Ankur Kumar & Others v. Ginni Verma & Another

1. The petitioners/tenants (hereinafter referred to as “the petitioners”) filed present revision petition under section 25B (8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as “the Act”) to challenge the order dated 12.01.2018 (hereinafter referred to as “the impugned order”) passed by the court of Ms. Susheel Bala Dagar, CCJ-cum-ARC, Central, Tis Hazari Courts, Delhi (hereinafter referred to as “the trial court”) in eviction petition titled as Ginni RC.REV. 278/2018 Page 2 Verma & others V Rakesh Kumar & others bearing no E- 670/2017 whereby the trial court dismissed the application for leave to defend filed by the petitioners.

2. The respondents/landlords (hereinafter referred to as “the respondents”) filed an eviction petition under section 14(1)(e) of the Act. The respondents stated that Ram Chander Verma who expired on 19.04.1978 acquired ancestral property bearing no 1165, Kucha Mahajani, Chandni Chowk, Delhi. Late Ram Chander Verma left behind wife namely Asharfi Devi and two sons namely Ram Rattan Verma and Bhagwan Verma. Ram Rattan Verma and Bhagwan Verma as per oral family settlement owned the property bearing NO. 1165 and they mutually partitioned said property. Ram Rattan Verma became the owner of the front portion of said property known as 1165-I comprising built up structure on the ground floor, first floor, second floor and third floor and Bhagwan Verma became the owner of back portion of said property known as 1165-II. Ram Rattan Verma was doing jewellery trading from property no. 1165-1. Ram Rattan Verma suffered kidney failure in or about the year 2009 and had to undergo various medical procedures including dialysis 2-3 RC.REV. 278/2018 Page 3 times in a week till death. Ram Rattan Verma did not take any medical insurance policy during the lifetime and was merely able to sustain him and family comprising wife Ginni Verma (the respondent no 1), son Rohit Verma (the respondent no 2) and five daughters from jewellery trading. Ram Chander Verma had sold second and third floors about 15 years prior to death due to financial requirements and marriage of five daughters. The ground floor of the property no. 1165-1 was comprising two shops and Ram Rattan let out one shop having an approximate area of 32 sq. ft. (hereinafter referred to as “the tenanted shop”) in April 1985 on rent to Rakesh Kumar i.e. the petitioner no. 4 and Anil Kumar vide written agreement executed in April 1985 for commercial purposes. Anil Kumar after death was survived by wife namely Bimla Devi and two sons namely Sumit Kumar and Ankur Kumar i.e. the petitioners no. 1 to 3. The petitioners are running a jewellery shop under name and style of Shri Ram & Sons in the tenanted shop. Ram Rattan Verma let out second shop in year 2012 to Pawan Kumar at rent of Rs. 24,400/- pm to meet his medical expenses and sustain him and family members. Ram Rattan Verma sold one shop situated at first floor on RC.REV. 278/2018 Page 4 19.01.2015 for purchasing a flat situated on the first floor of property bearing no. F-14D, Laxmi Nagar, Delhi-110092 and let out remaining portion of the first floor comprising a hall/shop to Ajay Kumar Aggarwal on 23.09.2015 for aperiod of 5 years commencing from 15.10.2015 vide registered lease deed dated 23.09.2015 to meet out his increased medical expenses. Ram Rattan Verma expired on 14.10.2015 and was survived by wife (the respondent no. 1), one son (the respondent no. 2) and 5 married daughters who had agreed not to claim any right in the tenanted shop and as such the respondents are the landlords of the tenanted shop. The respondents are residing at first floor of property no. F-14D, Laxmi Nagar, Delhi- 110092 and do not have any other residential and commercial property available with them in Delhi. The wife of the respondent no. 2 owns agricultural land admeasuring about 1240 sq. yards in Rewari. 2.[1] The respondent no 2 was doing silver trading with father Late Ram Rattan Verma from the portion of property no. 1165 and at present is doing jewellery trading for the last 13 years from first floor of property no F-14D, Laxmi Nagar, Deihi-110092 due to paucity of a place/accommodation. The respondent 2 who is having experience RC.REV. 278/2018 Page 5 of jewellery trading of 13 years but could not establish business of trading due to ill health of his father Late Ram Rattan and late Ram Rattan Verma due to ill health sold and let out portions of property no. 1165 to meet medical expense and forsubsistence of the family. The residential flat/apartment bearing no F-14D, first floor, Laxmi Nagar, Delhi-110092 is barely sufficient for the residence ofthe respondents and family members. The respondent no 2 due to paucity of space and lack of financial capabilities had to carry jewellery trading from residence but not able to carry business properly and effectively from the residence. The respondent no 2 is unable to entertain clients from residence due to growing family and security reasons. The respondent no 2 was advised by well-wishers, close relatives and friends to open a jewellery shop in the portion of property no. 1165-1 but no accommodation was available in the said property. The respondent no. 2 under compelling circumstances decided to take a small shop on rent in December 2016/January 2017 in the jewellery market situated at Chandni Chowk but the respondent no 2 could not afford to take shop on rent due to financial reasons. The respondent no 2 took on rent a small shop admeasuring RC.REV. 278/2018 Page 6 approximately about 10 x 10 ft. forming part of the property bearing no. 72, Main Road, Chander Vihar, Delhi-110092 in name of wife vide lease deed dated 31.12.2016 at a monthly rent of Rs.6,500/- for a period of 11 months commencing from 01.01.2017. The respondent no. 2 since January 2017 is not able to establish business from rented shop and finding difficult to run business effectively from the said shop which was arranged as a stop-gap arrangement. The respondent no 2 is presently carrying on jewellery trading on a very small scale from said rented shop and is only earning Rs 20-25,000/- pm from the jewellery trading. The respondent no 2 is unable to invest in the rented shop and to explore ideas and options to expand business from the rented shop. The respondent no 2 had requested the petitioners to vacate the tenanted shop so that the respondent no 2 can carry his business from the tenanted shop but the petitioners have refused to vacate the tenanted shop which is best suited to carry business effectively and to expand jewellery trading. The tenanted shop being located in the jewellery market of Chandni Chowk is best suited for the business of the respondent no 2 and no any other commercial accommodation is available with the respondent no 2 except the RC.REV. 278/2018 Page 7 tenanted shop to start jewellery trading. The respondent no 2 bona fide requires the tenanted shop and requirement is genuine. It was prayed that an eviction order be passed in favour of the respondents in respect of tenanted shop.

