Delhi District Court
Smt. Harbans Kaur vs M/S Fair Deal Radio & Electric Co on 17 September, 2022
In the Court of SCJcumRC, (West District)
Tis Hazari Courts, Delhi.
Presided by : Ms. Mahima Rai Singh
RC ARC 25995/2016
CNR Number : DLWT030003132011
In the matter of :
Smt. Harbans Kaur, since deceased through her LRs.
i). Sh. Manjit Singh
S/o Late Hazara Singh
R/o A18, Kirti Nagar,
Tagore Market,
New Delhi110015
ii). Sh. Amrik Singh
S/o Late Hazara Singh
R/o A18, Kirti Nagar,
Tagore Market,
New Delhi110015
iii). Sh. Iqbal Singh
S/o Late Hazara Singh
R/o A18, Kirti Nagar,
Tagore Market,
New Delhi110015
iv). Balvinder Kaur
D/o Late Hazara Singh
W/o S. Nirmal Singh,
WZ1116, Rani Bagh, Delhi. ...........Petitioners
Versus
M/s Fair Deal Radio & Electric Co.
Through its partners,
at A18, Tagore Market,
Kirti Nagar,
New Delhi.
........Respondent
RC ARC 25995/2016 Harbans Kaur v. M/s Fair Deal Radio & Electric Co. Page 1 of 16
Date of institution : 03.12.2011
Date of reserving for judgment : 24.08.2022
Date of judgment : 17.09.2022
JUDGMENT : Brief facts of the case
1. An eviction petition has been filed by the petitioner against the respondent for vacation of the tenanted premises, i.e., one shop at ground floor situated to the western side of property no. A18, Kirti Nagar, Tagore Market, Delhi alongwith attached store room on the South of the said shop as shown in red colour in the site plan annexed alongwith the petition (hereinafter referred as tenanted premises) on the ground of bonafide requirement under Section 14 (1) (e) of the Delhi Rent Control Act (hereinafter referred to as 'the DRC Act').
2. The case of the petitioner is that the suit premises was let out to the respondent by the deceased husband of the petitioner in the year 1965 for commercial purposes and the rate of rent of the suit premises is Rs. 80/ per month excluding the electricity and other charges. It has been stated that the husband of the petitioner i.e. Shri Hazara Singh died on 21.04.1996 and he was the owner of the said property by virtue of registered sale deed dated 10.11.1961. After his death he left behind five legal heirs including the petitioner and the other legal heirs executed a registered release deed dated 12.09.1996 in favour of the petitioner RC ARC 25995/2016 Harbans Kaur v. M/s Fair Deal Radio & Electric Co. Page 2 of 16 whereby petitioner became the absolute owner of the said property. It has been stated that the petitioner is realizing rent from the respondent and the petitioner is having a joint family consisting of three sons and their respective families who were living with the petitioner at the first and second floor. It has been submitted that the petitioner requires the said shop bonafidely for her three sons as well as grand sons. Petitioner has mentioned that there are two shops in the property no. A18, Kirti Nagar, Delhi. Besides the shop in question, the another shop on the ground floor on the Eastern side was under the tenancy of another tenant against whom the eviction petition was filed due to bonafide need and requirement of the petitioner and her family. Petitioner has also submitted that the two tenanted shops are situated in the front side of the property and there is no entrance available to her to use the back portion of the shops from the front side. Further that there is a main road situated on the front of the tenanted property and business can be attracted from the front side only.
On the above stated grounds, prayer is made for eviction of the respondent from the tenanted premises.
3. The respondent filed leave to defend application, which was allowed vide order dated 03.11.2012 and the respondent was granted leave to contest the present eviction petition.
Written statement by respondent.
4. Written statement was filed by the respondent denying the RC ARC 25995/2016 Harbans Kaur v. M/s Fair Deal Radio & Electric Co. Page 3 of 16 contentions made by the petitioner in the eviction petition stating that there is no bonafide need of the petitioner and that he has not approached the Court with clean hands. Also that, incorrect facts has been stated in the present petition regarding the joint status of her family. Further that, no rent receipts have been placed on record alongwith the petition as the petitioner has not been issuing any rent receipt to the respondent for the rent receipt. Moreover, after the death of late Sh. Hazara Singh, the rent of the premises has been received by the petitioner as well as the sons of late Sh. Hazara Singh and she cannot be stated to be the sole landlady of the suit premises. It is also contented that petitioner is not the true owner of the suit premises and the petitioner never intimated the respondent that how and when she became the owner of the premises. All the children of the petitioner are living with their respective families and maintaining separate kitchen. The petitioner has not filed the correct site plan and intentionally concealed the measurements and sizes of the portion in the property which are shown in green parts in the site plan. Further that, petitioner has got the eviction order in respect of one shop situated in the eastern side of the shop which is in use and occupation of the respondent. Also that, the total area of the property no. A18 on the ground floor is 1560 Sq. ft. approximately, out of which the area in occupation of the respondent is 427 Sq. ft. approximately and thus rest of the covered area is 1133 Sq. ft. approximately having entry from the front and backside is now in occupation of the petitioner which is sufficient to fulfill the desires of the petitioner.
