Sudershan Kumar v. Suresh Kumar Gupta

1. The present revision petition is filed under section 25(B)(8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as “the Act”) to challenge the judgment dated 06.02.2018 (hereinafter referred to as “the impugned judgment”) by the court of Shri Prashant Sharma, RC.REV. 230/2018 Page 2 SCJ-cum-RC, Central, Tis Hazari Court, Delhi (hereinafter referred to as “the trial court”) in eviction petition bearing no. E-77/2012 (E- 80621/2016) titled as Dr. Sudershan Kumar V Suresh Kumar Gupta whereby the eviction petition filed by the petitioner/landlord was ordered to dismissed in respect of the shop forming part of the property bearing no. 29/5, Shakti Nagar, Delhi-110007 measuring front 8’4” and length 23’9” as shown in the red color in the site plan (hereinafter referred to as “the tenanted shop”).

2. The petitioner being landlord/owner filed the eviction petition titled as Dr. Sudershan Kumar V Suresh Kumar Gupta bearing no. E-77/2012 (E-80621/2016) against the respondent/tenant under section 14(1)(e) of the Act on the ground of bona fide requirement. The petitioner pleaded that he is the owner of the tenanted shop having purchased from previous owner Vijay Kumar and tenanted shop was let out to the respondent by the previous owner Vijay Kumar at monthly rent of Rs.200/- excluding electricity and water charges which are being paid by the respondent directly to the concerned authority. The petitioner required the tenanted shop bona fide for establishing his own new dental clinic and the petitioner does RC.REV. 230/2018 Page 3 not have any other reasonable suitable accommodation for opening/establishing his own new dental clinic. The petitioner is a highly qualified medical practitioner (Dentist) and has obtained master’s degree in the dental surgery in the year 1968 from Lucknow University. The petitioner also received expert training in the dental surgery and various other disciplines relating the dentistry namely maxilla-facial surgery and orthodontia from abroad. The petitioner was a senior consultant and the head of the department in St. Stephens’ Hospital for almost 16 years besides being the consultant in various other hospitals. The petitioner has established his name as a reputed dental surgeon. The petitioner had established his dental clinic and is practicing from the shop bearing no. 3 having area of 16'-4 ½" X 14' - 4 ½" situated on the ground floor at Municipal Market, Mandelia Road, Kamla Nagar, Delhi but the dental clinic can accommodate only two dental chairs and one X-ray machine is installed in a very cramped manner and it has become very difficult for the petitioner and his associate doctors and assistant to attend the patients and perform the dental surgery in such cramped conditions. There is no proper sitting space in the clinic which can be used as a RC.REV. 230/2018 Page 4 waiting area for patients who have to stand outside the clinic with severe pain. The petitioner due to paucity of space is unable to cater and provide even the basic facilities to the patients and has to refer his patients to different hospitals/clinics. The petitioner has decided to provide dental care, surgery and ultra-modern facilities round the clock to the patients, attendants, associates junior doctors and clinical staff under one single roof which will also encourage and promote dental tourism. The petitioner bona fide requires/needs a bigger space for dental clinic/hospital to meet competitive modern conceptual facilities and also to cater the essential needs and requirements of patients. 2.[1] The petitioner is residing in house bearing no. 11/8, Shakti Nagar, Delhi-110007 and the tenanted shop is situated near to the residence. It will be convenient for the petitioner to establish dental clinic near to his residence and as such the tenanted shop is the most suitable accommodation for the petitioner to establish the dental clinic with latest facilities and infrastructure. The petitioner is a senior citizen and if he opens a clinic near to the place of residence then he would be able to take proper rest at his residence as and when required and RC.REV. 230/2018 Page 5 would also be convenient for the petitioner to approach to the dental clinic/hospital in case of immediate and urgent dental surgery or treatment. 2.[2] The property bearing no 29/5, Shakti Nagar, Delhi-110007 is consisting of two shops including tenanted shop which are situated on the front side and main road. The petitioner has already filed an eviction petition against another tenant. The petitioner is residing at house no 11/8, Shakti Nagar, Delhi-110006 and said property is being used for only residential purpose. The petitioner does not have any other reasonable and suitable accommodation available with him to establish and run his proposed dental clinic. The vacant portion of the property bearing no 29/5 which is under possession of the petitioner is not sufficient to execute plan of establishing modern dental clinic. The second floor of the property bearing no 29/5 is owned by the wife of the petitioner and cannot be used for performing dental surgery and can only be used for purpose of resting of staff of the petitioner and is not suitable for purpose of establishing 24 hours dental clinic. It is prayed that the eviction order be passed in favour of the petitioner and against the respondent with respect to RC.REV. 230/2018 Page 6 the tenanted shop.