3. The petitioners after service of summons as per Third Schedule of the Act filed an application for leave to defend along with affidavit. The petitioners stated that respondents are without having any ownership rights as they claimed to inherit the property on basis of oral family settlement which does not have any legal value. The respondent no 2 has claimed that he is having experience of 13 years in jewellery trading and is doing the business of jewellery trading from the first floor of property bearing no F-14D, Laxmi Nagar, Delhi-110092 but no document is placed to prove that the respondent no 2 is having capability of doing the jewellery trading and the respondent no 2 does not have any knowledge of jewellery trading. Late Ram Rattan Verma was having various other properties and the respondents are having sufficient accommodation with them. The respondent no 2 is in occupation of the accommodation on the second floor which is not disclosed by the respondents.The respondents have RC.REV. 278/2018 Page 8 filed incomplete site plan. The petition is liable to be dismissed. The petitioners have various triable issues in their favour which cannot be decided without leading evidence. It was prayed that application for leave to defend be allowed.

4. The respondents filed reply to application for leave to defend. The respondents besides reiterating contents of the petition stated that the petitioners have failed to disclose any triable issue and defence of the petitioners is moonshine, sham and a bogus. The petitioners have not denied bona fide requirement and also admitted relationship of landlord and tenant between the parties. The petitioners filed the leave to defend application on the grounds that the respondents have not substantiated their claim of ownership in respect of tenanted shop; the family of the respondents own and possess various other properties which were are in the name of Late Ram Rattan Verma, predecessor in interest of the respondents; the respondent no 2 does not have any knowledge and/or experience in jewellery trading; and the respondents have filed incomplete site plan. 4.[1] The petitioners did not dispute rent deed executed in April, 1985 between Late Ram Rattan Verma, predecessor-in-interest of the RC.REV. 278/2018 Page 9 respondents and the petitioners which is sufficient to prove existence of relationship of landlord and tenant between the parties and the respondents are landlords/owners of the tenanted shop after death of Ram Chander Verma. The petitioners did not deny relationship of landlord and tenant between the parties and payment of rent to the respondents. The respondents have disclosed all properties which were in possession and ownership of Late Ram Rattan Verma during lifetime and the properties possessed and owned by petitioners on the date of filing of present eviction petition. Late Sh. Ram Rattan Verma did not own and/or possess any other immovable property except 1165-I. The respondents do not have any portion of the property bearing no 1165-I available with them in their occupation which can be commercially used by the respondent no 2 to carry jewellery trading. The petitioners did not deny that the tenanted shop is best suited for jewellery trading being situated in jewellery market and as such petitioners have admitted suitability of the tenanted shop for meeting bonafide requirements of the respondents to carry out jewellery trading. The respondent no 2 is having 13 years of experience in jewellery trade as he was assisting his father i.e. Ram RC.REV. 278/2018 Page 10 Rattan Verma. The respondent no 2 due to non-availability of commercial space had to take a shop on rent in property no. 72, Chander Vihar, Delhi for a period of 11 months commencing from 01.01.2017 to 30.11.2017. The respondents have filed correct site plan. The respondents in reply also stated that the respondent 2 has a right to live with dignity and to earn decent livelihood for him and his family. The respondent no 2 genuinely and bona fide requires the suit property. The residential accommodation is barely sufficient for purpose of residence of the respondents and family and the respondent no 2 used to entertain his client from living room of said residential accommodation. It was again reiterated that eviction order be passed in favour of the respondents in respect of tenanted shop.

5. The trial court vide impugned order dated 18.01.2018 dismissed the application for leave to defend. The trial court held that the ownership of the respondents over the tenanted shop for the purpose of the Act as well as existence of landlord and tenant relationship between the respondents and the petitioners proved. The trial court also held that bona fide requirement of the respondent no 2 in respect of the tenanted shop to start business also proved and the petitioners RC.REV. 278/2018 Page 11 have failed to prove theavailability of any alternative suitable accommodation with the respondents for their bonafide requirement. The trial accordingly held as under:- Thus, from the discussion made above, respondents have failed to raise any triable issue, which requires evidence to be proved. The petitioners, on the other hand, have clearly established their bonafide requirement regarding tenanted premises. Hence, the application for leave to defend filed by respondents is ordered to be dismissed. Consequently, eviction order is liable to be passed against the respondents u/s Section 25 B (4) of the Act. In view of above, petitioners are held entitled for recovery of the tenanted premises, i.e., a shop admeasuring about 32 sq. ft. on the ground floor of the property bearing Municipal No. 1165, Kucha Mahajani, Chandni Chowk, Delhi, as shown in colour red in the site plan annexed with the petition/ reply to leave to defend application. However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act.

