Delhi District Court
Sh. Krishan Gupta vs Sh. Ramesh Chander on 20 January, 2022
IN THE COURT OF MS. SNIGDHA SARVARIA,
ACJ-cum-CCJ-cum-ARC, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI.
ARC No : 163/2019
Sh. Krishan Gupta
S/o Late Sh. Radhey Mohan
R/o 421-A, 1st floor, Gali no. 6,
Friends Colony, G.T. Road,
Shahdara, Delhi-110032 ......... Petitioner
Versus.
Sh. Ramesh Chander
s/o Sh.Kalyan Chand,
Prop. M/s Maruti Wire
421-A, Ground Floor, Gali no. 6,
Friends Colony, G.T. Road,
Shahdara, Delhi-110032 ......... Respondent
Order on application under S. 25 (B) of The Delhi Rent Control Act, 1958 seeking leave to defend
1. Vide this order I shall decide the application under S. 25 (B) of The Delhi Rent Control Act, 1958 (DRC Act) seeking leave to defend filed by the respondent.
2. The brief facts of the case are that the petitioner has filed the present eviction petition under S. 14 (1) (e) of the Delhi Rent Control Act on the grounds that premises bearing Digitally signed by SNIGDHA SNIGDHA SARVARIA SARVARIA Date: 2022.01.20 ARC 163/2019 Sh. Krishan Gupta Vs. Sh. Ramesh Chander 12:22:41 +0530 1 of 18 no. 421-A, Ground Floor, Gali no. 6, Friends Colony, G.T. Road, Shahdara, Delhi- 110032 was owned by the father of the petitioner Sh. Radhey Mohan and after the death of the father of the petitioner, now petitioner is the lawful owner of the said portion of the property. The premises was let out for commercial purpose to the respondent. The petitioner was carrying on his business of manufacturing of currugated boxes on the first floor of the said premises. The petitioner is 70 years old and is not able to climb the stairs and therefore, he had requested the respondent to vacate the premised but respondent did not vacate the premises and as such the petitioner has to close his business and the same is lying closed from last about three years. The petitioner earlier filed an eviction petition vide No. RC ARC/517/2017 against respondent on the ground of bonafide requirement for himself as well as for his younger son and the Court of Ms. Gitanjali, Ld. SCJ/RC was pleased to grant leave in her order dated 26.09.2018 which was later on withdrawn by petitioner on 05.03.2019. During pendency of the abovesaid petition the younger son of petitioner who is a well qualified Chartered Accountant got an opportunity to visit abroad, where he is working with his material uncle and he is well settled. Earlier the relations of the petitioner with his elder son namely Gaurav Gupta was not cordial as he got married against the wishes of the family and was living in a separate accommodation in same locality of the petitioner. It is stated that younger son of petitioner Vaibhav Gupa visited abroad during the pendency of abovesaid petition, the petitioner and his wife became ill and alone, which came into the knowledge of the elder son of the petitioner namely Gaurav Gupta through his younger brother namely Vaibhav, then the elder son of petitioner along with his family came to the house of the petitioner and lookafter his ailing parents due to which the health of the petitioner as well as his wife became normal and afterwards the relations between the petitioner and his elder son became cordial. It is stated that elder son of the petitioner Gaurav Gupa is working with a jeweller where is Digitally signed by SNIGDHA SNIGDHA SARVARIA ARC 163/2019 Sh. Krishan Gupta Vs. Sh. Ramesh Chander SARVARIA Date: 2022.01.20 2 of 18 12:23:01 +0530 facing hardship to fulfill the basic needs of his family as such he expressed his desire to start his own artificial jewellery manufacturing unit to the petitioner. The first floor is in the possession of the petitioner is not fulfilling the desires for the purpose of manufacturing of jewellery as the necessity of petitioner's elder son namely Gaurav Gupta is more than the complete site of the property in which ground floor will be used as office room and manufacturing unit and first floor will be used for the finishing and packaging of those jewellery articles. It is stated that there is no other suitable accommodation for the petitioner as the premises under the possession of respondent is a suitable accommodation for stating the manufacturing unit. It is prayed that eviction order may be passed in favour of the petitioner and against the respondent qua the aforesaid premises.
