Full Text
HIGH COURT OF DELHI
JUDGMENT
SHRI BABU RAM GUPTA ..... Petitioner
Through: Mr. Shiv Charan Garg, Advocate.
Through: Mr. M.L. Bajaj, Advocate.
CHANDER PRAKASH ..... Petitioner
Through: Mr. M.L. Bajaj, Advocate.
Through: Mr. Shiv Charan Garg, Advocate.
1. The present revision petitions under Section 25B(8) of the Delhi Rent Control Act, 1958 (the „DRC Act‟), assail the impugned judgment/order dated 06.09.2021, passed by the learned CCJ-cum-ARC, Central District, Tis Hazari Courts, Delhi (the „ARC‟) in CIS No. E-1104/18. Vide the said impugned judgment, the learned ARC has found that a triable issue arises with respect to landlord’s ownership of the premises in question i.e. Shop No. 8598, (Private No. 8598-B) Plot No.84 Model Basti, East Park Road, Karol Bagh, New Delhi- 110005 (the „tenanted premises‟) which requires evidence to be led by the parties. Accordingly, the leave to defend application filed by the respondent/tenant (Chander Prakash) was allowed.
2. The impugned judgment accepts the plea of the petitioner/landlord in the eviction petition with regard to the issue of bonafide requirement and nonavailability of suitable alternative accommodation. It is only with regard to the landlord’s ownership of the tenanted premises, that it was held that a triable issue arises, necessitating grant of leave to defend.
3. RC REV. 161/2021 has been filed by the landlord whereas the RC REV. 28/2022 has been filed by the tenant.
4. It is the contention of the petitioner (landlord) in RC REV. 161/2021 that the impugned judgment wrongly ignores the pleadings wherein the existence of the landlord-tenant relationship was admitted by the tenant. It is further contended that the legal position is well settled to the effect that it is not open for the tenant to deny the title of the landlord as the same is contrary to the Section 116 of the Evidence Act, 1872. It is further submitted that the onus on the landlord to establish the landlord-tenant relationship is not akin to the onus in title suit; all that the landlord is required to show is that he has better title in respect of the tenanted premises than the tenant. Reliance is placed on behalf of the petitioner/landlord on the following judgments:
(i) Amit Khemka vs. Rajender Kumar[1];
(ii) Shri Ram Pasricha vs. Jagnnath & Ors.2;
(iii) D. Satyanarayan vs. P. Jagdish[3]; and
(2012) 189 DLT 137
(iv) Mukesh Kumar vs. Rishi Prakash[4].
5. In RC REV. 28/2022 filed by the tenant, the impugned judgment has been assailed on the ground that it renders non-speaking findings on the issue of bonafide requirement, availability of alternative accommodation, existence of joint tenancy. It is prayed by the tenant that the eviction petition be remanded to the ARC and the leave to defend application be directed to be reheard.
6. Having heard respective counsels for the parties, I find no merit in the contention raised on behalf of the tenant in RC REV. 28/2022.
7. The impugned judgment dated 06.09.2021 renders the following findings on the issue of non-joinder of other legal heirs of original tenant:
8. The impugned judgment correctly sets out the legal position to the effect that upon the demise of the original tenant, the tenancy devolves upon the legal heirs of the deceased tenant as joint tenants and the service/notice to one of the joint tenants is sufficient. Accordingly, it has been rightly held that there is no merit in the contention of the tenant regarding non-joinder of other legal heirs of the father of the tenant.
9. With regard to the contention of the tenant regarding non-furnishing of complete details of the property and the alleged discrepancy in the site plan and in the municipal number of the tenanted premises, the impugned judgment holds as under:
10. The above findings in the impugned judgment are unexceptionable. The law is well settled that where the tenant seeks to dispute the site plan filed by the landlord and/or contend that the same does not depict entire details of the suit property, it is open for the tenant /opposite party to file a site plan of his own. In this regard reference may be made to the judgment of this court in Anil Bhasin v. Imarti Devi[5], wherein it has been held as under:
11. Admittedly, the tenant has not filed any site plan of his own in the case which could have negated the site plan filed by the petitioner/landlord alongwith the eviction petition. Further, the impugned judgment notes, based on perusal of material, that there was no discrepancy with regard to the municipal number of the property.
