Delhi District Court
Smt. Taruna Rani vs Sh. Subhash Chand on 7 December, 2018
IN THE COURT OF SUDHIR KUMAR SIROHI, ACJ/CCJ/ARC SHAHDARA,
KARKARDOOMA COURTS,DELHI.
ARC. No. 85/17
Smt. Taruna Rani
W/o Sh. G. S. Aggarwal,
R/o K69, Krishna Nagar,
Delhi110051 ..... petitioner
VERSUS
Sh. Subhash Chand
s/o Not known
r/o One shop on ground floor
of property bearing no. K69,
Krishna Nagar, Dlhi51.
..... respondent
Date of institution : 03.02.2017
Date of order : 07.12.2018
JUDGMENT
1. The present petition U/Sec. 14 (1) (e) of Delhi Rent Control Act, 1958 has been filed by the petitioner against the respondent for his eviction from one shop on ground floor of property bearing no. K69, Krishna Nagar, Delhi 51. It is averred by petitioner that petitioner is the owner and the landlady of the shop in question and the respondent is the tenant of the applicant in the shop in question. The petitioner alongwith her son namely Himanshu Aggarwal bonafidely wanted to open a departmental store of 75 sq. yds. (approx) and for ARC. No. 85/17 Taruna Rani Vs. Subhash Chand Page 1/13 which the eviction of the respondent is bonafidely required from the shop in question. Petitioner had also filed other eviction petitions against the other six tenants for the said bonafide requirement. Hence, the petitioner has filed the present eviction petition.
2. Notice of this eviction petition was sent to the respondent in the prescribed format which was duly served on the respondent. In response to which the respondent had filed leave to defend application within limitation period and on request of ld. counsel for petitioner, leave to defend was allowed vie order dated 25.03.2017. After that respondent filed written statement.
3. It is averred by the respondent in written statement that petitioner has filed the present petition on the ground that she requires the tenanted premises to open a departmental store for herself and for her son Himanshu Aggarwal. However the said son of the petitioner is married and has independent family to support and is residing separately from the petitioner in property bearing no. K68 Top Floor Krishna Nagar Delhi 110051 measuring 233 sq. yards which he has purchased in his own name. The fact that the son of the petitioner is residing separately from the petitioner and the petitioner is residing separately on the first floor of property bearing no. K69 Krishna Nagar, Delhi 110051 as mentioned by her in petition clearly shows that the son of the petitioner as well as his family are not dependent upon her and hence do not qualify the test under Section 14 (1)
(e) of DRC Act and are not dependent upon her as they are having an independent family and independent business. The petitioner herself at the old age of 64 can not be presumed to open a departmental store or start a new business for herself.
ARC. No. 85/17 Taruna Rani Vs. Subhash Chand Page 2/134. It is further averred by respondent that petitioner cannot seek the eviction of the respondent from the tenanted shop as one Sh. Pradeep Nagpal has filed a civil suit for the recovery of Rs. 10, 00, 000/ against the petitioner vide suit no. 33/16 and the Hon'ble Court of Sh. Anurag Sain ADJ KKD Courts, Delhi vide judgment dated 19.02.2016 has decreed the suit in favour of Sh. Praeep Nagpal and the execution proceedings for the recovery of the said amount with interest and the implementation of the said decree is pending in the court of Sh. Anurag Sain ADJ KKD Courts, Delhi and fixed for filing of the affidavit of J. D. Smt. Taruna Rani who is the petitioner herein with respect to all her assets so the same can be attached for the recovery of the said amount and the implementation of the said decree. The JD/petitioner is deliberately not filing the said affidavit despite the cost imposed upon her by the Hon'ble court. Since all the properties belonging to J. D. Smt. Taruna Rani who is the petitioner herein are liable for attachment and she can no longer claim herself to be the owner of the said property as the same is liable to be attached for the recovery of the said amount and the implementation of the said decree. The petitioner is not the owner of the tenanted premises and is merely a landlord for the purpose of collecting rent and has failed to file any proof of her ownership.
5. It is further averred by respondent that the petitioner has also other commercial properties in her name, in the name of her son Himanshu Aggarwal, his wife Rashi and these properties are commercial, highly suitable, alternative and are very much available to bring to an end the alleged bonafide requirement of the petitioner and her son. The son of the petitioner is having a property bearing no. K68 Krishna Nagar, Delhi 110051 measuring 42 sq. yards in the name of his wife. The ground floor of this property is commercial having two shops. Both these shops are very much available to the petitioner and her son ARC. No. 85/17 Taruna Rani Vs. Subhash Chand Page 3/13 and are highly suitable and commercial and can easily satisfy the alleged bonafide need of the petitioner and her son.
