Delhi District Court
Arc No.80342/16 Sh. Vipin Kumar Jain vs Sh. Naresh Kumar & Ors. 1 on 8 February, 2022
IN THE COURT OF SH. AJAY NAGAR,
ADDITIONAL RENT CONTROLLER-02 (CENTRAL),
TIS HAZARI COURTS, DELHI.
CNR No.DLCT03-000375/2010
ARC No: 80342/16
E.No-177/14/10
Sh. Vipin Kumar Jain
Adopted S/o Late Sh. Chaudhary Ram Chander
R/o 5166, Kolhapur Road,
Delhi.
Vs
1. Sh. Naresh Kumar
2. Sh. Pardeep Kumar
Both sons of Sh. Baij Nath
Private Shop No.3
In property No.
5166, Kolhapur Road,
Kamla Nagar,
Delhi.
Also at:
C-353, Saraswati Vihar
Delhi-110034.
Date of filing : 06.01.2010
Date of Judgment : 08.02.2022
JUDGMENT
Digitally signed by AJAY AJAY NAGAR NAGAR Date:
2022.02.08 11:23:36 +0530 ARC No.80342/16 Sh. Vipin Kumar Jain Vs Sh. Naresh Kumar & Ors. 1
1. Brief facts of the present case is that on 06.01.2010, petitioner filed present petition Under Section 14 (1) (e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act") praying to this court to pass an order of eviction in favour of the petitioner and against the respondents in respect of one shop bearing Private No.3, in property No. 5166, Kolhapur Road, Kamla Nagar, Delhi-110007, more specifically shown in Red colour in the attached site plan. (hereinafter referred to as "tenanted premises").
2. It is inter-alia averred by the petitioner that the petitioner/landlord is "Baniya" by caste and has a son namely Sh.
Nishant Prakash Jain who wants to start his own mobile retail business and he is financially dependent upon the petitioner; his son does not have his own independent business; at present source of livelihood of the petitioner is firm M/s Nishant of which sole proprietor is Mrs. Suman Jain and deals in watches and clocks; Smt. Suman Jain is the wife of petitioner. Lastly, it is prayed by the petitioner that an eviction order may be passed against the respondents.
3. Written Statement was filed by the respondent in response to petition filed by the petitioner U/S 14 (1) (e) of D.R.C Act, praying to the court to dismiss the present petition Digitally signed with exemplary costs. AJAY by AJAY NAGAR Date:
NAGAR 2022.02.08 11:23:49 +0530 ARC No.80342/16 Sh. Vipin Kumar Jain Vs Sh. Naresh Kumar & Ors. 2
4. In the written statement, it is inter-alia stated that petitioner is the only landlord and he is not the owner of the tenanted premises; para 3(b) of the petition needs no reply; it is denied that petitioner had purchased the tenanted premises from Sh. Desh Raj Bajaj on 14.06.1985; no rent notes were executed by the respondents; Smt. Suman Jain is a house wife and she does not attend to the business of M/s Nishant and the same is being run by Sh. Nishant Prakash Jain himself; petitioner is also not looking after the said business; Sh. Nishant Prakash Jain is being paid handsomely from the said business and has been shown as an employee of the said business and the payment is being shown as salary to him though he is running the said business; there is a full basement and the business of M/s Nishant was being carried on from the basement at the time of institution of present petition; petitioner has falsely shown that a hall is in a existence in the suit property; no hall is in existence on the spot instead two shops are in existence which have been shown as hall; the said two shops were lying vacant and in possession of petitioner at the time of institution of the present petition; during pendency, petitioner has let out one shop out of two shops on the ground floor to his wife Smt. Suman Jain and the business of M/s Nishant was shifted to said shop on the ground floor; petitioner is in possession of other shop on the ground floor and basement in which previously the business of M/s Nishant was being run;
Digitally signed AJAY by AJAY NAGAR
Date:
NAGAR 2022.02.08
11:24:00 +0530
ARC No.80342/16 Sh. Vipin Kumar Jain Vs Sh. Naresh Kumar & Ors. 3
petitioner has shifted from the first floor of the suit property to Roop Nagar for residence; said first floor and second floor are lying vacant; basement itself is more than sufficient and suitable for the requirement as raised in the present petition. Lastly, it is prayed by the respondent that petition may be dismissed.
5. Replication was filed by the petitioner denying the averments made in the written statement and reiterated his stand as taken in the petition.
