obtaining the permission of the Controller such tenant can be put back to the premises or can be paid such compensation as the Controller thinks fit."
28. Hence, if the requirement of landlord is not bonafide and if a landlord abuses the process of the court, obtains an order of eviction, (NEETU NAGAR) JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 22.01.2024 Page no.17 of 18 RC ARC No.332/2022 Najmuddin Wali Mohd @ Mohd. Munna subsequently lets out the property or sells the same, the tenant can always apply for restitution under section 19 of the DRC Act.
29. In view of above discussion and the documents filed by the parties, this court is of the considered view that there is no triable issue between the parties which entitles the respondent for leave to contest the present application for eviction. The application for leave to contest is without merit and the same is dismissed.
30. Hence, the present petition for eviction is allowed. Petitioner is held entitled for recovery of the tenanted premises consisting of part of first floor, second floor and third floor of property bearing no. 4728 and 4729 situated at Gali Razia Begum, Hauz Qazi, Delhi-110006 as shown in red colour in site plan(s) annexed with the petition. However, the petitioner would not be entitled to initiate execution proceedings for recovery of the possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act.
31. In the facts and circumstances of the case, there shall be no order as to costs.
32. File be consigned to record room.
Digitally signed by NEETUAnnounced in the open Court NEETU NAGAR
on 22.01.2024 NAGAR Date:
2024.01.22
(This judgment contains 18 pages) 17:36:33 +0530
(Neetu Nagar)
JSCC-ASCJ-GJ/South East
Saket Courts: New Delhi
(the then ARC-02, Central
District,Tis Hazari Court, Delhi)
(NEETU NAGAR)
JSCC-ASCJ-GJ, South East District, Saket Courts (the then ARC-02, Central District, THC) 22.01.2024 Page no.18 of 18