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HIGH COURT OF DELHI
RC.REV. 265/2022 & CM APPL. 50659/2022
SMT MADHU JAIN ..... Petitioner
Through: Mr S.S. Jain, Advocate
Through: Mr. Gyan Mitra, Advocate
Date of Decision: 28th November, 2022
JUDGMENT
1. The Present revision petition has been filed by the Petitioner, tenant, assailing the eviction order dated 8th June, 2022 passed by the Rent Controller, KKD Courts (Shahdara) Delhi, in respect of shop no. 2, forming part of the property no. 213, Karkardooma Village, Delhi-92 (‘tenanted premises’), whereby the Rent Controller has dismissed the Tenant’s leave to defend. Submissions of the petitioner
2. Learned counsel for the Petitioner states that the finding of the Rent Controller that the Respondent, landlady, has a bona fide requirement for the tenanted premises is incorrect. He states that the averments of the Respondent is that the tenanted premises are required for earning personal income due to her imminent retirement and that she intends to open tutorial classes to teach children, including poor children and to support her children financially as well. He states that the assertion of the Respondent that she wishes to teach poor children contradicts her assertions that she requires a tenanted premises for running tutorial classes for earning income. He further states that there is no evidence on record that the Respondent is in fact providing financial assistance to her son, Nishant Dagar. He states that the Respondent has not placed on record any document evidencing that her younger son is financially dependent upon her. On the contrary, it is evident from the record that the Respondent’s younger son is financially independent.
2.1. He states that the Rent Controller failed to appreciate that the landlady admittedly has in her possession the entire first floor and second floor of the building in which the tenanted premises are located. He further states that tutorial classes can be operated from the first floor and second floor of the tenanted premises. In this regard, he states that it is common knowledge that tutorial classes also operate classes from first floor and second floor and therefore, the landlady has sufficient space on first and second floors for operating tutorial classes. He states that in view of the said availability of the alternate premises, the Rent Controller ought to have rejected the plea of the Respondent that she requires the premises by vacating the tenanted premises in question.
2.2. He states that the Rent Controller failed to appreciate that the plea of the landlady that her retirement shall cause monetary set back has not been proven on record. He states that there is a reasonable presumption that the Respondent would have received gratuity and provident fund on her retirement, however, no disclosure with respect to the said amounts has been made in the eviction petition. He further submits that the Rent Controller failed to appreciate that there are other shops on the ground floor in the same building and the same have been let out by the landlady and she therefore has sufficient income from the said shops.
2.3. He also states that the Rent Controller failed to make an enquiry with respect to other properties owned by the landlady. He states that while the Petitioner was not aware about the details of the other properties, it is the obligation of the Rent Controller to make such an independent enquiry from the Respondent. In support of his contention he places reliance upon the judgments of Rahabhar Productions Pvt. Ltd. v. Rajendra K. Tandon, 72 (1998) DLT 629, Raj Kumar v. Hari Parshad (Deceased) through LRs 106 (2003) DLT 496, V.K. Arora v. K.B. Madan 2000 (85) DLT 24 and Chander Prakash v. Maneel Bansiwal & Anr. 264 (2019) DLT 194. Submissions of the Respondent
3. In reply, learned counsel for the Respondent states that this matter was first listed on 24nd November, 2022, and the matter was heard at length and thereafter, the Petitioner had stated that he does not wish to press the revision petition on merits and only seeks extension of time for vacating the tenanted premises. She states that the matter is listed today for the limited purpose of determining the extended period sought by the Petitioner and recording of the undertaking of the Petitioner. The order dated 24th November, 2022 reads as under: “After some arguments, learned counsel for the petitioner seeks some time to take instructions as to whether the petitioner is agreeable to vacate the premises in question within a reasonable period of time.”
3.1. Learned counsel for the Petitioner states that while the aforesaid is correct, the petitioner has a change of heart and he wishes to proceed with the matter.
3.2. Learned counsel for the Respondent also states that the tenant had not given any details of any other properties of the landlady, where the tutorial classes can be carried out. She states that the entire first and second floor of the tenanted property is being used for residence by the landlady.
3.3. She states that the land ady has no other property, except the tenanted premises and that there is bonafide requirement of the landlady to get the possession of the tenanted premises. She further states that the tenant has filed forged document/receipt before the Rent Controller. She states that all the aforesaid submissions of the tenant were duly considered Court and discussed at length while considering the merits of the said matter. Discussion
4. I have heard the learned counsel for the parties and perused the paper book.
5. The scope and ambit of this Court while exercising revisional jurisdiction under Section 25-B(8) of the Delhi Rent Control Act, 1958 is supervisory in nature and this Court is not expected to exercise an appellate jurisdiction. The Supreme Court in Abid-Ul-Islam v. Inder Sain Dua,
6. The Petitioner has not disputed the landlord-tenant relationship between the parties. There is also no dispute that the Respondent was a teacher by profession and has retired from the post of Principal on 30th June,
2021.
7. The Rent Controller was satisfied that the landlady’s requirement to conduct tutorial classes and coaching centres post retirement to augment her income and to support her family is reasonable. The contention of the Petitioner that since the landlady wants to teach poor children as well in the tutorial classes, this fact will lead to an inference that the requirement of the landlady is not bonafide, is rejected. The landlady being an educationist by profession is entitled to aspire to teach poor children in addition to other students in her tutorial classes. This intention of landlady does not militate her bonafide requirement of the tenanted premises to conduct tutorial classes.
