RCR No.124/2010 Page 1 of 26 HIGH COURT OF DELHI : NEW DELHI RC. REV. No. 124/2010 & CM No. 10165/2010 % Judgment reserved on: 27th August, 2010 Judgment delivered on: 12th November, 2010 Smt. Viran Wali, W/o Late Sh. Jatinder Nath Gupta, R/o E-62, Amar Colony, Property No. 60-A, Lajpat Nagar-IV, New Delhi. ….Petitioner Through: Mr. A. S. Chandiok, Sr. Adv. with Ms. Jyoti Mehndiratta, Adv. Versus Sh. Kuldeep Rai Kochhar, S/o Sh. Brij Mohan, R/o First Floor, C-IV/23, Amar Colony Market, Lajpat Nagar-IV, New Delhi- 110024. ….Respondent Through: Mr. Sudhir Nandrajog, Sr. Adv. with Ms. Saahila Lamba, Adv. Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes RCR No.124/2010 Page 2 of 26 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Present petition has been filed under Section 25B (8) of the Delhi Rent Control Act, 1958 (for short as „Act‟) against impugned order dated 2nd March, 2010 passed by Rent Controller (for short as „Controller‟) New Delhi. Vide impugned order, application for leave to defend filed by petitioner was dismissed and eviction order was passed in favour of respondent and against the petitioner. 2. Brief facts are that, respondent is the owner/landlord of one shop with covered verandah on ground floor being part of the property bearing no. C-IV/23, Amar Colony (Market), Lajpat Nagar-IV, New Delhi. Rent deed dated 1.1.74 was executed by the petitioner, whereby tenanted shop was let out to her at a monthly rent of Rs.180/. The shop is being used by the petitioner as general store since inception of the tenancy. Respondent, who is aged about 77 years, had been earning his livelihood by working in the field of sale and marketing of books. He was in employment of M/s India Books Distributors from 1981 to 2000, and worked as a Branch Manager RCR No.124/2010 Page 3 of 26 with M/s Teksons Book Shop from 2001 to February 2008. Respondent, who is unemployed since 2008, has gained vast experience in the book trade during the period of his employment. Family of respondent consists of himself, his wife, four sons and their family namely; Sh. Dilbagh Kochhar, aged about 46 years having wife and two minor children, Sh. Sunil Kumar Kochhar, aged about 44 years having wife and two minor children, Sh. Raj Kumar Kochhar, aged about 43 years having wife and one minor daughter and Sh. Rajesh Kochhar, aged about 40 years having wife and one minor daughter. 3. Property bearing no. C-IV/23, Amar Colony (Market), New Delhi consists of half basement floor, ground floor, first floor, second floor and third floor. Basement floor is meant for storage and parking purpose. The tenanted shop is on the front side of the ground floor. In the back portion of the ground floor, elder son of respondent namely, Dilbagh Kochhar is running his office as a Chartered Accountant since 1996-97 and is dependent on the respondent for the purpose of said accommodation. First floor is occupied by the respondent, his wife and his son Sunil Kumar Kochhar and his family. The second floor of RCR No.124/2010 Page 4 of 26 the building was sold by the respondent in 1997 and the same is not in possession and ownership of the respondent. The third floor of the building is in occupation of Raj Kumar Kochhar, son of the respondent. The fourth son of the respondent namely, Rajesh Kochhar is living separately in Sushant Lok, Gurgaon. Mr. Sunil Kumar Kochhar, who is living with the respondent on the first floor was also in the books trade and was in the employment of M/s Teksons Book Shop from May 2003 to April 2008. Mr. Sunil Kumar is no more employed with M/s Teksons, and has also gained a lot of experience in book trade. Respondent and his son Sunil Kumar Kochhar are unable to meet the expenses of life by the meager salaries and they wants to utilize their experience in the field of books trade by establishing their own joint business in the sale and marketing of the books in the tenanted shop occupied. Respondent and his dependent son Sunil Kumar, have no other alternative suitable property to carry out the business of the books, except the tenanted shop. The respondent, thus need the tenanted shop bonafidely for establishing his business jointly with his son Sunil Kumar Kochhar in the tenanted shop. 4. In affidavit filed along with application for leave to defend it is RCR No.124/2010 Page 5 of 26 stated by the petitioner that respondent, on his own showing, has a basement available to him. This basement measures approx. 15‟x30‟ i.e. 450 sq.ft. appx. and is larger by one and a half times than the shop premises used by the petitioner, which is 15‟x20‟i.e 300sq. ft. appx. only. Said basement is in commercial area and can be used for commercial purposes. The said basement was earlier also being used as a commercial area by the earlier tenant, Shri Virender, who was running a business of financial services under the name and style of Auto Choice. The aforesaid tenant vacated the premises in or about February, 2008 and since then the basement is lying vacant. 5. On respondent‟s own showing he and his son Sunil, were both working with M/s Teksons but left the said employment on their own in February 2008 and April 2008, respectively. If it is the case of the respondent that he wants to carry on the business of trading in books, the said premises had been and have been available to him and or to his son now for almost one year but respondent did not set up any business there, during this period. The plea therefore that he needs the suit premises for running a business, is false. 