6. It is further by respondent averred that the son of the petitioner is also having another shop baring no. 66 Ram Nagar Delhi 110051 in the name of his wife Rashi Aggarwal and said shop has been recently let out by the son of the petitioner to a tenant at a monthly rent of Rs. 15, 000/ who is running a shop in the name and style of VIP Gents Parlour. The said shop was very much available to the petitioner and her son and is highly suitable and commercial but he deliberately let out the same to a tenant just to show that the said property is no more available to them to make out a false ground of eviction. If the petitioner through her son really wanted some commercial space they should not have let out the said shop. The son of the petitioner is also the owner of another shop bearing no. 131 Ram Nagar, Delhi 110051 and said shop has been recently let out by the son of the petitioner to a tenant at a monthly rent of Rs. 10, 000/ who is running a shop in the name and style of SHIVAM MEDICOS. The said shop was very much available to the petitioner and her son and is highly suitable and commercial but he deliberately let out the same to a tenant just to show that the said property is no more available to them to make out a false ground of eviction. If the petitioner through her son really wanted some commercial space they should not have let out the said portion. The petitioner has concealed about the ownership of these properties belonging to herself and her son and daughter in law. The size of these shops is highly sufficient and much bigger than tenanted shop. The petitioner has also not disclosed that apart from the tenanted shops she is also having 8th shop in the property in question which is the biggest shop and is lying vacant in her possession and can easily satisfy her alleged bonafide requirement.
ARC. No. 85/17 Taruna Rani Vs. Subhash Chand Page 4/137. It is further averred by respondent that the petitioner and her son Himanshu Aggarwal have sufficient income in the form of rental income of approximately Rs. 70, 000/ p.m. from various properties they have in their names and in the name of Smt. Rashi wife of Sh. Himanshu Aggarwal by letting out these properties to different tenants. The son of the petitioner Sh. Himanshu Agarwal is doing the business of finance and property consultancy from property bearing no. K68 Krishna Nagar Delhi for several years and is well set in his business and having good income from the said business. Respondent also alleged that petitioner has failed to file any document or proof with regard to the fact that she or her son has any experience,knowledge or expertise for opening/running a departmental store or they have financial resources to open such a big store and pagri was given at time of inception of tenancy Evidence:
8. Petitioner examined Mr. Himanshu Aggarwal as PW1 (SPA Holder of petitioner) and filed evidence by way of affidavit Ex.PW1/A and who relied upon the following documents:
a) Special Power of Attorney executed in favour of PW1 by petitioner dated 28.02.2017, Ex.PW1/1 (OSR),
b) Aadhar card of PW1, Ex.PW1/2 (OSR),
c) site plan, Ex.PW1/3 and
d) rent receipt, Ex.PW1/4.
9. Respondent in his defence examined himself as RW1 who filed evidence by way of affidavit Ex.RW1/A. ARC. No. 85/17 Taruna Rani Vs. Subhash Chand Page 5/13
10. Ld. counsel for the respondent has relied upon the following judgment:
(a) Maqboolunnisa Vs. Md. Saleha Quaraishi (1998) 9 Supreme Court cases 585 and
(b) Vidhyadhar Vs. Manikrao & Anr AIR 1999 SC 1441
11. I have heard Ld. counsel for the parties and considered the judgments.
Discussion
12. In order to suceed in the cases U/Sec. 14(1)(e) of D.R.C. Act, the petitioners is required to prove the following ingredients:
(a). Ownership in respect of tenanted premises;
(b). Relationship of landlord and tenant between the parties;
(c). petitioners bonafidely requires the tenanted premises;
(d). petitioners does not have any other alternative accommodation with him/her.
Ownership and relationship of landlord and tenant:
13. The respondent has not denied the landlord tenant relationship but has taken defence that petitioner is not the owner of the property. Respondent is estopped as per Section 116 of Indian Evidence Act from disputing the title of petitoner. Meaning of word owner vis a vis the tenant is that the owner should be sometime more than the tenant (Milk Food Ltd. V. Kiran Khanna, 51 (1993) DLT 141 (Delhi) Accordingly, the landlady and tenant relationship between the petitioners and respondent has been established with ownership of the petitioner.
Bonafide Requirement as well as alternative accommodation:
14. The petitioner has claimed tenanted premises for her and her son ARC. No. 85/17 Taruna Rani Vs. Subhash Chand Page 6/13 bonafide requirement in order to open a departmental store as the tenanted premises is situated on the ground floor and has ample facing area with the main road as well as the petitioner has filed the eviction petition against other 6 tenants whose shop are on the ground floor of the premises of petitioner.
