Full Text
HIGH COURT OF DELHI
RC.REV. 529/2019 & CM APPL. 56322/2022
M/S THE COMMERICAL ELECTRIC WORKS & ORS ..... Petitioners
Through: Mr. Sachin Jain and Mr. Ajay Kumar, Agarwal, Advocates
Through: Mr. H.L. Narula, Advocate alongwith Respondent in person
JUDGMENT
1. This revision petition has been filed by the Petitioners, tenants, assailing the eviction order dated 23.03.2019, passed by the Additional Rent Controller, Central District, Tis Hazari Courts, Delhi (‘Trial Court’), in Eviction Petition No. E-150/16 (New No. 15/17), whereby the application seeking leave to defend was dismissed and the eviction petition filed by the Respondent, landlady, under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (‘DRC Act’), was allowed.
2. The Respondent, landlady, is stated to be the owner of the entire property bearing No. 1814-1815, ward No. IV, Chandni Chowk, Delhi (‘subject property’) which comprises of a Ground Floor (‘GF’), Mezzanine Floor (also referred to as dochatti/loft), First Floor (‘FF’), Second Floor (‘SF’) and Third Floor (‘TF’).
3. The Respondent filed the eviction petition for recovery of the commercial premises being ground floor, mezzanine floor and third floor of property No. 1814-1815, ward No. IV, Chandni Chowk, Delhi (‘tenanted premises’) located in the subject property.
4. The eviction petition was filed by the landlady on the plea that she has a bona fide need for her grandson i.e., Mr. Kanishk Gupta, who has recently graduated and wants to establish, run and operate his own business or join the landlady in her existing business and expand the said business, from the tenanted premises. It was asserted that there is no other commercial property owned by the landlady. It was further asserted that the landlady is carrying on business of sale of women’s wear from the FF and SF of the subject property; however, due to the dilapidated condition of the building and the narrow staircase leading to the upper floors, the customers are unwilling to reach the FF for shopping.
5. The eviction petition was resisted by the Petitioners herein, who sought leave to defend on several grounds including the assertion of the Respondent that she is the owner and landlady. However, before this Court, the learned Counsel for the Petitioners has restricted his oral submissions to assail the findings with respect to bona fide need on the plea that FF and SF of the subject property are lying vacant and are therefore, available to the landlady for the alleged business of her grandson.
6. The Trial Court after considering the submissions of the parties held that the Respondent is the owner as well as landlady in respect of the tenanted premises. The Trial Court further held that the tenanted premises is bona fide required for the business of grandson. The Trial Court rejected the submission of the Petitioners herein that the landlady has suitable alternative accommodation on the FF and SF of the subject property. The Trial Court relied upon the photographs placed on record to opine that the FF and SF are in a dilapidated condition. The Trial Court, further, held that there is no parity between a commercial premises located on ground floor vis-à-vis upper floors. In light of the aforesaid facts and findings, the Trial Court rejected the application seeking leave to defend and passed the impugned eviction order. Arguments of the Petitioners, Tenants
7. Learned counsel for the Petitioners, tenants, states that the tenanted premises are not bona fide required by the Respondent, landlady, inasmuch as her grandson, for whose bona fide need the tenanted premises are required, is working as relationship manager in the HDFC Bank branch at A-9, Lajpat Nagar-4, New Delhi. The said fact has been pleaded by way of CM APPL. No. 6890/2020 filed during the pendency of the present revision petition.
7.1. He states that the FF and SF of the subject property were recovered by the Respondent, landlady, in May, 2013, in an eviction petition (E- 106/13/09) filed by her under Section 14(1)(e) of the DRC Act. He states that however, the said floors (FF and SF) are not being used for the business of women’s wear as alleged in the subject eviction petition and the same are lying vacant/unused as on date. In this regard, he has placed on record the electricity bill issued by BSES Yamuna Power Limited (‘BSES’) for the meters installed on the said floors, to show the negligible consumption of electricity in the said premises.
7.2. He relies upon the Petitioners’ averments recorded in order dated 06.09.2019 passed by this Court, whilst issuing notice in the present petition. He states that the non-use of the FF and SF by the Respondent belies the plea of bona fide need and the Trial Court erred in dismissing the leave to defend application. Arguments of the Respondent Landlady
8. In reply, learned counsel for the Respondent, landlady, states that currently, both, the Respondent’s son i.e., Mr. Manish Gupta and grandson i.e., Mr. Kanishk Gupta are unemployed. He states that the said Mr. Manish Gupta, stands relieved from his post of Head – SME Banking at IDFC First Bank, since 29.06.2019. He further states that during the pendency of the eviction petition the said Mr. Kanishk Gupta, was employed with HDFC Bank w.e.f. 22.04.2019, however, he was subsequently, relieved on 18.10.2020. He relies upon the reply filed to CM APPL. No. 6890/2020 and the relieving letters issued by IDFC First Bank and HDFC Bank confirming the dates of their discharge.