3. The respondent was summoned vide order dated 24.04.2019 and was served with the summons of this petition on 09.05.2019, thereafter, affidavit seeking leave to defend under S. 25 B of the DRC Act was filed by the respondent on 21.05.2019 and the petitioner filed reply to it on 15.10.2019.
4. In the affidavit seeking leave to defend under S. 25 B of the DRC Act, the respondent has stated that the present petition is bad for non-joinder of necessary and proper party to the present petition and is liable to to be dismissed on the ground that brother of the respondent namely Suresh Kumar is also the tenant in the tenanted premises and is handling the business along with petitioner from past 27 years and the petitioner is accepting rent from Suesh Kumar since last 27 years. The requirement of petitioner of tenanted premises is neither bonafide nor genuine and the same is not bonafidely required to petitioner for his elder son. It is stated that petitioner has filed the present petition just to get tenanted premises vacated from the respondent and Digitally signed by SNIGDHA SNIGDHA ARC 163/2019 Sh. Krishan Gupta Vs. Sh. Ramesh Chander SARVARIA SARVARIA 3 of 18 Date: 2022.01.20 12:24:34 +0530 further let-out to another tenant on higher rent. It is stated that petitioner has made false averments in the petition that earlier he was not having cordial relations with his elder son Gaurav Gupta and that now the relations have become normal and the alleged need has arises. In fact, it is only after when the respondent has got leave to defend in the earlier petition filed by petitioner for other projected need and when he apprehended that he would never succeed in the petition, therefore, the present need so projected by the petitioner is false and frivolous and malafide. It is stated that petitioner has made contradictory statement in his earlier eviction petition. The petitioner almost after 35 days of expiry of the order dated 26.09.2018 filed the present petition and it is not admissible to a prudent person that the present petitioner within a span of 35 days who was allegedly facing financial hardship, suddenly becomes well settled person and suddenly a new false requirement arises. The respondent is paying the monthly rent of Rs.550/- per month excluding electricity charges to the petitioner. The medical documents produced by the petitioner in support of his ailments are actually belong to his wife Smt. Saroj Gupta, but clearly he introduced is name in the invoice issued by the Chemist only.
5. The petitioner in his reply to application for leave to defend denied the averments made in the affidavit seeking leave to defend under S. 25 B of the DRC Act of the respondent. It is denied that brother of the respondent namely Suresh Kumar is the tenant in the tenanted premises and is handling the business along with petitioner from past 27 years and the petitioner is accepting rent from Suresh Kumar as the rent agreement was executed only between the petitioner and respondent on 23.04.1986.
6. The respondent denied the averments of the petitioner, in reply of the petitioner, in his rejoinder and reiterated the averments of his application for leave to defend.
Digitally signed by SNIGDHA SNIGDHA SARVARIA
ARC 163/2019 Sh. Krishan Gupta Vs. Sh. Ramesh Chander SARVARIA Date: 2022.01.20
4 of 18
12:23:18 +0530
7. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
8. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
9. The Supreme Court had in "Inderjeet Kaur Vs.Nirpal Singh", [2000]Supp 5 SCR 707, laid down the following guidelines to be followed by the Courts while deciding the applications for leave to contest filed by the tenants under Section 25(4) of the Delhi Rent Control Act,1958:-
"11. As is evident from Section 25B(4) & (5) of the Act, burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in Clause (e) of the proviso to Section 14(1) of the Act, with which we are concerned in this case, are good enough to grant leave to defend.
12................................"
