In the Court of Sh. [ENTITY]: Additional Rent Controller of East Delhi District at Karkardooma Courts, Delhi. [CASE NUMBER] In the matter of : [ENTITY] S/o late Sh. [ENTITY], R/o E4/17, Krishna Nagar, Delhi110051. Petitioner VERSUS Dr. [ENTITY] W/o late Dr. [ENTITY], R/o D10, Naveen Shahdara, Delhi110032. Respondent Date of Institution : 12.10.2011 Date on which arguments heard : 12.09.2012 Date of Decision : 12.09.2012 ORDER
1. Vide this order I shall dispose off an application under [SECTION] of [ACT] filed on behalf of the respondent for seeking leave to contest the present eviction petition.
2. The brief facts of the case as narrated in the petition are that the petitioner is the owner/landlord of the property bearing no. E4/17, Krishna Nagar, Delhi51 and the respondent is a tenant in respect of shop no.2 and the petitioner is aged about 68 years and he is retired from Punjab Govt. Undertaking and the wife of the petitioner is aged about 67 years and she is retired as a senior school teacher. It is averred that the elder son of the petitioner is aged bout 42 years and he is working as a Lecturer in Agra and his wife is also Lecturer there and having one child aged about 6 years who is studying in IInd class. It is averred that the younger son of the petitioner is aged about 35 years who is working in a private firm and his wife is aged about 38 years and he has done graduation and the younger son with his wife have been residing with the petitioner and his wife and all are in combined occupation of one kitchen, one common drawing room, one common dining room, one bedroom for the petitioner, one bedroom for elder son, one pooja room, one bathroom and toilet, one store room above the kitchen which has been converted into a bedroom to accommodate the younger son who shares the drawing room, toiletbathroom, kitchen and pooja room with the petitioner. It is averred that the elder son of the petitioner and his wife are working in Agra and visit almost every weekend, vacations and festivals to meet and stay with the petitioner and other family members. It is averred that the respondent is in possession of tenanted premises from the last 41 years however the respondent has her own big house in Naveen Shahdara, Delhi32, one big Hospital and Nursing Home in Naveen Shahdara, one shop being run as Chemist shop by the son of the respondent and one more shop in Chhota Bazar, Shahdara, Delhi32 which is lying locked from the lat few years and the son and daughterinlaw of the respondent are also running a play school in Naveen Shahdara and one big property has been given on rent by the respondent to M/s Reliance Fresh departmental store in Naveen Shahdara.
3. It is averred that the petitioner has no regular source of income for his own expenses and the petitioner wants to start a stationary and photostate shop in the tenanted premises and daughterinlaw of the petitioner wants to start a study/coaching center with the help of the wife of the petitioner and need some space but unable to start due to the scarcity of space. It is averred that younger son of the petitioner needs space for garage because at present the car is being parked on the road outside the house. It is stated that the petitioner also requires guest room for his relatives and guests and the petitioner also wants to provide a separate drawing room, kitchen bathroom and toilet to his younger son, so that the sons of the petitioner can live their life happily and comfortably and without any dispute with each other.
4. It is stated that the petitioner has no other reasonable suitable accommodation available with him and he prayed to pass an eviction order against the respondent.
5. On notice respondent appeared and filed an application under [SECTION] of the [ACT] and affidavit wherein it is contended that the petitioner is not the owner of the premises in question but he is only landlord of the respondent to collect rent and due to high prices in the market and the prices of the property, the petitioner is tempted to filed the present petition to sell or let out on getting high pugree/rent or sale price. It is averred that the petitioner is aged about 70 years and so is his wife and accordingly his wife is absolutely not in physical or mental condition to carry on any coaching or teaching classes which he had never conducted and she prayed for dismissal of the petition.
6. The petitioner filed counter affidavit wherein he denied the contentions raised by the respondent in the leave to defend application and reiterated the allegations made in the petition.
7. I have heard counsel for the parties and perused the material available on record carefully.
8. Before I come to the contentions of learned counsel appearing for either parties, let us discuss the essential ingredients of [SECTION] of the [ACT] on which the petitioner may be entitled to an order of eviction as follows: i. The premises in question were let for residential purpose.
ii. That petitioner is a landlord and an owner of the said premises, iii.The premises are required bonafide by him for occupation as a residence for himself or for any member of his family dependent upon him or for any person for whose benefit the premises are held; and iv. That he has no other reasonable suitable residential accommodation.