3. The respondent after service of summons as per third schedule filed an application for leave to defend along with affidavit which was ordered to be dismissed vide order dated 12.12.2013. The respondent being aggrieved challenged the order dated 12.12.2013 before this court vide RC Rev. no. 113/2013 which was decided vide order dated 13.06.2014 and the trial court was directed to decide on merits.

4. The respondent filed written statement. The respondent in the preliminary objections stated that the plea of bona fide requirement by the petitioner is misleading and is based on incorrect facts. The respondent was a tenant under Vijay Kumar but the petitioner is claiming to be the owner/landlord of the tenanted shop. The petitioner allegedly purchased the tenanted shop along with another shop only for the investment purpose. The petitioner at the time of purchase of the property bearing no 29/5 was also doing the same profession and also enjoying the same repute and respect in the society. The petitioner had never intended to open the alleged dental clinic. The alleged bona fide requirement of petitioner is artificial and RC.REV. 230/2018 Page 7 he only wants to evict the respondent on artificial and flimsy grounds. The petitioner is already running a clinic from shop no. 3, Municipal Market, Mandelia Road, Kamla Nagar, Delhi which is of much bigger size in comparison to the tenanted shop. The petitioner has not made any offer to shift the respondent to shop no. 3 to prove his bona fide. The house bearing no. 11/8 Shakti Nagar, Delhi- 110007 is a bigger house and is constructed on 350 Sq. yards and is 3 side open which is more convenient for the petitioner to open his new proposed clinic. 4.[1] The petitioner is running a clinic from shop no. 3, Municipal Market, Mandelia Road, Kamla Nagar, Delhi -110007 but concealed that he is also running similar clinics from shops which are i). M-3 Greater Kailash Enclave, New Delhi-110048, ii). G-3, Greater Kailash Enclave, New Delhi-110048, iii). M-7, Greater Kailash Enclave, New Delhi-110048 and as such the petitioner is not entitled to the eviction of the respondent from the tenanted shop. The petitioner can also start his proposed clinic from the second floor of the property bearing no. 29/5, Shakti Nagar, Delhi-110007 and also from the portion which is situated on backside of the tenanted shop RC.REV. 230/2018 Page 8 on the ground floor of the property bearing no. 29/5, Shakti Nagar, Delhi-110007. 4.[2] The respondent on reply on merits stated that the petitioner had purchased the property bearing municipal no 29/5, Shakti Nagar Delhi-110007 on 27.07.2006 which at that time was comprising of two shops occupied by two separate tenants. The petitioner at that time was around 72 years old and was running a very reputed dental clinic from shop no. 3, New Market, Mandaliya Road, Kamla Nagar, Delhi-110007. The son of the petitioner is already settled in USA and his daughters are already married. The petitioner does not require the shop for his bona fide requirement. The petitioner could have opened a new dental clinic from house bearing no. 11/8 Shakti Nagar, Delhi- 110007 which has been constructed on the area of about 350 square yards and is open from three sides. The tenanted shop is not suitable for the petitioner for opening a dental clinic. The petitioner has not disclosed that he is also running a similar clinic from other places as detailed hereinabove. The petitioner is not entitled for the relief as prayed for and the eviction petition is liable to be dismissed.