15. The respondent has taken following defences:
(i) that the son of petitioner is not dependent upon the petitioner as the son of petitioner is living separately at property bearing no. K68, Top Floor, Krishna Nagar, Delhi110051,
(ii) the son of petitioner is the owner of shop no. 131 Ram Nagar, Delhi 110051 and the said shop has been recently let out by the son of the petitoner to a tenant at a monthly rent of Rs. 10,000/ who is running a shop in the name and style of Shivam Medicos,
(iii) the son of petitioner has another shop at 66 Ram Nagar, Delhi110051 in the name of his wife Ms. Rashi Aggarwal and the same has been recently let out by the son of the petitoner to a tenant a monthly rent of Rs. 15,000/ and who is running the shop in the name of VIP gents parlour.
(iv) the petitioner and her son Mr. Himanshu Aggarwal has sufficient income approximately 70,000/ per month,
(v) the property is likely to be attached in execution of decree of Rs. 10 lakh against the petitioner vide suit no. 33/16 by the court of Ld. ADJ, Karkardooma Courts, Sh. Anurag Sain in judgment dated 19.02.2016,
(vi) pagri was given at the time of inception of tenancy
(vii) the tenanted premises is not suitable for departmental store as there are many departmental store nearby and petitioner with her son also not have experience, knowledge and financial resources to run departmental store.
ARC. No. 85/17 Taruna Rani Vs. Subhash Chand Page 7/1316. Defence no. (i), (ii), (iii) and (iv) of respondent will be decided by common discussion.
Admittedly the son of the petitoner is living separately from the petitoner at the premises no. K68, Third Floor Floor, Krishna Nagar, Delhi110051 but it is not deposed or averred by the respondent that the property no. K68 is having any shop that belongs to the son of petitoner from where the requirement of petitioner or her son can be fulfilled. The term 'family' must always be liberally and broadly construed so as to include near relatives of the head of the family. It would include not only the members of the landlord's family but also those persons who are dependent on him and whose responsibility he has accepted (Kanhaiyalal v. Bapurao, 1989 (1) RCJ 161). The word 'dependent' is not restricted to persons financially dependent but is comprehensive enough to include persons who are dependent on landlord for residential accommodation. Meaning thereby that if a family member is financially not dependent upon the landlord then it does not mean that he is not dependent upon the landlord for residence (Gobind Dass v. Kuldip Singh, AIR 1971 Delhi 151 DB). Dependent member of landlords family means dependent for accommodation and not financially (M.M. Mehta v. Chaman Lal, ILR1980 (1) Del 94. Hon'ble Supreme Court had held that the word 'family; has to be given not a restricted but a wider meaning so as to include not only the head of the family but all members of descendents from the common ancestor who are living together in the same house (Baldev Sahai Bangia v. R. C. Bhasin, AIR 1982 SC 1091). Therefore, even if it is presumed that son of the petitoner is not finanacially dependent upon the petitoner then it does not mean that he is not dependent upon the petitioner for requirement of commercial space unless the respondent proves that son of petitioner has alternative suitable accommodation to satisfy bonafide ARC. No. 85/17 Taruna Rani Vs. Subhash Chand Page 8/13 requirement.
17. Respondent has not filed any document to show that son of the petitioner is the owner of property no. 131, Ram Nagar, Delhi51 and during cross examination PW1 Mr. Himanshu also deposed that he and his wife does not have any relation with respect to shop bearing no. 131, Ram Nagar, Delhi51. Accordingly, the respondent has failed to bring any proof on record to show that the said property belongs to son of petitioner Mr. Himanshu Aggarwal.
18. The respondent has averred that the shop no. 66, Ram Nagar, Delhi51 belongs to the wife of son of petitioner and the same is given on rent to VIP gents parlour on monthly rent of Rs. 15,000/. PW1 During his cross examination admitted that the shop belongs to his wife Ms. Rashi Agarwal but stated that the shop was given on rent 67 years ago to VIP gents parlour. Ld. counsel for the petitioner argued that the said shop belongs to the wife of son of petitioner Ms. Rashi Agarwal and not to petitioner or her son therefore, the said shop can not be used by the petitioners as the same has already been occupied by another tenant and it depends upon Ms. Rashi Agarwal whether she wants to give her shop or not.
19. Admitted by both the parties that the shop at 66, Ram Nagar belongs to Ms. Rashi Agarwal wife of PW1 and the said shop is not vacant. Moreover, Ms. Rashi Aggarwal is an independent identity and every woman has right to use her property as she wants and she can not be forced by inlaws to hand over her property to the inlaws, therefore, I do not find any defence in this averrement of respondent.
ARC. No. 85/17 Taruna Rani Vs. Subhash Chand Page 9/1320. The respondent has alleged that the petitioner and her son are earning Rs. 70,000/ per month but has not filed any document even during respondent evidence to show that the petitioner or her son are earning Rs. 70,000/, moreover, no document has been placed during evidence by respondent to show that the petitioner or her son are working somewhere. Though, respondent has filed a visiting card of son of petitioner with leave to defend stating that the son of petitioner Mr. Himanshu Agarwal is property consultant but the said document has not been tendered in evidence nor any suggestion was given to PW1 Mr. Himanshu Agarwal that his monthly salary is not Rs. 70,000/, therefore, I do not find any merit in this averment of respondent.
