Late Bhai Gopal Dass v. Atul Jain & Anr.

8.8. He states that the Petitioners are aggrieved since their contention with respect to availability of property No. E-69 at South Extension was not considered by the Trial Court while passing the impugned eviction order.

8.9. He states that the tenanted premises is a heritage property and it cannot therefore be altered or renovated by the Respondents for making a showroom.

8.10. He states that due to the aforesaid pleas regarding availability of sufficient alternate accommodation with the Respondents, the Petitioners dispute that the Respondents have any bona fide need for the tenanted premises.

8.11. No other issue was pressed. Arguments of the Respondents

9. The learned counsel for the Respondents, Mr. Aditya Vijay Kumar, has made following submissions and also relied upon the contents of the table of additional accommodation, dated 20.01.2023, filed in these proceedings to rebut the submissions of the Petitioners:

9.1. He states that the Respondents herein do not have in their possession any alternate suitable accommodation for the bona fide requirement pleaded in the eviction petition.

9.2. He states with respect to the subject property, wherein the tenanted premises are located, both the 1st floor are occupied by the mother of Respondent Nos. 1 and 2 and are therefore, not available for the purpose of running a showroom. He states that with respect to the site plan filed by the Petitioners, there is no triable issue and that the Respondents in reply to the leave to defend have accurately explained the area available with the Respondents on the ground floor in paragraph no. ‘P’ as 307 sq. ft. of carpet area.

9.3. He further states that, in any event, since the bona fide need pleaded by the Respondents is for opening a jewellery showroom, the upper floors of the subject property are not suitable.

9.4. He states that with respect to property No. E-69 at South Extension, the same is residential in nature and thus cannot be used for commercial purpose. He states that with respect to the basement of the said property, only a small portion of 20 sq. yards is being used the Respondents for the purpose of designing jewellery. He states that therefore the said property cannot be used as a showroom. He states that the said property was purchased after the filing of the eviction petition and therefore, finds no mention in the said petition.

9.5. He states that with respect to the basement of property No. B-113 at Lajpat Nagar, the said property has been taken on rent from the recorded owners of the said property and the rent deed has been placed on record along with the eviction petition.

9.6. He states that he has placed on record additional documents filed under the cover of the index dated 16.02.2023, to show that the title documents of property No. B-113 at Lajpat Nagar, vests in a third party i.e., the landlord of the Respondents in the said property. He states that he has also placed on record, the property tax challans downloaded from the official website of MCD which stand in the name of the said recorded owners and Respondent Nos. 1 and 2 have no title in the said property. He states that the property tax challan filed by the Petitioners herein with CM APPL. No. 24282/2023 are forged. He states that the Respondents are tenants in the said property and not owners as alleged.

9.7. He states that the property No. G-7 at South Extension is admittedly a tenanted premises, the Respondents are tenants therein and therefore, the said property cannot be considered as an alternate accommodation.

9.8. He states that in law, additional pleas and documents, in support of additional pleas cannot be entertained by this Court in the revision petition and therefore, the CM APPL. No. 24282/2023 cannot be maintained.

9.9. He states that without prejudice to the above, none of the said document relied upon by the Petitioners, shows that the Respondents herein are possession of an alternate additional accommodation.

9.10. He states that the tenanted premises is not a heritage site and the plea raised in this regard is in any event beyond pleadings. Analysis and findings

10. This Court has considered the submissions of the counsel for the parties and perused the record.

11. The Supreme Court in the judgement of Abid-Ul-Islam vs. Inder Sain Dua, (2022) 6 SCC 30, has laid emphasis on the object of Section 14(1)(e) vis-à-vis Section 25(B) of the DRC Act and has observed that the object of these provisions is to facilitate a speedy possession to the landlord. The relevant portion of the said judgement reads as under:

11.1. In the facts of the present case, as noted in the beginning of this judgment, the leave to defend application itself remained pending adjudication for a period of nine (9) years and was finally decided by the Trial Court vide order dated 17.12.2021. The objective of the speedy possession has thus been negated in this case.

