E No. 13/12 1 30.04.2014 IN THE COURT OF Ms. KIRAN GUPTA, SENIOR CIVIL JUDGE CUMRENT CONTROLLER, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI E13/12 Unique ID No. 02403C0070182012 [ENTITY] W/o Late Shri Suraj Prakash R/o M 21/8, Shaheed Bhagat Singh Marg (Lady Harding Road) New Delhi110001 Petitioner Versus Sh. [ENTITY] S/o. Gunja Ram R/o. 21/2, Shaheed Bhagat Singh Marg (Lady Harding Road) New Delhi Respondent Date of institution : 20.10.2012 Date of arguments : 21.03.2014 Date of order : 30.04.2014 ORDER :
1 Vide this order, I shall decide the application u/[SECTION] of the [ACT] (hereinafter referred as "the Act"), filed by the tenant against the landlord/owner praying therein that he be allowed to contest the eviction petition U/[SECTION]/[SECTION] of the Act in respect of the shop bearing no. 21/2, Shaheed Bhagat Singh Marg, New Delhi, as shown red in the site plan (hereinafter E No. 13/12 2 30.04.2014 referred as tenanted premises). The entire property where the tenanted premises is located built upon plot no. 10, Plot no. 91, Lady Harding Road, hereinafter shall be referred as the property in question.
2 Brief facts of the case as stated in the petition are that:
Petitioner is the owner/ landlord of double storey building consisting of two flats and eight shops bearing no. 21 and 21 /1 to 7 built upon plot no. 10, block no. 91, Lady Harding Road, New Delhi now known as Shaheed Bhagat Singh Marg, New Delhi.
The tenanted premises was let out to respondent wherein he is running a shop under the name and style of M/s. Modern Hair Dressers at a monthly rent of Rs. 160.32 besides other charges. It is stated that the two flats on the first floor as well as barsati floor are being used by her for her residence as well as for the residence by her younger son [ENTITY] and his family which consists of his wife and daughters. Shop no. 21/6 is under the staircase and its measurement is 11'X 3' and this shop is in possession of the petitioner while all the other shops including the tenanted premises have been rented out to different tenants. Her elder son Dr. [ENTITY] is currently employed as Director Principal at Manav Rachna College of Engineering, Faridabad and has done Ph. D in computer science from IIT Delhi in the year 1980 and has about 40 years of experience in teaching and research and is due to E No. 13/12 3 30.04.2014 retire in the year 2015. He at present is residing with his family in a quarter allotted to his wife in Jawahar Lal Nehru University, New Delhi. Her son [ENTITY] after his retirement wishes to lead an active academic life and have an economic activity. Her other son Mr. [ENTITY] who is aged 57 years has done MA (Economics) and has obtained certificate in COBOL programming from IIT, Delhi in the year 1977. In the year 1996, he left the job and after leaving the job he started the business of computer maintenance but he could not continue with the same for want of any commercial space. He had no option but to close computer maintenance business and started the work of consultancy in computers. Since the consultancy work also did not prove to be profitable for want of any permanent place to operate, hence even at this stage he is not able to settle himself. He also wishes to earn his livelihood for himself and his family by suitable activity. It is stated that she holds the building for her benefits and for the benefit of her two sons and their family members. It is stated that both her sons have now decided to jointly start the business of computer training and for this purpose they shall require the entire ground floor of the property for opening the computer training institute. Petitioner has annexed the entire proposed site plan of the computer training institute where it is intended that two rooms as lecture rooms, two rooms for laboratory, one room for reception cum office, one room as staff room for teachers, space for separate E No. 13/12 4 30.04.2014 toilet for boys and girls and one room for the office of both her sons being the professors, shall be used. It is further stated that her grand daughter Ms. [ENTITY] daughter of Dr. [ENTITY] has also completed her M Tech in Information Technology from IIT, Bangalore and now is pursuing Ph.D from Delhi College of Engineering . She having been specialized in computer science also intends to join her father and assist him in the institute of computer training. It is further stated that the daughter of [ENTITY] , Ms. [ENTITY] has done Bachelor of Computer Application from I P University and also intends to join her father. The other daughter of Dr. [ENTITY] namely Ms. [ENTITY] has done MBBS from Maulana Azad Medical College and has also obtained the degree of MD. She also wants to start her medical practice and for this purpose a shop is required by her on the ground floor for opening a clinic for her. It is stated that her both sons and grand daughters have no accommodation of their own, suitable to carry out the business of proposed institute and clinic and as such they are totally dependent on petitioner for the purpose of accommodation. She has no other reasonably suitable accommodation available with her for this purpose. She has filed the eviction petitions against all the tenants simultaneously so that her sons and grand daughters are able to start computer training institute and clinic from the premises owned by her. It is prayed that an order for recovery of possession in respect of tenanted E No. 13/12 5 30.04.2014 premises be passed in her favour and against the respondent with costs.