8.1. He states that the tenanted premises (and more specifically the GF) are bona fide required to enable the landlady’s unemployed son and grandson to establish, run and operate their business.
8.2. He states that the subject property is more than 75 years old and is therefore, in a dilapidated condition. He states that the staircase for approaching the upper floors of the subject property is narrow, which makes it unviable to carry on business from the upper floors. He states that in contrast, the footfall of the customers on the ground floor is high and assured; and therefore, there is no parity between the ground floor and the upper floors. He states that FF and SF cannot be considered as an alternate accommodation to the GF.
8.3. To buttress the said argument, he relies upon the proceedings recorded in orders dated 30.01.2020 and 12.03.2020. He states that the Respondent had offered to exchange the GF of the subject property with the FF with the Petitioners. He states the said offer was rejected by the Petitioners. He states that the said offer exhibits the bona fide of the Respondent herein and its rejection substantiates the landlady’s contention that there is no parity between the GF and upper floors; and therefore, FF and SF cannot be considered as an alternate suitable accommodation.
8.4. He states that the landlady along with her daughter-in-law i.e., Ms. Madhu Gupta had started the business of sale of women’s wear under the name and style of ‘Kanishk Sarees’ in the year 2014, from the FF of the subject property. He states that however, the said business has failed as customers are unwilling to come to FF in the subject property. He states, in contrast the Petitioners’ showroom for sale of men’s formal clothes on the GF is successful due to the high and assured customer footfall.
8.5. He states that though the FF and SF are in control and occupation of the landlady, however the same are wholly unsuitable for starting a new business due to the physical condition of the subject property.
8.6. He states that the Petitioners herein have abused the procedural safeguards to delay the hearing in the present revision proceedings. He states that even during the adjudication of eviction petition, though the leave to defend application was filed, however, a copy of the same was not provided to the landlady for almost 3 years. Analysis and findings
9. This Court has considered the submissions of the parties and perused the record as well as the written submissions filed by the Respondent.
10. In the present petition, the execution of the impugned eviction order was stayed, subject to the Petitioners, tenants, making payment of use and occupation charges at the rate of Rs. 15,000/- per month w.e.f. 01.10.2019.
11. In the present case, the Trial Court while rejecting the tenants’ application seeking leave to defend, has given detailed and reasoned findings. In this regard, the Supreme Court in the case of Abid-ul-Islam v. Inder Sain Dua, (2022) 6 SCC 30, has dealt in detail with the scope of the Section 25-B (4) and (5) of the DRC Act and has held that at the stage of seeking leave to defend, the tenant is required to disclose such facts which would prima facie gives rise to triable issues and would warrant a consideration on merits; and the landlord/landlady would be disentitled to obtain an order for the recovery of the possession of the tenanted premises. The enunciation of the said principles by the Supreme Court at paragraph 18, 19 and 20 are instructive and read as under:
12. The Respondent had filed the eviction petition, asserting that she is the owner and the landlady in respect of the tenanted premises. It was stated in the eviction petition that the tenanted premises were let out by her deceased husband, late Sh. Ram Kishan Dass Gupta. The Petitioners while admitting that they are tenants, had however, disputed that the Respondent is the owner and the landlady. Pertinently, the Petitioners have not disputed that the premises was let out by late Sh. Ram Kishan Dass Gupta.
12.1. The Trial Court after considering the pleadings and the submissions of the parties returned a finding that the Respondent is the owner as well as the landlady in respect of the tenanted premises for the purposes of Section 14 (1) (e) of the DRC Act. The relevant findings of the Trial Court on this issue read as under: “20. The respondent has denied that the petitioner is owner and landlord of tenanted premises. However, the respondent has not denied that he is in possession of the tenanted premises in the capacity of a tenant. The assertion of the petitioner that her husband Mr. Ram Kishan Dass Gupta had let out the tenanted premises to the respondent no. 1 firm has also not been denied. The respondent has stated that no document has been filed by the petitioner for establishing that she is owner of the tenanted premises.
21. It appears that the respondent has not noticed that along with eviction petition, the petitioner has filed a receipt of payment of property tax as per which, the petitioner is the owner of the tenanted premises. The veracity and the authenticity of this document has not been questioned by the respondent.