13. We are of the considered view that at a stage when the tenant seeks leave to defend, it is enough if he prima facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. It would not be right approach to say that unless the tenant at that stage itself establishes a strong case as would non- suit the landlord leave to defend should not be granted when it is not the requirement of Section 25B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act, Leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of a landlord to recover possession of the premises from a tenant under Clause (e) of the proviso to Sub-section (1) of Section 14, when as a matter of fact the requirement may not be bona fide. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to him and his family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction. At the stage of granting leave to defend, parties rely on affidavits in support of the rival contentions. Assertions and counter-assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend were either frivolous, untenable or most unreasonable. Take a case when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire. The ground under Clause (e) of the proviso to Sub- section (1) of Section 14 enables a landlord to recover possession of the tenanted premises on the ground of his bona fide requirement. This being an enabling provision, essentially the burden is on Digitally signed by SNIGDHA ARC 163/2019 Sh. Krishan Gupta Vs. Sh. Ramesh Chander SNIGDHA SARVARIA 5 of 18 SARVARIA Date: 2022.01.20 12:23:42 +0530 the landlord to establish his case affirmatively. In short and substance wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the Rent Controller by the statute itself to grant leave. At the stage of granting leave the real test should be whether facts disclosed in the affidavit filed seeking leave to defend prima facie show that the landlord would be disentitled from obtaining an order of eviction and not whether at the end defence may fail. It is well to remember that when a leave to defend is refused, serious consequences of eviction shall follow and the party seeking leave is denied an opportunity to test the truth of the averments made in the eviction petition by cross-examination. It may also be noted that even in cases where leave is granted provisions are made in this very Chapter for expeditious disposal of eviction petitions. Section 25B(6) states that where leave is granted to a tenant to contest the eviction application, the Controller shall commence the hearing of the application as early as practicable. Section 25B(7) speaks of the procedure to be followed in such cases. Section 25B(8) bars the appeals against an order of recovery of possession except a provision of revision to the High Court. Thus a combined effect of Section 25B(6), (7) and (8) would lead to expeditious disposal of eviction petitions so that a landlord need not wait and suffer for long time. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims.
"14. This Court in Charan Dass Duggal v. Brahma Nand (1983)1SCC301 while dealing with the question in the matter of granting leave to defend to contest the eviction petition filed on the ground of personal requirement, in para 5 has stated thus:
"5. What should be the approach when leave to defend is sought for? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action (see Santosh Kumar v. Bhai Mool Singh). At the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counter- assertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought for on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively. If as it appears in this case, the landlord is staying at Pathankot, that a house is purchased, may be in the name of his sons and daughters, but there may not be an apparent need to return to Delhi in his old age, a triable issue would come into existence and that was sufficient in our opinion to grant leave to defend in this case."
15. In the same judgment, in para 7 it is further observed:
"7. The genesis of our procedural laws is to be traced to principles of natural justice, the principal amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and provide his own case. Summary procedure does not clothe an authority with power to enjoy summary dismissal. Undoubtedly wholly frivolous defence may not entitle a person leave to defend. But equally a triable issue raised, enjoins a duty to grant leave: May be in the end the defence may fail. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the Digitally signed by SNIGDHA SNIGDHA ARC 163/2019 Sh. Krishan Gupta Vs. Sh. Ramesh Chander SARVARIA SARVARIA 6 of 18 Date: 2022.01.20 12:23:56 +0530 opposite party by cross-examination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refuse to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through cross- examination of witnesses who have filed their affidavits........................................................."
10. Same view has been reiterated by the Supreme Court in a judgment in "Rachpal Singh and Ors.Vs. Gurmit Kaur and Ors.", (2009)15 SCC 88, in para no.12 which is re- produced below:-
"12. If some triable issues are raised then the controversy can be properly adjudicated after ascertainment of truth through cross-examination of witnesses who have filed their affidavits and other material documents. Burden is on the landlord to prove his requirements and his assertion is required..........................."
11. In the present case, eviction petition has been filed under Ss. 14 (1) (e ) r/w S. 25-B of the Delhi Rent Control Act.