3 After notice of the petition, which was received by the respondent on 31.01.2013, he filed the leave to contest the present eviction petition on 11.04.2013. He while denying all the contents of the petition has admitted that petitioner is the landlady and he is the tenant in the tenanted premises and has been paying rent @ Rs. 160.35 per month in cash to her and rent receipts are being issued to him. It is stated that the premises were let out to him for commercial purposes and he has been carrying out his business in the premises since the commencement of tenancy for the last 60 years. It is stated that the electricity and water connection is installed in his name and he is paying bills for the same. It is alleged that the present petition is an act of desperation and frustration of petitioner after having been unsuccessful to obtain an eviction order in respect of tenanted premises till date despite filing petition under the various provisions of the Act which are still pending before Ld. ARC . It is alleged that there is no bonafide requirement of petitioner as she already has one shop bearing no. 21/6 in her possession and number of other cases for eviction of tenants from the other shops are still pending adjudication. It is further alleged that her requirement is not bonafide as her son can only start the business after his retirement which is due in the year 2015. It is further stated that petitioner has got vacated the E No. 13/12 6 30.04.2014 premises bearing no. 21/3, Shaheed Bhagat Singh Marg which was also under his tenancy along with the tenanted premises for personal use in the year 1991 but has further relet the same without using the same for her use. It is further stated that the grand daughter of petitioner is not dependent upon her for suitable accommodation and further the proposed project in the present form is not tenable, viable or permissible under the law. She is not capable of financing such a huge project. The requirement of petitioner is not clear and unequivocal . It is further alleged that her son [ENTITY] does not holds requisite educational qualification to call himself to be a professor to impart training to students in computer science on his own capabilities. It is alleged that petitioner has not disclosed all the true and material facts and has concealed the fact that she is proceeding against other tenants also. It is further alleged that petitioner has intentionally concealed about her commercial buildings and shops at Pahar Ganj and [ENTITY] in Delhi. It is admitted that the property consists of eight shops and out of those eight shops one shop is in possession and occupation of petitioner and other shops are in occupation of the other tenants. It is further admitted that petitioner holds the property for her benefit. It is denied that her sons and her grand daughters are totally dependent upon her for the purpose of accommodation. It is prayed that present petition is without any merits and petition is liable to be dismissed accordingly.
E No. 13/12 7 30.04.2014 4 In the reply to the application for leave to defend, filed by the petitioner, she while denying the allegations levelled in the
leave to defend application has reiterated the facts as stated in the petition. It is stated that no triable issue as per the grounds stated in para no. A to N has been raised by respondent which entitles him to leave to defend. It is stated that requirement of petitioner is genuine and bonafide and for this reason she has filed eviction petitions against all the tenants in order to set up a computer training business by her sons. The entire ground floor of the property except a shop for setting up a clinic by her grand daughter is required for the said purpose. Her younger son [ENTITY] shall start the computer centre and her elder son shall join after retirement. The shop no. 21/3 was vacated by the respondent of his own in the year 1991 and since she had no requirement at that time, she has relet the same to other tenant. It is stated that she has no property or shops at Paharganj and [ENTITY], Delhi as alleged.
