Final Order 11

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF MS. NEETU SHARMA, CCJ CUM
ARC, CENTRAL, TIS HAZARI COURTS
RC ARC 611/23
CNR No. DLCT03-005127-2023
In the matter of :
Smt. Sneh Lata,
W/o. Late Ashok Kumar Sharma,
R/o. H.No.5775, Gali No.3,
Block-V, Dev Nagar,
Karol Bagh, New Delhi-5.
...Petitioner
Versus
1. Shri Subhash,
S/o. Late Banarsi Dass,
At Fruit Shop: G.FI., H.No. 5775,
Gali No.3, Block-V, Dev Nagar,
Karol Bagh, New Delhi-110005.
Also at:
R/o. B-4/210 C, Lawrence Road,
Delhi-110 035.
2. Shri Ashok Kumar alias Pappu
S/o. Late Banarsi Dass,
At Fruit Shop: G.FI., H.No. 5775,
Gali No.3, Block-V, Dev Nagar,
Karol Bagh, New Delhi-110005.
Also At:
R/o. H.No. 4/192,
3rd Floor, Subhash Nagar,
Delhi. ...Respondents
RC ARC 611/23 Sneh Lata Vs. Subhash & Anr. Page No.1/14
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ORDER ON LEAVE TO DEFEND
1. Petitioner claims to be the owner and landlord of a
property and alleges that shop on the ground floor of property no.
5775 was let out to one Banarsi Dass. Respondents are the sons
of late Banarsi Dass. Petitioner claims that she is old aged person
and is having difficulty in climbing stairs and therefore, she
needs the tenanted shop for her personal use and also to settle her
daughter in business. She claims that she does not have any other
suitable property. She has therefore filed the instant eviction
petition and has invoked Section 14(1)(e) of DRC Act read with
Section 25B which provides for special summary procedure.
2. Summons was issued in prescribed form and the
respondents filed leave to defend application. I have already
heard both the sides. On perusal of the record, I proceed to opine
as under.
3. It is settled law that in order to succeed in a petition under
section 14(1)(e) of the DRC Act, the landlord is required to
establish three conditions:-
i. There must be a relationship between the parties as
landlord and tenant
ii. The tenanted premises must be bonafidely required by
the landlord either for himself or for his family members
iii. There is no other alternate suitable accommodation
available with the landlord.
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Landlord tenant relationship:-
4. Petitioner has shown as to how he has become the owner
and is entitled to file an eviction petition. Following extract from
the eviction petition is relevant:
“18.[a].3. That the father of respondents namely Shri
Banarsi Dass was inducted as tenant by Smt. Vidya
Devi in the year 1975 on a monthly rent of Rs.100/-
per month excluding other charges for running fruit
shop. After the death of Smt. Vidya Devi, her elder son
Sh.S.K. Vyas and younger son Sh. Ashok Kumar
Sharma became the landlords in respect of tenanted
premises. After oral partition the subject shop came in
the share of Shri Ashok Kumar Sharma, the husband of
petitioner. Sh.S.K.Vyas was receiving rent from the
respondents after the death of Smt. Vidya Devi, after
the death of Shri S.K.Vyas Shri Ashok Kumar Sharma
started receiving rent from the respondents, however
after the death of Shri Ashok Kumar Sharma, the
present petitioner being widow of deceased Ashok
Kumar Sharma became the landlady qua the
respondents. The petitioner due to Covid-19 and
keeping in view of fall in business of respondents
agreed for payment of rent at @ Rs.10,000/- p.m.
excluding other charges. The respondents agreed for
the same but kept on delaying the payment of rent. The
petitioner filed a Suit seeking possession of tenanted
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premises but the respondents insisted the rate of rent is
Rs.180/- p.m. and challenged the jurisdiction of
Hon'ble Civil Court. The petitioner without prejudice
withdrew the suit from the Court of Shri Praveen
Singh, A.D.J. Tis Hazari Court, Delhi on 7.06.2023
with liberty to move to the appropriate Court of Law,
hence this petition by relying upon the Rent Agreement
dated 5.06.2023.”