5. The petitioner filed the replication wherein retreated and RC.REV. 230/2018 Page 9 reaffirmed the contents of the petition. The petitioner stated that he intended to open a new dental clinic from the two shops out of which one is the tenanted shop and another is in the occupation of another tenant Harish Chand Garg, but he could not open the new clinic due to the paucity of space. The petitioner is using the property bearing no. 11/8 Shakti Nagar, Delhi comprising two floors as residence for himself and his family including the daughter.

6. The petitioner in evidence examined himself as PW[1] and tendered the affidavit which is Ex. PW1/A and relied upon the documents which are PW 1/1 to Ex. PW 14. The petitioner as PW 1 was not cross examined by the respondent. 6.[1] The respondent examined himself as RW[1] and tendered the affidavit which is Ex. RW 1/A and relied upon the documents which are Ex. DW1/1 to DW1/15. The respondent also examined Mahesh Kumar Gupta as RW[2] and Dinesh Kumar as RW 4 who visited clinic of the petitioner and found that the said clinic was large in area and also deposed that the clinic of the petitioner is very spacious. The respondent also examined Brahm Prakash Goyal as RW[3].

7. The trial court vide impugned judgment dated 06.02.2018 has RC.REV. 230/2018 Page 10 dismissed the eviction petition by observing that the petitioner has failed to prove the ingredients of section 14 (1)(e) of the Act. 7.[1] The trial court opined that there exist relationship of landlord and tenant between the parties on basis of rent receipt Ex. PW1/4 and registered sale deed Ex.PW1/1 in favour of the petitioner in respect of property bearing no 29/5, Shakti Nagar, Delhi-110007. The trial court on basis of documentary evidence and testimony of the petitioner as PW[1] has right held that there is relationship of landlord and tenant between the petitioner and the respondent and this finding of the trial court does not warrant any interference. Accordingly, relationship of landlord and tenant between the petitioner and the respondent duly established and proved. 7.[2] The trial court regarding bona fide need of the petitioner qua the tenanted shop observed that it is the responsibility of petitioner that his requirement is bona fide based on preponderance of probabilities. The trial court has observed that the petitioner has failed to explain the exact future plan for running his proposed specialized dental clinic from the tenanted shop. It was also not clear as to whether the petitioner would stop working at Tirath Ram Shah Hospital at Civil RC.REV. 230/2018 Page 11 Lines, Sunder Lal Jain Hospital at Ashok Vihar and Pentamed Hospital at Model Town besides various clinics which are 3, New Market Kamla Nagar, Delhi-7; M-3, Greater Kailash Enclave, New Delhi-48; G-3, Greater Kailash Enclave, New Delhi-48; M-7, Greater Kailash Enclave, New Delhi-48 and C-3, Greater Kailash Enclave, New Delhi-48. The trial court also observed that the petitioner could not explain the stand he has taken before the High Court as reflected from the judgment dated 13.06.2014. 7.[3] The trial court also observed that the case of the petitioner is suffering from various shortcomings. The petitioner had taken the stand that he is finding it difficult to accommodate the visiting patients on account of shortage of space in his clinic which is a bald claim and is not supported by any documents regarding the influx of the patients in the clinic situated at Shop No. 3, Municipal Market, Mandelia Road, Kamla Nagar, Delhi. The petitioner could have examined his fellow doctors/ intern or any of the patients who had visited clinic of the petitioner situated at Shop No. 3, Municipal Market, Mandelia Road, Kamla Market, Delhi-110007. The trial court did not believe in the claim of the petitioner regarding the RC.REV. 230/2018 Page 12 shortage of space as founded on bald claims. The trial court also observed that the petitioner had claimed that he wanted to encourage dental tourism by providing his expert skills to the foreign tourists at cheaper cost but again said claim in the opinion of the trial court remained a bald claim as the petitioner did not furnish any proof which could establish the cost of dental services in other countries is at higher rates as claimed by the petitioner. The petitioner also did not specify the countries where the dental services are allegedly at high cost. The petitioner has also not provided any comparative details/study regarding the charges of dental services in India and charges of dental services outside India. The trial court also opined that the petitioner could not explain as to how the portion of the building bearing no 29/5, Shakti Nagar, Delhi-110007 as shown in blue color in the site plan Ex.PW 1/3 is not sufficient for running the proposed dental clinic. The trial court also did not believe in the layout plan of the Ex. PW1/12 regarding the proposed dental clinic of the petitioner. The trial court noticed that it was merely a desire of the petitioner to run the propose clinic from the tenanted shop and not his need. The petitioner also did not furnish any proof regarding the RC.REV. 230/2018 Page 13 referral of patients to other hospitals and clinics by him due to the paucity of space. The petitioner also did not examine any patient to establish that it would not be convenient to establish a clinic at the second floor of the property bearing no. 29/5, Shakti Nagar, Delhi stated to be owned by the petitioner. The trial court ultimately observed that the petitioner has failed to establish his case based on preponderance of probabilities. 7.[4] The trial court also observed that the petitioner during the cross examination of the respondent as RW[1] did not give any suggestion regarding his future plan for establishing a new dental clinic and how the clinic at shop no. 3, Mandelia Road, Kamla Market, Delhi-110007 is not sufficient to the petitioner. The petitioner has also not disputed the documents placed on record by the respondent regarding his visit to 2-3 hospitals. The trial court also believed in the testimonies of RW[2] Mukesh Kumar Gupta and RW[4] Dinesh Kumar who deposed that the area of the clinic of the petitioner running at shop no. 3, Mandelia Road, Kamla Market, Delhi-110007 is large and spacious and also denied the suggestion that the said area is not sufficient for the petitioner. The petitioner did not dispute that the RW[2] Mukesh RC.REV. 230/2018 Page 14 Kumar Gupta and RW[4] Dinesh Kumar were not his patients who visited his clinic at shop no. 3, Mandelia Road, Kamla Market, Delhi- 110007 for treatment. The trial court had opined that the veracity of those witnesses cannot be doubted. Accordingly, after analyzing the respective evidence laid by the petitioner and the respondent came to the conclusion that the need of the petitioner is not bona fide.

