Delhi High Court
Sunil Kumar Jain vs Dinesh Bhatia on 8 October, 2024
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: August 21, 2024
Decided on: October 08, 2024
+ RC.REV. 521/2017, CM APPL. 41375/2017 & CM APPL.
31442/2024
SUNIL KUMAR JAIN ......Petitioner
Through: Sh. Alok Kumar, Senior
Advocate with Ms. Manisha
A. Narain, Mr. Ram Bhakt
Agarwal, Mr Amit Kumar
Singh, Mr. Varun
Maheshwari, Mr. Sandeep
Singh Somaria and
Mr. Manan Soni, Advocates
V
DINESH BHATIA ....Respondent
Through: Sh. Pradeep Dewan, Senior
Advocate with Mr. Vineet
Malhotra, Ms. Reena Jain
Malhotra, Mr. Ashish
Aggarwal and Mr. Anupam
Dhingra, Advocates with the
respondent in person
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
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BHATIA
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1. The present revision petition is filed under section 25B(8) of the
Delhi Rent Control Act, 1958 (hereinafter referred to as “the Act”)
to set aside the order dated 30.05.2017 (hereinafter referred to as the
“impugned order”) passed by the court of Sh. Joginder Prakash
Nahar, Senior Civil Judge/Rent Controller, East (hereinafter referred
to as “the trial court”) in eviction petition bearing RC ARC no.
574/2016 titled as Dinesh Bhatia V Sunil Kumar Jain whereby the
application for leave to defend filed by the petitioner was dismissed
and as a consequence of which an eviction order was passed in
respect of the tenanted premises i.e. shop situated on ground floor of
the property bearing no IX/545, Subhash Road, Gandhi Nagar, Delhi-
110003 (hereinafter referred to as “the tenanted shop”) as shown in
red colour in site plan annexed with the petition.
2. The respondent filed an eviction petition bearing no RC ARC
574/2016 titled as Dinesh Bhatia V Sunil Kumar Jain against the
petitioner by the pleading that the tenanted shop was initially let out
by father of the respondent/landlord to the petitioner/tenant about 27-
28 years back for non-residential purpose of running the business of
readymade garments and rate of rent is Rs.560/- per month excluding
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BHATIA
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other charges. No written agreement was executed at time of creation
of tenancy and rent receipts were issued in the name of Sunil Kumar
Jain & Sons. There are four shops on the first floor of the property no
IX/545 and two shops bearing no. 4 and 5 as shown in yellow colour
in site plan annexed with the petition are also under the occupation of
the petitioner/tenant under the separate tenancy and rent receipts are
also issued in name of Sunil Kumar Jain & Sons. The petitioner is
using these shops for the purpose of storage of goods/garments i.e.
godown. The respondent also filed another petition against the
petitioner for the eviction of petitioner from two shops as shown in
yellow colour in site plan.
2.1 The property bearing no. IX/545 is divided into two parts and
each part is measuring 120 sq. yards. The part of the property bearing
no IX/545 measuring 120 sq. yards which is adjacent to property
bearing no. IX/544 is under ownership of the respondent vide
registered sale deed and the tenanted shop is situated on the ground
floor of said part. The remaining part of the property measuring 120
sq. yards was under ownership of Prem Nath Bhatia and the
respondent and his three sisters have become owners of said portion.
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The entry to the upper floors is from the portion which is presently
under the ownership of the respondent and his sisters. The
respondent/landlord is residing at second and third floors.
2.2 The respondent is also engaged in the business of readymade
garments and deals in manufacturing and production of jeans. The
respondent gets jeans stitched on contract from outside persons
(labourers). The respondent is suffering from great scarcity of space
for the work of stitching of jeans in his own premises as the shops in
the property of respondent are occupied by the various tenants. The
petitioner is in occupation of two shops situated at the first floor
which are being used as a godown.
2.3 The respondent is in occupation of one shop situated at first floor
and one small shop measuring 6.5 x 14 sq. ft. situated at back portion
of the ground floor of the property bearing no. IX/545. The
respondent is using the shop situated at ground floor for display of
goods/garments and shop at first floor is being used as godown and
these two shops are less spacious for the respondent to run his
business. The respondent also pleaded that if the petitioner is evicted
from the tenanted shop along with two shops situated at first floor,
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then the respondent can run business by his workers/labourers from
his own property smoothly. The tenanted shop shall be used for
display of the goods and show room as the tenanted shop is situated
on main road i.e. Subhash Road. The two shops situated at first floor
which are also under tenancy of the petitioner along with one shop
which is being used by the respondent as godown can be used by the
respondent for purpose of manufacturing/production of jeans stitched
by his workers and as such the respondent may give better future to
family by earning more money besides generating employment for
workers.
2.4 The respondent in past has expanded business as the respondent
was getting export orders from abroad but the respondent since 2013
suffered huge loss and lost export orders from abroad as the
respondent was not able to complete orders. The respondent has
again planned to expand business by receiving orders from abroad.
The respondent filed two petitions for eviction of the petitioner from
tenanted shop and two shops situated at first floor and the respondent
after getting these shops vacated shall be able to execute export
orders from abroad without any delay and problems and would be
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BHATIA
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able to run his business comfortably and successfully. The
respondent does not have any other suitable alternative
accommodation with him for expansion of business.
