Delhi High Court

Ram Dulari & Anr vs Dr. Brij Mohan (Now Deceased) Thr ... on 4 February, 2016

Author: V.K.Shali

*                HIGH COURT OF DELHI AT NEW DELHI

+                         RCR 499/2015

                                      Decided on: 4th February , 2016

       RAM DULARI & ANR                           ..... Petitioners
                    Through:           Mr. S.D Ansari Advocate with
                                       Mr. I. Ahmed, Advocate

                          versus

       DR. BRIJ MOHAN (NOW DECEASED) THR HIS LRS
                                          ..... Respondent

Through: Mr. T.K Ganju, Senior Advocate with Mr. Aquib Ali, Adv., Mr. Manik Ahluwalia, Adv., & Mr. Abhishek Bhardwaj, Adv.

CORAM:

HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J

1. This is a revision petition filed against the order dated

26.03.2015, by virtue of which, the learned ARC-02, Central

District, Tis Hazari Courts, Delhi had allowed the eviction

petition filed by the Respondent/landlord on merits.

2. Briefly stated the facts of the case are that the respondent

/landlord had filed an eviction petition against the

petitioners/tenants for recovery of possession in respect of

tenanted premises i.e. one shop on the ground floor of 4087, Nai

Sadak adjacent Chawri Bazar, Delhi-110006. The said premises

were stated to be required bona fide the respondent's son Dr.

Jaideep Rohatgi, his grandson, Vaibhav Rohatgi and his

granddaughter-in-law, Pallavi Rohatgi who were all doctors. It

was stated that they were facing scarcity of accommodation for

the purpose of attending their patients. The respondent has

explained in the petition the different usages of the portion of the

building under their occupation and as to how they intend to use

the accommodation if vacated by the petitioner. In this regard, it

was specifically stated that there is no provision for x-ray or

medical bed/table on the ground floor of the suit premises for

attending patients with fractures or with accidental injuries and

therefore, the tenanted shop being situated on the ground floor is

most suitable for setting up these facilities.

3. It was also stated, that if the possession of tenanted shop is

retrieved, then same can be alternatively used for shifting of

some facility from back portion to the front portion. The portion

so vacated could be used for installing a lift in the rear portion of

the suit property, as the upper floors were not being properly

utilized due to non-availability of lift. It was also averred that the

petitioner/tenant had sub-let the tenanted shop to one M/s Gupta

Stationary Mart without the written consent or permission of the

respondent/landlord.

4. The petitioners/tenants on being served filed their leave to

defend application wherein they contended that the requirement

of respondent/landlord is not bona fide since the deceased

respondent/landlord Dr. Brij Mohan was 90 years old and was

practicing from his residence at Defence Colony. It was stated

that Jaideep Rohatgi was practicing from 4088, Nai Sarak and

Vaibhav Rohatgi was employed at Safdarjang Hospital and

Pallavi Rohatgi was still studying medicine and was currently

working as an apprentice in Aggarsain Hospital and therefore

they did not require the tenanted shop which measured only 71/2

X 15 Sq. ft.

5. It was also contended that two rooms on the ground floor as well

as on first and second floor of the suit property are lying vacant

which are in possession of the respondent/landlord. The

respondent/landlord was stated to be in possession of sufficient

alternate accommodation i.e. a hospital constructed in an area of

800 sq. yards at DDA Community Centre, Zamrudpur, Kailash

Colony, Delhi. Apart from this, it was also averred that the

respondent has properties in Okhla Industrial Area, NOIDA,

Paharganj and at Mathura Road but details of these properties

were not given. It was also stated that the respondent is getting

huge amount of money as rentals from these different properties

in Okhla, Mohan Singh Industrial area and Chandni Chowk and

thus it was urged that he could arrange his requirement without

seeking his eviction.

6. The petitioner also stated that the respondent had earlier filed an

eviction petition under Section 14 (1) (b) which was dismissed

upto High Court and that the present petition has been filed with

a mala fide intention of selling the suit property after getting the

tenanted shop vacated by the petitioner.

7. In replication the respondent/landlord, denied all the averments

made in the written statement.

8. On the pleadings of the parties the following issues were

framed:-

(i) Whether the applicant is the owner of the premises?

(ii) Whether there exists relationship of landlord and tenant between the parties?

(iii) Whether the premises are required bona fide by the applicant for himself?

(iv) Whether the applicant has no other reasonably suitable accommodation?

9. Regarding the issue of ownership, the Ld. ARC concluded that

the petitioner had not placed any cogent evidence on record to

show that the respondent was not owner of the premises and

therefore the landlord-tenant relationship was also proved on the

basis of pleadings of the parties. The issues of bona fide

requirement and availability of alternative accommodation was

also decided in the favour of the respondent by observing that

testimony of PW-1, Dr. Jaideep Sahni was sufficient to establish

the existence of bona fide requirement setup in the eviction

petition. The plea of availability of alternate properties was also

held as not having any bearing on the case since the

respondent/landlord required additional accommodation in the

same building and this requirement cannot be met by any other

property.

