Full Text
HIGH COURT OF DELHI
RC.REV. 280/2022 & CM APPL. 52974-75/2022
MOHD NASEEM ..... Petitioner
Through: Mr. G.M. Farooqui, Mohd. Faisal, Advocates.
Through: Ms. Poonam and Mr. Atul Kumar, Advocate for R-1.
JUDGMENT
1. The present revision petition has been filed by the Petitioner (‘tenant’) assailing the eviction order dated 31.08.2022 passed by the ARC, Central District, Tis Hazari Courts, Delhi (‘Trial Court’) in RC ARC No. 78246/2016, wherein, post-trial, the eviction order has been passed in favour of the Respondent No.1 (‘landlord’).
2. The Petitioner is seeking to challenge the impugned eviction order mainly on the ground that the Respondent No.1 has failed to prove his bona fide need as well as the fact that the said Respondent has various other suitable alternate accommodations available for his alleged bona fide need.
3. The Respondent No.1 is the co-owner of the Property bearing Nos. 673 to 677, Bazar Chitli Qabar, Jama Masjid, Delhi (‘subject property’), which was jointly purchased by the Respondent No.1 along with his two brothers namely Qutubuddin i.e., Respondent No.2 herein and Qayamuddin, vide registered sale deed dated 20.09.1973. The four (4) shops at the ground floor of Property bearing Nos. 673 to 676 were let out to different tenants, wherein shop No. 673 in the subject property (‘tenanted premises’) was let out to the Petitioner from where is he running a business of selling Pan, Biri, Cigarettes etc.
4. The eviction petition was instituted by the Respondent No.1, who is an elderly citizen of 84 years of age, for the bona fide requirement of himself and his family members who intend to run and operate a business of readymade garments from the tenanted premises. The said eviction petition was instituted on 16.08.2012 and the impugned eviction order was passed on 31.08.2022. The Petitioner has thereafter awaited from 01.09.2022 to 05.12.2022 to file the revision petition on similar grounds as raised in the eviction proceedings, which were duly adjudicated by the Trial Court.
5. Learned counsel for the Petitioner states that there doesn’t exist any landlord-tenant relationship between the Petitioner and Respondent No.1, and that the Respondent No.2 is the landlord of the Petitioner herein. He states that the Respondent No.1 herein, arrayed his brother, Qutubuddin, as Respondent No.2 in the eviction petition and is claiming himself to be a coowner of the tenanted premises along with Respondent No.2. He fairly admits that he does not dispute the co-ownership of the Respondent No.1 and the issue is raised only with respect to non-existence of landlord-tenant relationship between the Petitioner and Respondent No.1.
5.1. He states that the tenanted premises is a triangular shaped, small sized shop, ad-measuring 6’ x 3’ and is not suitable for the bona fide need of the Respondent No.1 or his family members.
5.2. In the leave to defend application it is stated that other shops on ground floor of subject property i.e., shop No. 675 is lying vacant and shop No. 676 is in occupation of another tenant. It is stated that the shop No. 674 was let out by the Respondent No.1 to another tenant, immediately before filing of the eviction petition. 5.2.1. However, learned counsel for the Petitioner has altered his stand with respect to the said shops during the course of arguments in the present revision petition and he states that with respect to shop No. 674, an eviction order has been passed by the Rent Controller against the statutory tenant and a revision petition bearing RC. REV. 250/2017 is pending before this Court. 5.2.2. He states that with respect to shop No. 675, it is admitted that the same is in occupation of a third party namely Mr. Mohd. Shafiq, however, it was alleged that the said person is conducting business jointly with the Respondent No.1 herein. 5.2.3. He states that with respect to shop No. 676, it was admitted that the possession of the said shop has been recovered from the erstwhile tenant and one of the sons of Respondent No.1 is carrying on his business of crockery and other plastic item from the said shop.
5.3. In the leave to defend application it is further stated that the Respondent No.1, is the owner of another Property bearing Nos. 1174 to 1176, Gali Sunar Wali, Kala Mahal, Darya Ganj Delhi (‘Property bearing Nos. 1174 to 1176’), wherein there are three shops bearing no. 1174 to 1176, which have been let out on rent. It is further stated that there are two more shops on the ground floor of said Property No. 1175 on the gali side.
5.4. He states that there are three shops of the Respondent No.1 on the ground floor of Property No. 1152, Gali Nanua Teli, Turkman Gate, Delhi (‘Property No. 1152’), out of which one shop is lying vacant and the Respondent No.1 is running a Darkozi factory on the first floor. It is stated that second floor and third floor is being used for residential purpose by the family members of Respondent No.2.
5.5. He states that the Respondent No.1 has initially issued a legal notice dated 22.02.2012 to the Petitioner, wherein he had called upon the tenant to enhance the rate of rent. He states that pertinently, there was no mention of any bona fide need in the said notice. He states that the eviction petition was immediately filed thereafter within a period six months on 16.08.2012, on the plea of bona fide requirement for the family members of the Respondent No.1, which is contradicted by the notice. He states that in the eviction petition, no details of the said family members was set out and the said eviction petition was vague and bereft of any details in this regard.