2.5 The petitioner is having various properties including commercial
properties in the area of Gandhi Nagar area. The petitioner is also
running business from property bearing no. IX/635, Gali No. 2
Subhash Road, Gandhi Nagar, Delhi under name and style of Trishla
Garments. The petitioner is also having various other properties as
detailed in eviction petition. It is prayed that eviction order be passed
in favour of the respondent and against the petitioner.
3. The petitioner after service of summon as per the Third Schedule
filed an application for grant of leave to defend along with an
affidavit. The petitioner admitted that he is a tenant in respect of
tenanted shop and the respondent does not require tenanted shop for
any purpose. The respondent is already in possession of more suitable
accommodation which is sufficient to meet alleged requirement of
the respondent for expansion of business. The respondent recently
increased rent of other tenants. The respondent is running business
from ground, first, second and third floors of the property bearing no
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IX/545 since long and as such does not require tenanted shop either
for purpose of sale or storage. The case of the respondent is for
additional accommodation for expansion of existing business. The
respondent has inducted new tenants after getting premises vacated
from old tenants. The respondent is in possession of one shop
situated at ground floor being used for display of goods/garments and
another shop situated at first floor being used as godown. The
respondent wants to open an industry which is not permissible under
law. The need of the respondent is outcome of desire and imagination
and is not genuine and bona fide. The petitioner has raised triable
issues which cannot be decided without evidence. The petitioner is
entitled for grant of unconditional leave to defend present eviction
petition.
4. The respondent filed reply to the application for leave to defend
and counter affidavit. The respondent in counter affidavit denied
averments and contentions which have been raised by the petitioner
in the application for grant of leave to defend and affidavit and
reiterated facts as stated in eviction petition. The respondent stated
that he served notice to other tenants who were not paying rent for
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the last 3-4 years but he did not file eviction petitions against them as
they complied with the notice. The need of the respondent is genuine
and bona fide. The tailoring being a household industry is a non-
polluting industry and non-hazardous industry and is permitted even
in the residential area. The petitioner has not raised any triable issue
which requires evidence. It was prayed that the application for leave
to defend be dismissed.
5. The petitioner filed rejoinder wherein reiterated that the petitioner
has raised many triable issues and is entitled to grant of leave to
defend.
6. The trial court vide the impugned order dated 30.05.2017
dismissed the application for leave to defend filed by the petitioner
and passed an eviction order in favour of the respondent in respect of
tenanted shop. The operative portion of the impugned order dated
30.05.2017 is reproduced as under:
12. In such view of the matter, it is found that the need
of the landlord is found genuine and bona fide and
alternative space is not available with him for the
purpose of display of goods other than the shop
available with the respondent which is most advantages
position than the space available with the petitioner.
13. The apprehension of tenant that petition can re-let
out the tenanted shop at higher rent is misplaced inSignature Not Verified
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view of Section 19 of DRC Act which provides
protection to tenant if such eventuality arise. It was
held in case titled V.K. Bhandari vs Sheikh Mohd.
Yahya & Ors. on 18 March, 2009 in RC Rev. 17/2009
wherein Hon’ble High Court of Delhi has held as
under:
9. As far as petitioner’s apprehension that
respondents landlords have only filed an eviction
petition with a view to get the tenanted premises
evicted so that they can sell the same, I am of the
view that this apprehension is baseless as firstly no
evidence to this effect has either been filed or led by
petitioner-tenant. Moreover, Section 19 of DRC Act
specifically takes care of this apprehension inasmuch
as it provides that landlords after getting the
premises evicted under Section 14 of said Act cannot
sell the same for a period of three years without
obtaining permission of Controller.
14. Consequently, an eviction order is passed in favour
of the petitioner and against the respondent.
Respondent is directed to hand over the vacant one
shop on the ground floor situated in property no.
IX/545 Subhash Road, Gandhi Nagar, Delhi and more
specifically as shown in red in the site plan filed with
the eviction petition. For the purpose of identification,
the site plan is Ex. P-1. However, in terms of Section 14
(7) of the DRC Act, petitioner shall not be entitled to
obtain possession of the tenanted shop before the
expiration of a period of six months from the date of
this order. The eviction petition under Section 14 (1) (e)
r/w section 25-B DRC Act is accordingly disposed of.
No order as to costs.
7. The petitioner being aggrieved filed the present petition to
challenge the impugned order on various grounds. The petitioner
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BHATIA
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stated that the impugned order dated 30.05.2017 is contrary to the
established principles of law and is liable to be set aside. The
respondent is in possession of two shops in the property in which the
tenanted shop is situated from where the respondent is doing his
business. The case of the respondent is requirement of the additional
accommodation and as such leave to contest should be granted to the
petitioner. The respondent is in occupation of one shop at the first
floor and one shop at the ground floor which is used as a
display/show room by the respondent and as such there is no
immediate urgent requirement of the tenanted shop as pleaded in the
eviction petition. The trial court has erred in holding that the tenanted
shop is more suitable to the respondent for commercial requirement.
The respondent is proposing to commence business of export of
goods manufactured by him and such a show room is not required.
The court of rent controller has granted leave to defend to the
petitioner in eviction petition filed by the respondent in respect of
shops no.4 and 5 situated on the first floor of the property by holding
that case of the respondent is for additional accommodation as the
respondent is already in possession of shops situated on the first floor
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and the ground floor of the property. The respondent is not a
businessman as alleged but he is habit of demanding high rent from
tenants but the petitioner refused to increase the rent. The respondent
is running his business from the ground, first and second floors and
the respondent as such in possession of three floors and does not
require the tenanted shop bona fide. The respondent six months prior
to filing of present eviction petition inducted new tenants in the
property. The impugned order suffers from gross irregularities and is
against the settled legal principles. The petitioner prayed the
impugned order dated 30.05.2017 be set aside and the petitioner be
allowed to contest the present eviction petition.