6. Thereafter, the petitioner examined PW1 Sh. Rajinder Singh, Chief Telephone Supervisor, Telephone Exchange, Tis Hazari, Delhi, PW2 Sh. Tarun Kumar, Data Entry Operator, Sales Tax Department, ITO, New Delhi, PW3 Sh. Vipin Kumar Jain, PW4 Sh. Nishant Prakash Jain to prove the case and relied upon several documents and they were cross- examined at length and thereafter, PE was closed.
Thereafter, respondent examined himself as RW1 to prove his case and relied upon several documents and he was also cross-examined at length and thereafter R.E was closed.
7. I have heard the arguments advanced and I have carefully gone through the pleadings, documents filed, testimonies, written arguments, case law relied upon and the entire material on record. AJAY Digitally signed by AJAY NAGAR Date: NAGAR 2022.02.08 11:24:42 +0530 ARC No.80342/16 Sh. Vipin Kumar Jain Vs Sh. Naresh Kumar & Ors. 4
(i) Landlordship (ii) Ownership :-
8. Perusal of petition shows that the petitioner has claimed that he is landlord and owner of the tenanted premises on the basis of erstwhile landlord and owner of the tenanted premises. On the other hand, the respondent has admitted that he is the tenant in the tenanted premises as paragraph 3(b) of the petition has not been speciffically denied by the respondent in the written statement. Moreover, in response to paragraph no.3(a) of the petition, the respondent has averred that "in reply to para 3(a) it is submitted that the petitioner is only the landlord and is not the owner of the premises in suit as such the petitioner can not maintain the present petition."
9. As such, the respondent has admitted that petitioner is the landlord of the tenanted premises. As far as ownership of the petitioner is concerned, the respondent has not disclosed the name of the owner of the tenanted premises, if not the petitioner. Moreover, during the cross examination, respondent has admitted that he is paying rent to the petitioner. Besides, the petitioner has placed on record many documents such as Sale Deed etcetra executed by previous landlord and owner of the tenanted premises. Moreover, it is well settled that the tenant can not challenge the title of the landlord in view of Section 116 of Digitally signed AJAY by AJAY NAGAR Date: NAGAR 2022.02.08 11:24:52 +0530 ARC No.80342/16 Sh. Vipin Kumar Jain Vs Sh. Naresh Kumar & Ors. 5 Indian Evidence Act. Moreover, it is also well settled law that petitioner need not prove his/her ownership in absolute term. It is sufficient for landlord to prove that he/she is something more than the tenant. Perusal of material on record, testimony on record clearly shows that there exist the relationship of landlord and tenant between the parties and the petitioner has been able to prove that he is something more than the tenant/respondent.
(iii) Bonafide Requirement (iv) Alternative Accommodation
10. Perusal of petition shows that petitioner has sought the tenanted premises for his son Sh. Nishant Prakash Jain for opening the business of mobiles in the tenanted premises. On the other hand, respondent has disputed the bonafide requirement of the petitioner and his son and has claimed that the petitioner is already having the basement, shop on the ground floor and space on the first and second floor of the suit property. The main plea of the respondent is that business M/s Nishant is being run in the suit property by the son of the petitioner and not by the wife of the petitioner Smt. Suman Jain. This fact is vehemently denied by the petitioner and he has claimed that such business is being run exclusively by his wife and his son Sh. Nishant is unemployed. The respondent has also claimed that basement is also lying vacant.
Digitally signed by AJAY AJAY NAGAR
NAGAR Date:
