Full Judgment Text
$~60
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 20.12.2024
+ RC.REV. 281/2018
AJAY BHATIA .....Petitioner
Through: Mr. Akshay Makhija, Sr. Advocate
with Surjeet Singh Malhotra and Mr.
Prateek Kumar Srivastava, Advocates
versus
JITENDER .....Respondent
Through: None
CORAM:
HON'BLE MS. JUSTICE TARA VITASTA GANJU
TARA VITASTA GANJU, J.: (Oral)
1. The present Petition has been filed by the Petitioner/landlord seeking
to challenge an order dated 16.04.2018 passed by Ld. ARC(Central), Tis
Hazari Courts [hereinafter referred to as “Impugned Order”]. By the
Impugned Order, the learned Trial Court has dismissed the Eviction
Petition filed by the Petitioner/landlord with respect to the premises i.e.
Shop no. 8, Double Story Market, New Rajinder Nagar, New Delhi
[hereinafter referred to as “subject premises”].
2. Notice in this Petition was issued by a Coordinate Bench of this
Court on 01.06.2018. The Respondent/tenant was initially represented
before the Court through a counsel. However, the Respondent/tenant
appeared intermittently before the Court. By an Order dated 28.11.2024,
the Respondent/tenant was directed to be proceeded as ex-parte for his
continuous non-appearance.
3. Briefly the facts are that the Petitioner is the landlord of the subject
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premises. The Respondent is the son of the original tenant who was
inducted at a monthly rent of Rs. 200/- by the Petitioner/landlord. The
subject premises was originally being used for running a sweet shop.
Subsequently, the Respondent/tenant converted the subject premises into
residential premises after carrying out modifications therein and has been
residing there since.
3.1 The Petitioner/landlord filed a Petition under Section 14(1)(e) read
with Section 25(B) of the Delhi Rent Control Act [hereinafter referred to as
“DRC Act”] before the learned Trial Court for the eviction of the
Respondent/tenant from the subject premises on the ground of bona fide
requirement for the son of the Petitioner/landlord. It was the case of the
Petitioner/landlord that his son wished to start a restaurant business and the
subject premises is conducive for running such a business.
3.2 The Respondent/tenant contested the Eviction Petition by filing an
application for Leave to Defend/Contest, raising various grounds including
a challenge to the bona fide requirement of the Petitioner/landlord. It was
also contended that there is availability of alternate accommodation at Flat
No. 4, Double Story Market, New Rajinder Nagar, New Delhi [hereinafter
referred to as “Flat no. 4”] and shops at TDI Mall, Rajouri Garden, Delhi
and a restaurant in Nizamuddin, Delhi. It was further contended that the son
of the Petitioner/landlord is self-employed and is carrying out a business of
a consultancy firm from Flat no. 4. Thus, it was averred that the need of the
Petitioner/landlord is not bona fide .
3.3 The learned Trial Court by its order dated 23.07.2014 allowed the
application for Leave to Defend/Contest filed by the Respondent/tenant. A
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finding was given by the learned Trial Court that the son of the
Petitioner/landlord has been carrying on his business from upper floor of
the subject premises and there is a contradiction in his reply to Leave to
Defend, and the earlier stance of the Petitioner/landlord. In addition, it was
held that the contention raised by the Respondent/tenant, in terms of the
availability of alternate suitable accommodation was also required to be
examined by the learned Trial Court.
3.4 The Written Statement was filed by the Respondent/tenant and
thereafter, the Petitioner/landlord filed his evidence by way of Affidavit.
The Petitioner as well as his son entered the witness box as PW 1 and PW
2 respectively. The Petitioner also summoned formal witness PW 3 for the
record from the office of Land and Development Office [hereinafter
referred to as “L&DO”] to bring on record the mutation letter issued by the
office of L&DO, Nirman Bhawan, New Delhi and formal witness PW 4, a
clerk from the Record Room (Civil), Tis Hazari Courts, New Delhi, for the
record in relation to a Petition filed under Section 27 of the DRC Act by the
Respondent/tenant for deposit of rent showing Respondent/tenant as tenant
1
of the Petitioner/landlord . The Petitioner and his son were cross examined
by the Respondent.