8. Section 14 (1) (e) of the Act deals with eviction of tenant from
tenanted premises are required bona fide by the landlord. It reads as
under:
14. Protection of tenant against eviction:
(1) Notwithstanding anything to the contrary contained
in any other law or contract, no order or decree for the
recovery of possession of any premises shall be made by
any court or Controller in favour of the landlord
against a tenant:
Provided that the Controller may, on an application
made to him in the prescribed manner, make an order
for the recovery of possession of the premises on one or
more of the following grounds only, namely: –
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xxx xxx xxx
(e) that the premises let for residential purposes are
required bona fide by the landlord for occupation as a
residence for himself or for any member of his family
dependent on him, if he is the owner thereof, or for any
person for whose benefit the premises are held and that
the landlord or such person has no other reasonably
suitable residential accommodation.
Explanation. – For the purposes of this clause,
“premises let for residential purposes” include any
premises which having been let for use as a residence
are, without the consent of the landlord, used
incidentally for commercial or other purposes.
8.1 The Supreme Court in Sarla Ahuja V United India Insurance Co.
Ltd., (1998) 8 SCC 119 elaborated and discussed law relating to section
14 (1) (e) of the Act and held as under:
14. 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 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.
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8.2 The Supreme Court in Inderjeet Kaur V Nirmal Singh, (2001) 1
SCC 706 discussed the relevant factors to be considered at the time of
consideration of an application for grant of leave to defend and held as
under:
9. Chapter III-A deals with summary trial of certain
applications expressly stating that every application
by a landlord for recovery of possession on the ground
specified in clause (e) of the proviso to sub-section (1)
of Section 14 of the Act, or under Section 14-A or 14-B
or 14-C or 14-D shall be dealt with in accordance with
the special provisions prescribed in Section 25-B of the
Act. As per the broad scheme of this Chapter a tenant
is precluded from contesting an application filed for
eviction on the grounds mentioned in the
aforementioned provisions unless he obtains leave
from the Controller to contest the eviction petition. In
default of obtaining leave to defend or leave is refused
to him an order of eviction follows. It appears
recourse to summary trial is adopted having due
regard to nature of the grounds on which the eviction
is sought with a view to avoid delay so that the
landlord should not be deprived or denied of his right
to immediate possession of premises for his bona fide
use.
10. At the same time, it is well settled and accepted
position in law that no one shall be subjected to suffer
a civil consequence like eviction from a premises
resulting in hardship to him without providing
adequate and effective opportunity to disprove the
case against him and establish his case as pleaded.
11. As is evident from Sections 25-B(4) and (5) of the
Act, burden placed on a tenant is light and limited in
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that if the affidavit filed by him discloses such facts as
would disentitle the landlord from obtaining an order
for the recovery of the possession of the premises on
the ground specified in clause (e) of the proviso to
Section 14(1) of the Act, with which we are concerned
in this case, are good enough to grant leave to defend.
12. A landlord, who bona fidely requires a premises
for his residence and occupation should not suffer for
long, waiting for eviction of a tenant. At the same time
a tenant cannot be thrown out from a premises
summarily, even though prima facie he is able to say
that the claim of the landlord is not bona fide or
untenable and as such not entitled to obtain an order
of eviction. Hence the approach has to be cautious and
judicious in granting or refusing leave to defend to a
tenant to contest an eviction petition within the broad
scheme of Chapter III-A and in particular having
regard to the clear terms and language of Section 25-
B(5).
13. We are of the considered view that at a stage when
the tenant seeks leave to defend, it is enough if he
prima facie makes out a case by disclosing such facts
as would disentitle the landlord from obtaining an
order of eviction. It would not be a right approach to
say that unless the tenant at that stage itself establishes
a strong case as would non-suit the landlord, leave to
defend should not be granted when it is not the
requirement of Section 25-B(5). A leave to defend
sought for cannot also be granted for mere asking or
in a routine manner which will defeat the very object
of the special provisions contained in Chapter III-A of
the Act. Leave to defend cannot be refused where an
eviction petition is filed on a mere design or desire of a
landlord to recover possession of the premises from a
tenant under clause (e) of the proviso to sub-section (1)
of Section 14, when as a matter of fact the requirement
may not be bona fide. Refusing to grant leave in such a
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case leads to eviction of a tenant summarily resulting
in great hardship to him and his family members, if
any, although he could establish if only leave is
granted that a landlord would be disentitled for an
order of eviction. At the stage of granting leave to
defend, parties rely on affidavits in support of the rival
contentions. Assertions and counter-assertions made
in affidavits may not afford safe and acceptable
evidence so as to arrive at an affirmative conclusion
one way or the other unless there is a strong and
acceptable evidence available to show that the facts
disclosed in the application filed by the tenant seeking
leave to defend were either frivolous, untenable or
most unreasonable. Take a case when possession is
sought on the ground of personal requirement, a
landlord has to establish his need and not his mere
desire. The ground under clause (e) of the proviso to
sub-section (1) of Section 14 enables a landlord to
recover possession of the tenanted premises on the
ground of his bona fide requirement. This being an
enabling provision, essentially the burden is on the
landlord to establish his case affirmatively. In short
and substance, a wholly frivolous and totally
untenable defence may not entitle a tenant to leave to
defend, but when a triable issue is raised a duty is
placed on the Rent Controller by the statute itself to
grant leave. At the stage of granting leave the real test
should be whether facts disclosed in the affidavit filed
seeking leave to defend prima facie show that the
landlord would be disentitled from obtaining an order
of eviction and not whether at the end defence may
fail. It is well to remember that when leave to defend is
refused, serious consequences of eviction shall follow
and the party seeking leave is denied an opportunity to
test the truth of the averments made in the eviction
petition by cross-examination. It may also be noticed
that even in cases where leave is granted provisions
are made in this very Chapter for expeditious disposal
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of eviction petitions. Section 25-B(6) states that where
leave is granted to a tenant to contest the eviction
application, the Controller shall commence the
hearing of the application as early as practicable.