11.2. The Respondent herein after passing of the impugned eviction order, to protract the proceedings, filed a review application on the plea that the legal heirs of late Shri Bhai Gopal Dass were brought on record and therefore, the impugned eviction order is liable to be set aside. The plea raised in the review application was without any equity and merit considering the fact that Mr. Krishan Kumar, the Petitioner No. 1 herein, had himself filed and affirmed an application dated 01.03.2021 (Annexure P-10) before the Trial Court, for pleading subsequent events. However, Petitioner No.1, Mr. Krishan Kumar while filing the said application dated 01.03.2021, elected not to bring the fact of his father’s death dated 22.01.2018 on record of the Trial Court and therefore, took no steps to be substituted as the legal heir.

11.3. The Petitioner No.1 herein therefore, between 22.01.2018 and 17.12.2021, fought the proceedings before the Trial Court in the name of late Shri Bhai Gopal Dass, affirmed the pleadings and invited orders on the application seeking leave to defend, without disclosing to the Trial Court about the death of the tenant. However, after suffering the impugned eviction order, the Petitioner No.1 in abuse of the legal process, filed a review petition, raising a plea which was untenable in the facts of the case and entangled the Trial Court for a further period of one (1) year in the review application.

11.4. By filing the said review petition, the Petitioners wrongfully gained for themselves an extended period from 17.12.2021 to 16.11.2022 and prolonged their possession of the tenanted premises.

11.5. Thus, an eviction petition under Section 14(1)(e) of the DRC Act, which was instituted on 12.09.2012, was protracted by the tenant till 16.11.2022 i.e., ten years from the institution, thus, negating the objective of speedy possession as emphasized by the Supreme Court in Abid-ul-Islam (Supra).

12. The Trial Court while dismissing the tenant’s leave to defend application, returned the its findings in favour of the Respondents herein on all the ingredients for necessary succeeding in an eviction petition filed under Section 14(1)(e) of the DRC Act. Landlord-tenant relationship

13. With respect to the existence of landlord-tenant relationship, it is an admitted position that the Respondents herein are the legal heirs of late Sh. Inder Chand Jain, who even as per the Petitioners was the owner of the subject property. The tenant in his application seeking leave to defend had admitted transacting with late Shri Inder Chand Jain and had raised a plea that a sum of Rs. 2,00,000/- was paid by tenant as pugree to Shri Inder Chand Jain, for the tenanted premises.

13.1. It has been stated by the Respondents in the eviction petition that upon demise of Respondents’ father, late Sh. Inder Chand Jain, the subject property has devolved upon them.

13.2. The Respondents herein have placed on record, the mutation letter dated 01.05.2012, issued in their favour by the MCD as well as the property tax challan for the FY 2012-13. Thus, even as per the statutory records, the Respondents herein are the recorded owner of the subject property.

13.3. With respect to the existence of landlord – tenant relationship, the Trial Court has returned the following findings: “The respondent had alleged that he is the owner of the property, stating that he had purchased the tenanted premises from Late Sh Inder Chand Jain in 1978 on payment of pugree amount of Rs 2 Lakhs, and therefore he is the owner. On the other hand, petitioners had claimed that they had become the owner of the tenanted premises by virtue of will dated 23.5.1944 by Smt Chhato Bibi. The said will has been challenged by the respondent, however it is not clear on what basis the will has been challenged. Even if the respondent's version is taken to be correct, then also, he has acknowledged Late Sh Inder Chand Jain to be the owner of the tenanted premises. The respondent had claimed that he had purchased the property on payment of pugree amount of Rs 2 lakhs, however, it a well settled law that Sale of property could only be on execution of Sale documents as per the mandate of Transfer of Property Act and Registration Act and on payment of sale consideration. Payment of pugree amount does not amount to any sale as it does not transfer any right, title, interest in the property. The respondent had admitted the ownership of Late Sh Inder chand Jain. The petitioners are the legal heirs of Late Sh Inder Chand Jain, and this fact has not been disputed by the respondent. As per law, the petitioners do not have to show their absolute title under DRC and have to only show only a better title than that of the respondents. The petitioners had also filed MCD record showing that they have been paying the property tax of the tenanted premises. On the other hand, the respondents had not filed any document to substantiate their claim over the property. Even though the MCD record do not confer ownership per se, it does has corroborative evidentiary value. Therefore; in view of the above, it is held that the petitioners are entitled to file eviction petition against the respondent. The plea taken by the respondent is accordingly rejected.”