(i) The premises in question were let for residential purposes:
9. Both commercial and residential accommodation can be got vacated. The controversy has been set at rest by the Hon'ble Apex Court in [PRECEDENT] and now the premises let out either for residential or commercial purposes can be got vacated by the landlord for bonafide requirements.
(ii) That petitioner is a landlord and an owner of the said premises.
10. In leave to defend application, it is admitted by the respondent that the petitioner is a landlord but denied the ownership.
11. For deciding application under [SECTION] of the [ACT] the question for determination is whether there exists a landlordtenant relationship between the parties and not the question of ownership. The use of the word owner in clause (e) of the proviso of subsection (1) of section 14 of the [ACT] seems to have been inspired by the definition of the word landlord as contained in [SECTION] of the Act which is wide enough to include a person receiving or entitled to receive the rent of any premises on account of or on behalf of or for the benefit of any other person. Construed in the context in which the word owner is used in clause (e), the concept of ownership in a landlordtenant litigation governed by Rent Control Law has to be distinguished from the one in a title suit. Tenant cannot challenge the title of his landlord so long as he remains in possession under an agreement, which he has made with them. In the present case, it is admitted by the respondent that he is tenant under the petitioner which establishes a landlordtenant relationship between the parties.
12. The ground taken by the respondent is that the petitioner and his wife both are about 70 years of age and they are not in a condition to carry on any coaching or teaching centre which they have never conducted before. This is a sham ground. Any qualified person at any stage of his age can start coaching centre. It is not disputed that she is a qualified person.
13. Next ground taken by the respondent is that due to high soaring prices in the market of rent and the prices of the property, the petitioner is tempted to file the present petition to sell or let out on getting high pugree/rent or sale price. [SECTION] of the [ACT] protects the right of the tenant if the landlord does not occupy the premises within two months from the date the tenant vacates it or relets the premises within three years from the date of getting possession. This only provides a right to the tenant to reenter the premises and not a defence to deny the landlord the right to evict the tenant even on the ground of bona fide.
14. Next ground taken by the respondent is that the sons and other relatives of the petitioner are not dependent upon the petitioner for residential or nonresidential purposes and they are gainfully employed. This ground cannot be accepted as the Hon'ble High Court in [PRECEDENT] held that: "It is the settled law that even those children who have capacity to earn themselves could always be dependent upon their father for the purpose of their residence. The circumstances of earning does not prevent them to be included in the list of dependents of their father for the purpose of residence."
15. The respondent in his entire application has not stated anything about the accommodation available with petitioner and has also not disputed the siteplan of the petitioner even he has not filed any counter siteplan to disprove the siteplan of the petitioner.
(iii) & (iv) The premises are required bonafide by him for occupation as a residence for himself or for any member of his family dependent upon him or for any person for whose benefit the premises and that he has no other reasonable suitable residential accommodation:
16. The respondent has not challenged the size of the family of the petitioner and accommodation available with the petitioner. The respondent has also not challenged the status of the wife of younger son and her claim to start a study centre. The respondent has also not denied the properties which she is having. The respondent has also not challenged the source of income of the petitioner and the requirement of the petitioner for his relatives and separate accommodation to the sons of the petitioner
17. The petitioner has also shown his requirement for a guest room for his relatives and guests who frequently visit and stay with the petitioner. I find the need of a guest room as bonafide requirement as in a case of [PRECEDENT]; it was held that "The married daughters keep on visiting their father's home and are entitled to some accommodation (guests room) and hence landlord was entitled to say that he wanted some accommodation for their use also."
18. In view of above, the requirement of the petitioner seems to be bonafide.
19. Besides, the petitioner wants space for a garage for parking his car in the premises in question. Reference can be made to [PRECEDENT]. In [PRECEDENT] it is held that : "Landlord, a man of status Bonafide requirement sufficiency of the accommodation available to an owner/landlord had to be seen from the point of view of the owner/landlord and his family by taking into consideration, the totality of the circumstance including his profession, vacation, style of living, habits and backgrounds intendment of Rent Control law was not to compel the landlord to squeeze himself into lesser accommodation so that the tenant's occupancy is protected. Previous tenant using garage as living room. Landlord cannot be compelled to use it as living room and not as garage."
20. Reference can be made to [PRECEDENT] where it was held that: "parking of car by an individual would be incidental of his residential use."