6. The petitioners being aggrieved filed the present petition to challenge the impugned order. The petitioners stated that the trial court dealt with triable issues raised by the petitioners in a cursory manner. Late Ram Rattan Verma on 20.07.2009 instituted an eviction petition bearing no 181 of 2009 against Deen Dayal Sharma on ground of bona fide requirement for the respondent no 2 by pleading RC.REV. 278/2018 Page 12 that he was unable to find a suitable match to perform the marriage of the respondent no 2 who at that point of time was allegedly unemployed. However, Ram Rattan Verma sold said shop on 18.11.2009 to the tenant Shri Deen Dayal Sharma vide registered Sale Deed dated 18.11.2009. Late Ram Rattan Verma on 06.07.2011 instituted another eviction petition bearing no 39 of 2011 against tenant Madan Lal Sharma under section 14 (1) (e) read with Section 25B of the Act by pleading to start a new and separate business for the respondent no 2 but on compromise sold said shop subject matter of the eviction petition no E-39 of 2011 to Manoj Kumar Sharma and Satish Kumar Sharma. The respondent no 2 on 07.10.2012 created a fresh lease in respect of a shop situated adjacent to the tenanted shop in favour of Pawan Verma at a rental of Rs. 24,400/- pm for a limited period of 11 months. The respondent no 2 on 01.01.2014 executed a fresh lease in respect of the adjoining shop in favour of Pawan Verma at enhanced rental of Rs. 26,840/- for a further period of 11 months. Ram Rattan Sharma in early January 2015 vide sale deed dated 19.01.2015 sold shop situated on the first floor admeasuring 6.73 sq. meters to Rajni Khandelwal for consideration of Rs. 4,25,000/-. Late RC.REV. 278/2018 Page 13 Ram Rattan Verma and the respondent no 2 on 23.09.2015 let out a part of the first floor for a lease period of 5 years in favour of Ajay Kumar Aggarwal at a rental of Rs. 1,40,000/- pm with effect from15.10.2015. The respondent no 2 on 01.05.2016 executed a fresh lease in respect of a shop situated adjacent to the tenanted shop in favour of the said tenant Pawan Verma at an enhanced rate of rent at Rs. 32,476/- for further period of 11 months with effect from 01.05.2016. The bona fide need of the respondents is manifestly selfinduced in respect of tenanted shop. The petitioners challenged the impugned order on various grounds.

7. The counsel for the petitioners argued that the respondents had concealed that they had filed two eviction petitions in the past on ground of bona fide requirement but sold shops subject matter of these eviction petitions to the tenants and as such need of the respondent no 2 is moon shine. The respondents do not have proper ownership rights; the respondent no. 2 does not have any knowledge of jewellery business and did not submit any documents pertaining to jewellery business and the respondents submitted incomplete site plan on record. The counsel for the petitioners further argued that RC.REV. 278/2018 Page 14 respondents have renewed the lease of the adjoining shops after 31.01.2017 in favour of Pawan Verma and executed a lease deed for another shop situated at first floor for commercial purposes which is more than 10 times the tenanted shop. The counsel for the petitioners relied on Charan Das Duggal V Brahma Nand, (1983) 1 SCC 301, Deena Nath V Puran Lal, (2001) 5 SCC 705 and various other pronouncements. It was argued that the present petition be allowed and impugned order be set aside.