12. Proviso (e) to Section 14(1) is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bona-fide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso (e) of the Section 14(1) are : -
a) there exists landlord tenant relationship;
b) the premises were let out for residential or commercial purpose;
c)The said premises are bona-fide required by the landlord either for himself or for his dependant family member.
d) The landlord or the dependant family member has no other reasonable suitable accommodation.
13. The thresholds hereinabove are to be satisfied conjunctively in order to attract the provisions of Section 14(1)(e) and the absence of even one of the said ingredients clearly Digitally signed by SNIGDHA SNIGDHA SARVARIA ARC 163/2019 Sh. Krishan Gupta Vs. Sh. Ramesh Chander SARVARIA Date: 2022.01.20 7 of 18 12:24:11 +0530 makes the said provision inapplicable.
14. For the purposes of leave to defend, the respondent had to show some defence which would disentitle the petitioner of the relief claimed.
15. The landlord-tenant relationship between the petitioner and the respondent is admitted and admittedly rent agreement dated 23.04.1986 was executed between the petitioner and the respondent for 11 months and thereafter the respondent has continued to occupy the premises in question. Once landlord-tenant relationship is admitted, the documents of ownership need not be filed by the petitioner. Although, he has filed the compromise decree on record as proof of his ownership over the tenanted premises.
16. The contention of the respondent that the present petition is bad for non-joinder of parties/ co-tenant/ brother of the respondent Suresh Kumar is without any merits as rent agreement dated 23.04.1986 was executed between the petitioner and the respondent for 11 months and thereafter the respondent has continued to occupy the premises in question. Neither Suresh Kumar nor M/s. Maruti Wire Industries/partnership firm was not inducted as a tenant by the petitioner. The registration certificate dated 13/6/85 of M/s Maruti Wire Industries with the registrar of firms; partnership deed dated 6/5/85 between Satyanarain, Suresh Kumar, Ramesh Chand, Sharda Devi & Kanta Devi are irrelevant in view of rent agreement dated 23.04.1986. Merely because rent receipt was executed in favour of M/s Maruti Wire or rent was received from Suresh Kumar will not make them a tenant unless expressly agreed and there is nothing on record to show it. Nothing has been brought on record to show that the petitioner was aware that M/s Maruti Wire Industries is a partnership firm. The passbook entries of Suresh Kumar relied upon by the respondent does not show that the rent was paid by Suresh Kumar to the petitioner as a tenant.
John
Digitally signed
Digitally signed
byJohn
by SNIGDHA
Doe
SNIGDHA SARVARIA
Date:
SARVARIA Date:
ARC 163/2019 Sh. Krishan Gupta Vs. Sh. Ramesh Chander Doe 2022.01.20
2022.01.20
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17. The contention of the respondent that the present eviction petition has been filed since as per rent agreement dated 23.04.1986 petitioner could not have raised the rent of the premises is without any merits as the said agreement was effective only for 11 months and not 27 yrs.
18. The petitioner-landlord states that he requires the tenanted premises which is on the ground floor for his elder son Gaurav Gupta who is working with a jeweller and is facing hardships to fulfil his basic needs and wants to own artificial jewellery manufacturing unit and the ground floor of property bearing no. 421A, Gali no. 6, Friends Colony, G.T. Road, Shahdara, Delhi-110032 shall be used for office and manufacturing unit and First floor of the said property shall be used for finishing and packaging of jewellery articles. He also stated that he is of 70 yrs of age and due to old age is unable to climb stairs and so when the respondent did not vacate the tenanted premises despite requests by the petitioner then the business of manufacturing corrugated boxes on the first floor of the said property run by the petitioner had to be closed and was lying closed for past 3 yrs.
