1 IN THE COURT OF MR. [ENTITY], ARC-1, CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI Eviction Petition No. E-127/13 (New No. 77933/16) Unique Case ID/CNR No. DLCT03-000534-2013 1. Mst. [ENTITY] Wd/o Late [ENTITY] R/o H.No. 1852-53, Lal Darwaza, Bazar Sirki Walan, Delhi-110006. 2. [ENTITY] 3. [ENTITY] 4. [ENTITY] 5. [ENTITY] All sons of Late [ENTITY] All residents of H.No. 1852-53, Lal Darwaza, Bazar Sirki Walan, Delhi-110006. 6. Mst. [ENTITY] W/o Mohd. Azim R/o H.No.1883, Mohalla Qabristan, Turkman Gate, Delhi-110006. 7. Mst. [ENTITY] W/o Mohd. Jahangir R/o H.No. 10092, Gali No. 3, West Gorakh Park, Shahdara, Delhi-110032. Petitioners VERSUS Eviction petition No. 127/13 (New No.77933/16) Page 1 of 24 2 1. Sh. [ENTITY] S/o Late Mehmood Beg House No. 2171-2172, Rodgran, [ENTITY], Delhi-110006. Respondent Date of Institution of Petition : 22.05.2013 Date on which order was reserved : 20.10.2018 Date of decision : 20.10.2018 Decision : Application of respondent seeking leave to defend is dismissed. Eviction order is passed. ORDER
1. This is a petition for eviction of tenant under [SECTION] of the [ACT]. This order shall dispose off the application seeking leave to defend filed by the respondent.
2. The petitioners claim to be the owners and landlords of a shop on the ground floor in premises no. 2171 and a shop on the ground floor in premises no. 2172, Rodgaran, [ENTITY], Delhi-110006 as shown in red colour in the site plan filed by the petitioners (hereinafter referred to as the 'tenanted premises'). It is averred that this premises is on rent with the respondent and the monthly rate of rent is Rs.220/- excluding electricity charges.
3. It is submitted that tenanted premises is bona fide required by the petitioners for their own business. It is pleaded that petitioners are owners of property no. 2171-72 and 2190, Mohalla Radgaran, [ENTITY], Delhi-110006. It is pleaded that this entire property is in possession of different tenants.
4. It is averred that the petitioners are also owners of property no. 1853, Lal Darwaza, Bazar Sirkiwalan, Delhi except for a portion measuring 18 sq. yards which has been sold to one Mr. [ENTITY]. It is stated that the ground floor of this property is used by petitioner no. 3 for doing his business. It is stated that he wishes to expand his business for which additional accommodation is required.
5. It is stated that the hall on the first floor of property no. 1853 is being used as a drawing-cum-dining room by petitioner no. 1 to 5. As per the site plan filed by the petitioner, the second floor of this property is also not vacant. It is pleaded that it is used for residence of the family of the petitioner no. 1. The third floor of this property is being used for residence of family of petitioners no. 2 and 3.
6. It is stated that the petitioners are also owners of property no. 1852, [ENTITY], [ENTITY], [ENTITY], Delhi. Ground floor of this property is stated to be used for business of petitioner no. 4. Mezanine floor of this property has been taken on rent by petitioner no. 4 as the space on the ground floor was not sufficient. He is stated to have also taken the ground floor of property no. 1852 on rent. It is stated that petitioner no. 4 also wishes to expand his business and needs additional accommodation.
7. The petitioner no. 2 is stated to be doing business from the basement of properties no. 1852-53. It is stated that he also wishes to expand his business and needs additional accommodation.
8. The families of petitioners no. 4 and 5 are stated to be residing on the first floor of property no. 1852. It is pleaded that the remaining portions of property no. 1852 is in possession of Mr. [ENTITY], an unauthorized tenant.