8. The counsel for the respondents argued that the respondents filed present eviction petition in respect of tenanted shop on the ground that the tenanted shop is required by the respondent no.2 to carry out jewellery trading. The respondent no 2 since 2013 due to paucity of space was carrying jewellery trading from residence. The respondent no 2 took a small shop on rent in area of Laxmi Nagar as his business could not pick up from residence. The business of the respondent no 2 also could not pick up from said shop and due to this reason the respondents filed the present eviction petition. The respondents do not have any other commercial space. Late Ram Rattan Verma, the predecessor in interest of the respondents had sold second and third RC.REV. 278/2018 Page 15 floor of the property in question during his lifetime for financial requirements and marriage of his five daughters and about 15 years before his death. Late Ram Rattan Verma also let out another shop situated at ground floor of the property other than the tenanted shop in the 2012 to meet medical expenses in the year 2012 to Pawan Verma. Late Ram Rattan Verma sold one shop out of three shops situated on first floor in the year 2015 for purchasing a residential accommodation at Laxmi Nagar and further let out remaining portion of the first floor to meet medical expenses and for maintaining family members in the year 2015. The respondents as such had disclosed all the relevant facts in present petition. The petitioners in application for leave to defend did not dispute/controvert any of the facts pleaded by the respondents in the eviction petition except that the respondents have failed to file any documents to prove jewellery trading being carried out by the respondent No.2 and the respondent no 2 does not have knowledge about jewellery trading and does not require the tenanted shop bona fide. The petitioners did not dispute that the respondents do not have any other reasonable accommodation RC.REV. 278/2018 Page 16 available with them for business activities and did not allege that the respondents have any other accommodation available with them. 8.[1] The counsels for the respondents further argued that the petitioners did not deny bona fide requirement of the respondents and non-availability of alternate accommodation which can be put to commercial use for carrying out business activities of the respondent no 2. The trial court held ownership of the respondents over the tenanted shop and existence of relationship of landlord and tenant between the parties and bona fide requirement of the respondent no 2 to start his business. The petitioners made bald averments about availability of alternate suitable accommodation without any substance. The respondents renewed lease in respect of a ground floor and shop at first floor shop as these premises were already leased out by the predecessor in interest of the respondents prior to the filing of the present eviction petition. The petitioner in the revision petition have pleaded certain additional facts which are filing of two eviction petitions against different tenants in respect of the shops in the subject property in the year 2009 and 2011 which were withdrawn by the respondents/predecessor in interest being RC.REV. 278/2018 Page 17 compromised and those shops were sold by the respondents/predecessor in interest. It was argued that those eviction petitions were withdrawn by the respondents on a compromise with the tenants and sold by Late Ram Rattan Verma, predecessor in interest of the respondents for his financial needs and to avoid rigour of litigation more than 5 years prior to the filing of the present eviction petition and was not a necessary fact to be disclosed in present petition. The petitioners in application leave to defend have failed to disclose any triable issue. The respondents had disclosed all relevant facts in eviction petition. The counsel for the respondents relied on Rakesh Talwar V Sudesh Gulati, 2017 (238) DLT508, K.B Watts V Vipin Kalra, 2015(220) DLT 402, M P Rawla V S D Tyagi, 1991 (44) DLT 434 and Nisar Ahmed V Agya Pal Singh, R.C. Rev 367 of 2018 decided on 07.07.2023 by this court. It was argued that the present petition be dismissed.

