$~A-60 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 06.10.2016 + [CASE NUMBER] NARESH KUMAR Petitioner Through Mr.[ENTITY], Sr.Advocate with Mr.[ENTITY] & Ms.[ENTITY], Advocates versus SURENDER KUMAR GULATI Respondent Through Mr.[ENTITY], Mr.[ENTITY], Mr.[ENTITY] & Mr.[ENTITY], Advocates CORAM: HON'BLE MR. JUSTICE [ENTITY] [ENTITY], J.(ORAL)
Since, the learned counsel has entered appearance for the respondent, the caveat stands discharged.
[CASE NUMBER] (exemption) Allowed subject to all just exceptions.
[CASE NUMBER] & [CASE NUMBER]
1. By the present Revision Petition filed under [SECTION] of the [ACT] (hereinafter referred to as the [ACT]), the petitioner seeks to impugn the order of eviction dated 07.4.2016 passed by the Additional Rent Controller (hereinafter referred to as ARC) under [SECTION] of the [ACT].
2. The respondent/landlord filed the petition for eviction under [SECTION] of the [ACT]. As per the Eviction Petition it is stated that the respondent is the owner of the property bearing No.WZ- 762A/2, Rishi Nagar, Shakur Basti, Delhi-34 measuring 114 sq.yards. The petitioner is said to be a tenant in respect of one shop situated on the ground floor. The premises in question i.e. suit premises consist of two floors. In the ground floor there are seven shops including the tenanted shop. One shop is in occupation of the son of the petitioner Shri [ENTITY] who is running the shop and selling readymade garments under the name of M/s.Attire. Two shops which have been joined are in the occupation of the daughter in-law of the respondent Smt.[ENTITY] who is running the business of readymade garments under the name and style of M/s.Kavyansh family clothing for 4-5 years and her husband [ENTITY] is helping her in the business. Three other shops are occupied by tenants.
3. It is the case of the respondent that the family consists of the respondent, his wife Smt.[ENTITY] and two married sons, namely, Shri [ENTITY] and Shri [ENTITY] and their respective wives i.e. Smt.[ENTITY] and Smt.[ENTITY].
4. Apart from the suit premises in question, the respondent also owns other properties. The wife of the respondent Smt.[ENTITY] owns premises No.773, Rishi Nagar, Rani Bagh, Delhi which is the residential house of the family. One shop is owned by the respondent on the ground floor of premises 787, Rishi Nagar, Rani Bagh, Delhi. Earlier the respondent was doing the business of selling footwear from there but in 2007 he closed the business. The shop has been transferred to the name of his sons. The sons had rented out the shop to M/s.[ENTITY], at a monthly rent of Rs.1,30,000/-.
The two sons are receiving rent in equal share. Prior to the present tenant the shop was let out to Levi Signature for seven years. Further, the wife of the respondent is also the owner of premises No.763, Rishi Nagar, Shakur Basti, Delhi measuring 63 sq.yards comprising of ground floor and first floor. The respondent being presently an unemployed person, the said shop has been let out to M/s.Aurelia at a monthly rent of Rs.1,20,000/-. Earlier the shop was let out to M/s.Footcrafts and prior to that to M/s.[ENTITY].
5. The bona fide requirement for the tenanted shop is stated to be of the petitioner who is stated to be unemployed and 60 years old and wants to do business. The requirement of the daughter-in-law Smt.[ENTITY] is also stated who is a housewife and also wants to start her business of a boutique from the tenanted premises. It is further stated that the other daughter-in-law Smt.[ENTITY] who is doing business of readymade garments from a portion of the building, also needs the said premises. It is stated that the tenanted premises is a three side open plot and one side where the shop occupied by the petitioner is located faces a commercial road which is 45 feet wide. Other two sides fall on streets. The shop which is occupied by Smt.[ENTITY] faces a street which has a width of 15 feet. Hence, she is doing her business from a lesser convenient location in comparison to the tenanted premises. Hence she wants the tenanted shop for running her business in a better manner. It is further stated that son of the respondent Shri [ENTITY] who is doing business of selling readymade garments from one of the shops, also requires space for a trial room for his customers. Requirement is also stated on behalf of the other son Shri [ENTITY] who would like to start his own independent business.