21. Keeping in mind the status of the landlord/petitioner, I observe that he is favourably entitled to have a garage to park his car. In [PRECEDENT] wherein our own Hon'ble High Court held that: "[ACT] [SECTION] landlord wanted premises to park his car Need is bonafide Garage is not a luxurystatus of landlord and his way of live Relevancy.
Where the landlord required premises to park his car, the status of landlord and the way of his life would show whether the landlord was using the car in the ordinary way and not in any forced or malafide way. Whether the car was being kept by the landlord legitimately or not was mostly to be decided by the way the landlord wanted to arrange his own expenditure. It was for the landlord to decide whether his car should be exposed to sun and rain or whether he would like to be protected in a garage."
22. Also in a recent case of [PRECEDENT], it was held that "Bonafide requirementlandlord purchased a car and wanted shop on ground floor to park the car The landlord has amply proved that the requirement of the shop portion for parking his vehicle namely, his car is very much bonafide. In that view, the finding recorded by the rent control appellate authority on that ground cannot be said to be improper and, therefore, the eviction order made by the rent control appellate authority on that ground is to be sustained."
23. From the above cited law authorities, it is discernible that the petitioner is also entitled to a garage for parking his car.
24. It is held by the Hon'ble Court in [PRECEDENT] that: "The landlord is the best judge of his residential requirement and has a complete freedom in the matter and it is no concern of the Courts to dictate to the landlord how and in what manner he should live. The Supreme Court deprecated the solicitous approach of the High Court and held that there is no law which deprives the landlord of the beneficial enjoyment of his property."
25. In [PRECEDENT], the Hon'ble Apex Court has 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 bonafide. 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 bonafide. 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 bonafide. 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 endeavor as to how else the landlord could have adjusted himself."
26. In [PRECEDENT], Punjab & Haryana High Court has held that: "Tenant cannot create a clog on the extension of business of landlord or dictate terms to the landlord and in the ejectment application only relationship of landlord and tenant is to be seen and sufficiency cannot be judged from the view point of the tenant."
27. It is also held by Hon'ble High Court of Delhi in [PRECEDENT], that: "Determination of, relevant consideration for the suitability of accommodation for landlord and held suitability has to be seen from the convenience of the landlord and his family members and on the basis of the circumstances including their profession, vocation, style of living, habits and background."
28. In [PRECEDENT], it was held by Hon'ble High Court that: "It is settled law that each member of the family requires atleast a comfortable place where he/she can sleep. There are around 09 members in the family existing and the landlord has no separate [ENTITY] with him. It is settled law that neither the Court nor the tenant can dictate to the landlord the mode and manner in which he should live or to prescribe for him the residential standard on their own. The landlord must be left to assess his requirement in the background of his position, circumstances and status in the life and social and other responsibilities and other relevant factors. In judging his special need and convenience, certainly the landlord would have a choice."
29. In [PRECEDENT] Hon'ble High Court has held that: "Minimum requirement - separate bed rooms for self and wife, sons and daughter as also for guests e.g. Married daughter Landlord being of status, e.g. Advocate, his need for drawing and dinning room also valid."
30. In [PRECEDENT] it was held that: "The landlord wanted separate room for dinning and sitting need cannot be termed as whimsical or fanciful."
31. In [PRECEDENT], it is held that: "in considering the availability of accommodation, non availability merely but also whether the landlord has the legal right to such accommodation has to be considered. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeez himself lightly into lesser premises protecting tenants occupancy."
32. In [PRECEDENT] it was held under para 12 at page 775 as under: "It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter."
33. From the facts it is clear that shop in question is required by the petitioner for her bonafide requirement. In the light of above discussion, I observed that the petitioner has successfully explained his bonafide necessities.
34. For the discussions aforestated, I am of the opinion that the respondent has failed to disclose such facts which would dis entitle the landlord from obtaining an order for eviction. The application for grant of leave to defend is declined.
35. For the aforestated discussion, the petition on the ground mentioned in [SECTION] read with [SECTION] of [ACT] is allowed. An eviction order is passed against the respondents in respect of shop no.2 in the property bearing No. E4/17, Krishna Nagar, Delhi51, more specifically shown in color red the site plan attached. The eviction order shall not be operative for a period of six month.
Announced in the open court ([ENTITY]) on 12.09.2012 Additional Rent Controller (East) Karkardooma Courts, Delhi.