5.6. He states that the Respondent No.1 himself did not step into the witness box and instead in his place, his son appeared as PW[1]. He states that in the affidavit by way of evidence of PW[1], again there was no detail with respect to the family members for whose bona fide requirement the tenanted premises is required by Respondent No.1.
6. In reply, learned counsel for the Petitioner states that the Respondent No.1 herein, is a senior citizen of 84 years, who is suffering from old age ailments and therefore, could not step into the witness box.
6.1. She states that the Respondent No.1 has preferred eviction petition(s) with respect to shop Nos. 674, 675 and 676 as well. She states that with respect to shop No. 674 the Rent Controller has passed an eviction order which is pending challenge in a revision petition before this Court. She states that with respect to shop No. 675, the eviction petition is pending adjudication before the Rent Controller. She states that with respect to shop No. 676, the eviction order was passed by the Rent Controller about three (3) years ago and the said shop is being used by one of the sons of the Respondent No.1, wherein he is running a business of crockery and plastic items.
6.2. She states that the Respondent No.1 is neither the owner of Property bearing Nos. 1174 to 1176, nor the Property No. 1152.
6.3. She therefore, states that the allegation of vacant alternate accommodation is incorrect.
7. This Court has heard the learned counsel for parties and perused the paper book.
7.1. The impugned eviction order in this petition was passed after a full trial was conducted and parties led evidence. Existence of landlord-tenant relationship
8. With respect to the issue of ownership of the tenanted premises, the Petitioner herein had disputed the ownership of the Respondent No.1. In reply, the Respondent No.1, produced before the Trial Court the sale deed dated 20.09.1973 which was marked as Exhibit PW1/1 and was duly tendered in evidence. The said sale deed evidences that the Respondent No.1, is a coowner of the subject property along with his brothers including Respondent No.2 herein. In view of the said sale deed, the learned counsel for the Petitioner conceded during oral arguments that there is no dispute with respect to the co-ownership.
8.1. With respect to the status of landlord-tenant relationship, the Petitioner herein admitted that he was paying rent to Respondent No.2, who is the brother of Respondent No.1 and a co-owner in the premises. In view of the said admission, the Petitioner’s status of a tenant stands admitted. Further, Respondent No.2 herein was arrayed as a party to the eviction petition and he has not objected to the eviction petition.
8.2. In this view of the matter the eviction petition filed by the Respondent No.1 herein, who is admittedly a co-owner of the tenanted premises, is maintainable. The finding of the Trial Court at paragraph 8 and 9 of the impugned order are correct and do not suffer from any error of law and the status of landlord-tenant relationship between the parties stands established. The relevant finding of the Trial Court in the impugned eviction order reads as under: -
9. The Petitioner herein has assailed the finding of bona fide requirement on the ground that the Respondent No.1 herein has alternate suitable accommodation available to him in the subject property itself in the shape of shop Nos. 674, 675 and 676.
9.1. The Petitioner has admitted that shop No. 674 is in occupation of a statutory tenant who has suffered an eviction order, which is pending adjudication in RC. REV. 250/2017, before this Court.
9.2. The Petitioner has also admitted that shop No. 675 is in possession of a third party namely, Mr. Mohd. Shafiq. Learned counsel for the Respondent No.1 had submitted during oral argument that an eviction petition is pending for the recovery of possession of said premises, before the Rent Controller.
9.3. As regards shop No. 676, the Petitioner admits that the said shop was vacated by the statutory tenant in pursuance to an eviction order and the said shop is being used by one of the sons of the Respondent No.1, for carrying on the business of crockery and other plastic items.
9.4. Learned counsel for the Respondent No.1 has stated that the Respondent No.1 has filed the eviction petitions for recovery of tenanted premises i.e. shop No. 673 and the adjoining shop Nos. 674, 675 and 676 for the bona fide requirement of himself and his family members who wish to run and operate a business of readymade garments from the tenanted premises.
10. In view of the aforesaid admitted facts that shop Nos. 674 and 675 are admittedly not available to the Respondent No.1, this Court is of the opinion that the Respondent No.1 is not precluded from seeking recovery of the tenanted premises due to the availability of shop No. 676, which is admittedly, being used by one of the sons of Respondent No.1.
