Dolly Chandra & Anr. v. Rameshwar Prasad

2. The facts that have led to the filing of the present petition are that eviction petition was filed by the respondent seeking eviction of the petitioner no. 2, a proprietorship concern of petitioner no. 1, from the premises under their tenancy comprising of one halt of the size of 40'x[1] 6%", and one room of the size of 10'x9', lobby, veranadah, bathroorn and latrine on the ground that he required the same bona fide for his two sons, who were dependent upon him, and wanted to start their business. The respondent-landlord had claimed in the eviction petition that his elder son was earlier canying on the business of export of garments in the name and style of \zVs Ratna Krishna Exports but that business was ciosed due to some disputes between the parlners and so he wanted to start his own business. The respondent had further pleaded that his'second son had a Degree in Fashion Technology frorn International Institute of Fashion Technology (IIF'I), New Delhi and though he was working as a Quality Inspector in a Govr:rnment recognized Export House in Olrhla but he also intended to starl his own business (after leaving the job) and since both his sons had no other place to star.t their business the premises with the petitioners were required by him.

3. The petitioners filed an application with an affidavit of petitioner no. 1 before the trial Court seeking leave to contest the eviction petition but the learned trial Court declined to grant the leave and, as noticed =a RCR No. L7I/2OL[1]. tt a already, eviction of the petitioners fiom the premises under their tenancy has been ordered and feeling aggrieved by the order of the trial Court the t petitioners have invoked the revisional jurisdiction of this Court.

4. The principal ground urged before this Court by Shri G.P.Thareja, learned counsel fcrr the petitioners for gctling reversal of the irnpugned order of the trial Court was that the respondent-landlord's requirement of the premises under their tenancy on the fir:st floor is not at all bona fide and that was evident from the fact that he had not long before the filing of the eviction petition let out the ground floor of the maiu property to one Shri Ramesh Kutnar Pehalwan. Counsel contended that if at all the respondent was in need of the premises in question for tris sons he would have placed the ground fl<lor accommodation, which was almost the same as on the first floor, at their disposal tbr starting their intended business though there was actually no likelihood of that.

5. Rejecting the aforesaid plea of the petitioners that the respondent had recently let out the ground floor to another tenant and that showcd that his requirement of the premises in question \,vas not bona fide the trial Court observed in the irnpugned as under:-

10. The respondent has next contended that the petitioner has let out rlrc ground.floor portion of the prcper\) abottt one year back to one Shri Ramesh Kumar Pehaltvan. Flence the necd o.[ the petitioner is not bonafide. The.follov,ing observations of Hon'ble Supreme Court in (2008) B Supreme Court Cases 497 in case Deep Chandra Juneja v.r. Lajtttanti Kathuria are relettttnl in this regard, "The landlord/landlady is the bestiudge of his requirement and the courts i RCR No. L7I/201L \zhave no concern to dictate the landlot'd/landlady as to how and in vthat manner he/she should live". Therefore, the court cannot find any fault with the judgment of the petitioner to let out the ground floot' portion to some other tenant................... "

6. Learned counsel for the respondent - landlord, on the other hand, supported the afore-said finding of the le.arned trial Court to the effect that even if before the filing of the eviction petition the respondent - landlord had inducted a new tenant on the ground floor portion his requirement for the first floor portion in occupation of the petitioners cannot be said to be not bona fidu. Counsel further contended that it was for the landlord to decide as to which part of the property would be more suitable for his sons' business which they intend to start and in the present case the first floor portion was more suitable than the ground floor portion since the ground floor portion was residential in nature while the first floor was colnmercial and petitioners were also using it for their business.