13.4. Given the aforesaid facts, in the opinion of this Court the finding of the Trial Court with respect to ownership of the Respondents is correct and does not suffer from any infirmity. The tenant has admitted that he was inducted as a tenant by late Shri Inder Chand Jain, the father of the Respondents herein and therefore, the Petitioners, who are the children of the deceased tenant cannot challenge the finding of existence of the landlord- tenant relationship.

13.5. In any event, the Petitioners herein have not challenged the said finding of the Trial Court during the course of arguments and therefore, the said finding has become final. Bona fide requirement and alternate suitable accommodation

14. The Petitioners herein have challenged the bona fide requirement of the Respondents primarily on the plea that they have alternate suitable accommodation available with them. However, before this Court examines the findings of the Trial Court, with respect to availability (or otherwise) of alternate suitable accommodation, it would be relevant to refer to the judgement of the Supreme Court in Abid-Ul-Islam (Supra) and more specifically paragraph nos. 18, 29 and 30 therein, which reads as under: “18. For availing the leave to defend as envisaged under Section 25-B(5), a mere assertion per se would not suffice as Section 14(1)(e) creates a presumption subject to the satisfaction of the learned Rent Controller qua bona fide need in favour of the landlord which is obviously rebuttable with some material of substance to the extent of raising a triable issue. The satisfaction of the Rent Controller in deciding on an application seeking leave to defend is obviously subjective. The degree of probability is one of preponderance forming the subjective satisfaction of the Rent Controller. Thus, the quality of adjudication is between a mere moonshine and adequate material and evidence meant for the rejection of a normal application for eviction.

XXX XXX XXX

29. Section 14(1)(e) deals with only the requirement of a bona fide purpose. The contention regarding alternative accommodation can at best be only an incidental one. Such a requirement has not been found to be incorrect by the High Court, though it is not even open to it to do so, in view of the limited jurisdiction which it was supposed to exercise. Therefore, the very basis upon which the revision was allowed is obviously wrong being contrary to the very provision contained in Section 14(1)(e) and Section 25-B(8).

30. We have already discussed the scope of Section 14(1)(e) vis-àvis Section 25-B (8) of the Act. Therefore, the mere existence of the other properties which are, in fact, denied by the appellant would not enure to the benefit of the respondent in the absence of any pleadings and supporting material before the learned Rent Controller to the effect that they are reasonably suitable for accommodation.”

14.1. The Supreme Court in Abid-Ul-Islam (Supra) has held that in an eviction petition filed under Section 14(1)(e) of the DRC Act, a mere assertion creates a presumption, subject to the satisfaction of the Trial Court qua bona fide need in favour of the landlord. The Supreme Court opined that a contention regarding alternative accommodation can at best be only an incidental one; and unless the tenant can place on record sufficient material to prove that the alternate premises are reasonable suitable, the mere existence of the said properties would not give rise to a triable issue.

15. Keeping in view the aforesaid observations of the Supreme Court, this Court has hereinafter examined the plea of availability of suitable alternate accommodation raised by the Petitioners herein. Availability in the subject property on the ground floor and upper floors

15.1. The Petitioners have stated that the 1st floor in the subject property itself are available with the Respondents for opening a jewellery showroom. However, the Respondents have categorically disputed the said assertion by stating that the 1st floor and 2nd floor is being used for residential purposes by the family members of the Respondents and more specifically by the mother of the Respondents.

15.2. The fact that the 1st floor is being used for residential purpose is substantiated from the property tax challan dated 18.04.2012 pertaining to F.Y. 2012-13, which records the ‘use factor’ of 1st floor as one (1), whereas, the ‘use factor’ for ground floor has been mentioned as four (4). The use factor one (1) under the extant law is for residential use. Further, the said challan records the type of the property as ‘residential plotted’. The veracity of the said challan has not been disputed by the Petitioners herein.