8. It is appearing from the record that the petitioner had purchased the property bearing no. 29/5, Shakti Nagar, Delhi from Vijay Kumar and the tenanted shop and another shop which is under the tenancy of another tenant, namely, Harish Chand Garg are the part of said property. The petitioner is also the owner of another property bearing no. 11/8, Shakti Nagar, Delhi-110007 which is being used for residential purposes. The petitioner is a highly qualified dentist and at present running his clinic from the shop no. 3, Mandelia Road, Kamla Market, Delhi-110007. The petitioner also remained employed with various hospitals including Tirath Ram Shah Hospital at Civil Lines, Sunder Lal Jain Hospital at Ashok Vihar and Pentamed Hospital at Model Town and also use to visit to various clinics which are situated at M-3, Greater Kailash Enclave, New RC.REV. 230/2018 Page 15 Delhi-48; G-3, Greater Kailash Enclave, New Delhi-48; M-7, Greater Kailash Enclave, New Delhi-48 and C-3, Greater Kailash Enclave, New Delhi-48. The petitioner is an old age person and at present is aged about more than 80 years. There is no serious dispute regarding the relationship of the landlord and the tenant between the parties. The petitioner is claiming that he needs the tenanted shop and another shop under the tenancy of Harish Chand Garg for establishing a dental clinic provided with all modern facilities, equipment and apparatus where there should be proper space for the patients, associate doctors and nursing staff.