3.5 On 05.08.2017, the statement of the Respondent/tenant was recorded
by the learned Trial Court which stated that the Respondent does not wish
to adduce any evidence in the matter.
4. By the Impugned Order, the learned Trial Court held that the
1
DR No. 353/14 titled as Jitender Kumar Vs. Sh. Ajay Bhatia bearing Goshwara No. 70/RC (Central),
decided on 08.12.2014
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Petitioner/landlord had several shops including one in TDI Mall, Rajouri
Garden, Delhi and a restaurant in Nizamuddin, Delhi which were in actual
physical possession of the Petitioner/landlord and that the
Petitioner/landlord has not filed any Replication to deny these averments.
It was thus held that the Petitioner/landlord had alternate accommodation
available with him.
4.1 The learned Trial Court had found that the testimony of the
Petitioner/landlord with respect to Flat No.4 and Shop No. 7, Double Story
Market, New Rajinder Nagar, New Delhi [hereinafter referred to as “Shop
No.7”] was contradictory and thus it was held that the Petitioner/landlord
had failed to prove the non-availability of any alternate accommodation.
The learned Trial Court also found that the use of the subject premises by
Petitioner/landlord for business activities of Petitioner/landlord’s son was
not bona fide , since the son of the Petitioner, in his cross-examination, had
admitted that he was already running a business in the name and style of
Prateek Consultancy and was not dependent on his father. The learned Trial
Court found that a false ground had been created for eviction of the subject
premises. Hence, the Eviction Petition was dismissed by the learned Trial
Court.
5. This led to the filing of the present Revision Petition by the
Petitioner/landlord.
6. The record reflects that the Respondent/tenant has been served in
person on 02.09.2019. There was an appearance on behalf of the
Respondent/tenant on two dates i.e., on 06.11.2019 and on 19.07.2023.
However, there was no appearance on behalf of the Respondent/tenant after
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19.07.2023. As stated above, the Respondent/tenant was proceeded with ex
parte by this Court on 28.11.2024.
7. Learned Senior Counsel appearing on behalf of the
Petitioner/landlord has made the following submissions: -
7.1 The Impugned Order non-suited the Petitioner/landlord on two
grounds. In the first instance, it was held that the learned Trial Court failed
to appreciate that the Petitioner/landlord’s son was facing severe space
constraints in his consultancy business and that the business was
unsuccessful, which led him to stop/close the business.
7.2 It is settled law that there was no necessity of any prior experience
for running of a business prior to filing of Eviction Petition. The
Petitioner/landlord relied upon the judgment of a Coordinate Bench of this
2
Court in M/s Seth & Sons Pvt. Ltd. vs. Arjun Uppal & Anr . , which has
held that prior experience for running a business is not necessary.
7.3 The averments made by Respondent/tenant cannot be taken into
consideration as the Respondent did not lead his evidence to prove the
same. Despite an opportunity given to the Respondent/tenant, the
Respondent/tenant did not enter the witness box or lead any evidence
whatsoever, thus any averment made by him could not be relied upon.
Reliance is placed upon the judgment of a Supreme Court in Vidhyadhar
3
v. Manikrao & Ors. to submit that, where a party abstains from entering a
witness box, it would give rise to an adverse inference against him. It is
2
2017 SCC OnLine Del 10955
3
1999 3 SCC 573
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thus contended that the reliance made by the learned Trial Court on the
averments of the Respondent/tenant is without any basis and the averment
of the Respondent/tenant that there was alternate suitable accommodation,
was not proved by the Respondent/tenant and no reliance could be placed
on this contention of the Respondent.
7.4 Lastly, it is the contention of the learned Senior Counsel for the
Petitioner/landlord that the Petitioner during his cross examination,
explicitly denied any connection with or possession of Shop No.7, however,
learned Trial Court failed to consider the same and erred in holding that
suitable alternate accommodation is available with Petitioner/landlord.