6. It is further stated that respondent has, on his own showing an RCR No.124/2010 Page 6 of 26 alternative accommodation available to him within the said shop premises at C-4/23, Amar Colony, New Delhi, from where the business of books can be carried out conveniently and comfortably. 7. It is further stated that M/s Teksons Books Store where respondent and his son were employed is also housed in a basement area in South Extension and the entrance to the said shop is almost the same as the entrance to the basement presently available to the respondent. Further the area available for entry to the basement is barely three feet and it cannot be used for any parking purpose. Present eviction petition has been filed with mala-fide intentions, knowing fully well that respondent has sufficient accommodation for himself and or his allegedly dependent son. There is therefore, no bona-fide need of the landlord in respect of the premises being used by the petitioner. 8. In the counter affidavit filed by the respondent, it is stated that basement in the suit property is only half basement, that is, measuring about 15 ft. x 23 ½ ft. This basement is not a full basement but is a half basement towards the back lane of the property. It is further stated that basement does not have any opening towards the front. The RCR No.124/2010 Page 7 of 26 opening in any case can only be created on the public land being the footpath or through the tenant‟s suit property, that is, through the front portion of the shop for which the eviction is being sought. This clearly shows that the basement is not easily accessible to be used as a shop. Further, basement is also unsuitable for use as a shop because, as admitted by the petitioner, its only access is from the back lane. Even this access is narrow, congested and not suitable for customers. 9. It is further stated that the tenant cannot dictate to the landlord as to which premises or which portion of the premises would be suitable for his shop. Basement shop and or a shop with entrance from the back lane will not attract customers, or walk-in customers and even the customers who are informed about the address of the shop will find it difficult to locate the same. Moreover, girls and ladies customers will not like to enter the shop from the back lane. Thus, the basement is not suitable for use as a shop. 10. It is also stated that the basement is also not permissible to be used for commercial purpose and it can only be used for purposes like parking, storage of household items, water pumps, air conditioner equipment etc. Without prejudice, respondent also stated that in case RCR No.124/2010 Page 8 of 26 the basement is used for commercial purpose, then the said user „may‟ attract conversion charges as also such user will make the area of the basement to be counted towards the F.A.R. This would mean that the area available to the respondent for his family in the upper storey will be reduced, which in any case is very limited and less than required. 11. It is further stated that the ground floor shop opens towards the main market on the front road. There is proper access to the shop through the street and it will attract walk-in-customers. It has good frontage for display and signage and it will be convenient for ladies and girls customers to enter the shop and the customers will not be suffocated by narrow entrance or congested space due to full open frontage towards the street. 12. It is denied that the basement is lying vacant. The said basement is being used for storage of household items and for parking of cycles etc. It is also denied that the plea that the suit premises is required for running of a book shop is false. It is relevant to note that while respondent retired from M/s Teksons, but his son Mr. Sunil Kochhar has to resign because various shops of M/s Teksons were sealed by the municipal authorities and M/s Teksons were cutting down their staff. RCR No.124/2010 Page 9 of 26 The requirement of the suit property for the shop is genuine and the present accommodation is not sufficient. 13. It is contended by learned counsel for the petitioner that Controller fell in grave error in ignoring that leave to contest has to be granted once the tenant raises issues which if proved would non suit the landlord. The Controller could not have obviated trial at this stage, by going into the merits of the grounds raised by the petitioner, as final conclusion could be reached only after evidence is led. Petitioner having raised several issues of fact so the trial is essential and therefore controller should have granted leave to contest. 14. It is also contended that respondent, on his own showing has that basement available to him which is larger by one and a half times than the disputed shop. The said basement is in commercial area and can be used for commercial purposes. Moreover, said basement was earlier also being used as a commercial area by the earlier tenant, Shri Virender, who was running business of financial services and this fact has not been disputed by the respondent. 