9. Shri P.P. Malhotra, learned senior counsel for the petitioner advanced oral argument and written submissions were also submitted on behalf of the petitioner. The learned senior counsel for the petitioner stated that the petitioner is owner of the tenanted shop vide registered sale deed dated 27.07.2006 Ex. PW1/1 which is situated on ground floor of the property bearing no. 29/5, Shakti Nagar, Delhi- 110007 as shown in site plan Ex. PW1/3. Sh. Malhotra argued that the petitioner requires the tenanted shop for establishing/opening a dental clinic with ultra-modern facilities. The petitioner is a highly RC.REV. 230/2018 Page 16 qualified Dentist and has already received expert training in various disciplines of dentistry namely orthodontia and maxilla-facial surgery from abroad. The petitioner was also Head of the Department in St. Stephen's Hospital and as Senior Consultant in many hospitals. Shri. P.P. Malhotra attacked the impugned judgment and argued that the impugned judgment passed by the trial court is absurd and erroneous and was passed after ignoring settled principles of law and is liable to be set aside. The trial court has not appreciated the facts/evidence in the right perspective that tenanted shop is situated at the walking distance from the residence of the petitioner and the petitioner needs the tenanted shop to establish a dental clinic from where he can provide 24x[7] dental services to the patients. The petitioner, at present is running his dental clinic from the shop bearing no. 3, Ground Floor, Mandela Road, Shakti Nagar, Delhi-110007 which is insufficient for the clinic of the petitioner and is having the space only to accommodate two dental chairs and one X-ray machine which is installed in a very cramped manner. Shri. P.P Malhotra also argued that the petitioner is not having sufficient space in the said clinic for the patients who have to stand outside the clinic. The RC.REV. 230/2018 Page 17 residential house bearing no. 11/8, Shakti Nagar having area of

265.42 square yards is required by the petitioner and his family members for residence and the married daughter of the petitioner also used to visit at the residence of the petitioner. The measurements of the tenanted shop are 8’ 4” at the front and the length is 29’ 9” as shown in the site plan Ex. PW-1/3 and sale deed Ex. PW-1/1. Sh. Malhotra further stated that another shop which is under the tenancy of Harish Chand Garg is also having the same area and the petitioner has already filed revision petition bearing no. 226/2018 which is also pending before this Court. 9.[1] Shri P.P. Malhotra also argued that the trial court has given perverse finding in the impugned judgment dated 06.02.2018 as the testimony of the petitioner remained un-challenge by the respondent as the respondent did not cross-examine the petitioner. The trial court has given the perverse finding in the impugned judgment by observing that the petitioner has failed to explain the exact future plans for running the proposed specialized dental clinic from the tenanted shop and there was no proof of the influx or shortage of patients in Kamla Nagar Clinic or shortage of space there. Shri P.P. RC.REV. 230/2018 Page 18 Malhotra also attacked the impugned judgment by arguing that the trial court has perversely observed that the petitioner could have examined the doctor, patients or interns to support his claim of shortage of space and also did not furnish any proof of difference in the cost of dental services in India and in other countries. Shri. P.P Malhotra argued that the landlord is the best judge of his own requirement and the petitioner had established that his need was bona fide. RW[2] and RW[4] also deposed that the petitioner is having the vast reputation and is a famous doctor in the area and the trial court has wrongly observed that the petition did not explain as to how the back portion of the property bearing no. 29/5, Shakti Nagar, Delhi is not suitable for running the proposed clinic. Shri. P.P Malhotra ultimately argued that the eviction order be passed in favour of petitioner. He relied on Abid-Ul-Islam V Inder Sain Dua, (2022) 6 SCC 30; Anil Bajaj & another V Vinod Ahuja, (2014) 15 SCC 610; Sarla Ahuja V United India Insurance Co. Ltd, (1998) SCC 119; Ragavendra Kumar V Firm Prem Machinery, (2000) 1 SCC 679; Sait Nagjee Purushotham & Co. Ltd V Vimalabai Prabhu lal, (12005) 8 SCC 252; Ram Dulari & another V Dr. Brij Mohan RC.REV. 230/2018 Page 19 2016 SCC online Del 748 and various other decisions/judgments delivered by the Superior Courts.