8. Upon examination of the Impugned Order, it can be seen that the
landlord-tenant relationship/ownership is proved in favour of the
Petitioner/landlord. The dispute which subsists is on the availability of
alternate suitable accommodation and the bona fide need of the
Petitioner/landlord for the subject premises.
9. IAt the outset, it is apposite to refer to the cross-examination of
Petitioner/landlord, (PW-1) dated 12.05.2016. The relevant extract is
reproduced below:
It is correct that Ex. PW1/R1 is the computer generated copy of the bill
“
issued by Delhi Jal Board of Flat No. 4, New Market, New Rajinder Nagar,
Delhi. It is correct that Ex. PW1/R2 is the computer generated copy of the bill
issued by Delhi Jal Board of the shop bearing No.7, Double Storey Market,
New Rajendra Nagar, Delhi. Vol. The names of the owners after the death
of my grandfather in the properties mentioned in the bill has not changed
in connection to these bills have not changed. I do not remember the exact
date of death of my grandfather Sh. Pratap Singh but it was somewhere in
the year 1985. It is correct that I have not stated anything about Shop No.
7 in my affidavit or in petition. Vol. As I have nothing to do with the same.
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It is correct that at the time of filing of this petition, my son Prateek is
employed and running his business activities in the name and style of
Prateek Consultancy in Flat No.4, Double Storey Market, New Rajendra
Nagar, Delhi. It is wrong to suggest that my son is not dependent upon me. It
is wrong to suggest that my son was not financially dependent upon me. I
have mentioned in my petition mat my son is running Prateek Consultancy, it
is wrong to suggest that I am deposing falsely that I have nowhere mentioned
in my petition that fact or that I have mentioned this after filing of leave to
defend application. ”
[Emphasis Supplied]
9.1 Clearly, the Petitioner/landlord has stated during his cross
examination that Petitioner/landlord has nothing to do with Shop No.7 and
that this shop is not in his possession. In his cross-examination, the
Petitioner/landlord also states that the name of owners of the said shop has
not been changed after the death of his grandfather. Thus, the finding of the
learned Trial Court that there was no denial of this contention by the
Petitioner/landlord is not correct.
9.2 In addition, the Petitioner/landlord also summoned an official from
the office of L&DO as PW-3 whose statement was recorded in respect of
shop Nos.7 and 8, New Rajinder Nagar, New Delhi and in terms of the said
statement, Shop No.7 had been transferred to Municipal Corporation of
Delhi on 05.05.2006 by way of a gazette notification dated 24.03.2006,
published on 27.03.2006.
10. On the aspect of availability of Flat No.4, it is not disputed that this
premises is on the top floor and that the son of the Petitioner/landlord has
shifted his residential accommodation to the said flat. This is also recorded
by the learned Trial Court in the Impugned Order. The learned Trial Court
has given a finding that the Petitioner/landlord has not clarified as to
whether his son has permanently shifted to Flat No.4 and that he is currently
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unemployed. However, the Affidavit, by way of evidence of the son of the
Petitioner/landlord which was filed on 12.05.2016, clearly sets out that,
after completing his MBA he started the business of consultancy, but due
to severe space constraint, the business venture was unsuccessful and it had
to be shut down. It also sets out that he is unemployed and he is completely
dependent on the financial aid of his father, for day-to-day expenses and
that the fact that he does not own or occupy any commercial property in
Delhi. Paragraphs 2 to 5 of the Affidavit of PW-2, Mr. Prateek Bhatia, the
son of Petitioner/landlord are extracted below:
“2. I say that after completing my MBA, initially I started the business of
consultancy; however, due to severe space constraint the same resulted into
an unsuccessful business venture and eventually had to stop the said
consultancy business.
3. I say that presently I am unemployed and I and my wife are completely
dependent on the financial aid of my father to meet out day to day expenses.
4. I say that in order to meet my expenses alongwith the expenses of my wife
and most importantly to be permanently settled in life, I want to open a
restaurant in the suit property as the space and the location of the same are
suitable, ideal and conducive for the business of running a restaurant.
5. I say that I do not own or occupy any commercial property in NCT of Delhi,
in any manner, whatsoever.”