19. In order to evaluate whether the need of the petitioner is bonafide or not, let us understand the legislative and judicial connotation of the term, 'bonafide'. In landmark case Deena Nath v. Pooran Lal, (2001) 5 SCC 705 wherein the Supreme Court observed thus:
"The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in presenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in subsection (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Digitally signed ARC 163/2019 Sh. Krishan Gupta Vs. Sh. Ramesh Chander SNIGDHA by SNIGDHA SARVARIA 9 of 18 SARVARIA Date: 2022.01.20 12:27:25 +0530 Court is dutybound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable nonresidential accommodation in his occupation in the city/town is available. The judgment/order of the court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind that statutory mandate incorporated in Section 12(1)(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment."
Chambers 20th Century Dictionary defines bona fide to mean "in good faith and genuine". Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bonafide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the court. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. 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. The meaning of "bonafide" in the context appears to be in two folds. (a) the need of the landlord must be a genuine one and not a frivolous one. (b) landlord is not motivated by extraneous considerations in trying to recover the possession from the tenant with a view to let it out again to another tenant at a higher rent.
20. The Apex Court in the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta reported in SCFBRC 1999 Page 330, has observed as under:
"In Prativa Devi (Smt.) v. T.V. Krishnan, 1996 (5) SCC 353, this Court has held that in considering the availability of alternative accommodation, not availability merely but also whether the landlord has the legal right to such accommodation has to be considered. Reverting back to the case at hand, the landlord has been living on the ground floor of the Defence Colony house. It was conceded at the Bar that as on the day the family of the landlord consists of the landlord himself (a practicing doctor), his son (again a practicing doctor), the daughter-in-law and two grand children who are gradually growing in their age. Looking at the size of the family, available of three bed rooms in the premises in which the landlord may live, is a requirement which is natural and consistent with the sense of decency-not to talk of comfort and convenience. There is nothing unreasonable in a family with two practicing doctors as members thereof needing a room or two or a room with a verandah to be used as a residential-clinic divided into a consultation room and a waiting place for the patients. A drawing room, a kitchen, a living room and a garage are bare necessities for a comfortable living. The landlord has Digitally signed ARC 163/2019 Sh. Krishan Gupta Vs. Sh. Ramesh Chander SNIGDHA by SNIGDHA SARVARIA 10 of 18 SARVARIA Date: 2022.01.20 12:27:46 +0530 been living in Defence Colony locality for more than 35 years. The first floor which was let out to the tenant in the year 1978 as being an accommodation surplus with the landlord has with the lapse of time become a necessity for occupation by the landlord and his family members. More than ten years by now have been lost in litigation. The death of the wife of the landlord and the death of landlord's mother-in-law, are events which have hardly any bearing on the case of felt need of the landlord, The need as pleaded and proved by the landlord is undoubtedly natural sincere and honest and hence a bona fide need. There is no material available on record to doubt the genuineness of such need. It continues to subsist inspite of the two deaths. It is not the case of the tenant-appellant that while seeking eviction of the tenant the landlord is moved by any ulterior motive or is guided by some other thing in his mind. It will be most unreasonable to suggest that the landlord may continue to five on the ground floor of the Defence Colony house and some members of the family may move to Sarvodaya Enclave House if the whole family cannot be conveniently and comfortably accommodated as one unit in the Defence Colony house. It would be equally unreasonable to suggest that the entire family must shift to Sarvodaya Enclave House which is admittedly situated at a distance of about 7-8 kms. from Defence Colony. The landlord and his family are used to living in Defence Colony where they have developed friends and acquaintances, also familiarity with the neighbourhood and the environment. The patients usually visiting or likely to visit the residential clinic know where their doctor would be available. Shri Arun Jaitley, learned Senior Counsel for the respondent, has very rightly submitted that it could not have been the intendment of the Rent Control Law to compel the landlord in such facts an circumstances to shift to a different house and locality so to permit the tenant to continue to live in the tenanted premises. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself rightly into lesser premises protecting the tenant's occupancy."