10. Shri. Rajeev Kumar, Advocate for the respondent argued that there is no infirmity in the impugned judgment and the revision petition is liable to be dismissed. That the petitioner has miserably failed to prove that the tenanted shop is required by the petitioner bona fide and he does not have any suitable accommodation. The alleged modern dental clinic proposed to be opened by the petitioner is an eye-wash sham/illusory and lacks bona fide requirement as the area where the tenanted shop is situated is not conducive for opening a dental clinic with modern facilities as the said area is very congested and there is always heavy traffic jam. The petitioner has concealed that he is running similar various clinics bearing nos. M-3, Greater Kailash Enclave, New Delhi-48, G-3, Greater Kailash Enclave, New Delhi-48, M-7, Greater Kailash Enclave, New Delhi- 48 and C-3, Greater Kailash Enclave, New Delhi-48 and as such the present petition is liable to be dismissed. The petitioner has not filed the details of the patients being attended him every day and the details of the patients which were referred to by him to various RC.REV. 230/2018 Page 20 hospitals and how many NRIs have approached the petitioner for treatment. The petitioner is already running a clinic from the shop NO. 3 municipal market, Mandelia Road, Kamla Nagar, Delhi-110007 which is much bigger in size and sufficient to establish/settle the proposed dental clinic. The counsel for the respondent has referred testimony of RW[2] who proved that the space at Kamla Nagar Clinic is good enough for the petitioner. The petitioner is also having an alternate sufficient accommodation at the second floor of the property bearing no. 29/5, Shakti Nagar, Delhi which is owned by the wife of the petitioner and is lying vacant. The counsel for the respondent argued that the present petition is liable to be dismissed. The counsel for the respondent referred and relied on Hindustan Petroleum Corporation Ltd. V Dilbahar Singh, MANU/SC/0738/2014; Gandhe Vijay Kumar V Mulji, MANU/SC/0953/2017, Thankamony Amma and others V Omana Amma N. and others, MANU/SC/1085/2019; Abid-ul-Islam V Inder Sain Dua, MANU/SC/0431/2022; Shiv Sarup Gupta V Mahesh Chand Gupta, MANU/SC/0432/1999, Deepak Bajaj V State of Maharashtra & others, MANU/SC/8246/2008; Pran Nath Katyal RC.REV. 230/2018 Page 21 V K.C. Verma, MANU/DE/1826/2017; Mukesh Sharma V Harmesh Singhal, MANU/DE/4949/2013 and other decisions/ judgments delivered by Superior Courts.

11. Section 14 (1) (e) of the Act deals with eviction of tenant from tenanted shop are required bona fide by the landlord. It reads as under:

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 any 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: xxx xxx xxx (e) that the premises let for residential purposes 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 that the landlord or such person has no other reasonably suitable residential accommodation. Explanation. – For the purposes of this clause, "premises let for residential purposes" include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes. RC.REV. 230/2018 Page 22 11.[1] The Supreme Court in Sarla Ahuja V United India Insurance Co. Ltd., (1998) 8 SCC 119 elaborated and discussed law relating to section 14 (1) (e) of the Act and held as under:

14. The crux of the ground envisaged in clause (e) of Section 14(1) 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 endeavour as to how else the landlord could have adjusted himself. 11.[2] The Supreme Court in Abid-Ul-Islam V Inder Sain Dua,

15. Section 14(1)(e) carves out an exception to the regular mode of eviction. Thus, in a case where a landlord makes an application seeking possession of the tenanted premises for his bona fide requirement, the learned Rent Controller may dispense with the protection prescribed under the Act and then grant an order of eviction. Requirement is the existence of bona fide need, when there is no other “reasonably suitable accommodation”. Therefore, there has to be satisfaction on two grounds, namely, (i) the requirement being bona RC.REV. 230/2018 Page 23 fide, and (ii) the non-availability of a reasonably suitable residential accommodation. Such reasonableness along with suitability is to be seen from the perspective of the landlord and not the tenant. When the learned Rent Controller comes to the conclusion that there exists a bona fide need coupled with the satisfaction that there is no reasonably suitable residential accommodation, the twin conditions mandated under Section 14(1)(e) stand satisfied.