11. On the aspect of other alternate accommodations available in
Nizamuddin and TDI Mall, Rajouri Garden it has been denied in the Reply to
the Leave to Defend, that Petitioner or his son are in possession of any shop
in TDI Mall, Rajouri Garden or at Nizamuddin. However, the learned Trial
Court has not given any finding on this aspect of the matter.
12. The provisions of Section 14(1)(e) of the DRC Act as provided by the
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legislature, state that not only is the accommodation to be ‘alternate’, but it is
also required to be ‘suitable’. The Supreme Court in the Shiv Sarup Gupta v.
4
Mahesh Chand Gupta has held that for an Eviction Petition to fail on the
ground of availability of alternate suitable accommodation, the availability of
another accommodation must be suitable and convenient in all respects, as
compared to the tenanted accommodation from which the landlord seeks
eviction of the tenant. It was held that:
“14. The availability of an alternative accommodation with the landlord i.e.
an accommodation other than the one in occupation of the tenant wherefrom
he is sought to be evicted has a dual relevancy. Firstly, the availability of
another accommodation, suitable and convenient in all respects as the suit
accommodation , may have an adverse bearing on the finding as to the bona
fides of the landlord if he unreasonably refuses to occupy the available
premises to satisfy his alleged need. Availability of such circumstance would
enable the court drawing an inference that the need of the landlord was not
a felt need or the state of mind of the landlord was not honest, sincere, and
natural. Secondly, another principal ingredient of clause (e) of sub-
section (1) of Section 14, which speaks of non-availability of any other
reasonably suitable residential accommodation to the landlord, would not
be satisfied. Wherever another residential accommodation is shown to
exist as available then the court has to ask the landlord why he is not
occupying such other available accommodation to satisfy his need. The
landlord may convince the court that the alternative residential
accommodation though available is still of no consequence as the same is
not reasonably suitable to satisfy the felt need which the landlord has
succeeded in demonstrating objectively to exist. Needless to say that an
alternative accommodation, to entail denial of the claim of the landlord,
must be reasonably suitable, obviously in comparison with the suit
accommodation wherefrom the landlord is seeking eviction . Convenience
and safety of the landlord and his family members would be relevant factors.
While considering the totality of the circumstances, the court may keep in
view the profession or vocation of the landlord and his family members,
their style of living, their habits and the background wherefrom they come.”
[Emphasis Supplied]
12.1 The Petitioner/landlord has produced evidence before the Court that
4
(1999) 6 SCC 222
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the premises at Shop No.7 is not available and at the time of filing of the
Petition, the premises at Flat No.4 was being used by the son of the
Petitioner/landlord to run his consultancy business, however, the son of the
Petitioner/landlord has also given evidence that the consultancy business
was thereafter shut down as it was unsuccessful and that the premises was
being used as residential accommodation by the son of the
Petitioner/landlord.
13. It is not disputed that Flat No.4 is on the top floor. It is a settled law
that the ground floor is the most suitable to run any business . In Uday
5
Shankar Upadhyay v. Naveen Maheshwari , the Supreme Court has held that
the Court cannot dictate to the landlord as to the extent which floor he must
use for his business. Besides shops and businesses are usually on the ground
floor. The relevant extract of the Uday Shankar Upadhyay case is reproduced
below:
“7. In our opinion, once it is not disputed that the landlord is in bona fide
need of the premises, it is not for the courts to say that he should shift to the
first floor or any higher floor. It is well known that shops and businesses are
usually (though not invariably) conducted on the ground floor, because the
customers can reach there easily. The court cannot dictate to the landlord
which floor he should use for his business; that is for the landlord himself to
decide. Hence, the view of the courts below that the sons of Plaintiff 1 should
do business on the first floor in the hall which is being used for residential
purpose was, in our opinion, wholly arbitrary, and hence cannot be sustained.
As regards the finding that the sons of Plaintiff 1 are getting a salary of Rs
1500 from the firm, in our opinion, this is wholly irrelevant and was wrongly
taken into consideration by the High Court.”