2022.02.08
11:25:02 +0530
ARC No.80342/16 Sh. Vipin Kumar Jain Vs Sh. Naresh Kumar & Ors. 6
11. I have carefully and minutely gone through the testimonies of all the witnesses and also the material on record.
12. It is expedient to reproduce the relevant portion of testimony of RW1 which is as under:-
"In total there are five shops in 5166 in Kolapur Road. There is no shop of Smt. Suman. Volunteer She is housewife. I had visited only once to residence of Smt. Suman. I use to visit my shop once or twice in a month. I had seen the shop being run in the name of M/s Nishant's. I had purchased a wall clok from the said shop. Again said I never purchased any wall clock from the said shop. Vol. My son has purchased. I had entered the shop of M/s Nishant once, about ten years ago. It is wrong to suggest I am not aware above what is the existing condition of the shop of M/s Nishant. The enterance to shop of M.s Nishant is about 4 feet and 8 inches. I do not understand any site plan/map. Therefore, I cannot pin point in the site plan the place where two shop as I am saying are with M/s Nishant. I have no idea whether I filed any site plan on record. It is wrong to suggest that two shops are not in existence in possession of M/s Nishant that is why I have not filed any site plan on record. The petitioner is jain by caste. It is correct that petitioner had issued a legal notice prior to filing of the present petition. It is wrong to suggest that Smt. Suman Jain is not a housewife. It is correct that I don't possess any written document or proof to show that M/s Nishant's is being run by Shri Nishant Kumar Jain. I have not seen petition sitting at the shop of M/s Nishant, including its income tax return. The witness is shown the documents Ex.RW-1/1 and RW-1/2 and asked whether he can identify these documents to whih he says that he does not know anything about these documents. It is wrong to suggest that at the time of filing of petition, the petitioner was not leading a retired life. It is wrong Digitally signed by AJAY AJAY NAGAR NAGAR Date:
2022.02.08 ARC No.80342/16 Sh. Vipin Kumar Jain Vs Sh. Naresh Kumar & Ors. 7 11:25:12 +0530 to suggest that the business of M/s Nishant has been decreasing day by day. Shri Nishant Kumar Jain was never paid any salary from M/s Nishant. Mrs. Nishant Kumar Jain is not the employee of M/s Nishant. Vol. He is the owner of said firm. I own a mobile phone. I have never purchased a mobile phone from Kamla Nagar and Shakti Nagar area. The Kolhapur Road is the commercial road. I have seen shops of mobile phone on the ground floor, and second floor on the said road. I don't know address of any such shop.
It is wrong to suggest that there is no shop for selling mobile set from the second floor of the said road.
Q. It put it to you that I was not aware regarding the intentions of Mr. Nishant Kumar Jain for opening a shop of mobile at the time of filing of present petition?
A. Mr. Nishant wants the shop be vacated. I am aware that during the pendency of the present petition Nishant got married, his marriage was dissolved and he re-married. But I did not attend his marriage. I am aware with the floor wise construction of property number 5166. I am aware with the passage for going to first floor to second floor. The said passage is from inside the building. Witness have been shown exhibit PW3/1 in which and he is asked whether shop shown in red colour is the premises under tenancy to which the witness affirms. Adjoing the shop in dispute is the shop of Ashok Kumar, next to the said shop is the shop of Shri Vishal Kirti thereafter there is a passage. I can not pin point exhibit PW3-/1 the passage and staircase leading to upper floors. I cannot pin point in exhibit PW-3/1 the portion from where the business of M/s Nishant's is being run. It is wrong to suggest that I can not identify the space of M/s Nishant's as I have never visited the same. I can not tell whether the site plan exhibit PW3/1 is complete and correct as per site. I had seen basement in the property number 5166. I had seen the said basement in 2008. The tenancy in question is from 1977. The respondent No.2 is my real brother and he is not Digitally signed by AJAY AJAY NAGAR Date:
ARC No.80342/16 Sh. Vipin Kumar Jain Vs Sh. Naresh Kumar & Ors.NAGAR8 2022.02.08 11:25:23 +0530 working. I have two sons who are running their business from 21A, Kolhapur Road of selling clothing. My both sons don't visit the shop in dispute. The annual turnover of the business of shop in question is around Rs.12lakhs. It is wrong to suggest that the basement in property number 5166 is existing since the construction of the building. It is wrong to suggest that the basement was not constructed in 2007. It is wrong to suggest that the business of M/s Nishant's is being run from the same place from its beginning. Earlier the said business was being run from the portion on the ground floor. At the time of the filing of the present petition the said business was being run from the basement and after filing of the petition the business was shifted back to the ground floor.
It is correct that I had not filed any site plan on record. The area of shop of from where the business of M/s Nishants is being carried out is around 400 sq. ft.
13. As such, perusal of testimony of RW1/respondent shows that he has admitted that he is not having documents or proof to show that M/s Nishant is being run by Sh. Nishant Prakash Jain. Moreover, he has also admitted that he has not seen any document regarding business of M/s Nishant including Income Tax Returns. Moreover, during the cross examination, respondent has also admitted that he has not filed his own site plan on record. Moreover, during cross examinaton, he has not specifically denied the correctness of the site plan filed by the petitioner. As such, site plan filed by the petitioner can be relied upon being undisputed.