7. After the case had been reserved for orders, the respondent landlord submitted in the Registly brief submissions in which also he stated as to why the ground floor portion was not suitable for him and it was his submission that the ground floor was a residential floor and could not have been used for commercial pulposes and before letting out the same to Shri Rakesh Pahalwan he himself was aiso using the same for his own residence while the first floor was totally a commercial floor having commercial electricity and water connections and the property tax was a RCR No. L7I/20IL \3 rl also being paid in respect of that floor at the rates applicable for commercial properties. However, I am not at all convinced with the said explanation of the respondent - landlord. In fact, this subrnission of the respondent - landlord is counter to the stand taken by him in the cviction petition in which he had categorically pleaded that the entire property NO. 7184I-A is residential in nature. 'fhus, this contradictory stand taken by the respondent - landlord introduces an element of doubt about the bona fi(es of his requirement of the premises in occupation of the petitioners as projected in the eviction petition.

8. Even otherwise the view of the leamed Additional Rent Controller that a landlord has a right: to decide as to which cf the prernises available to him is to be occupied cannot be'sustained in view of the decision of the Supreme Court in "Sltiv Sarup Gupta versus Dr. Mshesh Chand Gupta", (1999)6 ^SCC 222 wherein it has been held that if landlord rvants to get a property vacatcd from a tenant despite his having in possession another property ttren the Court can jrrstifiabll',require the landlord to justiff his decision as to why he wants to do his business only from the propefty fi'orn which the tenant is sought to be evicted and uot frorn the other properly already available with hinr. This is what the Court had observed in para 14 of this judgment: "14. The availability of an alternative accommodarion with the landlord i.e. an accontmodation other than the one in occupation of the RCR No. L7L|lOLL IY tenant v,herefi"ont he is sought to be evicted has a dual relevancy. Firstly, the availability of another accomrnodation, suitable and convenient in all respects as the suit acconmtodation, may lxar.,r, adverse bearing on the finding as to the bona fides of the landlord if he unreosonobly refuses to occupy the available premises to satisfu his alleged need. Availability of such circumstance would enabl.e the court &'awing an inference that the need of the landiord was not a felt need or the state of mind of the landlortl v,as not honest, sincere, and natural. Secondly, another principal ingredient of clause (e) of subsection (1) bf Section 14, which spealq of non-availability of any other reasonably stitable residential accomrnodation to the landlord, would not be satisfied. Wherever anotlrcr residential accomnndation is sltorurt to exist as available then the court has to ask the landlord wlty he is not occttpyirtg sttclt other available occommodotiort to satisfy his need. The landlord may convince the courl that the altcrnative residential acconmxodation though available is still of no consequence as the same is not reasonablt svisa6le to satisfy the felt need u,hich the landlord has succeeded in dennnstrating objectively to exist. Needless to say that an alternative accommodctlion, to entail denial of the claint of the landlord, n'rust be reasitnably suitable, obviously in comparison with the suit accommodation vherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members v,ould be relevant.factors. While considering the totality of the circunzstanccs, the court may keep in view the profession or vocation of the landlord and his family ntentbers, their style of living, their habits cmd the backg'ound wherefrom thelt s6171s. " (emphasis laid)

9. In o'M.M. Quasim v. Manohar Lal Sharma and Others, (1981)3SCC36" also the Supreme Court had taken the same view. The relevant observations of the Supreme Couft in para no. 19 of its judgment are reproduced below: " 19..........The time honoured notion that the right of re-entry is unfettered and that the owner landlord is the sole judge of his requirenrcnt has been nzade to yield to the needs of the society which had to enqct the Rent Acts specifically devised to curb and fetter the unrestricted righr of reentry and lo provide that only q on proving sonle enabling grounds set out in the Rent Act the landlot'd can re-enter. One such ground is of personal requirentent of landlord. When examinine a case of personal requirentent, if it is pointed or,tt thal tltere is some vacant premises v,ith fhe landlord which he can convenientl\) occ?tq\ the element Q-f need in his requirentenl v,ould be absent. To re.iect this aspect b:t savine that the lancllord has an uryfettered riqht to clnose the premises is to negalive the verv raison de'elre o-f the Renf Act, RCR No. I7L/201t 1i Undottbtedlv, i-f it is shown by the tenant that the landlord has some other ttacant premises in his possession,- that bJt itsel-f mav not be sufficient to negative the landlord's claim but in such a situation the 't v,ould ion or I the I u,hich emtses I u,hich the action i,s comntenced in the Court. Il t'pould, hov"elgt be a bald statement unsupportetl bv the Rent Ac't lo sav thd fhe luncllord has an te t to choose ntises he v,ct irrespcctfue qf the -fclcl fittt--he -hg-rynrc vqcftn!-plelnise-S-in xsion whi ek lo rento tenhnt. This approach would put 0 prenir,mt on the landlord's greed to thrott; ottt tenunls pcrying lovter rent in lhe nanrc of personal occltpation and rent ottt the prernises in his ltossession at the market " rate...