5 In the rejoinder to the reply filed by respondent, it is stated that the alleged requirement of the sons and their children qua the suit property is malafide, flimsy and whimsical which is evident from the fact that none of her sons and grand children have supported the petition by filing their affidavits. It is stated E No. 13/12 8 30.04.2014 that if any of them were in need of the suit property, they would have certainly filed their affidavits showing their intention to start the Computer Training Institute. It is further stated that it is beyond comprehension that a person who is earning handsomely being the Principal of Manav Rachana Educational Institution shall start such a petty business. It is further stated that respondent has come to know from reliable sources that both the sons of petitioner have number of commercial as well as residential properties with them from where they can start their alleged business. It is further stated that no document on record to suggest that any of the sons of petitioner have any intention to start the said business has been placed on record by the petitioner. Further the children and grand children of petitioner are merely thinking to start the said business and had done nothing in pursuance of the same. It is further stated that the present petition is bad for misjoinder of causes of action as on one hand the petitioner requires the premises bonafide for her sons for opening computer institute and on the other hand, she requires the same for her grand daughter who has allegedly done her MD from MAMC . It is alleged that petitioner herself is confused as to for what purpose she requires the premises. It is alleged that present petition is nothing but a fishing expedition and she has laid number of baits with the fond hope that she will be able to catch at least one. It is alleged that petitioner does not want to open any such institute in the tenanted premises and she wants to get the E No. 13/12 9 30.04.2014 same vacated in order to relet the same as she has also advertised for reletting the shop no. 21/6 which is in her possession.
6 It is argued by Ld. counsel for petitioner that petitioner has filed the simultaneous cases against all the eight tenants as the entire ground floor is bonafide required for opening the computer training centre by her sons. It is further argued that the layout plan has been drawn in this regard and in addition to the computer training centre, one of the grand daughter of petitioner wants to open her clinic in one room. It is further argued that both the sons and the grand children of petitioner are dependent upon petitioner for accommodation , hence, since the petitioner is in bonafide requirement of the entire ground floor, she has filed the present petition along with other petitions. It is argued that as per the lay out plan the tenanted premises are required for sever , UPS Laboratory for computers and toilet.
7 Per contra, it is argued by Ld. counsel for respondent that the requirement of petitioner is flimsy as one of her son is about to retire in July 2015 and she in anticipation has filed the case for eviction in the year 2012. It is further argued that the other son [ENTITY] has done the course in COBOL which is an outdated computer language and has no use at present. It is further argued that the grand daughters of petitioner who are of marriageable age E No. 13/12 10 30.04.2014 shall join their concerned families and are not at all dependent upon petitioner for accommodation. It is argued that since petitioner has failed to show the specific bonafide requirement and he has raised several triable issues, his application be allowed accordingly.
8 Heard Ld. counsels for the parties and perused the complete record file. Under [SECTION] of the [ACT], a landlord/land lady will be entitled to an order of eviction, if, he/she is able to show that
(a) the premises in question were let out for residential purpose or commercial purposes [as per the law laid down by the Hon'ble Supreme Court in [PRECEDENT],]
(b) he/she is the landlord/land lady and owner of the suit premises,
(c) the premises is required bona fide by him/her for occupation as residence for himself/herself or any member of his family dependent upon him/her for residence and for any person for whom the premises are held, and
(d) the landlord/land lady or such person has no other suitable residential accommodation.
E No. 13/12 11 30.04.2014 8.1 Thus the foremost condition which the landlord has to
prove is his bonafide requirement. Further he has to prove that there is no other alternate accommodation available. Thus there are twin requirements which are to be satisfied conjunctively in order to attract the provisions of the [SECTION] of the Act i.e the bonafide requirement coupled with the reasonably suitable accommodation, which means that both are to be satisfied together and collectively. While deciding the question of grant of leave, the court has to consider whether the tenant has raised any triable point / issue, the decision of which may disentitle the landlord from recovering possession of the premises.
8.2 In [PRECEDENT], it has been observed by the Hon'ble Delhi High Court as follows:
" However, merely because the tenant so disputes and controverts the pleas of the landlord does not imply that the provisions of summary procedure introduced in the Act with respect to ground of eviction on the ground of requirement is to be set at naught. The Controller is required to sift/comb through the application for leave to defend and the affidavit filed therewith and to see whether the tenant has given any facts/particulars which require to be established by evidence and which if established would disentitle the landlord from an order of eviction.
The test is not of the tenant having E No. 13/12 12 30.04.2014 controverted/denied the claim of the landlord and thus disputed questions of fact arising; the test is to examine the pleas of facts and then to determine the impact thereof."