6. The petitioners filed their application for leave to defend under [SECTION] of the [ACT]. Following salient pleas were taken:-
(i) The respondents may be the landlord but do not have title as they are claiming title based on unregistered documents.
(ii) The rent initially agreed upon was Rs.220/- per month. This was increased to Rs.2,000/- per month and it was agreed to renew the tenancy upto 2019.
(iii) The shop which has been rented out by the respondent can be used by the son of the respondent for expansion of his business. The shop was lying vacant in October 2014 but respondent has re-let the same.
(iv) The sons of the respondent are financially and socially independent.
(v) The respondent owns shop No.787, Rani Bagh and is doing the business of footwear. Rent agreement is nothing but a device to secure a minimum guarantee of Rs.1,30,000/- per month.
(vi) the respondent is owner of property No.763, adjoining to the property in dispute. The same has been let and re-let to various tenants over time and the respondent admits rent of Rs.1,20,000/- being received, hence no bonafide requirement is made out.
7. The ARC by the impugned order on the issue of landlord-tenant relationship noted that the petitioner does not dispute paying rent to the respondent and hence the relationship of landlord-tenant cannot be disputed. On the issue of bona fide requirement it noted that the respondent has stated multifarious grounds for his bona fide requirements i.e. that he requires the shop for his own business, for opening a boutique for his daughter in law Smt.[ENTITY], expansion of business of his other daughter in law Smt.[ENTITY], for the expansion of business of his son Shri [ENTITY] and also for starting business for the other son Shri [ENTITY]. The ARC further noted that the tenanted premises is touching the premises which is occupied by the daughter in-law Smt.[ENTITY] and also the shop of Shri [ENTITY] the son. As per the site plan it was not disputed by the petitioner that if the tenanted shop is available to the respondent's son and daughter in law, the space available to them would be enhanced and it would be commercially more viable as the tenanted shop is facing the main road. On the availability of shop in property No.763, it was noted that it was not practically feasible to club two different properties merely because they were adjacent to each other. It also noted that the respondent has retired since 2007 and has certain expenses to meet i.e. daily expenses, expenses on festivals, functions, misc. expenses for his married daughters etc. Hence, rent which the respondents are earning from property No.763 is a necessity for them and it cannot be said that the said shop at premises No.763 is available to the respondents. Hence, the needs of the respondent was said to be bona fide.
On availability of alternative accommodation, it was held that the respondent's son has been doing his business from property No.762-A/2 i.e. tenanted premises for long and cannot be expected to shift his business to a shop in another property like property No.787. In view of the above, the ARC dismissed the application of the petitioner holding that the petitioner has failed to disclose any triable issue on which leave to defend can be granted and passed the impugned eviction order.
8. I have heard learned counsel for the parties. Learned senior counsel appearing for the petitioner has vehemently argued as follows:-
(i) He has pointed out that earlier also the respondent had filed an Eviction Petition under [SECTION] of the [ACT]. The matter was compromised and the petitioner had agreed to increase the rent to Rs.2,000/-
per month and an increase would mean that the respondent will not demand increase in rent other than under the [ACT] for 15 years. He submits that having committed for 15 years the respondent could not file the present Eviction Petition.
(ii) That recently the petitioners have come to learn that the respondent has vide sale deed dated 18.8.2015 bought a corner shop measuring 10.10' x 21.1", at ground floor of property No.767, Block B, Out of Khasra No. 371, Seelam Pur Mazra, Madi Pur, Delhi i.e. Rishi Nagar, Shakur Basti, Delhi. This fact was not known to the petitioner during pendency of the Eviction Petition. An application is filed under [SECTION] [ACT] to produce additional documents in this regard.
(iii) That after passing of the Eviction Order, the respondent has come in possession of the shop in premises No.787, Rishi Nagar, Delhi which had been let out to M/s.[ENTITY] as a tenant. The same is now lying vacant and is available to the respondent.
Hence, it is urged that on these grounds the petitioner would be entitled to leave to defend and the Eviction Order of ARC is likely to be set aside.