Section 25-B(7) speaks of the procedure to be followed
in such cases. Section 25-B(8) bars the appeals against
an order of recovery of possession except a provision
of revision to the High Court. Thus a combined effect
of Sections 25-B(6), (7) and (8) would lead to
expeditious disposal of eviction petitions so that a
landlord need not wait and suffer for a long time. On
the other hand, when a tenant is denied leave to
defend although he had fair chance to prove his
defence, will suffer great hardship. In this view a
balanced view is to be taken having regard to
competing claims.
8.3 The Supreme Court in Abid-Ul-Islam V Inder Sain Dua, (2022)
6 SCC 30 observed as under:
15. Section 14(1)(e) carves out an exception to the
regular mode of eviction. Thus, in a case where a
landlord makes an application seeking possession of the
tenanted premises for his bona fide requirement, the
learned Rent Controller may dispense with the
protection prescribed under the Act and then grant an
order of eviction. Requirement is the existence of bona
fide need, when there is no other “reasonably suitable
accommodation”. Therefore, there has to be satisfaction
on two grounds, namely, (i) the requirement being bona
fide, and (ii) the non-availability of a reasonably
suitable residential accommodation. Such
reasonableness along with suitability is to be seen from
the perspective of the landlord and not the tenant.
When the learned Rent Controller comes to the
conclusion that there exists a bona fide need coupled
with the satisfaction that there is no reasonably suitable
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residential accommodation, the twin conditions
mandated under Section 14(1)(e) stand satisfied.
xxx xxx xxx
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.
19. Before a presumption is drawn, the landlord is
duty-bound to place prima facie material supported by
the adequate averments. It is only thereafter; the
presumption gets attracted and the onus shifts on the
tenant.
9. It is reflecting that the petitioner is a tenant in respect of tenanted
shop situated at ground floor of the property bearing no IX/545,
Subhash Road, Gandhi Nagar, Shahdara, Delhi-110003 as shown in
red colour in site plan under the respondent and the petitioner is
doing business of readymade garments in tenanted shop. The
petitioner is also tenant in respect of two shops bearing no. 4 and 5 as
shown in yellow colour in site plan and these two shops are used by
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the petitioner as godown for the purpose of storage of
goods/garments. The respondent is also engaged in the business of
readymade garments and deals in manufacturing and production of
jeans. The respondent claimed that he gets jeans stitched on contract
from outside labourers and is suffering from great scarcity of space
for the work of stitching of jeans in his own premises. The
respondent is in possession of one shop situated at first floor and
another shop measuring 6.5 x 14 sq. ft. situated at back portion of the
ground floor of the property bearing no. IX/545. The respondent
claimed that he is using the shop situated at ground floor for display
of garments and shop at first floor is being used as godown. The
respondent wants to expand his business by getting work orders from
abroad and the respondent can run business smoothly by placing
workers/labourers in his own property if the petitioner is evicted from
the tenanted shop and two shops situated at first floor. The
respondent wants to use tenanted shop for display of the goods/ show
room being situated on main road i.e. Subhash Road and two shops
situated at first floor as godown. The respondent claimed that he does
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not have any other suitable alternative accommodation with him for
expansion of business.
9.1 The petitioner admitted relationship of landlord and tenant
between the parties. The petitioner also admitted that he is a tenant in
respect of tenanted shop and also tenant in respect of shops no 4 & 5
situated at first floor of the property under the respondent. The
petitioner claimed that the respondent is already in possession of
more suitable accommodation which is sufficient to meet alleged
requirement of the respondent for expansion of business. The
respondent is running business from ground, first, second and third
floors of the property bearing no IX/545 since long. The respondent
recently increased rent of other tenants and inducted new tenants
after getting premises vacated from old tenants. The respondent does
not require tenanted shop either for purpose of sale or storage and is
seeking eviction of the petitioner for additional accommodation for
expansion of existing business.
9.2 The respondent filed two petitions under section 14(1)(e) of the
Act against the petitioner i.e. present eviction bearing no RC/ARC
No. 574/16 titled as Dinesh Bhatia V Sunil Kumar Jain in respect
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of tenanted shop and bearing no RC/ARC No. 575/16 titled as
Dinesh Bhatia V Sunil Kumar Jain in respect of two shops situated
at first floor of the property and these two eviction petitions were
pending before trial court. The petitioner in both eviction petitions
filed respective applications for grant of leave to defend along with
affidavit. The trial court vide impugned order passed in eviction
petition bearing no RC ARC bearing no 574/2016 titled as Dinesh
Bhatia V Sunil Kumar Jain dismissed the application for grant of
leave to defend and according passed an eviction order under section
14 (1) (e) of the Act in respect of tenanted shop. The trial court vide
order dated 30.05.2017 passed in eviction petition bearing no RC
ARC bearing no 575/2016 titled as Dinesh Bhatia V Sunil Kumar
Jain allowed the application for grant of leave to defend.