8.3 Thus while deciding the question of leave, the controller is not required to conduct a full fledged trial but only to see from the affidavit of the tenant, as to whether any triable point / issue, the decision of which may disentitle the landlord from recovering the possession of the premises is disclosed. The Controller is not required to seek the proof of the defence of the tenant but only to see whether any triable issue is raised by the tenant or not.
9 As regards the question of petitioner being the owner / landlord and the relationship of landlord and tenant between the parties, same is not disputed by the respondent and thus needs no adjudication. The rate of rent is also admitted by the respondent. As regards the area of the tenanted premises is concerned, respondent in his application has stated that since no site plan has been provided by the petitioner, he cannot comment upon the same. However, during the arguments the area of tenanted premises is not disputed. In the site plan filed before the court, the tenanted premises is specifically shown red in colour. In the rejoinder to the reply, respondent has not challenged the area of E No. 13/12 13 30.04.2014 the tenanted premises hence, the same also needs no adjudication.
10 Now coming to the aspect as to whether the premises is bonafide required by the petitioner and as to whether she has any other suitable alternate accommodation. These are twin requirements which are to be satisfied conjunctively in order to attract the provisions of [SECTION] of the Act i.e the bonafide requirement coupled with the reasonably suitable accommodation, are to be satisfied together and collectively.
11 Now coming to the plea of boanfide requirement, it is stated by petitioner that she requires the tenanted premises for opening the computer training institute for her sons and grand daughters. The bonafide requirement of petitioner is challenged by respondent on following grounds. Firstly, that the elder son of petitioner is gainfully employed being the Principal of Educational Institute who is to retire in the year 2015 and has no requirement at this stage. Secondly, the other son ie [ENTITY] has done course in language COBOL which is outdated computer language and that he is not competent to impart the computer training . Thirdly, the grand daughters of petitioner are dependent upon their parents who are gainfully employed and as such have no bona fide requirement as alleged by the petitioner. Fourthly, the proposal of petitioner is mere desire and that she is not capable of financing E No. 13/12 14 30.04.2014 such a huge project, amongst other grounds.
11.1 In [PRECEDENT], it was held that " The crux of the ground envisaged in [SECTION] 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 in 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 bona fide requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
11.2 In [PRECEDENT] it has been observed that " The judge of facts should place himself in the arm chair of the landlord and then ask the question to himself - whether in the given facts substantiated by the landlord the need to occupy the E No. 13/12 15 30.04.2014 premises can be said to be natural , real , sincere, honest . If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or , in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord is merely attempting at finding out a pretence or pretext for getting rid of the tenant , would be enough to persuade the court certainly to deny its judicial assistance to the landlord.
11.3 Thus it is well settled law that the requirement or need of the landlord should not be fanciful or unreasonable . It cannot be a mere desire and must be something more than a mere desire but need not certainly be a compelling or absolute or a dire necessity. It may be a need in praesenti or within a reasonable proximity in the future.
11.4 The fact that petitioner is having two sons is not disputed. The fact that the younger son of the petitioner Sh. [ENTITY] along with his family is residing on the first floor of the property where the tenanted premises is located is also not disputed. The respondent has remained silent regarding the educational qualification of both the sons of petitioner and her grand daughters. Petitioner in her petition has categorically stated that her son Sh. [ENTITY] has done MA Economic and has obtained certificate in COBOL programming from IIT Delhi.
E No. 13/12 16 30.04.2014 Respondent has merely stated that he has no knowledge about the same and further refuted the claim on the ground that the COBOL Programming is outdated and the son of petitioner Sh. [ENTITY] is not competent to call himself as Professor or impart any computer training. Petitioner in order to support her contentions regarding the qualification of her son [ENTITY] has placed on record the photocopy of certificate issued by IIT Delhi wherein it is certified that he has done data processing and COBOL short term course from 17.10.1997 to 20.11.1997. She has further placed on record the certificate from Centre for Development of Instructional technology that Mr. [ENTITY] has worked as computer programmer from 01.06.1980 to 31.10.1983. She has further stated that her elder son Dr. [ENTITY] has done Ph. D in computer science from IIT Delhi in the year 1980 and he has about 40 years of experience in teaching and research and has also placed on record the photocopy of his experience certificate and his appointment letter in order to support her contentions. It is further stated that at present he is Director Principal at Manav Rachna College of Engineering and his age of superannuation is 65 years which he will attain in the year 2015. She has also placed on record the photocopy of the degree of [ENTITY] ie the daughter of Dr. [ENTITY] that she has obtained the degree of Master of Technology in Information Technology from Banglore and the approval letter from Delhi Technological University in respect of E No. 13/12 17 30.04.2014 the thesis pertaining to the course of Computer Engineering opted by her. Thus from the said documents it is evident that both the sons of petitioner and her grand daughter are well qualified in the field of computer science and have also obtained requisite degrees in this regard. Thus the argument of Ld. counsel for respondent that the requirement of opening the computer Training Institute by petitioner and her sons is flimsy and frivolous is untenable.