9. It is pleaded that petitioner no. 5 also forms a concern under the name and style of M/s Ibrahim Book Depot. However, due to paucity of accommodation, he has not been able to start the business properly. The petitioners have prayed that eviction order may be passed in respect of the tenanted premises in terms of [SECTION] of the [ACT].
10. Summons under [SECTION] of the [ACT] were issued by the Ld. Predecessor of this Court which were served upon the respondent The respondent filed an application seeking leave to defend.
11. It is stated that the present petition has been filed to extort money from the respondent. It is averred that earlier, the petitioners had taken Rs.2 lacs and had increased rent from Rs.72/- to Rs.220/- per month. It is stated that ingredients of [SECTION]/[SECTION] of the [ACT] have not been satisfied.
12. It is stated that petitioners no. 6 and 7 are married daughters and have no concern with the tenanted premises. Petitioner no. 1 is an old lady and has no need for any shop. It is submitted that petitioners no. 2, 3, 4 and 5 are the sons of Late Mr. [ENTITY] and have their own business establishment.
13. It is averred that the petitioners have suppressed material facts and have concealed that they have other properties available for their use. It is stated that the petitioners have a big industrial plot bearing no. F-407 at UP State Industrial Development Corporation, Dasna Mausari, UP.
14. It is stated that the petitioners also have a large industrial plot in the industrial area of Bhoraghar, Bawana, Delhi.
15. It is stated that the petitioners have eighteen shops in property no. 2171 and 2172, Rodgaran, [ENTITY], Delhi which has been shown in possession of bogus tenants. It is submitted that these shops are actually in the possession of the petitioners.
16. It is stated that the petitioners have concealed that they have many plots and industrial and housing units in Delhi and particularly in the area of Wazirabad, Okhla and Trans Yamuna area.
17. It is stated that the petitioners have concealed that they have recently got possession of a property from a tenant after his eviction.
18. It is stated that the petitioners are not owners of the tenanted premises and are only the legal heirs of Late Mr. [ENTITY]. It is pleaded that petitioners no. 2 to 7 are not dependent upon petitioner no. 1 who is claiming to be the sole landlord and has been issuing rent receipts to the respondent.
19. It is stated that the petitioners have forged documents in connivance with their family friends for claiming that they are tenants.
20. The respondent has pleaded that the alleged bonafide need of the petitioners is fake and malafide and has prayed that leave to defend the petition may be granted to the respondent as the application/affidavit of the respondent/tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises under [SECTION] of [ACT].
21. The petitioners filed reply to the application seeking leave to defend. The petitioners reiterated and reaffirmed the contents of their eviction petition. It is denied that the petitioners have other reasonably suitable non-residential accommodations for their use. It is stated that even though the petitioners own the plot at Dasna Mausari, UP, it is not suitable for the business requirements of the petitioners. It is averred that the tenanted premises is near the residence and business premises of the petitioners. It is stated that the petitioners do not have any other suitable non-residential accommodation in the vicinity of Lal Darwaza, Bazar Sirkiwalan, Delhi.
22. It is submitted that even the plot at Bawana is not suitable as there has been no development in that area. It is pleaded that the said plot is not approachable due to poor conditions of road. There is no water, electricity or sewage facility in the area.
23. It is admitted that during the pendency of the present case, the petitioners have received possession of a godown on the ground floor of premises no. 2172, Rodgaran, [ENTITY], Delhi. It is pleaded that this premises is not sufficient for the requirements of the petitioners. It is prayed that the application for leave to defend be dismissed.
24. The respondent filed rejoinder to the reply of the petitioners and denied the averments made in the reply of the petitioners and simultaneously reiterated and reaffirmed the contents of the application.
25. I have heard the arguments and have carefully gone through the record. In order to succeed in a petition for eviction filed under section 14 (1)
(e) of the [ACT], the petitioners must establish that:
i. They are owners and landlords in respect of the tenanted premises. ii. They require the premises bonafide for themselves or for any member of their family dependent upon them.
iii. They have no other reasonably suitable accommodation.