9. Learned counsel appearing for the respondent-landlord has pointed out that the shop recently bought by the respondent as submitted by the learned senior counsel for the petitioner, i.e. shop located in property No.767, Rishi Nagar, Shakur Basti, Delhi is in a gali and was bought in August 2015. Hence, he submits that this cannot be used by the respondents. The tenanted shop is more suitable as the tenanted shop is facing a 45 feet main road. As far as the tenant M/s.[ENTITY], vacating the shop at premises No.787, Rishi Nagar, Delhi is concerned, the fact is admitted. The tenant on his own is said to have vacated the property as he was not a protected tenant. It is pointed out that the shop had been let out since 2007. As explained the rent was income that the respondent's sons were dependant upon. Earlier also several tenants have occupied the shop. The respondent is not in a position to forgo the rent of the said premises. It is further submitted that the location of the shop of Smt.[ENTITY] is not appropriate as she is facing an entry from a small gali which is only 15 feet wide. The tenanted shop would be more lucrative and suitable for the business of the daughter-in-law as it is facing the main road of 45 feet. Learned counsel for the respondent has relied upon judgment of the Supreme Court in [PRECEDENT] to contend that the requirement of a premises which is facing main road was held to be bona fide by the Supreme Court. Reliance is also placed on Jitendra Mohan [ENTITY] [DR.] VS. [ENTITY] Singh, 219(2015) DLT 489 to contend that having two requirements for the same tenanted shops would be a valid requirement.
10. It was also stated by the learned counsel for the respondent that the respondents are ready to offer an area of 200 sq.feet from the shop where Smt.[ENTITY] is doing her business in exchange for the shop which is under tenancy of the petitioner. Hence, the petitioner could shift their business to the area of 200 sq.feet from where Smt.[ENTITY] is presently doing her work as a tenant of that area. It may be added that this offer was made in court but the petitioners did not accept the said offer.
11. I may first see the scope of the present petition. The Supreme Court in [PRECEDENT] described the revisional powers of this court as follows:-
"11 The phraseology of the provision as reproduced hereinbefore provides an interesting reading placed in juxtaposition with the phraseology employed by the Legislature in drafting [SECTION] of the [ACT]. Under the latter provision the exercise of revisional jurisdiction of the High Court is circumscribed by the subordinate court having committed one of the three errors, namely (i) having exercised jurisdiction not vested in it by law, or (ii) having failed to exercise a jurisdiction so vested, or (iii) having exercised its jurisdiction with illegality or material irregularity. Under the proviso to [SECTION], the expression governing the exercise of revisional jurisdiction by the High Court is 'for the purpose of satisfying if an order made by the Controller is according to law'. The revisional jurisdiction exercisable by the High Court under [SECTION] is not so limited as is under [SECTION] [ACT] nor so wide as that of an Appellate Court. The High Court cannot enter into appreciation or re- appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of "whether it is according to law'. For that limited purpose it may enter into re-appraisal of evidence, that is, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached that conclusion on the material available "
12. Hence, this court is to test the order of the ARC to see whether it is according to law, and whether the conclusions are not wholly unreasonable.
13. [SECTION] of the [ACT] reads as follows:
"14.Protection of tenant against eviction.- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-
xxxxx
(e) that the premises let for residential purpose are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and the landlord or such person has no other reasonably suitable residential accommodation."
The above provisions would in view of the judgment of the Supreme Court in [PRECEDENT] apply to commercial premises also.
14. The essential ingredients which a landlord/respondent is required to show for the purpose of getting an eviction order for bona fide needs are (i) the respondent is the owner/landlord of the suit premises (ii) the suit premises are required bona fide by the landlord for himself and any of his family members dependent upon him. (iii) the landlord or such other family members has no other reasonable suitable accommodation.
15. In the present case the trial court declined to grant leave to defend to the petitioner. The parameters for granting leave to defend are well known.
16. This court in the case of [PRECEDENT] noted as follows:-
"7. The Controller has not discussed as to how the pleas raised by the respondent/tenant in the application for leave to defend are such which if established by adducing evidence would disentitle the petitioner/landlord of an order of eviction under [SECTION] of the Act. Ordinarily, when a tenant approaches an advocate for drafting a leave to defend application, the advocate, using his legal acumen would dispute each and every plea of the landlord in the eviction petition. 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 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 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."