12 Now coming to the argument of Ld. counsel for respondent that the elder son of petitioner Dr. [ENTITY] is earning well being the Principal of some Educational Institute and is about to retire in the year 2015, hence the requirement of petitioner is not bonafide. Hon'ble Supreme Court in [PRECEDENT] held that:
" a landlord need not lose his existing job , nor resigned it , nor reached a level of starvation to contemplate that he must get possession of his premises for establishing a business. . One cannot imagine that a landlord who is in service should first resign his job and wait for the unknown and uncertain result of a long drawn litigation. If he resigned his job, he might indeed end up in utter poverty. Joblessness is not a condition precedent for seeking to get back ones premises. For that matter assuming the landlord was in a job and had not resigned it or assuming that pending the longdrawn litigation he started some other temporary water business to sustain E No. 13/12 18 30.04.2014 himself, that would not be an indication that his need for establishing a grocery shop was not a bonafide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant. It is not necessary for the landlord to adduce evidence that he had money in deposit in a bank nor produce proof of funds to prove his readiness and willingness as in a suit for specific performance of an agreement of sale of immovable property".
" court inter alia held that it was not necessary for landlord to prove that he had money to invest in the new business contemplated nor that he had experience of it. It was a case for eviction on the ground of bona fide requirement of the landlord for non residential purpose, as he wanted to start a grocery business in the suit premises to improve his livelihood".
12.1 Thus it is not necessary that a person should be unemployed in order to show his bonafide or to first lose his existing job or resign or reach the level of starvation. Petitioner has placed on record the photocopy of the certificate issued by Manav Rachna University that her son is about to retire on his age of superannuation ie 2015. Thus the argument of Ld. counsel for respondent is misconceived and untenable. Joblessness is not a condition precedent for seeking to get back ones premises. There is no denial of the fact that the litigation in courts do take some time and this petition which was filed in 2012 has come up for E No. 13/12 19 30.04.2014 orders in 2014 and that too in summary proceedings. Further the landlord does not has to prove that she has resources to start the business. It is irrelevant consideration as the question of having necessary fund to start the business is not at all necessary in view of the law laid down by Hon'ble Supreme Court of India in plethora of judgments. One such judgment is [PRECEDENT].
13 Now coming to the argument of the counsel for respondent that the other son of petitioner ie [ENTITY] has no requisite knowledge to impart the computer training as the language COBOL has become outdated. In [PRECEDENT] It was held that :
"we are of the opinion 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 the 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 some times they are successful in the new business also".
13.1 Thus it is not necessary that a person should have expertise in a particular field to start the business. He can even start from scratch. In the present case the younger son of petitioner is well qualified in computer language and has even done the job of E No. 13/12 20 30.04.2014 computer programmer. Further petitioner and her son can also employee other experts to impart the training and it is not mandatory for him to himself impart the entire training. Thus the argument of Ld. counsel for respondent is untenable and does not raises any triable issue in this regard.
14 Now coming to the argument that the grand children and the children of petitioner are not dependent for accommodation on the petitioner. Petitioner in her petition has categorically stated that she is holding the property for the benefit of herself and for the benefit of her sons and her grand children. She has further stated that her son [ENTITY] is living with her on the first floor while her other son [ENTITY] is living in the government accommodation allotted to his wife. The respondent has not brought any other fact contrary to what has been stated by the petitioner. He has not placed on record or disclosed any other property owned or in possession of petitioner or her sons. He has merely challenged the claim of the petitioner and stated that her children should be directed to file the affidavits. There is no such requirement to demand or direct the dependents to file the affidavits. Such an affidavit is not necessary as regarding the willingness or technical knowhow. Petitioner has filed all the relevant degree/ diploma documents and has categorically stated that her sons along with their grand daughters would run the E No. 13/12 21 30.04.2014 Institute of Computer Training in the entire ground floor of property in question of which the tenanted premises form part. In [PRECEDENT] it was held that:
"24 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 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 . If the requirement is of actual user of the premises by a person other than the landlord himself the court shall with circumspection inquire: (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close interrelation or identify nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the overlaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent.