12. With regard to the issue of bonafide requirement, the impugned judgment dated 06.09.2021 finds as under: “15. It is stated by the petitioner that the tenanted premises is required bonafide by the petitioner for himself as well as for his wife and Smt. Krishna Gupta, who are neither in service nor in job and want to open a shop· for sale & purchase of computer parts as well as mobile phones. It is stated that tenanted premises is also required for grand daughter of the petitioner, who is also dependent upon the petitioner for accommodation and she will assist/help the petitioner for running the required business. It is stated that the tenanted shop is situated on the main road and has great potential of success of the proposed business. It is stated that the petitioner is a retired Deputy Development Commissioner from Ministry of Textiles, Govt. of India and he is residing alongwith his wife with his son Sh. Neeraj Bansal with his family on the above floor of the suit property. It is stated that Sh. Neeraj Bansal, son of the petitioner is in the possession of shop no. 8599 on the ground floor and running his professional business under the Name & Style M/s Bansal Neeraj & Associates. It is stated that shop no. 8598 (Pvt. No. 8598-A) is under the possession of M/s IPT (P) Ltd. and shop 8598 (Pvt. No.8598-B) is in the possession of the respondent.
16. Per contra, it is stated by the respondent that the need of the petitioner is not genuine because the rent of the present tenanted premises is very low and there is a great chance that the petitioner would re-let the same on exhorbitant rent. It is submitted that the bonafide need as shown by the petitioner that he needs the premises for sale & purchase of computer parts and mobile phones appears to be vague because no one at that stage would conduct such kind of business. Therefore, this bonafide need is a engineered one. It is stated that the tenanted premises is also required for the grand daughter of the petitioner who will assist him in the said proposed business. However, neither the name nor age and other particulars of grand daughter has been disclosed in the petition and it has not been disclosed as to how she is dependent upon the petitioner. It is stated that with these facts, it appears that the bonafide need is not genuine.
17. The law regarding the bonafide need has been made clear by the Hon'ble Apex Court in the case titled as "Sarla Ahuja v. United India Insurance Co. Ltd., reported as AIR 1999 SUPREME COURT 100", whereby it was held that: "..... 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 bonafides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.... ". In other case titled as M. M. Mehta Vs. Chaman Lal, 1981 J. RLR (Note) 30, wherein it was said that: - "A member of the family though not financially dependent but living together with him is covered in the word 'dependent' used in Section 14 (l)(e) of the Act." Further, the Hon'ble Apex Court in the case titled as "Ragavendra Kumar v. Firm Prem Machinary reported as AIR 2000 SUPREME COURT 534", has clearly held that:- "It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter".
18. In the present case, petitioner has not placed on record the ID Card, Aadhar Card or any document of his grand daughter. Nor has he mentioned her name, age and qualification. But as per the facts, the grand daughter of the petitioner would assist the petitioner in running the proposed business of computer parts and mobile phone. Therefore, it hardly matters that petitioner is required to give details of his grand daughter. In view of the above said judgments, it can be said that the need of the petitioner is bonafide for himself or for his wife dependent upon him (petitioner) and hence, the age of the petitioner is not a hindrance for commencing the intended business of sale & purchase of computer parts and mobile phones.
19. From the material placed on record and in view of the above discussion, the bonafide requirement of the petitioner qua the tenanted premises for himself or for his wife to start their business of sale & purchase of computer parts and mobile phones stands duly proved.”
13. Again, the above findings are perfectly in consonance with the settled legal position. There is no merit in the contention of learned counsel for the tenant to the effect that the plea regarding bonafide requirement must be disbelieved just because the landlord and his wife are aged about 85 and 77 years respectively. In this regard, reference may be made to the judgment of the Supreme Court in the case of Balwant Singh v. Sudarshan Kumar[6], wherein it has been held as under: “On the age aspect, it is seen that the [tenants] are also senior citizens but that has not affected their desire to continue their business in the tenanted premises. Therefore, age cannot be factored against the landlords in their proposed business.” 13.[1] In Abdul Qadir v. Prakash Rani Bhalla[7], it has been held as under: “The plea of [tenant] that the [landlord] is above the age of 75 years and cannot continue her business for long period, is untenable. In the present day life, there is no age of retirement.” 13.[2] In Ashok Kumar v. Sunil Kumar[8] “Age has no bearing on the requirement of commercial accommodation of a person. The need to start a new business cannot be doubted solely because such need is of a person who is a senior citizen.”