22. Since the respondent has not denied that Mr. Ram Kishan Dass Gupta was the landlord of the tenanted premises, the same is deemed to have been admitted. As per the registered document titled "Release Deed", filed alongwith the eviction petition, Mr. Ram Kishan Dass Gupta died leaving behind his son. daughter and wife. The son and daughter executed the release deed and relinquished their share in the tenanted premises in favour of their mother i.e. the petitioner herein. There is now no reason to believe that petitioner is not the owner of the tenanted premises. There is no need for the petitioner to have filed a partition deed for substantiating that she is owner of the tenanted premises.
23. The principle is very clear that once a tenant always a tenant. The tenant cannot dispute the title of his landlord or his successor-in-interest i.e the petitioner herein. Moreover, even though the respondent has denied that petitioner is owner of the premises and has admitted that he is a tenant in it, the respondent has not disclosed as to who is the owner of the premises, if not the petitioner herein.
XXX XXX XXX
26. Since there is nothing on record to doubt the title of the petitioner over the tenanted premises, no triable issue has been raised with respect to the relationship of the landlord and tenant between the parties.
27. Accordingly, I am of the opinion that the petitioner is competent to have filed the present eviction petition as she is owner as well as landlord in respect of the tenanted premises for the purpose of section 14 (1) (e) of Delhi Rent Control Act. Therefore, I am of the opinion that there is a relationship of landlord and tenant between the petitioner and the respondents herein in respect of the tenanted premises for the purpose of section 14 (1) (e) of Delhi Rent Control Act.”
12.2. It is a matter of record that the subject property, wherein the tenanted premises is located, stands mutated in the name of the Respondent and she is paying the house tax for the said property in her capacity as the owner of the property. The Respondent has relied upon a registered Release Deed dated 11.05.2001 executed by her children, in her favour, after the demise of her husband, late Sh. Ram Kishan Dass Gupta, making her the absolute owner of the subject property. The said facts have not been disputed by the Petitioners.
12.3. Pertinently, the Petitioners while denying the ownership of the Respondent have not placed on record the name and details of the person whom they believe to be the actual owner of the subject property. This evidences that the denial of Respondent’s ownership is a bald averment and without any basis.
12.4. In the revision petition as well, the Petitioners have sought to challenge the Trial Court’s finding qua Respondent’s ownership, however, the said plea was not pressed during oral arguments. Similarly, no arguments were addressed to assail the finding of existence of relationship of landlord and tenant.
12.5. In these facts, this Court is of the opinion that the finding of the Trial Court with respect to the ownership and existence of the landlord and tenant relationship are correct and the pleas raised by the Petitioners in the leave to defend as well as the revision petition are mere moonshine. Bona fide need
13. The Respondent, landlady, has pleaded in the eviction petition that she requires the tenanted premises for her grandson i.e., Mr. Kanishk Gupta who has done his graduation in BBA, in April 2016, and wants to establish, run and operate his own business from the tenanted premises.
13.1. The Respondent has also relied upon the reply filed by her to the CM APPL. No. 6890/2020 to contend that after the passing of the impugned eviction order, the son of the Respondent i.e., Mr. Manish Gupta as well has become unemployed; and therefore, the tenanted premises are required for the bona fide need of, both, the son and the grandson to enable them to start their own business.
13.2. During the course of the oral arguments before this Court, the Petitioners have not disputed the fact that both the son and the grandson of the Respondent are currently unemployed.
13.3. In view of the aforesaid facts, this Court is of the opinion that the landlady has a bona fide need. No suitable alternative accommodation
14. It is stated that the Respondent requires the tenanted premises (which includes the GF) and there is no other suitable alternate accommodation available with the Respondent. It is also stated that no other immovable property is owned by the Respondent’s family members i.e., her son, her daughter-in-law and her grandson.
14.1. On the other hand, the crux of the oral arguments of the Petitioners before this Court was that since the Respondent has been unable to use the FF and SF for carrying on business started in 2014, the need for the tenanted premises including the GF is not bona fide.
14.2. It is stated by the Respondent that the portions available with her i.e., the FF and SF in the subject property are not suitable to start the new business as customers do not approach the upper floors. To substantiate this fact, it is stated that the business, which was started by the landlady with her daughter in law on the FF has failed due to the dilapidated structure of the building and that the customers do not feel comfortable climbing the narrow staircase (having width of 2.[5] ft.). It is stated that the Respondent carried out repairs on the said floors, however, no improvement was seen in the customer footfall.
14.3. The Respondent has relied upon the proceedings recorded in order dated 30.01.2020 and 12.03.2020 to state that the Respondent has offered to exchange the FF with GF with the Petitioners to show her bona fide, which offer has been rejected by the Petitioners.