Ownership of tenanted premises and relationship of landlord-tenant between petitioners and respondents:
26. The respondent has denied that the petitioners no. 2 to 7 are owners of the tenanted premises. It is stated that they are only the legal heirs of Late Mr. [ENTITY] who was not the owner of the property in question and was simply and landlord.
27. To prove the ownership of Late Mr. [ENTITY], the petitioners have filed copy of the registered sale deed by which the tenanted premises was purchased by Mr. [ENTITY]. The respondent has admitted that the petitioners are the legal heirs of Mr. [ENTITY]. The respondent has not stated as to who is the owner of the tenanted premises, if not the petitioners herein. There is no reason to disbelieve that after demise of Mr. [ENTITY], the tenanted premises devolved upon the petitioners and they became its owners.
28. In judgment titled as [PRECEDENT], the Hon'ble High Court of Delhi held the following:
" It is settled law that for the purpose of [SECTION] of [ACT], a landlord is not supposed to prove absolute ownership as required under [ACT]. He is required to show only that he is more than a tenant. In this case, the landlady had placed on record the documents by which she became owner. The attornment given by the erstwhile landlord in her favour as well as an admission made by the tenant by filing petition under [SECTION] of [ACT] acknowledgement the landlordship of landlady. Thus, the conclusion arrived at by the ARC regarding ownership and relationship of landlord and tenant were based on sound legal position and the cogent material before it "
29. Principle is very clear that once a tenant always a tenant. The tenant cannot dispute the title of his landlord. Since the respondent has not disputed the title of the predecessor of the petitioners, in view of the provisions of [SECTION] of the [ACT], the respondent is now estopped from challenging the title of the petitioners. In the case of [PRECEDENT], the Hon'ble Supreme Court quoted with approval the judgment of the Privy Council in [PRECEDENT], wherein it was observed as follows:
"A tenant who has been let into possession cannot deny his landlords title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord."
30. The petitioners are therefore, the landlords and owners of the tenanted premises and the respondent is their tenant for the purpose of section 14 (1)
(e) of [ACT].
Requirement of premises bonafide by the petitioners for themselves and for members of their family dependent upon them and non-availability of any other reasonably suitable accommodation:
31. The respondent has alleged that the petitioners no. 2 to 7 are not dependent upon the petitioner no. 1 who is the sole landlord. Even if it is presumed that the petitioner no. 1 is the sole landlord/landlady, the present petition is still maintainable since the tenanted premises is stated to be required for the business expansion needs of the sons of petitioner no. 1. It is irrelevant that the sons of petitioner no. 1 already have their own established businesses.
32. In this regard, the Court is of the view that dependence of children upon the parent is not always financial or physical. In the context of [SECTION] of the [ACT] in which the legislature has consciously use the words 'any member of family dependent on the landlord', dependency includes emotional reliance on another person. There can be no document which states that the sons are dependent on the petitioner. It is not in dispute that they are residing with the petitioner. By this very fact, it is clear that they are dependent upon the petitioner. The following was held by the Hon'ble High Court in the case of [PRECEDENT] dated 28.08.2017 :-
" The said question is no longer res integra and it has been settled that the words 'requirement of the landlord' within the meaning of [SECTION] of the Act is not only confined to requirement of the landlord but of all members of the family of the landlord who are dependent upon the landlord for accommodation and with whom landlord is residing as a family or who constitute family of landlord. It is for this reason only that eviction under [SECTION] of the Act has been ordered for the requirements of financially well off sons as well. In the present case, the plea of the respondent/landlady in the petition for eviction is that the shop in the tenancy of the petitioner/tenant is required to enable her daughter-in-law who have been doing the work of sale of garments from their residence, to set up a boutique.