RC ARC 25995/2016 Harbans Kaur v. M/s Fair Deal Radio & Electric Co. Page 4 of 16Replication by petitioner.
5. Replication to the written statement of the respondent was filed by the petitioner, wherein the petitioner has denied all the averments made by the respondent in his written statement, reaverring what was averred by him in the original eviction petition. It was submitted that the back portion of the property cannot be used for commercial activity.
Plaintiff evidence.
6. During evidence, petitioner Sh. Amrik Singh stepped into the witness box as PW1 and deposed on the lines of the eviction petition. He tender his affidavit as Ex. PW1/A and relied upon the following documents :
a) Ex. PW1/1 is the sale deed dt. 13.11.1961.
b) Ex. PW1/2 is the release deed dated 12.09.1996 (be read as 12.09.1996).
c) Ex. PW1/5 is the photograph of tenanted premises.
d) Ex. PW1/6 is the service certificate.
e) Ex. PW1/7 is the Retirement letter dt. 03.03.2009
f) Ex. PW1/8 is the death certificate of Smt. Harbans Kaur.
g) Ex. PW1/9 is the site plan.
h) Mark A is the Copy of order passed by Sh. M.L. Jain, the then RCT dated 02.08.1968
i) Mark B is the photocopy of Rent deed dated 13.05.1965.
RC ARC 25995/2016 Harbans Kaur v. M/s Fair Deal Radio & Electric Co. Page 5 of 16j) Ex.PW1/3 was deexhibited and marked as MarkA i.e. Rent Deed dated 13.05.1995.
k) Ex.PW1/4 was also deexhibited and marked as MarkB i.e. Order dated 02.08.1996.
Sh. Iqbal Singh stepped into the witness box as PW 2. He tendered his evidence by way of affidavit Ex. PW2/A and relied upon the documents already exhibited as Ex. PW1/1, Ex. PW1/2 and Ex. PW1/5 to Ex. PW1/9, Mark A & B. Sh. Manjeet Singh stepped into the witness box as PW3. He tendered his evidence by way of affidavit Ex. PW3/A and relied upon the documents already exhibited as Ex. PW1/1 to Ex. PW1/9.
After cross examination, petitioner evidence was closed.
Respondent's evidence.
7. In his turn, Sh. Davinder Kumar Chawla entered into the witness box as RW1 and deposed on the lines of the written statement. He tendered his evidence by way of affidavit Ex. RW1/A, bears his signatures at point A & B. Further, he relied upon the following documents :
a) Ex. RW1/1 is the site plan.
b) Ex. RW1/2 is the partnership deed (colly 19 pages).
Sh. Rajiv Chawla entered into the witness box as RW2. He RC ARC 25995/2016 Harbans Kaur v. M/s Fair Deal Radio & Electric Co. Page 6 of 16 tendered his evidence by way of affidavit Ex. RW2/A, bears his signatures at point A & B. Sh. Anuj Chawla entered into the witness box as RW3. He tendered his evidence by way of affidavit Ex.PW3/A, bears his signatures at point A & B. He relied upon the documents i.e. Bill dt 0705.2018 Ex.RW3/1.
Sh. Suresh Mendiratta, entered into the witness box as RW
4. He tendered his evidence by way of affidavit Ex. RW4/A, bears his signatures at point A & B. Sh. Mahinder Kumar, entered into the witness box as RW5 and deposed that he was the summoned witness and produced seven electricity bills Ex. RW5/1 to Ex. RW5/7 for connection installed in the property bearing no. A18, Tagore Market, Kirti Nagar, New Delhi.
After cross examination of the witnesses, respondent evidence was closed.
8. I have heard Shri Kishore Kumar, Ld. Counsel for petitioner and Shri S.K. Gulati, Ld. Counsel for respondent and also gone through the Court record. Written submissions filed by both the parties also taken into consideration.