10. The perusal of impugned order passed in respect of tenanted shop
reflects that the trial court observed that the relationship of landlord
and tenant is not disputed between the parties. The trial court in
impugned order regarding bona fide requirement of the respondent in
respect of the tenanted shop observed that the petitioner did not
dispute that the respondent is doing business of stitching jeans on
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contract basis from outside and was getting export orders for supply
of garments. It was further observed that the respondent wants to
expand his business and also wants to employ his own labourers for
stitching work. The respondent wants to use tenanted shop for display
of goods/garments as shop which is under possession of the
respondent is situated at back side of the ground floor of the property
towards a small gali. The trial court in respect of bona fide
requirement of the respondent qua the tenanted shop ultimately
observed that the respondent being at disadvantage having shop on
the backside and the tenanted shop being on the main road side has
more accessible to customers and as such need of the respondent is
bona fide. The trial court in respect of availability of alternate
accommodation with the respondent observed that availability of
alternative shop on back side with the respondent is less
advantageous and alternative space is not available with the
respondent for the purpose of display of goods other than the shop
available with the petitioner which is most advantages position than
the space available with the respondent. The trial court accordingly
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ordered eviction of the petitioner from the tenanted shop vide
impugned order.
10.1 The perusal of order dated 30.05.2017 passed in eviction
petition bearing no 575/16 titled as Dinesh Bhatia V Sunil Kumar
Jain in respect of shop no 4 & 5 situated at first floor of the property
by the court of Joginder Prakash Nahar, Senior Civil Judge/Rent
Controller, East whereby application for leave to defend allowed
reflects that the parties have admitted relationship of landlord and
tenant. The court regarding bona fide requirement of the respondent
observed that the respondent has successfully established his bona
fide need which is to be satisfied by employing more workers for the
purpose of stitching jeans and to supply readymade garments as per
orders received in which respondent has failed earlier on account of
not having proper set up for preparation of export orders for his
clients. The court regarding availability of additional accommodation
with the respondent observed that need of the respondent falls in
category of additional requirement and as such triable issue is raised
by the petitioner. The court accordingly granted leave to defend to
the petitioner.
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11. Sh. Alok Kumar, the learned Senior Counsel for the petitioner
advanced oral arguments and written submissions are also submitted
on behalf of the petitioner. The learned Senior Counsel stated that the
respondent claimed to be owner of half portion of Yamuna
Market/property bearing no IX/545 comprising eight shops at ground
floor and four godowns at first floor. The respondent is in possession
of one shop situated at ground floor and one godown situated at first
floor. The petitioner is in possession of one shop i.e. the tenanted
shop situated at ground floor and two godowns situated at first floor.
The respondent is also claiming to be owner of remaining half
portion of the property bearing no IX/545 along with his sisters
comprising nine shops at ground floor and three godowns situated at
first floor. The respondent is stated to be in business of making jeans
and would run the business of manufacturing of jeans in the godowns
situated above the tenanted shop thereby the respondent would
expand his business and earn more money. The respondent sued the
petitioner by filing two eviction petitions as different tenancies exit in
respect of tenanted shop and two shops/godowns situated at first
floor. It is further stated that the Rent Controller allowed the leave to
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defend qua two godowns situated at first floor but declined leave to
defend in respect of tenanted shop.
11.1 The learned Senior Counsel for the petitioner argued that need
of respondent as projected in eviction petition is not bona fide as the
respondent is having one shop at ground floor of the property bearing
no IX/545 but still needs tenanted shop. The respondent requires the
tenanted shop only to earn money which is not a legitimate need as
per legislative mandate of the Act. The respondent issued eviction
notices to other tenants namely Arun Kumar Gupta and Chunni Lal
for eviction of shops bearing no. 18 and 7 under their tenancy on
ground of bona fide requirement and got possession of these shops
but this fact is not disclosed by the respondent in eviction petition.
The respondent also completed his export obligations which is
contrary to plea taken by the respondent in eviction petition and as
such need of the respondent is not bona fide. The respondent is doing
export business and as such location of the shop is immaterial due to
no walk-in customers. The need of the respondent is not bona fide.
11.2 The learned Senior Counsel for the petitioner further argued that
the alleged need of the respondent is for additional requirement. The
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respondent is having a shop at ground floor of the property bearing
no IX/545 and requires the tenanted shop for betterment/expansion of
business. It was argued that as per admissions made by the
respondent, the respondent needs additional accommodation for
expansion of business and accordingly leave to defend has to be
granted. The learned Senior Counsel also argued that the projected
need of the respondent is mala fide as the respondent is re-letting
shops situated at ground floor in same building. The petitioner vide
order dated 22.02.2024 permitted to bring subsequent events on
record as the respondent has re-let the shops bearing no 12,3,4 and 15
situated on ground floor of the property and as such need of the
respondent is self-induced and not bona fide. The learned Senior
Counsel for the petitioner also argued that the petitioner would not be
able to use two godowns/shops situated at first floor of the property
in respect of which leave to defend is already granted without the
tenanted shop as the staircase leading to godowns situated at first
floor is situated in the tenanted shop. The petitioner is using tenanted
shop and two godowns jointly for his business and these two
tenancies are inseparable from each other. It is also argued that
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projected use of the tenanted shop and two godowns are in violation
of Master Plan of Delhi. The learned Senior Counsel for the
petitioner also cited case law to support arguments.