21. Further, in another landmark case of "Sarla Ahuja v. United India Insurance Co. Ltd., reported as AIR 1999 SUPREME COURT 100", whereby it was held that :
".....The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of 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....".
22. As regards alternate accommodation in Sarwan Dass Bange vs Ram Prakash 2010 IV AD (Delhi) 252, observations made by Supreme Court in Baldev Singh Digitally signed by SNIGDHA SNIGDHA ARC 163/2019 Sh. Krishan Gupta Vs. Sh. Ramesh Chander SARVARIA SARVARIA Date: 2022.01.20 11 of 18 12:28:06 +0530 Bajwa V Monish Saini MANU/SC/1239/2005 (2005) 12SCC 778, have been quoted as under :
It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given right of restoration of possession; the landlord who evicts the tenant on the ground of his own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate inbuilt strong presumption that the need of the landlord is genuine;the restrictions and conditions imposed on the landlord make it virtually improbable for the landlord to approach the court for ejectment of tenant unless his need is bonafide no unscrupulous landlord in all probability, under this section, would approach the court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that his inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his requirement shall be presumed to be genuine and bonafide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine. The tenant is required to give all necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine.
23. In Adarsh Electricals and others vs Dinesh Dayal - MANU/DE/2782/2010, it was held that " the concept of alternate accommodation means that accommodation which is reasonably suitable for the landlord, and the court would not expect the landlord to sacrifice on his own comforts and requirements merely on the ground that the premises is with a tenant . The problem had to be approached from the point of view of a reasonable man and not that of a whimsical landlord. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need."
24. The contention of the respondent is that the present eviction petition has not been filed for bona fide requirement as earlier an eviction petition ARC/RC no. 517/2017 under S. 14 (1) (e ) of the DRC Act was filed for bonafide requirement of younger son Vaibhav Gupta on the ground that he is a qualified Chartered Accountant working with M/s. Nagine & Co. and is not interested in service and wants to join petitioner in his business to be Digitally signed ARC 163/2019 Sh. Krishan Gupta Vs. Sh. Ramesh Chander by SNIGDHA 12 of 18 SNIGDHA SARVARIA SARVARIA Date: 2022.01.20 12:28:23 +0530 started on the ground floor and that petitioner's relation with his elder son Gaurav Gupta is not co-ordial. But after 35 days of passing of order allowing application for leave to defend in the earlier case, the petitioner withdrew that case and filed present case stating that his younger son Vaibhav got an opportunity to visit abroad and he is now working with his maternal uncle and is well settled in abroad. Also, that the petitioner now states that when his younger son went abroad then the petitioner and his wife fell ill and the elder son and his family came to take care of the petitioner and now petitioner has co-ordial relationship and wants the tenanted premises for his elder son Gaurav Gupta. Thus, the present petition lacks bonafide requirement. This plea of the respondent is without any merits as the relationships in family can change from strained to co-ordial especially in case of parents and children when there is no enmity involved. Also, the situations in life change merely because in previous case bona fide requirement of younger son was in issue will not make the present petition as not maintainable. A person is the best judge of his situation and has freedom to choose options which come in his life. It is well settled that even if the previous case was held to be without bona fide will not make the present case as not maintainable. The Hon'ble Supreme Court, in Surajmal v. Radheyshyam (1988) 3 SCC 18 held that bona fide need must be considered with reference to time when a suit for eviction is filed and it cannot be assumed that once the question of necessity is decided against the plaintiff, it has to be assumed that he will not have bona fide and genuine necessity ever in future; the bar of res judicata was held not to apply. Similarly, in K.S. Sundararaju Chettiar v. M.R. Ramachandra Naidu (1994) 5 SCC 14 it was held that bona fide need is required to be considered objectively, with reference to material on record; if the need is justified, there will be no occasion for the Court to hold that the landlord did not require the premises bona fide simply because on a previous occasion the action of the landlord for bringing an eviction case was not bona fide.