14. In the eviction petition, the petitioner/landlord has asserted bonafide requirement not only for the purpose of starting/opening his own business but has also additionally averred that the grand-daughter of the petitioner/landlord also requires the premises, inasmuch as said grand-daughter is dependent upon the petitioner for accommodation and she will assist/help the petitioner in
2014 SCC OnLine Del 7570 running their proposed business. In the light of the pleadings and the settled legal position, no fault can be found in the findings rendered on this count.
15. With regard to the issue of availability of suitable alternative accommodation with the landlord, the impugned judgment considers the contentions of respective parties and holds as under: “20. The respondent has stated that the petitioner has several other properties including residential & non-residential in the prime location of Delhi. The properties of the petitioner are:i. A spacious building (measuring 300 sq yds.) comprising of several floors. The residential portion of the ground floor of this building is in the possession of his son Amit Gupta and the non-residential portion on the upper floors of the said buildings have been let out by the petitioner at exhorbitant rate of rent. ii. Another property owned by the petitioner is 8921/2, Multani Dhanda, Pahar Ganj, New Delhi- This comprises of 6 godowns and an office on the ground floor besides upper floors, which is now in possession of Amit Gupta, who is acting as a Distributor & Stockiest of 3M Sikka or Henkel, Boss Produces Duratuff, Saint Gobain. iii. Residential property no.338, situated at AGCR Enclave, Delhi. iv. Two shops on the back of shop no.8598-A on the ground floor and from that shop, i.e. 8598-A there is a way to two hind shops and shop no.8598-A is in the possession of the petitioner on the ground floor. It is stated that the petitioner can satisfy his bonafide need from the abovesaid properties.
21. Per contra, it is denied that petitioners have several other properties including residential & non-residential in the prime location of Delhi. It is further denied that a spacious building (300 sq yds.) comprising of several floors. It is further denied that the residential portion of the ground floor of this building is in the possession of his son Amit Gupta or that the non-residential portion on the upper floors of the said buildings have been let out by the petitioner at exhorbitant rate of rent. However, it is submitted that the petitioner is the owner of the residential property bearing no. 338, AGCR Enclave, Delhi measuring 196.95 sq. yds. and his son Amit Gupta is residing in the said building where there is no commercial/non-residential place but is a pure residential accommodation (photographs attached and photocopy of certificate dated 27.01.2019 issued by Secretary AGCR Cooperative Housing Building Society Ltd. attached). It is further denied that another property no. 892112, MuhaniDhanda, Pahar Ganj, New Delhi is owned by the petitioner. It is submitted that the petitioner has no right, interest or tide in the said property. It is denied that there are two shops on the back of shop no. 8598-A on the ground floor or that from that shop, i.e., 8598-A there is a way to two hind shops or that shop no. 8598-A is in the possession of the petitioner on the ground floor.
22. Perusal of material on record suggests that although the details of the other properties have been described by the respondent but he has not filed any documentary proof with regard to these properties. Admittedly, tenanted premises is a commercial property, which is in possession of the respondent. It is also an admitted fact that the respondent has not placed any site plan which could show that there is a way to two hind shops from shop no. 8598-A which are vacant and in possession of the petitioner. It has come on record that 8598- A is in the possession of M/s IPT (P) Ltd. and photocopies of its rent receipts dated 02.04.2017, 10.05.2017 & 20.12.2018 are on record. Respondent has not placed on record any registered or non-registered document with regard to the property which is in possession of the petitioner.
23. In Bishambhar Das Gupta Vs. Naresh Sharma, 213 (2014) DLT 194, wherein it was held that:- “Prerogative to determine the suitability of the tenanted premises is entirely with landlords, tenant cannot dictate landlord to use the property as per his wishes." Onus to prove the alternate suitable accommodation with the petitioner lies upon the respondent and without any documentary proof, it cannot be presumed that the petitioner is the owner or in possession of alternate accommodations. With these observations, it can be said that no alternate suitable accommodation is available with the petitioner.