15. Other contention is that as per eviction petition, respondent wants to carry on the business of trading of books, but in spite of the RCR No.124/2010 Page 10 of 26 fact that earlier portion having being vacated by the earlier tenant more than year ago, the respondent did not set up any business there during this period. Thus, this plea that respondent needs the tenanted portion for running the business, is false. 16. It is further contended by learned counsel for petitioner that as per case of the respondent, basement floor is not suitable for carrying on the business since basement is meant for storage and parking purpose. However, the area available for entry to basement is three feet approximately and the same cannot be used for parking purpose at all. Respondent being unemployed since 2008, has not made any attempt till date to start business in the basement which is lying vacant. 17. It is also contended that as Building Bye laws of Municipal Corporation of Delhi, basement can be used for office and commercial purposes. The only intention of the respondent is to get the premises in question vacated and there is no bonafide requirement of the respondent. 18. It is also contended by learned counsel that at initial hearing, petitioner gave an offer that if access to the basement is given from the RCR No.124/2010 Page 11 of 26 front portion, then petitioner is willing to consider shifting to the basement floor of the suit property, which respondent refused to accept. 19. On this point learned counsel cited case law Dinesh Kumar Vs. Yusuf Ali, 2010 (6) SCALE 41, where the court held; “Partial eviction of the tenant could serve the purpose of both the parties.” 20. In Rajinder Singh Vs. Mange Lal, 73 (1998) Delhi Law Times, 177, cited by learned counsel this court held; “That where there was sufficient accommodation with the landlord and his requirement was demonstrated by the tenant as artificial and not real, leave to contest could be granted.” 21. On the other hand, it has been contended by learned counsel for respondent that in entire affidavit of the petitioner, bonafide need of respondent has not been denied. The only defence raised by petitioner is that respondent/landlord is having a basement available with him and since the basement is in commercial area, the same can be used for commercial purposes and earlier also the said basement was being used for commercial purpose by the earlier tenant. RCR No.124/2010 Page 12 of 26 22. It is contended by learned counsel for respondent that tenant cannot dictate the landlord as to which premises or which portion of the premises would be suitable for his shop and in what manner and for what purpose the landlord should use his property. 23. It is also contended that shop in question is situated on the ground floor where there are better prospects of business, other than the basement. As per Municipal Bye-laws, basement can be used only for storage and parking purpose. Even otherwise, basement which is having entry from the back lane is not suitable for running the business by the respondent, since he will not get good customers. Since, basement is not easily accessable for use as a shop and it has entry from the back lane, it will not attract customers. On the other hand, shop situated on the ground floor occupied by petitioner, is more suitable to be used as a shop than the basement which opens towards the back lane. 24. Learned counsel in support cited following judgments; (i) Sarla Ahuja Vs. United India Insurance Company Ltd., (1998) 8 SCC 119; (ii) Mahendra Trivedi Vs. Jai Prakash Verma, 157 (2009) DLT 690; RCR No.124/2010 Page 13 of 26 (iii) Dhanalal Vs. Kalawatibai; (2002) 6 SCC 16; (iv) Krishna Kumar Gupta Vs. Swadesh Bhushan Gupta, 152 (2008) DLT 556 and (v) Mohd. Usman Vs. Siraj Ahmed, 154 (2008) DLT 342. 25. There is no dispute about the relationship of landlord and tenant between the parties. As far as letting purpose is concerned the same is for commercial purpose. In Satyawati Sharma Vs. Union ofIndia, 2008 (5) SCC 287, Supreme Court has held, “The premises let out either for residential or commercial purposes can be got vacated by the landlord for bonafide requirement”. 26. Present petition has been filed under Section 25B (8) of the Act. A Full Bench of this Court in Mohan Lal Vs. Ram Chopra and another, 1982 (2) Rent Control Journal 161 exhaustively considered the provisions of Section 25B of the Act. On the scope of the proviso to sub-section (8) of this Section, after examining the judgment of Supreme Court in Hari Shanker and others. Vs. Rao Girdhari Lal Chowdhury, A.I.R. 1963 S.C. 698 and Bell and Co. Ltd. Vs. Waman Hemraj, AIR 1938 Bombay (223) it was laid down as follows:- RCR No.124/2010 Page 14 of 26 “In our opinion the jurisdiction of the High Court under proviso to section 25B (8) has to be interpreted, keeping in view the legislative intent. The revision under section 25B (8) cannot be regarded as a first appeal and nor can it be as restricted as the revisional jurisdiction under Section 115 CPC. The High Court would have jurisdiction to interfere if it is of the opinion that there has been a gross illegality or material irregularity which has been committed or the Controller has acted in excess of his jurisdiction or has not exercised the jurisdiction vested in him. A finding of fact arrived at by the Controller would not be interfered with by the High Court unless it can be shown that finding has been arrived at by misreading or omitting relevant evidence and this has resulted in gross injustice being caused. If none of the aforesaid circumstances