15.3. With respect to the preferred use of a ground floor for commercial purpose vis – a – vis, the upper floors of a property, it would be relevant to refer to the decision of Coordinate Bench of this Court in K.B. Watts vs. Vipin Kalra, 2015 SCC Online Del 9488, wherein the Court has observed that 2nd, 3rd and 4th floors in a building are not comparable with the ground floor premises and the said Court has taken judicial notice of the fact that ground floor premises are commercially more viable for any business. The relevant portion of the judgement reads as under: “28. In the eviction petition the plea taken by Vipin Kalra for eviction is that the front of the showroom was small and due to the tenanted premises and an office, toilet and pantry being there on the ground floor, the area of the shop was reduced to 1000 sq.ft. and that his son wants to start his business as he has done MBA in Finance from Texas. Admittedly the son and wife of Vipin Kalra own the 2, 3 and 4 floors, however it is also wellsettled that for a profession or business ground floor premises are always more suitable. It is trite law that the tenant cannot dictate the landlord as to how he should utilize the premises. On the facts noted above the view taken by the learned ARC is a plausible view, suffering from no illegality.”

15.4. To the same effect, another Coordinate bench of this Court in M/s A.K. Woolen Industries & Ors. v. Shri Narain Gupta, 2017 SCC OnLine Del 11363, at paragraph 25, has relied upon the judgments of the Supreme Court in Dhannalal v. Kalawatibai, (2002) 6 SCC 60 and in Uday Shankar Upadhyay vs. Naveen Maheshwari, (2010) 1 SCC 503, wherein it was held that judicial notice can be taken of the fact that upper floors are generally not commercially viable and consumers and patrons of the market are reluctant to walk into the same and more prone to walk into a shop on the ground floor.

15.5. Similarly, in the eviction petition and the reply to the leave to defend, the Respondents have elaborately stated the reasons for which they require the entire ground floor premises of the subject property, i.e., for setting up a jewellery showroom. There is no dispute that the area of Chandni Chowk, wherein the subject property is situated, is a prominent commercial area for jewellery business.

15.6. Therefore, this Court is of the opinion that the upper floors of the subject property is neither suitable nor available for setting up a jewellery showroom. Property No. G-7, South Extension, Market-1

16. The property no. G-7 at South Extension is admittedly not owned by the Respondents and they are, in fact, themselves tenants in the said property. Pertinently, these facts were disclosed by the Respondents in the eviction petition itself. It was stated in the eviction petition that the said property has been taken on lease of Rs. 3,00,000/- per month.

16.1. It is trite law that that for a property to be considered as alternate and available, it must be a property which is owned by the landlord/landlady. A premises which has been taken on rent by the landlord/landlady cannot be considered as an alternate accommodation.

16.2. This Court is therefore in agreement with the findings of the Trial Court that this tenanted property cannot be considered as alternate suitable accommodation. Property No. B-113, Basement, Lajpat Nagar II, New Delhi

17. With respect to the property no. B-113 at Lajpat Nagar as well, the Respondents had disclosed in the eviction petition that they are tenants in the said property and are paying a rent of Rs. 37,500/- per month, to the landlord. The Respondents have placed on record the lease deed dated 01.04.2011, executed by landlord, Mr. Manish Jain, in the favour of the Respondent.

17.1. With respect to the said property, the learned counsel for the Petitioner has placed on record in this petition, by way of additional documents (CM APPL. No. 27282/2023), property challan for FY 2019-20, to contend that the Respondents herein are not tenants in the said property but are actually the owners of the said property. It is contended that the Respondent No. 1 and his wife are the owners of said property.

17.2. In reply, learned counsel for the Respondents have raised an objection to the admissibility of fresh documents at the stage of the revision. He states that however, without prejudice, the Respondents, to satisfy the judicial conscience of this Court, have placed on record the registered title documents of the said property, which evidences that the said property stands registered in the name of a third party; and not the Respondents herein. The Respondents have placed on record documents that show that initially a Sale deed dated 17.11.1993 and Release deed dated 25.10.2011 was executed in the name of Mr. Rajiv Jain qua the said property. And, thereafter, the Gift deed dated 14.06.2014 was executed, whereby the said property has been transferred by Mr. Rajiv Jain in the name of his mother, Ms. Malti Jain. Copy of the Gift deed dated 14.06.2014 has been placed on record.