9. Petitioner has relied upon the judgments:
(a) Brij Mohan Vs Tulsi Ram (RC.REV. 274/2015, Delhi High Court)
(b) Puran Chand Aggarwal Vs. Lekh Raj, 210 (2014) DLT RC ARC 25995/2016 Harbans Kaur v. M/s Fair Deal Radio & Electric Co. Page 7 of 16 131.
(c)Ram Babu Agarwal Vs. Jay Krishan Das (2010)1 SCC 164.
(d) Tarsem Singh Vs. Gurvinder Singh 173 (2010) DLT 379.
(e) Balwant Singh Chowdhary & Anr. Vs. Hindustan Petroleum Corporation Ltd., 0224 (1) RCR 487.
(f) Gurcharan Lal Kumar Vs. Srimati Satyawati & Ors. 2013 (2) RCR (Rent) 120.
(g) Raj Kumar Khaitan & Ors. Vs. Bibi Zubaida Khatun & Anr.: AIR 1995 SC 576.
(h) Ragavendra Kumar Vs. Firm Prem Machinery and Co., [2000] 1 SCR 77.
(I) Prativa Devi Vs. T.V. Krishnan, (1996) 5 SCC 353.
(j) G.C. Kapoor Vs. Nand Kumar Bhasin, AIR 2002 SC 200.
(k) Dattatraya Laxman Kamble Vs. Abdul Rasul Moulali Kotkunde and Anr. [1999] 2 SCR 912.
(l) M/s Adarsh Electricity & Ors Vs. Dinesh Dayal RC.REV. 195/2010.
(m) S.N. Kapoor Vs. Basant Lal Khatri AIR 2002 SC 171.
(n) Sarla Ahuja Vs. United India Insurance Company Limited; AIR 1999, SC 100.
(o) M/s John Impex (Pvt.) Ltd. Vs. Dr. Surinder Singh & Ors.135 (2006) Delhi Law Times 265.
(p) Ram Babu Aggarwal Vs. Jay Kishan Das, 2009 (2) RCR 455. RC ARC 25995/2016 Harbans Kaur v. M/s Fair Deal Radio & Electric Co. Page 8 of 16
(q) Sait Nagjee Purshotam & Co. Ltd Vs. Vimalabai Prabhul Lal 1113/2003 SC.
(r) M/s Metro Bearing Vs. Mrs. Faizunnisa RC REV. 513/2018.
10. Respondent has also relied upon the judgments:
(a) O.P. Gupta Vs. R.K. Sharma 2000 LAWPAC (DEL) 21544: 2001 (90) DLT 276.2001 (4).
(b) Mehar Ellahi Vs. Sultana 2012 LAWPACK (Del) 47316.
(c) Mohd. Illyas Vs. Nooruddin 2011 LAWPAC (Del) 11293.
(d) Gulab Bai Vs. Nalin Narsi Vohra & Ors 1991 LAWPAC (SC) 12579: 1991 AIR (SC) 1760: 1991 (2) SCR 941: 1991 (3) SCC 483: 1991 (3) JT 112: 1991 (2) Scale 60: 1991 (2) UJ 372: 1991 (2) RCR 453: 1991 (2) Rent LR 151.
(e) Ram Dass Vs. Ishwar Chander & Ors. 1988 LAWPACK (SC) 11212: 1988 (3) AIR (SC) 1422: 1988 (Supp1) SCR 239: 1988 (3) SCC 131: 1988 (2) JT 426: 1988 (1) Scale 1136: 1988 (2) UJ 271: 1988 (2) RCJ 133: 1988 (1) RCR 625: 1988 (2) Rent LR 135.
(f) Shiv Sarup Gupta Vs. Mahesh Chand Gupta 1999 LAWPACK (SC) 28783: 1999 AIR (SC) 2507: 1999 (3) SCR 1260: 1999 (6) SCC 222: 1999 (5) JT 201: 1999 (4) Scale 334: 1999 (6) Supreme 330: 1999 (6) SLT 163: 1999 (3) SCJ 215: 1999 (8) SRJ 89: 1999 (2) RCJ 388: 1999 (3) RC ARC 25995/2016 Harbans Kaur v. M/s Fair Deal Radio & Electric Co. Page 9 of 16 KLT 17 (SN).