14.4. The relevant extract of the orders dated 30.01.2020 and 12.03.2020 read as under: Order dated 30.01.2020 “2. Learned counsel for the respondent submits that the first and the second floor in possession of the respondent are in a dilapidated condition and the access is through a very narrow staircase which is not suitable. He makes a without prejudice offer that the petitioners may exchange the ground floor with the first floor portion.” Order dated 12.03.2020 “1. Learned counsel for the petitioner submits that the offer given by learned counsel for the respondent of exchanging the tenanted premises is not acceptable.”
14.5. This Court is of the opinion that the rejection of the said exchange offer by the Petitioners sufficiently evidences that the said upper floors are not comparable with the GF and therefore, FF and SF cannot be considered as alternative accommodations.
14.6. Further, it is admitted on record that the Petitioners as well are unable to use TF of tenanted premises for showroom purposes due to the condition of the building and its narrow staircase. In fact, the Petitioners herein have also placed on record the photographs of the staircase of the building with CM APPL No. 56322/2022, which clearly shows the dilapidated condition of the passage way and the staircase leading to the upper floors of the subject property.
14.7. The facts of the present case are near similar to the facts in the case of Anil Bajaj v. Vinod Ahuja, (2014) 15 SCC 610, wherein the Supreme Court took note of the conduct of the tenant who had declined the landlord’s offer to exchange the tenanted premises with the alternate premises and held that the tenant cannot dictate to the landlord/landlady how to utilize the premises available with it. The relevant paragraph 6 of the said judgment reads as under: “6. In the present case it is clear that while the landlord (Appellant 1) is carrying on his business from a shop premise located in a narrow lane, the tenant is in occupation of the premises located on the main road which the landlord considers to be more suitable for his own business. The materials on record, in fact, disclose that the landlord had offered to the tenant the premises located in the narrow lane in exchange for the tenanted premises which offer was declined by the tenant. It is not the tenant's case that the landlord, Appellant 1, does not propose to utilise the tenanted premises from which eviction is sought for the purposes of his business. It is also not the tenant's case that the landlord proposes to rent out/keep vacant the tenanted premises after obtaining possession thereof or to use the same is any way inconsistent with the need of the landlord. What the tenant contends is that the landlord has several other shop houses from which he is carrying on different businesses and further that the landlord has other premises from where the business proposed from the tenanted premises can be effectively carried out. It would hardly require any reiteration of the settled principle of law that it is not for the tenant to dictate to the landlord as to how the property belonging to the landlord should be utilised by him for the purpose of his business. Also, the fact that the landlord is doing business from various other premises cannot foreclose his right to seek eviction from the tenanted premises so long as he intends to use the said tenanted premises for his own business.”
14.8. In these facts and circumstances, and more specifically, in light of the refusal of the Petitioners to exchange the floors on 12.03.2020, the findings of the Trial Court holding that the need of the Respondent for her grandson is bona fide and she has no other alternative accommodation does not suffer from any infirmity. The relevant portion of the findings of the Trial Court reads as under: “29. The present case has been filed by the petitioner on the ground that the tenanted premises Is required by her grandson for running his own business or to join the petitioner for expansion of her business. From the photographs on page no. 22, 23 and 24 of the eviction petition which are stated to be of first and second floors of the property, it can be inferred that these floors are dilapidated and therefore, not suitable for the grandson of the petitioner to do any business.
30. Even if it is presumed that the first and second floors of the property are indeed vacant and no business Is being run from It, for the requirement of the grandson of starting his own business, the premises on the first and second floors cannot be considered to be as suitable as is the tenanted premises which is on the ground floor, in the cases of Dhannaiai Vs. Kaiawatlbai (2002) 6SCC 16 and Uday Shanker Upadhyay Vs. Naveen Maheshwari (2010) 1SCC 503, It was held that judicial notice can be taken of the fact that the upper floors are generally not commercially viable and consumers and patrons of the market are reluctant to walk into the same and are more prone to walk into a shop on the ground floor. Relying on these decisions, the Hon'ble High Court of Delhi in the case of M/s A.K. Woolen Industries & Ors. Vs. Shri Narayan Gupta RC. REV. No. 495/2017 dated 31.10.2017 held that availability of upper floors above the tenanted premises on the ground floor cannot be said to be alternate suitable accommodation.