24. Another contention of the respondent is that the tenanted premises is on the commercial road and the respondent has paid conversion charges. In this concern, even if it is presumed that the respondent has paid the conversion charges, even then, it does not by itself makes the respondent owner of the property as the conversion charges is paid only for using the property as commercial one. Therefore, this contention of the respondent appears to be vague.
25. Another contention of the respondent is that he has been running a bakery business from the tenanted shop for bread and butter for his family and he is also having a unemployed son Mohit Arora and if the adverse order is passed, then it would be a great hardship to the respondent. However, it is a well settled principle of law that a Rent Controller has to see the bonafide requirement of the petitioner and not the comparative hardship of the respondent. It is well settled position of law laid by the Apex Court in Bega Begum and Ors. v. Abdul Ahad Khan and Ors (1979) AIR 272 that "the inconvenience loss and trouble resulting from denial of decree of eviction in favour of the landlord far outweigh the prejudice or the inconvenience which will be caused to the tenant." Moreover, it has been pointed out by the Apex Court and Madras High Court in M/s Bentool Steel Products Pvt Ltd v. O.M.A. Mohammed Omar in CA No. 112 of 2002 that "comparative hardships of the tenant is unsustainable in the eye of the law" and "a little inconvenience to the tenant cannot be called a hardship. In case of Mohd. Ayub v. Mukesh Chand (2012) 2 SCC 155, it was observed that "the hardship appellants would suffer by not occupying their own premises would be far greater than the hardship the respondent would suffer by having to move out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises. some hardship is inherent. We have noted that the respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be the sole determinative factor". The same has been reiterated in Puran Chand Aggarwal v. Lekh Raj 2010 (2014) DLT 449. Thus, by applying. the ratio of abovesaid judgments, the said contention of the respondent is unsustainable.
26. Another contention of the respondent is that the petitioner is not sure whether he had issued rent receipts in respect of tenanted premises by private number 8598 or 8598-B. Without going into details, the respondent has himself filed two original rent receipts dated 07.01.2016 & 02.07.2016 wherein it is categorically mentioned that the tenanted shop 8598-B, i.e., half portion of shop 8598 situated at East Park Road, 84 Modern Basti, Delhi-110005 and these rent receipts are self sufficient to answer this contention. Hence, this contention of the respondent is absolutely false, frivolous and unsustainable.”
16. Again, no fault whatsoever can be found in the aforesaid findings nor it can be said that the above findings are unreasoned, as alleged by learned counsel for the tenant. It has been strenuously contended on behalf of the tenant before the ARC as also before this Court, that the landlord is in possession of shop no.8598-A and he also has access of two hind shops behind the back of shop no. 8598-A. The impugned judgment rightly notes that the contention of the tenant in this regard cannot be accepted since the tenant has not filed any site plan of its own nor produced any document whatsoever in support of its contention. On the contrary, as noticed in the above reproduced portion of the impugned judgment, the landlord placed on record photocopy of rent receipts to establish that the shop no.8598-A was in possession of another tenant i.e. M/s IPT (P) Ltd. The impugned judgment also considers the other properties owned by the landlord and rightly concludes that no alternate suitable accommodation is available with the petitioner/landlord. Reliance has been rightly placed on the decision in Bishambhar Das Gupta Vs. Naresh Sharma[9], which holds that the prerogative to determine the suitability of the tenanted premises is entirely with the landlord; it is not for the tenant to dictate the landlord as to how he can accommodate himself. This position has also been reiterated by the Supreme Court in several judgments. In Sarla Ahuja v. United India Insurance Co. Ltd10 “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.” 16.[1] In Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai Prabhulal11, it has been held as under: “It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business.” 16.[2] In Anil Bajaj v. Vinod Ahuja12 “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 utilized by him for the purpose of his business.” (2014) 213 DLT 194 AIR 1999 SC 100
17. In the circumstances, no merit is found in the contention raised by the tenant in RC REV. 28/2022 and the same is liable to be dismissed.