25. Merely because the petitioner has filed documents of treatment of his wife will not Digitally signed by SNIGDHA ARC 163/2019 Sh. Krishan Gupta Vs. Sh. Ramesh Chander SNIGDHA SARVARIA 13 of 18 SARVARIA Date: 2022.01.20 12:28:38 +0530 mean that he did not fall ill or that his sour relations with his elder son did not become co-
ordial or that his submissions herein are bonafide. The medical docuemnts of the wife of the petitioner strengthens his case even further.
26. As regards dependency of working son Gaurav Gupta of the petitioner, it is well settled and also held in "Labhu Lal Vs. Sandhya Gupta" [2011(1) RCR,(Rent) 231 (Delhi)], that the children are very much dependent on the landlord for the purpose of setting up their business and such a requirement is a bonafide one.
27. It is also settled principle of law that the landlord is entitled to seek eviction of tenanted premises not only for himself/herself, but for other dependant family members. There is no dispute that the parents are under moral obligation to help establish their sons in business and can seek eviction of the tenanted premises for them. Reference in this regard can be made to the case of Joginder Pal vs Naval Kishore Behal - (2002) 5 SCC 397, where the Supreme Court held that:
"The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use......... Keeping in view the social or socio-religious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be the obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord."
28. Similarly, in Kharati Ram Khanna & Sons. vs. Krishna Luthra, 2010 (172) DLT 551, wherein it was observed that the requirement of the landlord to settle down her two sons separately and independently was found to be genuine and bonafide. In Labhu Lal Vs. Sandhya Gupta" [2011(1) RCR,(Rent) 231 (Delhi):
2010 (173) DLT 318, it was observed that the landlord's son and daughter in law are Digitally signed ARC 163/2019 Sh. Krishan Gupta Vs. Sh. Ramesh Chander by SNIGDHA 14 of 18 SNIGDHA SARVARIA SARVARIA Date: 2022.01.20 12:28:54 +0530 dependent for accommodation on respondent the requirement of the landlord's son and daughter in law for expanding clinic being run in premises in question is genuine. In Sh. Ravinder Singh v Sh. Deepesh Khorana (RC. Rev. No.3/2011, Date of decision: 10th December, 2012), it was observed that the son of the respondent is unemployed and is dependent on respondent for his livelihood. It is nothing but bona fide for the respondent to require the suit shop to set up a computer business for his son and to help him find a source of income and subsequently settle down in life. In Brij Mohan vs Shri Pal Jain - 49 (1993) DLT 543, it was observed that it is settled law that grown up children require separate rooms to live in a manner he or she likes. In Ram Babu Aggarwal vs Jay Kishan Das - 2009 (2) RCR 455, the court recognized the right of the landlord for possession of his property for setting up a business for his son.
29. In view of the above case laws and the facts of the present case, merely because Gaurav Gupta, son of the petitioner wants to settle in a business will not make the requirement mala fide or less bona fide.