17.3. The Respondents have also placed on record the property tax challans of the said property, which were downloaded on 08.02.2023 (for the period between 2012 to 2020) from the official website of MCD, to show that the said property stands mutated in favour of the third parties in whose favour the aforesaid title deeds stand.

17.4. The Respondents have also placed on record the mutation letter dated 09.12.2016 issued by MCD, which is addressed to the registered title holder, Ms. Malti Jain.

17.5. The learned counsel for the Respondents in fact contended that the property challan document filed by the Petitioners with CM APPL. NO. 24282/2023 is forged and fabricated as the details mentioned therein do not match with the information available on the official website of the MCD and more specifically the unique property number assigned to this property.

18. This Court has considered the rival submissions of the parties and in view of the title documents and mutation letters placed on record by the Respondents which stand in the name of third parties, this Court is unable to accept the veracity of the MCD challan placed on record by the Petitioner. The registered title deed stands in the name of the third parties. The mutation letters as well as the MCD challans for several FYs placed on record by the Respondent also corroborates the said facts. Assuming the MCD challan filed by the Petitioner is genuine, it is trite law that the contents of the MCD challans cannot override the title documents i.e., sale deed dated 17.11.1993 and gift deed dated 30.06.2014, which stand in the name of a third parties.

18.1. The documents filed by the Respondents negate the submission of the Petitioners that the title of this property vests in the Respondents. The MCD challan relied upon by the Petitioner cannot give rise to a triable issue in the face of the registered title documents produced by the Respondents.

18.2. Therefore, in view of the fact that the said premises is a tenanted premises, the same cannot be considered as an alternate accommodation. In any event, the said premises is being used by the Respondents and is not lying vacant. Property No. E-69, South Ext. – 1, New Delhi

19. The learned counsel for the Petitioner has contended that the property no. E-69 at South Extension, which comprises of ground floor and basement, was purchased by the Respondents herein during the pendency of the eviction petition. He states that since a part of the basement is admittedly being used for business purposes, the said property can well be put to use by the Respondents for opening a jewellery showroom.

19.1. In reply, learned counsel for the Respondents has stated that the said property was purchased three (3) years after the institution of the eviction petition. He stated that it is a residential property and cannot be used for purposes of running showroom i.e., the purpose stated in the eviction petition.

19.2. This Court has considered the submissions. The averment that the said property, which is located in South Extension, Part-I, is a residential property has not been disputed by the learned counsel for the Petitioners. He has, however, contended that the said property can be put to use for commercial purposes by the Respondents.

19.3. In the opinion of this Court, considering the fact that the Respondents herein want to open a showroom for jewellery in Chandni Chowk, which is a distinct and well-known commercial area when compared to South Extension, Part-I, the said property No. E-69 at South Extension cannot be considered as an alternate suitable property. The said commercial areas are not in close proximity and cater to different clientele.

19.4. In any event, the Respondents have already explained that the said property is a residential building and it is not permissible to put it for commercial use. The said explanation offered by the Respondents by itself is sufficient to render the said property as unsuitable for the purposes of opening a jewellery showroom. The Respondents have explained that the portion of the basement is being used for designing purposes and not for commercial sale.

19.5. Thus, the said residential property is not an alternate suitable accommodation. Shops at Kotla Mubakrakpur

20. Lastly, the learned counsel for the Petitioners had also in his tabulated chart referred to availability of two shops at Kotla Mubarakpur, however, he had fairly not pressed the said submissions as no details or exact locations of the said shops have come on record.