15 In the present case the premises is required by the petitioner for the Computer Institute which shall be open by her E No. 13/12 22 30.04.2014 sons and grand daughters who are dependent upon her for accommodation and are well qualified in the field of computer science and have obtained requisite degrees in this regard. It is quite natural that the petitioner at this fag end of her life wants to settle both her sons and requires the premises in order to contribute her best to see them economically independent. In the absence of any substantial material brought before the court or pointed out by the respondent in the affidavit, it cannot be said that the present petition for eviction is actuated by malafide or has not been made with bonafide intention. On the face of it and from the above discussion, the case of bonafide requirement is made out. No triable issue has been raised by the respondent in this regard.
16 Now coming to the aspect regarding alternate accommodation. In the entire leave to defend, respondent has not disclosed any specific alternate accommodation available with the petitioner. It is merely stated that the petitioner has intentionally not disclosed her huge properties at Pahar Ganj and [ENTITY]. The respondent has not given any description or details of the alleged properties at Pahar Ganj and [ENTITY]. He has not even specified the number of such properties, if any, owned by the petitioner at the above said places except the bald assertions . Petitioner in her reply and counter affidavit has denied of any such property at Pahar Ganj and [ENTITY] and has further E No. 13/12 23 30.04.2014 categorically stated that she has no other suitable property except the property in question of which the tenanted premises forms part.
16.1 In [PRECEDENT], it has been held that:
"tenant has no right to dictate the terms and conditions to the landlord as to how she must use the commercial property under her ownership. It is essentially in trying times like the one being faced by the respondents, that a persons falls back upon the resources that he possesses; in this case, the resource being commercial property. It is the landlord's prerogative as to in which manner he wants to use his property and law should not and cannot prevent such utilization by a landlord in order to meet his bonafide requirement".
16.2 In [PRECEDENT] it has been observed in para 14 as follows:
"the availability of an alternative accommodation with the landlord ie an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation suitable and convenient in all respects as the suit accommodation may have an adverse bearing on the finding as to the bonafide of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance E No. 13/12 24 30.04.2014 would enable the court drawing an inference that the need of the landlord was not a felt need or the state of mind of landlord was not honest, sincere and natural. Secondly, another principle ingredient of [SECTION], which speaks of non availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied. Wherever another residential accommodation is shown to exist as available, then the court has to ask the landlord why he is not occupying such other available accommodation to satisfy his needs. The landlord may convince the court that the alternative residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternative accommodation, to entail denial of the claim of the landlord must be reasonably suitable. Obviously in comparison with the suit accommodation, wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant factors. While considering totality of circumstances, the court may keep in view the profession or vocation of the landlord and his family members , their style of living , their habits and the background wherefrom they come."
16.3 In the present case, no particular alternate property has been described or brought to the notice of the court by the respondent in the entire leave to defend. Petitioner has E No. 13/12 25 30.04.2014 categorically denied of any other suitable property in her possession or in possession of her sons or grand children except the property in question. She in her petitioner has categorically stated that her both sons and grand daughters have no accommodation of their own, suitable to carry out the business of proposed Institute and clinic and as such they are totally dependent on her for the purpose of accommodation. Admittedly, the other shops in the property in question are rented out to several other tenants and simultaneous petitions have been filed by the petitioner against them also. Merely by saying that petitioner owns several properties at Pahar Ganj and [ENTITY], it cannot be said that respondent has raised any triable issue in this regard or has raised adverse bearing as to the bona fide requirement of petitioner that she has unreasonably refused to occupy the other available premises to satisfy her need.