5. Respondents claim that last rent paid was to Dr. Sriniwas
Vyas and that petitioner is not the landlord. This court is of the
view that respondents are clearly admitting their status as tenant
in the property. has not been able to dispute the status as tenant.
They have not even disputed that Their father was inducted as
tenant by Vidya Devi. Since, the petitioner is in line of
succession through her deceased husband Ashok Kumar who is
another son of Vidya Devi (apart from S. K. Vyas), this court is
of the view that petitioner will remain a co-owner for any tenant
even if no partition in the family is shown. Tenant cannot deny
any arrangements between the family members.
6. Respondent has also claimed that since earlier petition
filed by Dr. Srinivas Vyas was dismissed and no appeal was filed
and further that LRs of Dr. Srinivas Vyas have not been
impleaded, the instant petition is not maintainable. This court is
of the view that on both the counts, the respondent is wrong.
There is no law which prohibits another eviction petition filed on
the basis of subsequent bonafide need. Further, once the
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petitioner shows some right in the property which is more than
the tenant, such a tenant cannot say that other family members of
the landlord should also be impleaded.
7. Respondents have claimed that they have become owner
by adverse possession. This court is of the view that such a claim
cannot be accepted. A tenant will always remain a tenant until he
puts the landlord in possession of the property. Apart from this,
no proper pleading has been made to show hostile possession.
8. In such circumstances, there is no escape from the
conclusion that there exists a landlord tenant relationship
between the parties.
Bona fide need:-
9. In respect of bonafide need, once the landlord has stated
that he requires the tenanted property for a particular use, the
Courts are obliged to believe the statement to be true and
genuine, unless and until it is shown by the tenant through cogent
material that the requirement is fanciful or whimsical. In any
event, it is a settled law that the Court must presume the bona
fide requirement of the landlord. Additionally, the burden to
refute the said presumption squarely lies on the tenant and the
mere assertion on part of the tenant is insufficient. Reference can
be made to Sarla Ahuja vs United India Insurance Co. Ltd.,
(1998) 8 SCC 119 and Baldev Singh Bajwa vs Monish Saini,
(2005) 12 SCC 778. Tenant is to give all the necessary facts and
particulars supported by documentary material. A mere assertion
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of the tenant would not be sufficient to rebut the strong
presumption, that the need is real and genuine, in the landlord's
favour.
10. Hon’ble Delhi High Court in Nirmala Kumari vs Girish
Kakkar dated 17.05.2024 has made an observation on the
aforesaid as under:-
“The learned ARC is not required to take a magnifying glass
and minutely scrutinize the averments made in the Eviction
Petition. Once the landlord has stated that he requires the
tenanted property for a particular use, the Courts are
required to believe the statement to be true and genuine,
unless and until it is shown by the tenant through cogent
material that the requirement is fanciful or whimsical. The
learned ARC is further required only to sift/comb through
the averments made in the leave to defend application and
see whether the tenant has established with cogent and
material defence, facts which disentitle the landlord from an
Eviction order”.
11. In respect of bonafide needs, petitioner has clearly shown
his requirement in the petition which is reproduced as under:
“[a].4.That the petitioner is old aged widow suffering
from old aged ailments and unable to move/climb
stairs. The petitioner has got transplanted her both the
knees. This transplantation/operation could not prove
boon to the petitioner but have caused financial loss,
physical and mental pain for the petitioner. Though
there is some accommodation on Ground Floor but the
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petitioner being unable to climb even one step need
plain surface and the tenanted premises can be
converted into the same. The tenanted premises as such
is bonafidely required by the petitioner to meet with
her personal as well as her daughter who is yet to be
married but for want of proper space and settlement in
life the marriage of daughter of petitioner is being
delayed.
[a].5.That the subject premises is required by the
petitioner to settle the professional work of her only
daughter to run her consultancy Centre, the tenanted
premises as such is required urgently so that after
settling the daughter in her profession the marriage of
daughter of petitioner can be solemnized. The premise
is required bonafide by the plaintiff to settle her
daughter.”