21. The learned Trial Court has dealt with the issue of bona fide requirement of the Respondents in detail and held as under: “In the present case the tenant has merely challenged the bonafide need of the petitioner on the ground that petitioners have ample space available to them. Firstly, the respondents have themselves stated that the petitioners have recently taken two shops on rent. The petitioner is paying rent in lakhs, and this fact is not disputed by the respondents. The respondents state that the petitioners have ample space and are trying to file the petition on frivolous grounds. However, it is a well settled law that the tenant cannot dictate to the petitioners. The tenant cannot expect the landlord to pay rent in lakhs and not to use his properties. The respondent had not denied that the petitioner is carrying out jewellery business on rent. The petitioner is already having jewellery business. The need of the petitioner is genuine and their need cannot be said to be fake or frivolous. The respondent had taken the plea that the petitioner is carrying out individual business and therefore the need of the petitioner is not genuine. However, the respondent has got the protection of section 19 DRC and can avail the same at the appropriate time. Hence the plea of the respondents that the petition has been filed without bonafide need or that the petition has ample space, is rejected being meaningless. The respondent had taken the plea that site plan of the petitioner is not correct, however, again said, the respondent cannot dictate the petitioner.

XXX XXX XXX Hence, in view of the above discussion, I am of the view that the respondent had not been able to put forth a defence which if proved would disentitle the petitioner of the relief claimed. The respondent had not been able to prove how the bonafide need as portrayed by the petitioner is not bonafide or that the petitioner is having alternate suitable accommodation which can be utilized to meet the bonafide need.”

21.1. This Court is of the view that the findings of the Trial Court do not suffer from any infirmity. The Respondents have filed the present petition stating that they require the tenanted premises for setting up a showroom for jewellery. It has been pleaded that the Respondents have been compelled to take premises on current market rent in other parts of Delhi for their business and require the tenanted premises for carrying out their existing business. The fact that the Respondents are carrying on the business of jewellery, which can be carried out from the tenanted premises has not been disputed. In fact, the Petitioners herein are also carrying out the jewellery business from the tenanted premises. Thus, the suitability of the tenanted premises for a jewellery showroom is admitted.

21.2. In this view of the matter, the bona fide need of the Respondents is not being disputed by the Petitioners and the dispute in essence is only limited to availability of alternate accommodation, which as noted above in the facts of the present case is not attracted as there is no suitable alternate accommodation, which has been brought on record. Thus, as per the dicta laid down by the Supreme Court in Abid-Ul-Islam (Supra) as noted hereinabove, the plea of alternate accommodation as raised in the present petition does not give rise to any triable issue as no sufficient material has been placed on record.

22. Lastly, it has been urged by the learned counsel for the Petitioners that the tenanted premises is a heritage site, and thus, its structure cannot be altered by the Respondents for creating a showroom and therefore, the Respondents even after the recovery of the possession will not be able to expand their business.

22.1. The said contention has been disputed by the learned counsel for the Respondents, who has stated that the plea that the tenanted premises is a heritage site was not raised before the Trial Court and in any event, he disputes that the tenanted premises i.e., property No. 1192, is a heritage site. He states, it is shop No. 1188, which is actually in the possession of the Respondents herein, which is a heritage site.

22.2. This Court is of the opinion that even if it is assumed that the tenanted premises is a heritage site, the same cannot be a ground for not permitting Respondents to recover the possession of the tenanted premises for their bona fide need. The dictates which are attached to protect a heritage site would not disentitle the Respondents from seeking eviction under the DRC Act.

23. In view of the aforesaid findings, this Court finds no infirmity in the impugned eviction order dated 17.12.2021 and order dated 20.11.2022 passed in the review application. The present revision petition is without any merits and is dismissed.

24. At this stage, the learned counsel for the Petitioners states that the Petitioner intend to assail this judgment before the Supreme Court and therefore, prays that the operation of the judgment be stayed for a period of two (2) months to enable them to file a Special Leave Petition. He states that the use and occupation charges as fixed by this Court vide order dated 22.03.2023 have been paid in full to the Respondents till date.

24.1. ̌In view of the fact that there are ensuing summer vacations in the Supreme Court, the operation of this judgment is stayed for a period of two (2) months from today, subject to the Petitioner continuing to pay, without any default, the use and occupation charges at Rs. 10,000/- per month on or before 7th day of each English calendar month. It is clarified that in case of default, the stay shall stand automatically vacated and the Respondents will be at liberty to forthwith execute the eviction order.

25. Accordingly, the eviction order dated 17.12.2021 and the review order dated 20.11.2022 are upheld and the present petition is dismissed. Pending applications, if any, also stands dismissed.

MANMEET PRITAM SINGH ARORA, J MAY 17, 2023