21. Plea no. (v), (vi) and (vii) of respondent will be decided by common discussion.
The respondent has deposed that the property of petitoner is likely to be attached in the execution of decree of Rs. 10 lakh passed against the petitioner in suit no. 33/16 vide judgment dated 19.02.2016 by Ld. ADJ Sh. Anurag Sain. PW1 during his cross examination admitted that the said decree has been passed against the petitioner. The respondent himself admitted that the property is likely to be attached and not attached yet. It is not a ground to disentitle the petitioner from her bonafide requirement as the petitioner can pay the amount from any source like after taking loan from any bank and a court can not take into consideration any event like attachment of property which is uncertain as it may or may not occur, therefore, I do not find any merit in this averment of the respondent.
22. Respondent has deposed that pagri was given at the time of inception of tenancy but has not filed any document with respect to the pagri, moreover, ARC. No. 85/17 Taruna Rani Vs. Subhash Chand Page 10/13 Section 14 (1) (e) DRC Act does not differentiates between the premises given on pagri or without pagri, therefore, this averement of respondent is groundless.
23. Respondent has deposed that the tenanted premises is not suitable for departmental stores as many departmental stores are in the vicinity like Wardhman Provisional Store. Respondent himself stated that another department store is lying in the vicinity of tenanted premises then it is itself a good ground that the departmental store can be opened in the area as another departmental store is still running in the area. Hence, this plea of respondent is also without any merit.
24. No qualification or experience is required to open a departmental store, moreover, no evidence has come on record to show that petitoner or son are working somewhere else. As per Article 19 of The Constitution of India 1949, every citizen has right to practice any profession, or to carry any occupation, trade or business. Moreover, the plea that petitioner or her son do not have resources to open departmental store is groundless as petitoner or her son may take loan from bank or any relative to start new business. During arguments one point also raised by the respondent that the shop no. 8 is lying vacant, therefore, the requirement of the petitioner can be fulfilled from the said shop. PW1 during his cross examination has deposed that the said shop is run by his father for confectionery business for the last 2 and half months i.e. after filing of petition. The petitioner wants to open a departmental store of 75 sq.yds. therefore, the requirement of the petitioner can not be fulfilled by as shop of 5'.9" ft. x 10'.9" ft. Every one has right to use his property in a best possible way and there is nothing wrong if the petitioner being a lady and his son wants to start a departmental store on the ground floor in tenanted premises alongwith other 6 ARC. No. 85/17 Taruna Rani Vs. Subhash Chand Page 11/13 shops of respondent on ground floor as they are situated on road, even the respondent has remedy u/s 19 of the DRC Act to recover the possession if the act of landlady falls within ambit of Section 19 of DRC Act.
25. The fact remains that the petitioners is the best judge of his own requirements as also held by the Hon'ble Supreme Court time and again. It was held in Pavitra Devi (Smt.) vs. T.V. Krishnan (1996) 35 SCC 353; that the landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. Moreover, in the judgment titled as Ragavendra Kumar v. Firm Prem Machinary [AIR 2000 S.C.534] the Hon'ble Supreme Court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter.
26. Furthermore, In the judgment tiled as "Sarla Ahuja v. United India Insurance Co. Ltd." [AIR 1999 S.C. 100] it was held:
"...The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the ARC. No. 85/17 Taruna Rani Vs. Subhash Chand Page 12/13 tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself...."
27. As such, I hold that the requirement of the petitioner to run department store alongwith her son Mr. Himanshu Agarwal is bonafide requirement. Moreover, respondent have also failed to show that the petitioner has other suitable accommodation for her bonafide requirement.
Conclusion:
28. For the foregoing reasons, the petition of petitioner u/s 14 (1) (e) DRC Act is allowed and as a necessary consequence thereof an eviction order is passed in favour of the petitioner and against the respondent for his eviction from one shop on ground floor of property bearing no. K69, Krishna Nagar, Delhi110051, as shown in yellow colour in site plan Ex.PW1/3 However, in the light of Section 14 (7) of the DRC Act, the aforesaid eviction order shall not be executable for a period of six months from the date of this order. The parties are left to bear their own costs. File be consigned to the Record Room after due compliance.
Announced in open Court (SUDHIR KUMAR SIROHI)
today on 07.12.2018 ACJ/CCJ/ARC/Shahdara
Karkardooma Courts/Delhi
SUDHIR Digitally signed by
SUDHIR KUMAR SIROHI
Location: Shahdara
KUMAR Karkardooma Courts,
Delhi
Date: 2018.12.10
SIROHI 16:35:16 +0530
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