12. This court does not find the aforesaid requirement fanciful
or unbelievable. Respondent says that there is no co-relation of
marriage of daughter with the requirement of space as the
daughter would go to in-laws after marriage. Respondent appears
to have missed that petitioner is saying that for want of proper
space and settlement in life, daughter’s marriage is being
delayed. This is purely internal affair of a family and tenant will
have no right to comment upon the same. If petitioner is finding
it difficult to marry her daughter due to the fact that daughter is
not settled, her desire to settle her daughter in a profession cannot
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be faulted. For such settlement in profession of consultancy
center, need of property is a necessity. A daughter shall always be
treated as dependent on her mother for the need of a proper
commercial property, unless of course she herself owns
something. Respondent has not shown that the said daughter is
owning a property and therefore she would not be dependent.
Once, the daughter is dependent for property and wants to open
consultancy center, the need cannot be taken as false or not
genuine.
13. Respondent claims that daughter of petitioner is employed
in a company and is getting handsome salary. However, the no
material has been brought on record to support such claim. Even
otherwise, simply because a person is employed the same will
not snatch from her a right to start a new business or profession.
Hon’ble Delhi High Court in Yatti Dawar vs Ashok Kr. Gupta
dated 22.05.2024 has held if a person is engaged in one business,
his requirement of property for another business cannot be
doubted. It has stated: “The only resistance to the eviction
proceedings, as set up by the present petitioners is that the
requirement of the subject premises projected by the present
respondent is not bona fide since his son, for whose business of
ladies garments the subject premises are sought to be vacated, is
engaged in steel business. In my considered view, merely
because son of the landlord is engaged in a particular type of
business, it cannot be inferred that he cannot commence business
of any other type. Therefore, I find no reason to suspect the bona
fides of the requirement of the subject premises set up by the
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present respondent”.
14. Respondent claims that petitioner has not provided as to
for what business the tenanted shop is required. This court is of
the view that a landlord is not required to provide details or
nature of business. In Balwant Singh Chowdhary 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 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”. In Raj Kumar Khaitan v. Bibi Zubaida Khatun
(1997) 11 SCC 411, 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”.
15. Petitioner has also projected that due to medical problems,
she is unable to climb even one step and needs a plain surface.
She further claims that the tenanted shop can be converted into a
proper space. Respondent then says that the petitioner has not
provided as to how much space is available on the ground floor
and how much she needs.
16. This court is of the view that a tenant cannot decide as to
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what would be suitable. It is for the landlord to take a decision.
Hon’ble Delhi High Court in Vandana Gupta vs Surender
Kumar dated 17.05.2024 has observed “It is no longer res
integra that landlord is the best judge when it comes to deciding
suitability of the premises available to him for his requirement.
Neither the tenant nor even the court can dictate the landlord as
to which of the premises available to him should be used to meet
his requirement”. If the landlord says that her requirement would
be satisfied with the available option i.e. by claiming portion
from the tenant of ground floor, court cannot compel it to use
anything else. It is for the landlord to adjust in the property in
any manner as she may wish and not for the tenant to say
otherwise. This court is of the opinion that neither the court nor
the tenant can sit in the armchair of the landlord and take a
decision about the usage of property or his practical requirements
about total space.
17. Respondent claims that petitioner is 70 years old and is a
rich lady and is getting rent. This court is of the view that
receiving rent from different tenants will not solve the medical
problem being faced by the petitioner.
18. Respondent contends that the shop is commercial in nature
and therefore, it cannot be converted for residential use. He
however has not brought any such law to the notice of this court.
This claim cannot be accepted at all.
19. From the aforesaid, it is clear that the petitioner has been
able to show the bonafide requirement whereas the respondent
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has not been able to demolish the same by any cogent material.
Alternate suitable accommodation:-
20. Coming then to the third ingredient which is availability of
other suitable property. As regards the issue of availability of
alternative accommodation, it is to be seen that the provisions of
Section 14(1)(e) of the DRC Act have been provided with care by
the legislature, not only is the accommodation to be ‘alternate’,
but it is also required to be suitable. The Supreme Court in the
Shiv Sarup Gupta vs Dr. Mahesh Chand Gupta AIR 1999 SC
2507 case has held that for an Eviction Petition to fail on the
ground of availability of alternate suitable accommodation, the
availability of another accommodation shall be suitable and
convenient in all respects as the tenanted accommodation from
which the landlord seeks eviction of the tenant.