17. Similarly, this court in [PRECEDENT] held as follows:-
"24.From the mere reading of the afore mentioned illuminating observations of the Supreme Court in the case of [PRECEDENT] (supra), it is apparent that the Controller has a statutory duty to grant the leave to defend if the affidavit discloses the facts which could raise suspicion on the genuineness of the need of the landlord which can in effect disentitle the landlord from recovering the possession on the ground of bonafide requirement. The likelihood of success or the failure of the defence is not really determinative of the question as to grant or not grant of the leave to defend but the real question is tenability of the plea which may raise a suspicion on the need of the landlord which may if proved can also lead to disentitlement to the recovery of the possession. Thus, the plea raising a doubt in the mind of the Controller is sufficient to grant the leave. The Controller can also not record the findings on disputed question of the facts by preferring the one set of facts over and above the other. The merits of the pleas raised are not to be gone into at the time of the grant of the leave to defend by going into the complicated questions of fact. For making the enquiry, the affidavit filed by the tenant is helpful.
25. The views expressed by the Supreme Court in the case of [PRECEDENT] (supra) and [PRECEDENT] (supra) are holding the field and have been consistently followed by the Supreme Court till recently and also by this court from time to time. (kindly see the case of [PRECEDENT] and [PRECEDENT])"
18. I may hence test the findings recorded by the ARC on the touchstone of the requirement of the parameters stated above for determining as to whether the trial court rightly refused the leave to defend to the petitioners.
19. On the relationship of landlord-tenant, admittedly, the petitioners have been paying rent to the respondents. In view of [SECTION] of the [ACT] the petitioners are estopped from denying the relationship of landlord- tenant.
20. On the issue of bona fide requirement, the petitioner has tried to argue that the sons of the respondent are financially and socially independent. This bald averment has no meaning. The facts pleaded by the respondent clearly show that the sons are for the purpose of running the business and for accommodation are dependent upon the parents. Admittedly, the family is staying jointly in a residential property at No. 773 Rishi Nagar, Delhi which is owned by the wife of the respondent and is used as a residence by the parties.
I may refer to the stated requirements of the respondent. The respondent has mentioned several grounds on which the tenanted shop is required, namely, for business of the respondent who is unemployed; for his daughter in law Smt.[ENTITY] who is a housewife; for his other daughter in-law Smt.[ENTITY] who is also doing business of readymade garments from the rear portion overlooking a 15 feet wide street, for the need of his son Shri [ENTITY] who is also doing business of readymade garments from the said premises and who needs a trial room for his business and; for the need of his other son Shri [ENTITY] so that he can start his own business. The said bona fide requirements stated by the respondents have not been seriously disputed by the petitioner. Merely because several grounds are stated for the bonafide requirement of the same tenanted shop does not in any manner do away with the bonafide requirement of the respondent. Once the respondent gets possession of the shop, the respondent would be free to put it to any one of the stated purposes/requirements. This Court in Jitendra Mohan [ENTITY] [DR.] vs. [ENTITY] Singh (supra) in somewhat similar facts where the landlord had stated two different requirements held as follows:-
"12. As regards bonafide requirement, the learned ARC noted the two contentions of Dr. [ENTITY] that [ENTITY] has at one place stated that he required the premises for himself and on the other place the same was required for the expansion of the business of his son. It was further stated that the proposed use of property for starting auto-parts or auto-workshop was not permissible and the area was restricted for use as residential as per the Master Plan of Delhi 2021. The contention of Dr. [ENTITY] deserves to be rejected. At no point of time [ENTITY] sought eviction of the tenanted premises for opening an auto-workshop. He stated that his son was selling tyres and had a wheel balancing machine and he wants to open a shop for sale of motor-parts and accessories. [ENTITY] has placed on record a Trade License issued by the MCD in the name of his son. The fact that [ENTITY] has mentioned two bonafide requirements i.e. to start the business for himself and the other for expansion of business of his son would not nullify his bonafide requirement. There is no requirement in the law that while filing an eviction petition under [SECTION] [ACT] the landlord must restrict himself to only one bona-fide requirement. The fact that [ENTITY] has no experience to start the business is immaterial."
Hence, merely because several alternative requirements are stated by the landlord would not nullify the bona fide requirement.