11. The Petitioner has also alleged that Property Nos. 1174 to 1176, Gali Sunar Wali, Kala Mahal, Darya Ganj, Delhi, is available to the Respondent No.1. However, no evidence has been brought on record by the Petitioner to substantiate his plea that the said properties belong to Respondent No.1. The Respondent No.1 has categorically denied the ownership of the said property and it has come on record that the Petitioner No.1 herein admitted that the said property belongs to Respondent No.2. In view of the said admission of the Petitioner, the Trial Court rightly rejected the contention of the Petitioner that this property can be considered as an alternate accommodation. The relevant finding of the Trial Court in the impugned eviction order reads as under: - “11. Respondent further claims that petitioner is the owner of property bearing no. 774-776, Gall Sunar Wall, Kalan Mahal, Darya Ganj Delhi; that there are three shops 1175 to 1176 at the above said property which have been let out on rent; that there are two more shops on the ground floor which are lying vacant and that its first floor is being used by the petitioner for running a factory of Darkozi whereas second and third floors are used for residential purposes. Petitioner/PW[1] have specifically denied the ownership of such property. Interestingly, even though the respondent took such plea in his written statement and evidence affidavit, he himself nullified it by making an admission during his own cross- examination, that the aforestated properties did not belong to petitioner but to his brother Qutubuddin. In short, the respondent's plea regarding the availability of the above said properties falls in the teeth of his own admission and as the present case has been filed on the basis of bonafide need of the petitioner and not of his brother, the availability of such properties becomes inconsequential to the case.
12. Similarly, with respect to Property No. 1152, Gali Nanua Teli, Turkman Gate, Delhi, the Petitioner has alleged that the said property is available to Respondent No.1. The Respondent No.1 has categorically denied the ownership of the said property. The Petitioner has not brought on record any documents during the stage of evidence, in eviction proceedings, to substantiate his claim that the said property belongs to Respondent No.1. This Court is unable to accept the submission of the Petitioner that the testimony of PW[1] is evasive in this regard and therefore, should be considered to be an admission of ownership. In view of the fact that the Petitioner herein despite a full trial, which lasted 10 years, was unable to bring any evidence on record as regards his claims, this Court is of the opinion that the finding of the Trial Court merits no interference.
13. In view of the aforesaid facts, it is clear that the Petitioner has been unable to show that the Respondent No.1 herein has any vacant alternative accommodation. Bona fide need
14. The Petitioner herein has assailed the bona fide need of the landlord on the plea that the Respondent No.1 has initially issued a legal notice dated 22.02.2012 wherein, the landlord had called upon the tenant to enhance the rate of rent. He states that pertinently, there was no mention of bona fide need in the said notice and the eviction petition was immediately filed within a period six months on 16.08.2012, on the plea of bona fide requirement for the family members of the Respondent No.1.
14.1. The Petitioner further stated that the detail and particular of the family member, for whose bona fide need, the tenanted premises are required has not been set out in the eviction petition.
14.2. This Court has considered the submission of the Petitioner. The Petitioner during the oral arguments admitted that the Respondent No.1 has nine (9) family members including himself and this fact was also affirmed by PW[1] in his examination-in-chief. This Court has perused the statement of PW[1] i.e., the son of the Respondent No.1. In his examination in chief, PW[1] has categorically deposed that the PW[1] along with his brothers and sisters as well as the Respondent No.1, bona fide requires the tenanted premises for running the business of readymade garments. However, there was no cross examination of PW[1] with respect to the said deposition. The Cross examination was limited to giving a suggestion that the tenanted premises are not required bona fide by Respondent No.1. In the opinion of this Court, merely giving a suggestion was not enough to displace the plea of bona fide requirement, pleaded by the Respondent No.1.
14.3. In his testimony, the PW[1] has clearly stated that he is out of work for the past 10-12 years, which has not been controverted by the Petitioner herein. In this view of the facts, the Trial Court rightly upheld the bona fide need of the Respondent No.1 for the tenanted premises at paragraph no. 14 and 15 of impugned eviction order, which reads as under: -
14.4. The Supreme Court in the case of Baldev Singh Bajwa v. Monish Saini, (2005) 12 SCC 778, has held that in an eviction petition filed by landlord, the Court shall presume that the landlord’s plea is genuine and bona fide and a heavy burden would lie on the tenant to prove that the requirement of the landlord is not genuine. The Supreme Court further held that a mere assertion on the part of tenant would not be sufficient to rebut the strong presumption in the landlord’s favour that his requirement of occupation of the premises is real and genuine.
14.5. In the present case, the Petitioner has not placed on record any document or evidence to rebut the strong presumption acting in favour of the Respondent No.1. A mere bald plea has been raised that the specific detail of the family member for whose bona fide need the tenanted premises is required has not been specified by the Respondent No.1. The said plea of the Petitioner has already been declined by the Trial Court in paragraph 15 of the impugned eviction order, as reproduced earlier.
14.6. In view of the aforesaid facts, this Court does not find any infirmity with the decision of Trial Court.
15. The Supreme Court in the case of Abid-ul-Islam v. Inder Sain Dua, (2022) 6 SCC 30, has after discussing the law held that the scope of the revisional jurisdiction under Section 25B(8) of the Delhi Rent Control Act, 1958, is limited. The relevant para 23 reads as under:
16. 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.
17. This Court finds no merit in the present petition. Accordingly, the present petition along with pending applications is dismissed and the eviction order dated 31.08.2022 passed by the Trial Court is upheld.
MANMEET PRITAM SINGH ARORA, J MARCH 15, 2023 pkv/aa