21. Respondent contends that other shops on the ground floor
are lying vacant. No material has been brought by the respondent
in support of the same. A mere bald claim cannot be accepted.
22. Respondent says that petitioner has not provided any
explanation regarding occupation of different tenants on different
floors and also she has not mentioned the rate of rent of such
tenants. This court is unable to understand as to how tenancy of
different persons will be of any help in deciding the bonafide
need or non-availability of suitable accommodation. If partitions
are in occupation of different tenants, the same cannot be treated
as available to the petitioner. Then it is also the choice of the
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petitioner as to whom she wants to evict and a tenant cannot say
that someone else instead of him should be evicted.
23. It is clear that respondent has not been able to show that
the petitioner has any kind of alternate suitable accommodation
to satisfy its bonafide need.
24. Respondent has also tried to say that petitioner just wants
to get the property so that it can reconstruct and sale/re-let the
same. This court is of the opinion that such claim is hardly
material. A landlord who seeks eviction on a particular bonafide
needs has to possess the vacated property for the same need and
cannot rent it out again nor can sale the same. If it does so, the
tenant will be entitled to re-enter the property with the help of
Rent Controller through Section 19 of DRC Act. Remedy against
any future mischief being available in law, the apprehension of
tenant cannot be a ground for putting the landlady at present to
go for a full dress trial.
25. Respondent claims that the tenanted shop is his livelihood
and eviction therefrom will cause great loss to him. No doubt, the
tenant is using the premises for its business purpose and eviction
would result in some difficulties for the tenant but at the same
time, law cannot expect a rightful owner to remain constraint
despite having a property under his ownership. Unlike a few of
the Rent Control statutes where comparative hardship is one of
the tests that a Rent Controller applies, under the Delhi Rent
Control Act, 1958, there is no test of comparative requirement.
Under the Delhi Rent Control Act, all that has to be shown is that
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the tenanted premises is bonafidely required by the landlord or
by any member of the family who is dependent on the landlord
(see Bosco Joseph vs Raj Kumar 2022 SCC OnLine Del 2029).
It is clear that once the landlord establishes its bonafides, the
hardship of the tenant cannot be taken into consideration for
declining an eviction. If it is accepted that tenancy should be
protected either on the ground of long usage or because of non-
availability of accommodation with the tenant, no landlord will
ever be able to get an eviction order. Even otherwise, the law
contemplates a buffer period of 6 months for the tenant in which
he can make arrangements. Similarly, ground of long possession
will also not be sustained once the bona fide need by the
petitioner is established.
26. In the case in hand, the landlord has clearly established all
the necessary ingredients for getting an order of eviction on the
ground of bonafide needs. Hon’ble Supreme Court in Inderjeet
Kaur vs Nirpal Singh (2001) 1 SCC 706, has specified that the
Leave to Defend to a tenant cannot be granted on mere asking or
in a routine manner as it will defeat the very object of the special
provisions contained in Chapter III-A of the Act and what has to
be seen while granting leave to defend is that there is a strong
prima facie case against the landlord who is seeking eviction.
Herein, the tenant has not been able to show any prima facie
case. He cannot be granted any leave.
27. In view of the aforesaid discussion, leave to defend
application is rejected. Eviction petition is consequently allowed
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and it is directed that the tenant shall handover the vacant
possession of tenanted premises i.e. One shop on Ground Floor
forming part of property H.No. 5775, Gali No. 3, Block-V,
Dev Nagar, Karol Bagh, New Delhi-5 to the landlord. There
shall be no order as to costs. In view of the provisions of Section
14 (7) DRC Act, 1958, this order for recovery for possession
shall not be executed before expiration of a period of 6 months
from this date.
Announced in open Court
On 26th Day of October, 2024
(Neetu Sharma)
CCJ-cum-ARC (Central)
THC/Delhi/26.10.2024
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