[Emphasis Supplied]
13.1 It is well-settled that the ground floor is more suitable for commercial
purposes and businesses. If there is availability of space on the ground floor
5
(2010) 1 SCC 503
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with the landlord, there is no question of the tenant asking him to take
alternate premises or to operate out of the top floor.
6
13.2 The Supreme Court in the case of Prativa Devi (Smt) v. T.V. Krishnan
has held that tenant cannot dictate the terms of use of a property to a landlord
and that the landlord is the best judge of his requirements. It is also settled law
that it is not for the Courts to direct in what manner and how a landlord should
live. This Court, while relying on the Prativa Devi case has in the R.S.
7
Chadha (thr. SPA) v. Thakur Dass held:
“13.1 It is settled law that the tenant cannot dictate the terms of use of
a property to a landlord and that the landlord is the best judge of his
requirements. It is not for the Courts to dictate in what manner and how
a landlord should live. It is also not for the Courts to adjudicate that
the landlord has a bonafide need or not. The Courts will generally
accept the landlords need as bonafide. The Supreme Court in the case
of Prativa Devi (Smt) v. T.V. Krishnan [ (1996) 5 SCC 353] has
directed:
“2 . The proven facts are that the appellant who is a widow,
since the demise of her husband late Shiv Nath Mukherjee,
has been staying as a guest with Shri N.C. Chatterjee who
was a family friend of her late husband, at B-4/20,
Safdarjung Enclave, New Delhi. There is nothing to show
that she has any kind of right whatever to stay in the house
of Shri Chatterjee. On the other hand, she is there merely
by sufferance. The reason given by the High Court that the
appellant is an old lady aged about 70 years and has no
one to look after her and therefore she should continue to
live with Shri Chatterjee, was hardly a ground sufficient for
interference. The landlord is the best judge of his
residential requirement. He has a complete freedom in the
matter. It is no concern of the courts to dictate to the
landlord how, and in what manner, he should live or to
prescribe for him a residential standard of their own . The
High Court is rather solicitous about the age of the
appellant and thinks that because of her age she needs to
be looked after. Now, that is a lookout of the appellant and
6
(1996) 5 SCC 353
7
2024 SCC OnLine Del47
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not of the High Court. We fail to appreciate the High Court
giving such a gratuitous advice which was uncalled for.
There is no law which deprives the landlord of the
beneficial enjoyment of his property. We accordingly
reverse the finding reached by the High Court and restore
that of the Rent Controller that the appellant had
established her bona fide requirement of the demised
premises for her personal use and occupation, which
finding was based on a proper appreciation of the
evidence in the light of the surrounding circumstances .”
13.2 In any event, it is only the Respondent/landlord and his family
who can decide what is sufficient space as per their needs and
requirements. Sufficiency of residential accommodation for any
person would essentially be dependent on multiple factors, including
his living standard and general status in society . In view of the fact
that admittedly the Respondent/landlord has a large family, it is not
open to the Petitioner/tenant to contend that requirement of 6 rooms as
pleaded by the Respondent/landlord, is not bonafide.
13.3 The Trial Court has dealt with the sufficiency of accommodation
of the Respondent/landlord in the Impugned Order. This Court finds no
reason to impugn these findings.”
[Emphasis supplied]
13.3 The subject premises are required by the Petitioner/landlord for his
son who wishes to start his business of a restaurant from the subject
premises. Clearly, Flat No.4 which is on the top floor, is not suitable for
business purposes, especially as a restaurant. The need of the
Petitioner/landlord, thus cannot be said not to be bona fide.
14. On the aspect of bona fide requirement, the finding of the learned
Trial Court is that it is admitted by the Petitioner/landlord that at the time
of filing of the Petition, the son of the Petitioner/landlord was employed
and running a business in the name and style of Prateek Consultancy in Flat
No.4. The learned Trial Court thereafter gave a finding that this admission
was also made by PW-2, the son of the Petitioner in his cross-examination
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and since at the time of filing of the Petition, the son was employed, a false
ground of eviction was created by the Petitioner/landlord. Both the
Petitioner/landlord as well as the son of the Petitioner/landlord have in their
evidence stated that although, the consultancy business was started by the
son of the Petitioner/landlord, this business had to be shut down in view of
losses. This was the reason that the subject premises were required by the
Petitioner/landlord. In any event, the bona fides of the Petitioner/landlord
have been challenged by the Respondent/tenant, however, this challenge by
the Respondent/tenant was not substantiated/proved since, the
Respondent/tenant did not appear in the witness box and offer himself to be
cross-examined.