12. Sh. Pradeep Diwan, the learned Senior Counsel for the
respondent advanced oral arguments and written submissions also
submitted on behalf of the respondent. It is stated that the tenanted
shop is situated at ground floor and forming that part of the property
bearing no IX/547 which had fallen in share of the respondent. There
are four shops at ground floor and the respondent was residing in
second and third floors of the property. The respondent is in
possession of one small shop situated at first floor admeasuring 6.5
feet x 14 feet which is being used by the respondent as godown and
one shop at ground floor situated on back side of main road which is
being used by the respondent for display of goods/ readymade
garments. The petitioner also in possession of two shops/godowns
situated at first floor under separate tenancy.
12.1 The learned Senior Counsel for the respondent argued that the
respondent is engaged in business of readymade garments and deals
in manufacturing and production of jeans. The respondent wants to
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use tenanted shop situated at the ground floor for showroom/display
of goods/garments which is best suited to be used as
showroom/display of garments being located on the main road i.e.
Subhash Road. The shop which is in possession of the respondent is
located on the back side portion of the property towards a small gali
(street) which cannot be used as showroom/ display of
goods/garments. The learned Senior Counsel argued that the
respondent intends to start the manufacturing work/stitching of jeans
in his own property with two shops on the first floor and one shop
situated at ground floor already in possession of the respondent while
using the tenanted shop as a showroom/display of goods which is
located on the main road. It is also argued that the respondent earlier
in year 2013 intended to expand his business and received export
orders but could not execute/complete export orders due to paucity of
space and suffered losses but the respondent now needs additional
space to expand his business and to enhance to increase his income.
The petitioner is in occupation and possession of various properties.
12.2 The learned Senior Counsel for the respondent also countered
arguments advanced by the learned Senior Counsel for the petitioner.
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He argued that the respondent is not seeking additional
accommodation and it is not absolute law that leave to defend should
be granted in case of additional accommodation. The requirement of
the respondent is genuine and bona fide although the respondent is in
possession of one shop at first floor and one shop at ground floor.
The respondent is having business in India and also intends to start
export business and showroom is required for business within India
and export business. The trial court passed impugned order in present
eviction petition after application of mind and need of the respondent
subject matter of both eviction petitions cannot be interlinked. The
grant of leave to defend in eviction petition bearing no 575/16 does
not entitle the petitioner for grant of leave in present eviction petition
bearing no 574/16. The respondent has not inducted new tenants as
alleged. The respondent did not initiate eviction petition against
tenants Chunni Lal and Arun Gupta as they paid arrears of rent after
receipt of notice. The respondent during pendency of present eviction
petition did not get possession of any shop which was forming part of
that portion of property bearing no IX/547 which is under ownership
of the respondent.
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12.3 The learned Senior Counsel for the respondent stated that the
petitioner has not disputed relationship of landlord and tenant, the
respondent is owner of 120 sq. yards of the property, earlier export
orders procured by the respondent due to non-execution, shop
available with the respondent is situated at back side of the property
while tenanted shop is situated at the ground floor on main road, the
respondent does not have labourers for stitching work for execution
of export orders etc.
12.4 The learned Senior Counsel for the respondent ultimately argued
that display of goods on the main road has advantage over the shop
on the back side of the road. The petitioner has failed to disclose is
any triable issue in application for leave to defend as the petitioner
cannot dictate the terms upon the respondent/landlord. The counsel
for the respondent relied on Subhash Jain V Ravi Sehgal, 2014
SCC Online 548; Udai Shankar Upadhyay V Naveen
Maheshwari, MANU/SC/1876/2009 and Shanti Sharma V Ved
Prabha, (1987) 4 SCC 193. It was argued that present revision
petition be dismissed.
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13. The learned Senior Counsel for the petitioner primarily argued
that eviction petition filed by the respondent pertains to additional
requirement and as such leave to defend ought to have been granted
to the petitioner. It is further argued that the respondent is already in
possession of one shop at ground floor and one shop at first floor of
the property and the tenanted shop is required by the respondent for
expansion of his business. The learned Senior Counsel for the
respondent cited Santosh Devi Soni V Chand Kiran, 2001(1) SCC
255 wherein it was observed by the Supreme Court as under:-
3. The short question is whether in the light of the
requirements put forward by the respondent-landlady who
is a widow and is in occupation of the first floor of the
building in which the suit premises are situated leave to
defend to the defendant-appellant could have been refused.
As this is a case for additional accommodation and looking
to the facts and circumstances of the case, especially in the
light of the additional accommodation which is
subsequently made available to the respondent as
mentioned by the appellant, the question of respondent’s
need was required to be thrashed out on merits by a full-
fledged trial. This Court on 11th January, 1990 in Civil
Appeal No. 120 of 1990 in the case of Dr. S.M. Mishra v.
D.D. Malik has ruled that in the cases where additional
accommodation is asked for in proceedings under Delhi
Rent Control Act, normally leave to defend should not be
refused.