It was yet further held that dependence may not in all circumstances be entirely a matter of finance. Again in [ENTITY] Vs. Hira Devi (1970) 6 DLT 484 it was held that what constitutes a family in a particular society depends upon the habits and ideas of persons constituting that society and the religious and socio religious customs of the community to which such persons may belong. It was thus held that the requirement of the family of the brother of the landlord residing with the landlord would also be the requirement of the landlord. It was further held that the requirement of the landlord "himself" cannot be considered by excluding the requirement of other persons with whom the landlord is habituated to residing us a family. To the same effect is the judgment of the Division Bench of this Court in Gobind Dass Vs. Kuldip Singh ILR (1970) I Delhi
585. Supreme Court in [PRECEDENT] approved of the view taken in [ENTITY] supra as well as in [PRECEDENT] where requirement of the family of the married daughter was also considered as a requirement of the landlady. It was further held that the words "for his own use" cannot be construed narrowly. Again, in [PRECEDENT] it was held that the expression "his own occupation"
has to be liberally construed and given a practical meaning and does not mean occupation by the landlord himself only. Recently in [PRECEDENT] also the requirement of premises for the business of the son already engaged in one other business was held to be the requirement of the landlord. Reference in this regard may also be made to my judgment dated 17th July, 2017 in [CASE NUMBER] titled [PRECEDENT] and to [PRECEDENT] and [PRECEDENT]. The latter two were also cases of requirement of the daughter-in-law residing with the mother-in-law. Mention may also be made of [PRECEDENT] and [PRECEDENT] preferred where against was dismissed on 15th January, 2016), both of which were cases of requirement for financially independent sons and grand children of the landlord."
33. In the case of [PRECEDENT] dated 14.10.2015, the Hon'ble High Court of Delhi held the following:
"12.Customarily or in common parlance a dependent would be defined as any person who is reliant on another either for financial or physical support for sustenance of life. It is pertinent to note that the word dependent or as to what constitutes a family has nowhere been defined in the [ACT]. Rather the legislators consciously and deliberately have used the words "any member of family dependent on the landlord" instead of defining a clear degree of relations so as to construe a wider meaning to the aforesaid words as man is a social creature and part of a complex societal system involving myriad of relations from which he cannot be isolated. It is significant to understand that the dependency is not restricted to financial or physical but will also include emotional reliance on another person. Reliance in this regard is placed on the findings of this court in [PRECEDENT], wherein the court observed that the social set up of our society is such where a married daughter continues to enjoy a place of pride in her maternal home and therefore while considering the requirement of the landlord her married daughter and her expected visits cannot be lost sight of. Similarly in [PRECEDENT], this Court has acknowledged that the word "himself" as cohabiting with his family members with whom he is normally accustomed to live. Therefore, contrary to the submissions of the learned counsel for the petitioner financial or physical incapacitation cannot be the sole premises for determining dependency on another."
34. Children of the landlord are dependent upon the landlord for the purposes of [SECTION] even if they are affluent and have established businesses.
35. Besides making self-serving assertions in the application for leave to defend, no credible material which can be believed by the Court has come on record for the Court to even have a prima facie opinion that the petitioners have alternative suitable accommodation. If such oral assertions are believed and on its basis, leave to defend is granted, in all cases, the respondents will be successful in obtaining leave to defend the case by merely alleging that the landlord has other properties available. No material has been placed on record by the respondent to establish that the petitioners have alternative suitable accommodations available for use by the petitioners. In the case of [PRECEDENT], the Hon'ble High Court of Delhi held that the respondents tenants have to place on record some material in support of the assertions made in the application for leave to defend. In this context, the following was held by the Hon'ble Delhi High Court in the case of [PRECEDENT]:
"However, merely because the tenant so disputes and controverts the pleas of the landlord does not imply that the provision 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 tenant is required to give all the necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine."