17 It is settled law that landlord is the best judge of his requirement and has complete freedom in the manner of beneficial enjoyment of his property, once it is not disputed that his requirement is bonafide. The petitioner has specifically pleaded that she needs the tenanted premises for starting the Computer Institute for her sons and grand daughters and the tenanted premises is required for server, UPS Laboratory and computers. In the layout plan it has been specifically described that the tenanted E No. 13/12 26 30.04.2014 premises shall be used for the said purpose. From the documents placed on record, it is prima facie evident that both her sons and grand daughter are well qualified in the field of computer science and have obtained requisite expertise and degrees. She has specifically stated that her elder son is about to retire in July 2015 and her younger son is not settled till date and now both of them along with their children want to settle in their own business of computers and want to open Computer Training Institute. She has specifically stated that she has no other suitable commercial accommodation for the same. From the above discussion, this court is satisfied that need of petitioner is bonafide and appears to be sincere and honest and not a mere pretext to evict the respondent/ tenant.
18 Now coming to the other argument of Ld. counsel for respondent that since tenanted premises is the only means of earning and livelihood of respondent and his family, a lot of hardship shall be caused to him if his application is dismissed or the suit of the petitioner is decreed. The concept of comparative hardship has no application so far as ground of eviction U/s. 14 (1)
(e) of the Act is concerned. Nothing has been stated by respondent as to whether any attempt has been made by him to get alternate accommodation or that he failed to get such accommodation. Hence, the argument of the Ld. counsel for respondent is E No. 13/12 27 30.04.2014 untenable. In [PRECEDENT] Hon'ble Supreme Court of India while placing reliance upon its earlier judgments titled as [PRECEDENT], [PRECEDENT], in para 13 and 14 of the judgment observed that :
"13. It is well settled that landlord's requirement need not be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start. It was wrong on the part of the District Court to hold that the appellants' case that their sons want to start the general merchant business is a pretence because they are dealing in eggs and it is not uncommon for a Muslim family to do the business of nonvegetarian food. It is for the landlord to decide which business he wants to do. The court cannot advise him. Similarly , length of tenancy of the respondent in the circumstances of the case ought not to have weighed with the court below."
" 14. This court observed that if this is the correct approach then an affluent landlord can never get possession of his premises even if he proves all his bonafide requirements. This court further observed that the fact that a person has the capacity to purchase the property cannot be the sole ground against him while deciding the question of comparative hardship. If the purchase is pursuant to a genuine need of the landlord the said purchase has to be given due weightage E No. 13/12 28 30.04.2014 unless, of course, the purchase is actuated by collateral consideration. This court rejected the High Court's finding that the landlord had secured the premises apparently in a game of speculation. Somewhat similar observations are made in this case by the District Court which in our opinion, are totally unsubstantiated".
18.1 In [PRECEDENT] decided on 04.02.2014, Hon'ble High Court of Delhi has observed "we are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. But in our opinion, in the facts of this case, that circumstance cannot be the sole determinative factum. That hardship can be mitigated by granting him longer period to move out of the premises in his occupation so that in the meantime he can make alternative arrangement". Hon'ble High Court of Delhi in the said judgment granted one year time to the petitioner to vacate the premises.
19 From the above discussion and in the given facts and circumstances, petitioner has been able to show that she is the landlord /owner of the tenanted premises. She has no other alternate accommodation, the tenanted premises is the only most suitable commercial shop which is available to her. The length of tenancy is only one of the factor to be taken into consideration in context with the other facts and circumstances of the case and cannot be a sole criterion or deciding factor to order or not the E No. 13/12 29 30.04.2014 eviction of the tenant. There is no triable issue raised by the respondent to allow his application to contest the present eviction petition. The application for leave to contest is accordingly dismissed. As a result of the dismissal of the application for leave to contest, the petitioner is entitled to recover the possession of the tenanted premises i.e shop bearing no. 21/2, Shaheed Bhagat Singh Marg, New Delhi, as shown red in the site plan attached with the petition. The eviction petition is allowed. No order as to costs.
20 In view of provisions of [SECTION] of the Act, this order for recovery of possession of premises shall not be executed before the expiration of the period of six months from this date. The respondent is further restrained not to sublet or create any third party interest during the aforesaid period of six months. Present petition is disposed of accordingly. File be consigned to record room.
ANNOUNCED IN OPEN ( KIRAN GUPTA ) COURT ON 30.04.2014 SCJCUMRENT CONTROLLER PATIALA HOUSE COURTS:NEW DELHI