9. The trial court in impugned order referred that proviso (e) to section 14(1) of the Act is a special provision which has been enacted by the Legislature for the class of landlords who require the premises genuinely and their requirement is bona fide and they do not have RC.REV. 278/2018 Page 18 any suitable accommodation. The essential ingredients for attracting the proviso (e) of the section 14(1) are that the tenanted premises are bona fide required by the landlord either for himself or for his family member and they do not have any other easonable suitable accommodation. The trial court also referred Deena Nath V Pooran Lai, (2001) 5 SCC 705 wherein the Supreme Court observed as under:- The Legislature in enacting the provision has takenample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlordwhich means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in present and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in subsection (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is duty-bound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable non-residential accommodation in his occupation in the RC.REV. 278/2018 Page 19 city/town is available. The judgment/order of the court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind that statutory mandate incorporated in Section 12(l)(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bona fide requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment.

10. Section 14(1) (e) of the Act 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:xxxxxxxxx (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 RC.REV. 278/2018 Page 20 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. 10.[1] The Supreme Court in Sarla Ahuja V United India Insurance Co. Ltd., (1998) 8 SCC 119 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. 10.[2] The Supreme Court in Inderjeet Kaur V Nirmal Singh, (2001) 1 SCC 706 discussed relevant factors to be considered at time of consideration of an application for leave to defend and also held as under:- RC.REV. 278/2018 Page 21

9. Chapter III-A deals with summary trial of certain applications expressly stating that every application by a landlord for recovery of possession on the ground specified in clause (e) of the proviso to sub-section (1) of Section 14of the Act, or under Section 14-A or 14-B or 14-C or 14-D shall be dealt with in accordance with the special provisions prescribed in Section 25-B of the Act. As per the broad scheme of this Chapter a tenant is precluded from contesting an application filed for eviction on the grounds mentioned in the aforementioned provisions unless he obtains leave from the Controller to contest the eviction petition. In default of obtaining leave to defend or leave is refused to him an order of eviction follows. It appears recourse to summary trial is adopted having due regard to nature of the grounds on which the eviction is sought with a view to avoid delay so that the landlord should not be deprived or denied of his right to immediate possession of premises for his bona fide use.

10. At the same time, it is well settled and accepted position in law that no one shall be subjected to suffer a civil consequence like eviction from a premises resulting in hardship to him without providing adequate and effective opportunity to disprove the case against him and establish his case as pleaded.

11. As is evident from Sections 25-B(4) and (5) of the Act, burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in clause(e) of the proviso to Section 14(1) of the Act, with which we are concerned in this case, are good enough to grant leave to defend.