36. In the case of K.K. Sarin Vs. M/s Pigott Chapman & Co. 46 (1992) DLT 352, the Hon'ble Delhi High Court held the following:
"Due to paucity of accommodation in Delhi the tenants are likely to plead facts and if they are held to be raising triable issue in every case, hardly any application seeking leave to defend would fail. This certainly is not the idea behind this provision. While deciding the application seeking leave, what is required of the Rent Controller is to observe the rules of natural justice and to give opportunity to both the parties to produce the affidavits and material on which they rely. When leave to defend is sought, the tenant must make out a prima facie case raising such pleas that a triable issue would emerge."
37. In this regard, reliance is also placed upon the decision of the Hon'ble High Court passed in the case of [PRECEDENT] dated 03.11.2016 in which the following was held :-
"19. Mere raising of baseless contentions against the landlord cannot be a ground for being granted leave to defend to the petitioners. It cannot be said that the petitioners have given facts or particulars which require to be established by way of evidence. The petitioners have merely made allegations for the sake of making allegation. There is no merit in the said plea of the petitioner.
20. The trial court has rightly concluded that the petitioners have failed to place on record any material to raise a suspicion that the respondents are having a vacant space on the ground floor of the suit property which can be used by them to open his workshop for industrial tools."
38. In the present case, bald assertions have been made by the respondent that the petitioners have eighteen shops in property no. 2171 and 2172, Rodgaran, [ENTITY], Delhi. In view of the aforementioned decisions, it was for the respondent to place on record material to establish that the petitioners have other accommodations which are indeed vacant and available with them. Having failed to do so, there is no reason to disbelieve that the petitioners do not have alternative suitable accommodations for expansion of their businesses.
39. Moreover, the fact that the respondent is in possession of a property in the same building where according to him, the petitioners have more accommodation than is admitted by them, he should have been able to furnish some documentary proof including photographs in support of his contention that the petitioners have vacant possession of more accommodation than is claimed by them. In this regard, reliance is placed upon the decision of the Hon'ble High Court passed in the case of [PRECEDENT] dated 03.11.2016 in which the following was held:-
"19. Clearly, the contentions raised by the petitioners appear to be an allegation without any basis whatsoever.
The respondent on affidavit has denied the contention and has name the occupants/tenants. The petitioner themselves are occupying a shop in the premises and would certainly have better details if the respondent was in occupation of the two shops. Mere raising of baseless contentions against the landlord cannot be a ground for being granted leave to defend to the petitioners. It cannot be said that the petitioners have given facts or particulars which require to be established by way of evidence. The petitioners have merely made allegations for the sake of making allegation. There is no merit in the said plea of the petitioner.
20. The trial court has rightly concluded that the petitioners have failed to place on record any material to raise a suspicion that the respondents are having a vacant space on the ground floor of the suit property which can be used by them to open his workshop for industrial tools."
40. The site plans filed by the petitioners disclose the premises that are available with them. The respondent has contended that the petitioners have more accommodation than is reflected from their site plans. This implies that the respondent is denying the correctness of the site plans filed by the petitioners. However, no site plan has been filed by the respondent alongwith his application for leave to defend or even with the rejoinder. In the case [PRECEDENT], it has been held that if no site plan is filed by tenant, site plan filed by landlord is deemed to be correct. Therefore, it shall be presumed that the site plan of the petitioners is correct and that they have only that much accommodation as is shown in the site plans.
41. Since the residence and current place of businesses of the petitioners is around the tenanted premises, the plots in UP and in Bawana cannot be said to be alternative suitable accommodations for the requirement of the petitioners which is for additional accommodation for expansion of their businesses.
42. It is stated in the eviction petition that the tenanted premises is required because petitioners no. 2, 3 and 4 wish to expand their business and petitioner no. 5 wishes to start his business profitably. Even if the petitioners received possession of one shop during pendency of the present case, it cannot be said that their requirement has been fulfill.