Court observations and findings Essential ingredients of Section 14(1)(e) of DRC Act, 1958. i. Petitioner is the owner/landlord in respect of the tenanted premises;
ii. Petitioner requires the premises bonafidely for himself or for family members dependent upon themselves;
iii. Petitioner has no other reasonable suitable accommodation.
Ownership as well as existence of landlordtenant relationship : It is the petitioner case that the tenanted premises was let out by the husband of the deceased petitioner and the father of the present petitioners to the respondent. The same has been admitted by the respondents in their WS. Various objections were taken by the respondent to the ownership documents exhibited by the petitioner, however, he himself admitted to the fact of ownership of Sh. Hazara Singh who was the husband of the petitioner.
It has been held in the case of Bharat Bhushan Vij v. Arti Techchandani 2008 (153) DLT 247 that the concept of ownership in a landlord tenant litigation as governed by the DRC Act has to be distinguished from the one in title suit. In the case of M.R. Sawhney v. Dories Randhawa AIR 2008 Delhi 110 that once a tenant is always a tenant, unless his status changes by contract or by operation of law which is not so in the present petition.
Thus, in view of the same petitioner being the wife of the erstwhile RC ARC 25995/2016 Harbans Kaur v. M/s Fair Deal Radio & Electric Co. Page 10 of 16 landlord Sh. Hazara Singh who is the admitted owner of the tenanted premises and after her death her LRs having been substituted in the present petition, the landlord/ ownertenant relationship for the purpose of DRC Act stands duly proved.
Bonafide requirement and availability of alternative suitable accommodation.
It is the case of the plaintiff that they required the tenanted premises for her sons Sh. Manjeet Singh, Sh. Amrik Singh, Sh. Iqbal Singh and also for grandson for starting of new businesses for enhancement of their income. Also that no alternative suitable accommodation is available to them for the same. During the course of evidence it came on record that one shop at the tenanted premises got vacated and was presently in the use and occupation of Sh. Iqbal Singh from where he was carrying out the business of repair and sale of electric goods. The Ld. Counsel for the petitioner has relied upon a plethora of judgments on the point that the landlord is the best Judge of his requirement for business purpose and he has complete freedom in the matter. Courts have no concern to dictate the landlord as to what and in what manner he should used the property. Also that it is the choice of the landlord to chose the place for business which is most suitable for him. Further that no experience is required for starting a new business. The respondents have denied that there is no bonafide needs of the petitioner and she has not approached the Court with clean hand. Also that incorrect facts have been stated in the petition regarding the status of the family as RC ARC 25995/2016 Harbans Kaur v. M/s Fair Deal Radio & Electric Co. Page 11 of 16 joint family. Respondent/ RWA1 during his cross examination admitted that the petitioner was having a joint family and that they were living in the house together. It also came on record that petitioners and their sons were using the single shop for doing multiple/ different works and the same fact was also admitted by the respondent. The fact that the sons of the petitioners namely Sh. Amrik Singh and Sh. Manjeet Singh having retired from their job was also duly proved. It was also not denied that the other son namely Sh. Iqbal Singh was working as a electrician. Various questions were put during the cross examination of the petitioner's witness qua their bonafide requirement, however nothing substantial came on record to prove that there was no bonafide requirement on behalf of the petitioner and the need was only whimsical or desire. Respondent has also argued that alternative reasonable accommodation was available to the petitioner at the back side of the tenanted premises as well as on the first floor and has disputed the site plan filed by the petitioner. However, during the cross examination respondent/ RW1 admitted that the site plan filed by the petitioner i.e. Ex.PW1/9 was true and correct. Respondent also admitted that the property above the ground floor was being used by the Legal heirs of petitioner for residential purposes. He also admitted that there was no shops on the back side of the said premises and that a staircase is situated at the back side of the said premises to go up stairs. RW1 and RW2 also admitted that on the back side of the house there was a service lane. It was also admitted that there was no entrance from the front side for using the back portion of the shop and that the tenanted premises was an old construction. It is a well settled RC ARC 25995/2016 Harbans Kaur v. M/s Fair Deal Radio & Electric Co. Page 12 of 16 principle that the availability of alternate suitable accommodation has to be seen at the time of filing of the petition and it is of no defence that the property available to the petitioner could be altered/ structurally changed to meet the requirement of the petitioner.