14.1 In the case of Vidhyadhar case, the Court has held that where a party
to the suit does not appear in the witness-box to state his case on oath and
does not offer to be cross-examined by the other side then the Court can
presume that the case which was setup by such a party is not correct. The
relevant extract of the Vidhyadhar case is reproduced below:
“17. Where a party to the suit does not appear in the witness-box and
states his own case on oath and does not offer himself to be cross-
examined by the other side, a presumption would arise that the case
set up by him is not correct as has been held in a series of decisions
passed by various High Courts and the Privy Council beginning from
the decision in Sardar Gurbakhsh Singh v. Gurdial Singh [AIR 1927
PC 230 : 32 CWN 119] . This was followed by the Lahore High Court
in Kirpa Singh v. Ajaipal Singh [AIR 1930 Lah 1 : ILR 11 Lah 142] and
the Bombay High Court in Martand Pandharinath
Chaudhari v. Radhabai Krishnarao Deshmukh [AIR 1931 Bom 97 : 32
Bom LR 924] . The Madhya Pradesh High Court in Gulla Kharagjit
Carpenter v. Narsingh Nandkishore Rawat [AIR 1970 MP 225 : 1970
MPLJ 586] also followed the Privy Council decision in Sardar
Gurbakhsh Singh case [AIR 1927 PC 230:32 CWN 119] . The
Allahabad High Court in Arjun Singh v. Virendra Nath [AIR 1971 All
29] held that if a party abstains from entering the witness-box, it
would give rise to an adverse inference against him. Similarly, a
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Division Bench of the Punjab and Haryana High Court in Bhagwan
Dass v. Bhishan Chand [AIR 1974 P&H 7] drew a presumption
under Section 114 of the Evidence Act, 1872 against a party who did
not enter the witness-box. ”
[Emphasis Supplied]
15. On 05.08.2017, Respondent/tenant submitted before the learned
Trial Court that Respondent/tenant does not wish to lead his evidence. The
law established in the Vidhyadhar case permits the Court to draw an
adverse presumption regarding the credibility of the case presented by a
party, if that party fails to appear in the witness box or does not offer
themselves for cross-examination by the opposite side. In such
circumstances, the Court is justified and deems it fit to presume that the
case set up by such party is not credible.
16. We find merit in the contention of the Petitioner/landlord that the
challenge to the bona fides of the Petitioner/landlord made by
Respondent/tenant could not be examined and the learned Trial Court ought
to have drawn adverse inference against the Respondent/tenant for not
appearing in the witness box. This was however not sought to be done and
instead the learned Trial Court gave a finding that the Petitioner/landlord is
trying to create a false ground of eviction from the subject premises and has
failed to prove that the subject premises is required by the
Petitioner/landlord for his own use as well as for use of his son for carrying
business activities.
17. In a Petition under Section 14(1)(e) read with Section 25(B) of the
DRC Act the Court is required to examine the existence of landlord/tenant
relationship, the existence of bona fide need on the part of the landlord and
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non-availability of suitable alternate accommodation with the landlord. The
Impugned Order found that the relationship of landlord-tenant between the
parties was proved. The finding impugned before this Court was on the
bona fide need and non-availability of alternate suitable accommodation
with the Petitioner/landlord. In view of the aforegoing discussions, this
Court finds that the Petitioner had sufficiently proved all ingredients as are
requisite under Section 14(1)(e) of the DRC Act.
18. For the reasons as stated, the Petition is allowed. The Impugned
Order is set aside. However, in terms of Section 14(7) of the DRC Act, the
Respondent/tenant is directed to vacate the subject premises within six
months from today.
19. The Petition is accordingly disposed of.
TARA VITASTA GANJU, J
DECEMBER 20, 2024/jn/r
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