31. Relying on the decision of the Hon'ble Supreme Court in the case of Santosh Devi Soni Vs. Chand Kiran 2001 (1) SCC 255, the Ld, Counsel for the respondent has argued that since the petitioner already has the first and second floors, the requirement for the ground floor is a requirement for additional accommodation and therefore, leave to defend should not be refused. As has already been held hereinabove that the first and second floors are not alternative suitable accommodations, it cannot be said that the present case is for additional accommodation. In the aforesaid case of Dhannalal Vs. Kaiawatibai &Ors., the Hon'ble Supreme Court held that the availability of another accommodation suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bona fides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. It was held that the bona fides of the need of the landlord for the premises or additional premises have to be determined by the Court by applying objective standards and once the Court is satisfied of such bona fides then in the matter of choosing out of more accommodations than one available to the landlord, the subjective choice shall be respected by the Court. The Hon'ble Supreme Court held that for the business, which the respondent Nos. 2 and 3 propose to start or continue respectively, an accommodation situated on the first floor cannot be said to be an alternative suitable accommodation in comparison with the shops situated on the ground floor. It was observed that a shop on the first floor cannot attract the same number of customers and earn the same business as a shop situated on the ground floor would do.
32. By applying objective standards, it is obvious that the ground floor property is more suitable for starting of a new business by the grandson of the petitioner. The subjective choice of the petitioner for providing the ground floor property to her grandson has to be respected by the Court.
XXX XXX XXX
34. The contention that the petitioner and her family members are gainfully employed and therefore do not need any premises for business does not give rise to a triable issue since even a person who is already employed can seek eviction of a tenant for the purpose of having a premises for starting a new business.”
14.9. In addition, the Trial Court in its findings has already referred to the judgments of the Supreme Court, which have held that it is matter of judicial notice that commercial premises located on ground floor is more commercially viable for business and attracting customers than the upper floors of a property. The Petitioners herein have not denied that their showroom for sale of garments on the GF is doing good in terms of business.
14.10. Therefore, the plea of the Petitioners with respect to availability of FF of the subject property is not tenable in view of the dicta of the Supreme Court as well as this Court in K.B. Watts v. Vipin Kalra, 2015 SCC OnLine Del 9488, wherein this Court has reiterated the admitted position of law that for conducting a profession or business, ground floor premises are always more suitable. The relevant portion of the said judgment 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 2nd, 3rd and 4th floors, however it is also well-settled 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.” No adverse inference on account of previous eviction petition
15. The Respondent had filed an eviction petition in the year 2009 for recovery of possession of FF and SF from another statutory tenant. It was stated in the eviction petition that the said premises had been lying locked and unused for 30 years. In the said proceedings the matter was settled amicably between the said parties and the possession was handed over to the Respondent herein as recorded in the order dated 04.05.2013. The Respondent thereafter, occupied the said premises and made an attempt to carry on business of women’s garments. The said proceedings were therefore bona fide and this Court finds no merit in the submission of the Petitioners that the lack of success of the business started by Respondent on FF and SF disentitles them from seeking eviction from the tenanted premises which includes the GF.
15.1. The subject eviction petition was filed much later on 26.12.2016 and for the bona fide need of the grandson, which in this opinion of this Court has rightly upheld by the Trial Court.
16. The Supreme Court in the case of Abid-ul-Islam (Supra) has after discussing the law held that the scope of the revisional jurisdiction under Section 25B(8) of the DRC Act is limited. The relevant para 23 reads as under:
23. The proviso to Section 25-B(8) gives the High Court exclusive power of revision against an order of the learned Rent Controller, being in the nature of superintendence over an inferior court on the decision-making process, inclusive of procedural compliance. Thus, the High Court is not expected to substitute and supplant its views with that of the trial court by exercising the appellate jurisdiction. Its role is to satisfy itself on the process adopted. The scope of interference by the High Court is very restrictive and except in cases where there is an error apparent on the face of the record, which would only mean that in the absence of any adjudication per se, the High Court should not venture to disturb such a decision. There is no need for holding a roving inquiry in such matters which would otherwise amount to converting the power of superintendence into that of a regular first appeal, an act, totally forbidden by the legislature.
17. In view of the dicta of the Supreme Court, this Court is of the view that the issued raised by the Petitioner herein do not merit any interference and the finding of the Trial court do not suffer from any infirmity.
18. Accordingly, in view of the aforesaid discussion, this Court finds no merit in this revision petition, which is hereby dismissed and the eviction order dated 23.03.2019 is upheld. The pending applications are disposed of.
19. The interim order dated 06.09.2019 is hereby vacated. The Respondent is at liberty to proceed with the execution of the eviction order and the Petitioners will be liable to continue to pay the use and occupation charges at Rs. 15,000/- per month, until the handing over of the possession to the Respondent.
20. No orders as to costs.
MANMEET PRITAM SINGH ARORA, J APRIL 6, 2023/hp/aa