It is common knowledge that the footfall of customers on the ground floor is much more than any other floor. Reliance may be placed upon the law laid down in Rajesh Jain v. Quazi Sammin Ahmad 2015 (2) RLR 438 wherein it has been held that since eviction was sought for commercial purposes, it was rightly held that ground floor of the property would be more suitable. In K.B. Watts v. Vipin Kalra 2015 (220) DLT 402 it has been held that it is well settled that for a profession or business ground floor premises are always more suitable. It is trite law that the tenant cannot dictate the landlord as to how he should utilize the premises. Similar view has been taken in Surinder Singh v. Jasbir Singh 172 (2010) DLT 611. It has been held that with regard to the availability of basement or first floor, it is contended that these portions are not suitable for business, as tenanted shop is situated on the main road and that too on the ground floor. No customer would like to go to the basement or first floor. The premises or the space available at the basement or at the first floor, can in no way substitute the commercial space available at the ground floor of a given property. Also that shops in the back lane will have less foot fall than in the front lane. In case landlord wishes to start his business then starting business in the front lane will have more profit as there would be easy excess of customer in the front lane than in the back lane.
RC ARC 25995/2016 Harbans Kaur v. M/s Fair Deal Radio & Electric Co. Page 13 of 16In Pawan Kumar v. Paramjit Singh Gill 2015 IV AD (Delhi) 423 it is held that if tenanted premises is given for commercial activity and the landlord has a right to choose as per his suitability then the shop on ground floor on the main road/ main street is more suitable then any other shop on the back street. Similarly, in Savitri Sahay v. Sachidanand Prasad AIR 2003 SC 156, Ragavendra Kumar v. Firm Prem Machinery AIR 2000 SC 534 and The Punjab State Cooperative Supply & Marketing Federation Ltd. v. Amit Goel 204 (2013) DLT 63 it is held that the landlord is the best judge of his requirement for residential or business purpose and the tenant cannot dictate landlord to adjust as suitability would be seen from the convenience of landlord and other circumstances. Hence, the respondent cannot dictate the petitioner to start his business from back lane.
Moreover, respondent no. 1 has admitted the photographs of the tenanted premises i.e. RW1/D1 to RW1/D6 and has categorically admitted that he has no knowledge whether the LRs of the petitioner were having suitable property. Respondent failed to put on record any documents to show that there is sufficient place with the LRs and the sons of the petitioner to run their business property except his tenanted shop. Thus, no concrete evidence has come on record to disprove the bonafide need of the petitioner or that alternate suitable accommodation is available to them at present. The respondent has examined RW2 to prove his contentions and that petitioner was trying to sell the building of the tenanted premises, however, RW2 himself admitted that the present petitioners were the owner of the property and that the property was an RC ARC 25995/2016 Harbans Kaur v. M/s Fair Deal Radio & Electric Co. Page 14 of 16 old constructions. RW2 specifically stated that the petitioner never told him that they were going to sell the property. As per RW2, Sh. Sanjay Sehgal informed him that the tenanted property was available for sale however, the said person was never examined as a witness by the respondent. RW3 admitted that the respondent was his cousin brother and that he has come to the Court to give his statement at his instance. He also admitted that he has not mentioned his relationship with respondent in his evidence. He further admitted that he has no personal knowledge about the property. The testimony of RW4 could not be completed as he passed away before conclusion of his evidence, therefore, in these facts and circumstances cannot be relied upon. However, he did admit that he has seen Sh. Iqbal Singh son of the petitioner doing work at his shop. Testimony of RW5 does not have any significance on the merits of the present case and only shows that there were different electricity bills in the name of different persons at the tenanted premises.
11. Thus, in totality of the discussions made above, the petitioner has successfully proved all the essential ingredients of Section 14(1) (e) of the DRC Act. Accordingly, the eviction petition filed by the petitioner against the respondent under Section 14(1) (e) of the DRC Act is allowed. Petitioner is held entitled for recovery of the tenanted premises i.e., one shop at ground floor situated to the western side of property no. A18, Kirti Nagar, Tagore Market, Delhi alongwith attached store room on the South of the said shop as shown in red colour in the site plan annexed alongwith the petition . However, the petitioner would not be entitled to RC ARC 25995/2016 Harbans Kaur v. M/s Fair Deal Radio & Electric Co. Page 15 of 16 initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14(7) of the Act. Keeping in view the facts & circumstances of the case, no order as to costs.
File be consigned to Record Room.
Announced in open Court (Mahima Rai Singh)
on 17th Day of September 2022 SCJ cum RC(West)
Tis Hazari Courts, Delhi.
(This judgment contains 16 pages.)
RC ARC 25995/2016 Harbans Kaur v. M/s Fair Deal Radio & Electric Co. Page 16 of 16