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13.1 The learned Senior Counsel for the petitioner also relied on
Rajinder Kumar Goyal and others V Rajhans Realtors Private
Limited, RC. Rev 318/2015 decided on 09.05.2016 by this court
wherein it was observed as under:-
8……The third point which has been taken by the
respondent is that the accommodation, which is available to
it, is not good enough to meet its requirements, nor is it
good enough to deal with its jewellery business. As against
this, the petitioners/tenants have stated that it is a case of
additional accommodation, inasmuch as the respondent is
already having 169 sq. feet of area available with them and
they need additional accommodation in the front in order
to do their business of jewellery and, therefore, in case a
party needs an additional accommodation, then invariably
leave to defend deserves to be given. I find substance in this
contention of the petitioners and also that it is not a case of
insufficiency of accommodation as contended by Mr. S.P.
Kalra, since insufficiency would arise in the backdrop of
the quantum of business, but it is a case of additional
accommodation which is needed by the respondent, though
it has not been, able to establish on record that they have a
flourishing business, despite the fact that the averments in
this regard have been made by them. Therefore, this is an
additional ground, on the basis of which leave to defend
ought to be granted to the petitioners.
13.2 The learned Senior Counsel for the respondent argued that it is
not a rule that leave to defend should be granted in all cases of
additional accommodation and leave to defend should not be granted
if need of the landlord is genuine. The respondent in eviction pleaded
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that he requires tenanted shop for expansion of his business ofreadymade garments and in past suffered losses due to non-fulfilment
of export obligations and now the respondent intends to take work
orders from outside and due to this reason, he needs tenanted shop.
The learned Senior Counsel for the respondent in light of these pleas
stated that present case does not pertain to additional requirement but
relates to need of the respondent for expansion of business of
readymade garments i.e. manufacturing of jeans.
13.3 It is accepted proposition of law that in case of additional
accommodation leave to defend has to be granted to tenant. This
court in Bharat Glass and Plywood Co V Sushan Pal Soni, RC.
Rev no 46/2013 decided on 21.03.2014 after following S.M. Mehra
V D.D. Malik, Civil Appeal No.120/1990 decided on 19.01.1990
observed that if the tenanted premises is required for additional
accommodation then normally leave to defend has to be granted.
13.4 The respondent in present case is already in possession of one
shop at ground floor and one shop at first floor of the property and
the respondent is seeking eviction of tenanted shop for expansion of
his business of readymade garments as shop under possession of the
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respondent is situated on back portion of the property and is not
suitable to the respondent. It is apparent that the respondent is
seeking additional accommodation for expansion of business as
narrated in eviction petition then the leave to defend ought to be
granted to the petitioner. It is also pertinent to mention here that the
trial court in eviction petition bearing no 575/2016 in respect of
eviction of two shops situated on first floor of the property has
granted the leave to defend to the petitioner by observing that it is
case of additional accommodation. It was also observed that it is
settled law that in case of additional accommodation available the
reasonability and suitability of the accommodation needs to be tested
and it has raised a triable issue for which leave to defend is granted to
the respondent. It may be true that under given facts and
circumstances of case, the respondent would not be having sufficient
accommodation for expansion of his business as pleaded in eviction
petition but again requirement of the respondent for additional
requirement which has to be examined in wider perspective by way
of evidence. It may not be correct that in every case of requirement of
additional accommodation, leave to defend has to be granted as
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argued by learned Senior Counsel for the respondent and grant of
leave to defend in case of additional requirement depends on facts
and circumstances of each individual case. However, in present case,
the respondent is seeking eviction of the petitioner from tenanted
shop for expansion of his own business and for expansion of business
he needs additional accommodation. It is not case of the respondent
that he wants possession of tenanted shop for business to be started
by or for any other family member but the respondent only desires to
expand his own business. The arguments advanced by the learned
Senior Counsel for respondent cannot be accepted and does not
provide much assistance and help to the respondent. The learned
Senior Counsel for the petitioner rightly argued that requirement of
the respondent qua the tenanted shop pertains to additional
requirement. The petitioner in present petition has raised triable issue
as eviction of the petitioner from tenanted premises relates to demand
of additional accommodation. The trial court has failed to consider
that present eviction petition pertains to additional requirement while
considering bona fide requirement of the respondent in respect of
tenanted shop.
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14. The learned Senior Counsel for the petitioner also argued that the
respondent issued eviction notices to tenants namely Arun Kumar
Gupta and Chunni Lal in respect of shops bearing no 18 and 7 on
ground of bona fide requirement and got possession of these shops.
The respondent has not disclosed said facts in eviction petition and as
such need of the respondent is not bona fide. The learned counsel for
the respondent stated that the tenants Chunni Lal who was a tenant in
respect of shop no 7 situated on ground floor and Arun Gupta who
was a tenant in respect of shop no 18 situated on ground floor were
not paying rent and according notices were issued to them for
payment of arrears of rent and since these tenants paid arrears of rent
in compliance of notices and as such eviction proceedings were not
initiated against them. He further stated that the respondent during
pendency of present eviction petition did not receive possession of
any shop falling in his share.
14.1 The perusal of notices dated 02.06.2015 issued to Chunni Lal
who was a tenant in respect of shop no 7 situated at ground floor of
the property and dated 03.06.2015 issued to Arun Kumar Gupta who
was a tenant in respect of shop no 18 situated at ground floor of the
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property by the respondent for payment of arrears of rent and for
their eviction on ground of bona fide requirement. The respondent
preferred not to initiate eviction proceedings against them as both the
tenants have paid arrears of rent in compliance of notices. It is true
that landlord is best judge of his requirement and a tenant is not
permitted to dictate terms of bona fide requirement to the landlord.