18. As regards the contentions raised by the petitioner (landlord) in RC REV. 161/2021, there is merit in the contention of the landlord that the impugned judgment is in transgression of the settled legal position. Also, the impugned judgment ignores the position that emanates from the pleadings filed before the ARC.
19. In the eviction petition, it was specifically averred as under: “(i) That the father of the petitioner purchased the suit property bearing plot NO. 84, Model Basti, Karol Bagh, New Delhi vide Sale-Deed dated 17.07.1946 vide document no. 2627, volume no.2457 on pages 205 to 210 registered on 21.09.1946 with the Sub-Registrar-I. Shri Prahlad Singh Gupta died on 08.11.1982 leaving behind four sons namely Shri Vidya Sagar Gupta, Shri Shyam Sunder Gupta, Shri Prem Sagar Gupta and Shri Babu Ram Gupta and one Daughter Smt. Dropadi Garg. All the sibling had executed the release-deed and Will in favour of the petitioner as such the petitioner is the owner/landlord of the suit property/premises bearing Plot No. 84. The Municipal Authority has allotted the number 8542 8598-8599 to the plot no.84, Model Basti, East Park Road, Karol Bagh, New Delhi-110005. The suit premise is situated on the ground floor of the suit property for which the municipal Authority allotted Municipal no.8598 which has divided by the petitioner in two part in private number 8598A and 8598B and the petitioner has given the suit premise as bearing private no.8598-B for his convenience situated at plot no.84, Model Basti, Karol Bagh, New Delhi-5.”
20. In the leave to defend application it has been averred by the tenant as under:
21. As such, there is merit in the contention of the petitioner/landlord that the existence of landlord-tenant relationship was never disputed in the leave to defend application filed on behalf of the tenant.
22. Apart from the aforesaid, the respondent/tenant had himself filed rent receipts dated 07.01.2016 on 02.07.2016, before ARC along his leave to defend application. The said rent receipts have been filed by the petitioner/landlord before this Court on 07.11.2021 vide diary No.891007.
23. The law is well settled to the effect that it is not open for the tenant to question the title of the landlord. It is also well settled that while deciding the eviction petition, the Rent Controller is not required to adjudicate intricate questions of title. All that the landlord needs to establish is that he is something more than a mere tenant. In this regard reference may be made to decision of this court in Puran Chand Aggarwal v. Lekh Raj13, in which after considering various decisions dealing with the issue of ownership/title of landlord qua tenant, it was held as under:
(2014) 210 DLT 131 23.[1] Reference may also be made to a judgment of the Supreme Court in Boorugu Mahadev & Sons v. Sirigiri Narasing Rao14, wherein it has been held as under:
24. Interestingly, in the present case, the impugned judgment itself notices as under:- “Therefore, from the perusal of material on record, the existence of relationship of landlord and tenant stands proved.” 24.[1] Despite having rightly rendered the aforesaid finding, the impugned judgment goes on to erroneously observe that “the ownership of the petitioner is required to be proved prima facie by the petitioner which needs evidence to be advanced by the parties.”
25. The findings rendered in the impugned judgment, to the aforesaid extent, are clearly erroneous, and the same are accordingly set aside.
26. Since the landlord-tenant relationship stands admitted, no triable issue arises with regard thereto. Since this is the only ground on which leave to defend has been granted and since no infirmity can be found in the impugned judgment with regard to the findings rendered (in favor of the landlord) on other aspects, an eviction order is liable to be passed against the tenant.
27. In view of the above discussion, RC REV. 28/2022 filed by the tenant is dismissed. RC REV. 161/2021 filed by the landlord is allowed. An eviction order is passed directing that the petitioner/landlord is entitled to recover the possession of tenanted premises i.e. Shop No. 8598 (Private No. 8598-B), Plot No. 84, Model Basti, East Park Road, Karol Bagh, NewDelhi-110005. The respondent/tenant is directed to vacate the tenanted premises and hand over vacant physical possession of the same to the petitioner/landlord.
28. In view of the sub-section (7) of section 14 of the DRC Act, this order for recovery of possession of tenanted premises shall not be executed before the expiration of a period of six months from today.
29. The revision petitions, along with pending applications, are disposed of, in aforesaid terms.
SACHIN DATTA, J. MARCH 10, 2023