Digitally signed AJAY by AJAY NAGAR
Date:
NAGAR 2022.02.08
11:25:33 +0530
ARC No.80342/16 Sh. Vipin Kumar Jain Vs Sh. Naresh Kumar & Ors. 9
14. Perusal of site plan shows that petitioner has depicted three shops on the ground floor in front of the suit property. And one hall cum shop on the ground floor in the back of such three shops have been shown. It is undisputed fact that out of these three shops in front, one shop is in the possession of respondents and two other shops are the possession of two other separate tenants.
15. Bare perusal of site plan shows that these three shops are in the front of the property and hall cum shop in the possession of the wife of the petitioner Smt. Suman Jain is in the back of such three shops and this shop of Smt. Suman Jain is not in the front of the suit property. Moreover, access of such hall cum shop is only through passage as shown in the site plan. As far as, basement in the suit property is concerned, the petitioner has claimed that wife of the petitioner is in possession of basement which is being used for business of M/s Nishant. Although, the respondent has claimed that M/s Nishant is being run by the son of the petitioner and not by the wife of the petitioner yet perusal of record clearly shows that the respondent has not been able to prove this fact. On the other hand, the petitioner has summoned the MTNL record Ex.PW1/1(OSR) and Ex.PW1/3(OSR) as well as Sales Tax Record Ex. PW2/1(OSR) to prove the fact that his wife Smt. Suman Jain is running the business of M/s Nishant in the suit property.
Digitally signed by AJAY AJAY NAGAR
NAGAR Date:
2022.02.08
11:25:43 +0530
ARC No.80342/16 Sh. Vipin Kumar Jain Vs Sh. Naresh Kumar & Ors. 10
16. Perusal of such record clearly shows that the petitioner has been able to prove that Smt. Suman Jain is running M/s Nishant. On the other hand, the respondent has not been able to prove that Sh. Nishant Prakash Jain is running such business. Perusal of material on record clearly shows that respondent has been unable to prove on record that the basement in the suit property is lying vacant. Even if it is assumed for the sake of argument, the basement is lying vacant, the same can not be considered as alternative reasonably suitably accommodation for commercial use. Moreover, as far as accommodation on the first and second floor is concerned, petitioner has claimed that first and second floor is already occupied for other purposes and the same is for residential use only. It is well settled and also the matter of common knowledge that the footfall on the ground floor is always on the higher side in comparison to upper floors. The landlord can not be forced to use the first and upper floors for commercial use merely to save the tenancy of the tenant/respondents. Hence, these floors can not be treated as alternative reasonably suitable commercial accommodation to satisfy the requirement as raised in the present petition.
17. Hence, tenanted premises can be held to be reasonably suitable commercial accommodation from the point of view of petitioner and his family member. Moreover, record Digitally signed by AJAY AJAY NAGAR Date: NAGAR 2022.02.08 11:25:53 +0530 ARC No.80342/16 Sh. Vipin Kumar Jain Vs Sh. Naresh Kumar & Ors. 11 manifestly shows that no alternative reasonably suitable commercial accommodation is available to the petitioner to start the business by his son as all the premises are already either occupied by his wife or other tenants. And no such alternative reasonably suitable commercial accommodation is available with the petitioner to satisfy the commercial bonafide requirement as raised in the present petition. In other words, respondent has failed to show any malafide on the part of petitioner and he has also failed to prove the availability of alternative reasonably suitable commercial accommodation with the petitioner or with his family members to satisfy the requirement as raised in the present petition.
Conclusion:-
18. As such, in view of the exhaustive discussion and reasons, the present petition U/S 14(1)(e) of the DRC Act is allowed and an eviction order is passed in favour of petitioner and against the respondents in respect of tenanted premises i.e. one shop bearing Private No.3, in property No. 5166, Kolha pur Road, Kamla Nagar, Delhi-110007, as shown in Red colour in the attached site plan filed with the petition.
19. However, this eviction order shall not be executed Digitally signed by AJAY AJAY NAGAR Date:
NAGAR 2022.02.08
11:26:03
+0530
ARC No.80342/16 Sh. Vipin Kumar Jain Vs Sh. Naresh Kumar & Ors. 12
before the expiry of six months from the date of this order in view of Section 14(7) of DRC Act.
20. This file be consigned to Record Room after due compliance.
Announced through V.C Digitally
signed by
on 8th February, 2022 AJAY AJAY NAGAR
Date:
(This judgment contains 13 pages) NAGAR 2022.02.08
11:26:12
+0530
(Ajay Nagar)
Additional Rent Controller-2,
Central District, THC, Delhi.
ARC No.80342/16 Sh. Vipin Kumar Jain Vs Sh. Naresh Kumar & Ors. 13