However if the landlord issued and served notices to the tenant also
for eviction on ground of bona fide need and thereafter preferred not
to initiate eviction proceedings against the tenant then in this
eventuality the requirement of landlord for tenanted premises in
subsequent proceedings filed on ground of bona fide requirement
against any other tenant is required to be examined in right and
proper perspective and is a triable issue which is to be decided after
giving an opportunity to tenant to rebut claim of the landlord
regarding eviction of tenant on bona fide requirement. The present
eviction petition is also filed subsequent to notices dated 02.06.2015
and 03.06.2015 then the bona fide need of the respondent subject
matter of present eviction petition is required to be examined in wider
and proper prospective. The Supreme Court in Amarjit Singh V
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Khatoon Quamarain, AIR 1987 SCC 741 also observed that if the
landlady or the landlord could have reasonable accommodation after
his or her need arose and she by her own conduct disentitled herself
to that property by letting it out for higher income, she would be
disentitled to evict her tenant on ground of her need.
15. The learned Senior Counsel for the petitioner stated that the
petitioner is also a tenant in respect of two shops being used as
godowns situated at first floor of the property under the respondent
and the respondent also filed an eviction petition bearing no
375/2016 in respect of these two shops and in that eviction petition,
the petitioner was granted leave to defend. He argued that the
petitioner without the tenanted shop shall not be able to use two
shops situated at first floor and both the tenancies are inseparable
from each other as staircase leading to shops at first floor is leading
from tenanted shop. It was also argued that denial of leave to defend
to the petitioner in present case would also lead to the petitioner
getting shut out from the two shops situated at first floor. It is
apparent that the petitioner is a tenant under the respondent in respect
of tenanted shop and two shops situated at first floor vide two
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separate tenancies and staircase leading to first floor is situated in the
tenanted shop situated at ground floor and accordingly it practically
not possible for the petitioner to use or to have access to two tenanted
shops situated at first floor of the property without being in
occupation and possession of tenanted shop at first floor. The trial
court should have considered this issue while passing the impugned
order. The counsel for the respondent during course of arguments had
offered to the petitioner for providing alternate staircase to the
petitioner for access to two shops situated at first floor which was not
accepted by the petitioner as not found suitable to him and proposed
staircase would be in violation of building rules and regulations.
16. The learned Senior Counsel for the respondent to justify bona
fide requirement of the respondent in respect of tenanted premises
stated and argued that the respondent is engaged in business of
readymade garments and deals in manufacturing and production of
jeans. The respondent wants to use tenanted shop which is situated on
the ground floor for showroom/ display of goods/garments and the
tenanted shop is best suited to be used as showroom/ display of
garments being situated on the main road i.e. Subhash Road. The
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shop which is under possession of the respondent is situated on the
back side portion of the property towards a small gali and the said
back side shop cannot be used as showroom/display of
goods/garments. It is further stated that the respondent intends to start
the manufacturing work/stitching of jeans in his own premises with
two shops on the first floor and one shop on the ground floor already
in his possession while using the tenanted shop as a showroom/
display of goods which is situated on the main road. The respondent
could not expand business in past due to paucity of space and now
the respondent intends to expand his business. The petitioner is
having various properties. The petitioner has denied and controverted
these facts being false and baseless.
16.1 The trial court in impugned order regarding bona fide
requirement of the respondent also observes as under:-
9.5 From the above pleading it is found that the respondent
has not disputed that the export orders of the petitioner
were cancelled earlier on the ground claimed by the
petitioner that petitioner could not fulfill them in time. The
shop available with the respondent is on main road
Subhash Road and the shop available with the petitioner is
on the back side at Satnam Gali. The display of goods on
the main road which definitely has advantage over the shop
on the back side of the road. It is settled law that the tenant
cannot dictate terms to the landlord.
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The landlord is at disadvantage having shop on the back
side and the shop on the main road side has more
advantage which is more accessible to customers. In such
circumstances of the case the need of the landlord is found
to be bona fide and the petitioner has successfully
established his bona-fide need of the tenanted premises of
the ground floor shop.
16.2 The facts as stated by the learned counsel for the respondent
may be good enough to justify bona fide requirement of the
respondent but bona fide requirement of the respondent in respect of
tenanted shop has to be consider and judge in light of the fact that the
requirement as projected by the respondent in eviction petition is of
additional requirement for himself and other issues as discussed
herein above.
17. The petitioner has raised triable issues in eviction petition and is
entitled for leave to defend. The arguments advanced by the learned
Senior Counsels for the petitioner and respondent oral and written
and referred case law/precedents are considered in right context and
perspective. The present petition is allowed and leave to defend is
granted to the petitioner. The impugned order is accordingly set
aside, as a consequence of which, the eviction of the petitioner qua
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the tenanted shop vide impugned order is set aside. The pending
application if any also stand disposed of.
18. The parties are directed to appear before trial court on 21.10.2024
at 2:30 PM for further directions. It is made clear that nothing in this
order shall be taken any final opinion on merit of the case.
DR. SUDHIR KUMAR JAIN
(JUDGE)
OCTOBER 08, 2024
N/tk
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