exist the High Court would not be entitled to interfere with the order of the Controller in exercise of its jurisdiction under proviso to Section 25B (8) of the Act.” 27. Upon examination of above judgment it may safely be held that this court in exercise of the powers vested by proviso to sub-section (8) of Section 25B of the Act may reappraise the evidence only for a limited purpose of ascertaining whether the conclusion arrived at by the Rent Controller were wholly unreasonable that no reasonable person acting with objectivity could have reached on the material available to test the order of the Rent Controller on the touchstone of whether it is in accordance with law. RCR No.124/2010 Page 15 of 26 28. In Praveen Jain & Ors (Shri.) Vs. Dr. Mrs. Vimla, 2009 IV AD (Delhi) 653, this court observed; “The powers of this Court under Section 25B(8) are not appellate powers and this Court has only to see that the Trial Court had acted in accordance with law and not transgressed the limits of its jurisdiction.‟‟ 29. In Rajinder Kumar Sharma &Ors. Vs. Leela Wati & Ors., 155 (2008) Delhi Law Times 383 the court observed; “Section 25B was inserted by the legislature in Delhi Rent Control Act as a special provision for eviction of the tenants in respect of specified category of cases as provided therein. Where a landlord seeks eviction on the basis of bonafide necessity, a summary procedure is provided and tenant has to seek leave to defend disclosing such facts which disentitled the landlord from seeking eviction.” 30. In Nem Chand Daga Vs. Inder Mohan Singh Rana,94 (2001) Delhi Law Times 683; it was held; “That before leave to defend is granted, the respondent must show that some triable issues which disentitled the applicant from getting the order of eviction against the respondent and at the same time entitled the respondent to leave to defend existed. The onus is prima facie on the respondent and if he fails, the eviction follows. RCR No.124/2010 Page 16 of 26 31. In Frank Anthony Public School Vs. Smt. Amar Kaur, 1984 (6) Delhi Reported Judgment 47, it was held; “The legislature has devised a ''special procedure for the disposal of the application for eviction on the ground of bonafide requirement". It is modelled on Order XXXVII of the Code of Civil Procedure. The object is to reduce delays in litigation. The object is to introduce a "summary trial" in place of full length trial.” 32. In Sarwan Dass Bange Vs. Ram Parkash, 2010 IV AD (Delhi) 252, observations made by Supreme Court in Baldev Singh Bajwa Vs. Monish Saini, (2005) 12 SCC 778 have been quoted as under; “It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given a right of restoration of possession; the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant unless his need is bona fide - no RCR No.124/2010 Page 17 of 26 unscrupulous landlord in all probability, under this Section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that this inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his requirement shall be presumed to be genuine and bona fide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine. 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 bona fide 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.” 33. The only question which arises for consideration in the present case is, as to whether basement in occupation of respondent/landlord, can be used for the purpose of book shop and whether respondent/landlord is to be dictated by the petitioner, as to which portion is more suitable for running the book shop and in what manner respondent/landlord should use that portion. 34. Admittedly, tenanted premises are situated on the ground floor. It is not the case of petitioner, that beside basement, respondent is RCR No.124/2010 Page 18 of 26 having any other suitable and readily available accommodation with him in the entire premises. Respondent has categorically stated that basement is not suitable for him to carry on the business, as the same is being used for storage and parking purposes. Even if the basement is available with the respondent, then why respondent who is the landlord of the premises, should be forced to work from the basement, when he can get the tenanted premises vacated which is more suitable and also situated on the ground floor, for running his business. 35. It sounds really strange that owner/landlord should be at the mercy of the tenant for running his own business in the property owned by him as per the dictates of the tenant. It is a well known fact, that any shop situated on the ground floor is more convenient than a shop situated in the basement of the premises. Respondent being the owner/landlord of the premises in question, has all the right and choice to start his own business in the premises more suitable and most convenient to him. 36. Any business which is being run from the ground floor of the premises, will obviously attract more customers than the business being run from the basement. It is the settled law, that a tenant cannot RCR No.124/2010 Page 19 of 26 dictate the landlord as to how and in what manner the landlord should use his own property. 37. Respondent in his eviction petition in clear and unequivocal terms has mentioned about his requirements. It is not only the “mere desire” of the respondent to get the premises vacated but he needs the same for his above stated requirements. So, it cannot