30. The contention of the petitioner that the present petition is not maintainable as petitioner has not filed any document regarding experience in jewellery manufacturing business as Gaurav Gupta, elder son of the petioner is working with Kundan Cash for Gold in Mayur Vihar, which advances loan for gold is without nay merits as it is well settled that to start a business one need not have experience and also nothing has been brought on record by the respondent to show that Gaurav Gupta, elder son of the petioner is working with Kundan Cash for Gold in Mayur Vihar. In Ram Babu Agarwal vs Jay Kishan Das - (2010) 1 SCC 164, it was observed that "A person can start a new business even if he has no experience in the new business that does not mean that his claim for starting new business must be rejected on the ground that it is a false claim. many people start new businesses even if they do not have experience in the new business and sometimes they are successful in the new ARC 163/2019 Sh. Krishan Gupta Vs. Sh. Ramesh Chander Digitally signed by SNIGDHA 15 of 18 SNIGDHA SARVARIA SARVARIA Date: 2022.01.20 12:29:11 +0530 business also." In Tarsem Singh vs. Gurvinder Singh, 173 (2010) DLT 379, it was observed that "If the landlord wants to start his own business in the premises owned by him then by no stretch of imagination, it can be said that the requirement of the landlord for the premises is neither bonafide nor genuine." In Balwant Singh Chowdhary & Anr. Vs Hindustan Petroleum Corporation Ltd. - 2004 (1) RCR 487, it was held that "It is not necessary for the landlord to plead and prove the specific business he wants to set up, if the landlord wanted the premises for business purposes." In Gurcharan Lal Kumar vs Srimati Satyawati & Ors - 2013 (2) RCR (Rent) 120 it was observed that "Merely because the exact nature of business has not been described would not take away their bonafide need to carry out a business (when admittedly both the sons are dependent upon petitioner for this need). It was observed that if the business need is not disclosed this would not wipe away the bonafide need of the landlord as has been pressed under Section 14(1)(e) of the DRCA,1958." In Raj Kumar Khaitan & Ors. Vs Bibi Zubaida Khatun & Anr. - AIR 1995 SC 576, it was observed that "It was not necessary for the appellants-landlords to indicate the precise nature of the business which they intended to start in the premises. Even if the nature of business would have been indicated nobody would bind the landlords to start the same business in the premises after it was vacated."
31. The contention of the respondent that the petitioner has his residence on the first floor and has to climb atleast 15 stairs to reach his residence and thus the plea that he cannot climb stairs is without any merits as it is a well known fact that in old age people face difficulties in climbing stairs. Also, when petitioner has an option of first floor qua commercial activity then he cannot be said to not have a bona fide requirement merely because his residence is on the first floor. It is a settled legal proposition that landlord is the best judge of his needs and need of the landlord for the accommodation of his family cannot be held to be fanciful. Digitally signed by SNIGDHA SARVARIA SNIGDHA Date:
SARVARIA 2022.01.20
12:29:25
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32. Landlord is the best judge of his needs. It is well settled that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises.
33. The decision in Nitin Garg Vs. Naresh Kumar Arora CM(M) 1164/2009, DHC DOD: 23.10.2009, relied upon by the respondents is of no assistance to the respondents as it has been decided on different fact situation and cannot be applied like a Euclid's theorem.
34. In view of the above discussion and the documents filed by the parties, 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 merits and is dismissed.
35. Conclusion:
Since leave to defend is dismissed, and considering the petitioners have shown bonafide and fulfilled the requisites of S. 14 (1) (e) DRC Act, petitioner have become entitled to eviction. Consequently, eviction order is liable to be passed against the respondent u/s Section 25 B (4) of the Act. In these circumstances, the application for leave to defend filed by the respondent is dismissed and the respondent Ramesh Chander is liable to be evicted from the tenanted premises i.e. the property bearing no. 421A, Ground Floor, Gali no. 6, Friends Colony, G.T. Road, Shahdara, Delhi- 110032, as shown in red colour in the site plan filed with the present petition by the petitioners (now marked as Ex P1). Accordingly, the petition filed by the petitioner u/S. 14 (1) (e) r/w S. 25B of the DRC Act is allowed, subject to provisions u/s 19 of the DRC Act. However, the petitioner would not be entitled to initiate execution Digitally signed by SNIGDHA SNIGDHA ARC 163/2019 Sh. Krishan Gupta Vs. Sh. Ramesh Chander SARVARIA SARVARIA 17 of 18 Date: 2022.01.20 12:29:39 +0530 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. No Digitally signed orders as to costs. SNIGDHA by SNIGDHA SARVARIA SARVARIA Date: 2022.01.20 12:22:09 +0530 Announced through VC (SNIGDHA SARVARIA) on 20th Day of January, 2022. ACJ/ARC/CCJ [This judgment contains 18 pages.] (SHAHDARA) KKD, DELHI.
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