8. As regards the contention of alternate accommodation, the Rent Controller has duly considered and rejected the contention of the tenant that the landlady has the entire first and second floor of the property at her disposal, to conduct the tutorial classes. The Rent Controller has returned a finding that, since the entire first and second floor is being used by the land lady as her residence, the requirement to use the tenanted premises at the ground floor for starting the tutorial and coaching classes cannot be doubted. The tenant has not disputed the fact that the landlady is residing on the said two floors and using the same for her residence. The tenant cannot dictate the landlady to carry on commercial enterprise from her residential premises. Residence is the private space of an individual and a commercial enterprise requires public dealing and in the case of proposed coaching centre the footfalls of students and staff would necessarily be more convenient if it is in the premises which is separate from the residence. In Abid-Ul-Islam (supra), the Supreme Court held as follows:
Therefore, in the opinion of this Court the view taken by the Rent Controller is reasonable and there is no ground for this Court to interfere with the said finding.
9. The Supreme Court in Rahabhar Productions Pvt. Ltd. (supra) in similar facts held that the landlord is not disentitled from seeking recovery of the possession of a ground floor merely on the plea that he is also in possession of first floor and second floor, so long as the court is satisfised with respect to bonafide requirement of the landlord for the tenanted premises. The relevant portions of the said judgment which are set out in Paragraphs 39, 40, 41 read as under: “39. The facts established in this case indicate that the respondent was a Central Government employee. He was last posted at Delhi as Dy. Chief Engineer, Northern Railway and retired from service on 23rd July, 1987. He filed the application under Section 14C within time. He indicated his choice for the premises in question comprising of the ground floor, first and second floors. The ground floor is in occupation of the appellant while the first and second floors are in occupation of the respondent. The respondent has sought eviction of the appellant from the ground floor on the ground that the entire premises are required by him, particularly as the accommodation at his disposal on the first and second floors is insufficient. It is pleaded that while he requires three bed rooms separately for his son, daughter and for himself and his wife, another room is required for his office where he proposes to carry on consultancy work after having retired as Deputy Chief Engineer from the Northern Railway. He also requires another room for his guests, specially his three sisters who, though married, quite often visit the respondent, who is their only brother and after the death of their parents, their brother, namely the respondent is the only nearest relation whom they visit on all possible occasions. For these reasons, the entire accommodation on the ground floor is needed by the respondent by way of additional accommodation. The respondent also owns another house in Delhi. He has explained and established his need for this particular premises for which he has also indicated his "choice". Apparently, the need appears to be a need falling under Section 14(1)(e), but the fact remains that the need for additional accommodation of one room or the ground floor, which would also include the facility of car-parking, which the respondent, otherwise, has been parking on the road, has arisen on his retirement.
40. We have also examined the facts set out by the appellant in his affidavit filed before the Rent Controller for leave to defend the present proceedings. The pleas, in our opinion, do not disentitle the landlord from recovering possession of the premises in question particularly when the respondent has clearly set out in his petition that although he owned one more house, he wanted this particular premises for his own need. The choice, and, sufficient reasons in support thereof, having thus been indicated by the respondent, the plea of the appellant about alternative accommodation being available to the landlord cannot be sustained.
41. We have, ourselves, examined the facts here to avoid the agony of a protracted litigation by remanding the case to the Rent Controller, particularly as we see no justification to interfere with the judgment passed by the High Court by which the appellant has been required to hand- over vacant possession to the respondent. We, however, provide that before possession is actually delivered to the respondent, he shall file an affidavit before the Rent Controller stating, in the form of an undertaking, that no part of the premises in question comprising of ground floor, first floor and the second floor shall be let out by him for one year from the data of taking over possession. In case of breach of that undertaking, the tenant would become entitled to regain the possession of the premises on an application made by him before the Rent Controller. Subject to the above observations, the appeal is dismissed without any order as to costs.” (Emphasis applied)
10. The Rent Controller was also satisfied with the bonafide requirement of the landlady. In this regard, this Court finds that the Rent Controller has relied upon the judgment of Supreme Court in Sarala Ahuja vs. United India Insurance Company Ltd., reported in 1998 (III) CTC 679, wherein the Court while dealing with the bonafide requirement of the landlord at Paragraph 14 held as under:
As noted above, the Rent Controller has duly considered that the landlady is a teacher by profession who, after retirement is need of some occupation to augment her income and to support her family.
11. The Rent Controller has also further noted the plea of the Petitioner that the landlady and her son have various other properties is unsubstantiated as no details of any such other property has been furnished by the tenant in his leave to defend. In this regard, the finding of the Rent Controller at Paragraph 15 and 17, which reads as follows requires no interference:
12. The learned counsel for the Petitioner admits that the tenant has not enlisted details of any alternate accommodation in his leave to defend. The contention of the Petitioner that the Rent Controller of his own accord should have made inquires is untenable and this Court therefore does not find any infirmity in the findings of the Rent Controller in this regard either.
13. The Petitioner relies upon the judgement of Raj Kumar (supra) and V.K. Arora (supra) but it is not attracted in the fact of this case since the land lady has sufficiently proved her bona fide need for the tenanted premises. The reliance placed by the Petitioner in Chander Prakash vs. Maneel Bansiwal & Anr. (supra) is also not applicable to the facts of this case as the Rent Controller in the present case, correctly held that the landlady’s requirement is bonafide.
14. This Court is of the opinion that there is no infirmity in the order of the Rent Controller and the Rent Controller has given detailed findings after duly considering the record, which requires no interference. The three tests of existence of landlord tenant relationship, bonafide requirement and absence of alternate accommodation has been duly adjudicated in the present matter. Accordingly, the present petition is dismissed and the eviction order dated 8th June, 2022 passed in favour of the Respondent, landlady, and against the Petitioner, tenant, is upheld.
15. No order as to costs.
MANMEET PRITAM SINGH ARORA, J NOVEMBER 28, 2022