43. Even if it is presumed that the petitioners have other premises available for their requirements as stated in the petition, even then the choice is left to the landlords/petitioners to decide as to which of these premises they should use for their requirement of business and the tenants do not have any say in this matter. In the case of [PRECEDENT]. [PRECEDENT], the following was held:
"Even assuming that other premises are available, then the choice is left to the landlord to decide as to which non-residential premises he should occupy, and the tenant cannot have any say in the matter. If the landlord is able to show the bonafide, then the tenant cannot dictate terms to the landlord that he should occupy some other building and not the one mentioned in the petition."
44. In the case of [PRECEDENT], the Hon'ble Supreme court held that 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. Reference may also be made to the case of [PRECEDENT].
45. In the case of [PRECEDENT], the following was held:
" 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 is bona-fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona-fides of the requirement of the landlord it is quite unnecessary to make an endeavor as to how else the landlord could have adjusted himself "
46. In the case of [PRECEDENT], it was held as under:
" The landlord may convince the court that the alternate residential accommodation though available is still of no consequence as the same is not reasonable suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, the entail denial of the claim of the landlord, must be reasonable suitable, obviously in comparison with the suitable accommodation wherefrom the landlord is seeking eviction. Convenience and safely of the landlord and his family members would be relevant factors. While considering the totality of the 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 "
47. In view of the settled legal position it is not for the respondent to dictate to the petitioners that they should use any other property, even if they are indeed available with the petitioners. The tenanted premises belongs to the petitioners and it is for the petitioners to see which of their properties is suitable for their business. If the tenanted premises is suitable as per their need, they have every right to possess the said premises and the respondent cannot contend that they should use any other property for their business. While deciding the question of bonafide requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted.
48. The respondent has contended that the petitioners do not bonafide need the tenanted premises for residence and that they only wish to sell the tenanted premises after having the respondent evicted from it.
49. As has been held by the Hon'ble Delhi High Court in the case of [PRECEDENT] dated 31.10.2017, in case the petitioners sell the tenanted premises or rent it out at a higher rate of rent after obtaining its possession from the respondents, the respondent herein has the remedy of getting back the possession of the property under [SECTION] of the [ACT].
50. Even the contention that the petitioners had taken Rs.2 lacs from the respondent remains unsubstantiated with any material. Also, the submission that tenancy documents have been forged by the petitioners is unsupported with any material.
51. In the case of [PRECEDENT] dated 02.11.2011, the Hon'ble High Court of Delhi found the need for expansion of business as bonafide. The following was held in this case:
"19. The Apex Court has time and again noted that it is prerogative of the landlord to decide whether the premises are required for expansion of his business or not; in this context the observations of the Apex Court in the case of [PRECEDENT] is relevant; it reads as under:-
"It is always the prerogative of the landlord that if he requires the premises in question for his bonafide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business".
52. It cannot be held that the eviction petition does not satisfy the ingredients of [SECTION]/[SECTION] of the [ACT].
53. The net result is that petitioners have been able to establish that the tenanted premises is required bonafide for their business requirements and that they have no other reasonably suitable alternative accommodation for this purpose. The respondent has failed to raise any reasonable triable issue. The application for leave to defend is dismissed.
54. Since the application seeking leave to defend has been dismissed, the petitioners are entitled for an eviction order. Accordingly, eviction order is passed in favour of the petitioners and against the respondent directing the respondent to vacate the tenanted premises i.e. shop on the ground floor in premises no. 2171 and a shop on the ground floor in premises no. 2172, Rodgaran, [ENTITY], Delhi-110006, more specifically shown in red colour in the site plan filed with the eviction petition, in terms of [SECTION]/[SECTION] of the [ACT]. The landlords however shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of this order.
55. No order as to costs. File be consigned to Record Room.
Digitally signed by [ENTITY] Date: 2018.10.20 [ENTITY] 16:27:29 +0530 ARC-I, Central District, Tis Hazari Courts, Delhi (Announced in open court on 20.10.2018)