10. There is no doubt that the Supreme Court had in "Deep Chandra f uneja vs. Lajwanti Kathuria", (2008) Vru SCC 497, which judgment has been relied upon by the leamed trial Court, held that the tandlord is the best judge of his. requirement and the Courts have no concern to dictate the landlorcl as to how. and in what manner he should live but in my view this judgment had no application for dcciding the plea taken by the petitioners in the leave to del'end application as to the effect of respondent - landlord letting out the ground floor porlion to a new tenant before the filing of the eviction petition against the petitioners and it was not held in that case by the Supreme Court that a landlord has an unfettered right to clairn eviction of a tenant o.n the ground of bona fide requirernent even when there is sotne other ahernative accolnlnodation available with hirn, while in the two judgtncnts referred to by me are squarely dealing with this point only. Here, a useful reference can also a RCR No. 171/2OLL It { be made to an order dated 23'd October,2009 passed by a Single Judge Bench of this Courl in CM(M) 1164 o!' 2009, "Nitin Garg vs. Naresh Kumsr Arora und Another" wherein it was held that whether a particular floor of a house of the landlord can be used for commercial purposes or not cannot.be decided at the stage of disposal of leave to defend application of the tenant and that controversy between the parties was a tr:iable issue and a matter of trial. Therefore, in the prcsent case also the question whether the respondent - lancllorcl was justified in letting out the ground floor portion, which he was not claiming to be lcss than the first floor acconrlodation, to a new tenant before the filing of the present eviction petition is a triable issue and by itself is sufficient to grant leave to defend to the petitioners to contest the eviction petition.

11. I am, therefore, of the view that this revision petition is entitled to succced. The impugned order of the learned Additional Rent Controller is accordingly set aside and the matter is rernandcd back to the trial Courl for initiating regular trjal. The matter shall now be taken up by the trial Couft on 16th September, 2OlI at 2 p.m. for passing of aporopriate directions. SEPTEMBtrR {,z}rl 'sh -> Lir*-.[4] * "(t"'*"r,|.. P.K. BHASIN,J RCR No. L7L/2O[1].[1] 1? * IN THE HIGI{ COURT OF DELHI AT NEW DELHI + RC.REV. l7ll20r0 DOLLY CHANDRA & ANR Through: None versus..... Petitioners./' ' t RAMESHWAR PRASAD ""' Respondent Through: Mr. G.P. Thareja, Advocate CORAM: HON'BLE MR.

JUSTICE P.K. BHASIN ORDER 23.09.20t[1] This disposed of revision petition has been placed before the Court pursuant to the Registry's note pointing out that the revision petition no. nrentioned in the order dated 8tl'September,20ll, whereby the revision petition was allowed, was mentioned as RCR number I7Il20l[1] while in fact the correct number of the petition is RCR I7ll20I0. It appears that due to some clerical mistake wrong RCR number has been mentioned on the first page of the order dated 8tr'September,2011. The suulle, therefore, requires to be corrected. It is accordingly ordered that the RCR No. l7ll20l[1] mentioned in the order dated 8th Septemb er,2011 shall stand substituted by RCR No. 17112010. Necessary endorsement to this effect can be made in the original order also..\ ) I -r) SEPTEMBER 23, 2Olllpg