21. It is also relevant that one of the alternative grounds pleaded by the respondent is the stated requirement of his daughter-in-law Smt.[ENTITY] and his son Sh.[ENTITY]. Both of them are doing business from the same premises in a shop overlooking a 15 ft. wide street. Both need the additional space which is subject matter of the tenanted premises. More importantly, the tenanted shop overlooks a 45 ft. wide road and is more suitable for the business of Smt.[ENTITY] and Sh.[ENTITY]. The respondent has very fairly offered a space of 200 sq.ft. on the same terms and conditions as the tenanted shop from an area occupied by Smt.[ENTITY] as an exchange for the tenanted shop. The case of the respondent is completely covered by the judgment of the Supreme Court in [PRECEDENT] (supra).
22. Reference may be had to the said judgment of the Supreme Court in [PRECEDENT] (supra). That was a case where the landlord owned several properties in the vicinity of the tenanted premises. However, the said landlord was running his shop from a shop which is 15 feet in width. The tenanted premises was facing the main road. The landlord offered to exchange the shops which offer was declined by the tenant. In those facts the Supreme Court accepted the plea of the landlord and held as follows:-
6. In the present case it is clear that while the landlord (Appellant No. 1) is carrying on his business from a shop premise located in a narrow lane, the tenant is in occupation of the premises located on the main road which the landlord considers to be more suitable for his own business. The materials on record, in fact, disclose that the landlord had offered to the tenant the premises located in the narrow lane in exchange for the tenanted premises which offer was declined by the tenant. It is not the tenant's case that the landlord-Appellant No. 1 does not propose to utilize the tenanted premises from which eviction is sought for the purposes of his business. It is also not the tenant's case that the landlord proposes to rent out/keep vacant the tenanted premises after obtaining possession thereof or to use the same is any way inconsistent with the need of the landlord. What the tenant contends is that the landlord has several other shop houses from which he is carrying on different business and further that the landlord has other premises from where the business proposed from the tenanted premises can be effectively carried out. It would hardly require any reiteration of the settled principle of law that it is not for the tenant to dictate to the landlord as to how the property belonging to the landlord should be utilized by him for the purpose of his business. Also, the fact that the landlord is doing business from various other premises cannot foreclose his right to seek eviction from the tenanted premises so long as he intends to use the said tenanted premises for his own business.
The grounds on which leave to defend was sought by the tenant and has been granted by the High Court runs counter to the fundamental principles governing the right of a tenant to contest the claim of bonafide requirement of the suit premises by the landlord under the [ACT]. Even assuming the assertions made by the tenant to be correct, the same do not disclose any triable issue so as to entitle the tenant to grant of leave to defend."
23. Keeping in view the above legal position, a clear case of bona fide need is made out for the stated requirements of Smt.[ENTITY] and Shri [ENTITY] who are running their showrooms from the same premises at the tenanted shop. Both the shops do not have the benefit of facing the main 45 feet road which would certainly be more beneficial for their business.
24. So far as availability of alternative accommodation is concerned, one shop is lying vacant on the ground floor of the premises No.787, which had been let out to M/s [ENTITY] as a tenant who was not a protected tenant under the [ACT]. However, the sons of the respondent have been utilising the rent for the last several years to meet their monthly expenses. Earlier also tenants had occupied this shop since 2007. The respondent's son would need to let out this shop, as in the past. Even otherwise the tenanted shop is more suitable as it overlooks a 45 ft. wide road. The said shop which is lying vacant cannot be said to be a suitable alternative accommodation as required by the respondent.
25. There is reference to another shop being available i.e. the shop that is recently bought by the respondent which is located in property No.767. The shop has been bought after passing of the eviction order and has been explained to be located facing a small gali. This also cannot be said to be alternative suitable accommodation. The son and daughter-in-law are doing their business from the same building as the tenanted premises, namely, 762 A/2, Rishi Nagar, Delhi. They would not be in a position to have any extension in another location away from their main place of business.
26. The petitioner has been unable to point out any infirmity in the impugned order. In fact, the case of the petitioner is squarely covered by the judgment of the Supreme Court in the case of [PRECEDENT] (supra) inasmuch the facts are also almost identical.
27. Accordingly, the present petition is without any merit and is dismissed.
([ENTITY]) JUDGE OCTOBER 06, 2016 n