10. The petitioner seeks to assail this order of eviction on merits on

the ground that the respondent/landlord Dr. Brij Mohan

(deceased) died during the pendency of the eviction proceedings

and his son Dr. Jaideep was impleaded and claimed to be owner

of the tenanted shop on the basis of a will which was not

produced and proved. It was contended that ownership is one of

the essential ingredients for seeking retrieval of possession under

Section 14 (1) (e). It is therefore contended by the learned

counsel for the petitioner that Dr. Jaideep has no locus standi to

seek evicition.

11. The counsel for petitioners has also raised similar plea regarding

non-existence of bona fide requirement and it was contended

that said requirement must be genuine and more than mere desire

which is not present in the instant case.

12. Mr. T.K Ganju, the Ld. Senior Counsel on the behalf of the

respondent/landlord has on the other hand contended that the

factum of attornment to Dr. Jaideep Rohatgi by payment of rent

was admitted by RW-1, Rajiv, attorney of petitioners/tenants and

therefore they are now precluded from challenging his title. In

this regard, he has placed reliance on Bantam Enterprises Pvt.

Ltd. v. Jaspal Singh Kapoor; 189 (2012) DLT 59 to contend that

eviction cannot be prevented merely by casting a doubt on the

title of the landlord.

13. As regards, bona fide requirement, the Ld. Senior Counsel has

stated that respondent requires the tenanted shop to install an X-

ray room or medical bed as absence of same may result in a life-

threatening situation for a patient in emergency cases, who will

have to climb stairs in order to avail these facilities. It has also

been contended that tenanted shop is most suitable for installing

these facilities. The Ld. Senior counsel has drawn the attention

of the court to the cross-examination of RW-1 wherein he has

admitted that the gali next to clinic has iron potholes and

therefore activities in the clinic cannot be carried on from the

backside as neither can a lift be installed nor can essential

activities.

14. The respondent/landlord in support of his case has examined Dr.

Jaideep Rohtagi as PW-1 while as so far as petitioners are

concerned they have not entered into witness box and son of

Ram Dulari has entered into witness box as RW-1 and filed his

Affidavit as an attorney of Ram Dulari and he was subjected to

cross-examination. In addition to this one more witness has

been examined as RW whose testimony is not very material.

15. In order to prove a case of bona fide requirement, a person has to

prove four things, namely, that the petitioner is the owner and

landlord of the suit premises; that the premises were let out for a

specific purpose; that the premises are required bona fide by the

landlord for himself or for any member of the family dependent

upon him; and lastly that the landlord has no other reasonably

alternative suitable accommodation available to him.

16. Mr. Ansari, the learned counsel for the petitioners has firstly

contended that there exists no relationship between the

petitioners and the respondent, namely, Dr. Jaideep Rohtagi of

tenant and the landlord nor is latter owner of the suit property.

He has challenged the very locus standi of the respondent to

maintain the petition. Mr. Ansari admitted the factum of the

eviction petition having been filed by Dr. Brij Mohan, father of

Dr. Jaideep Rohtagi against the present petitioners, however, it

was contended by him that on account of demise of Dr. Brij

Mohan, the relationship of landlord and tenant ceased to exist

between the present petitioners and the respondent. It has also

been contended that Dr. Jaideep Rohtagi has claimed ownership

of the suit property on the basis of the Will purported to have

been made by Dr. Brij Mohan in his favour, however, neither

such Will has filed nor proved in the present proceedings and,

therefore, he could not be considered to be the owner of the suit

property.

17. Mr. Ganju, the learned senior counsel for the respondent has

contested this submission of Mr. Ansari. He has contended the

factum of relationship of landlord and tenant being in existence

between the petitioners and Dr. Brij Mohan is not in dispute. It

is further stated that after the unfortunate demise of Dr. Brij

Mohan he was survived by four legal heirs all of whom had

given their no objection in favour of Dr. Jaideep Rohtagi, the

present respondent to contest the matter and the name of Dr.

Jaideep Rohtagi was substituted as the legal representative of Dr.

Brij Mohan by trial Court vide order dated 19.12.2011. After the

demise of Dr. Brij Mohan the rent continued to be paid by the

petitioners to Dr. Jaideep Rohtagi and since there was a Will

made by Dr. Brij Mohan in favour of Dr. Jaideep Rohtagi,

therefore, he was the owner of the suit property as well.

18. It has been further contended that the ownership of a landlord

need not be the absolute ownership of the property all that the

landlord is to show is that he has some superior title than the

tenant. Reliance was also placed by Mr. Ganju, the learned

senior counsel on the judgment of Delhi High Court in Bantam

Enterprises Pvt. Ltd. v. Jaspal Singh Kapoor, 189 (2012) DLT

59, wherein it has been observed that the proceedings under the

Rent Act cannot be converted and utilized by a tenant to prevent

eviction by trying to cause a doubt on the title of the property

which has been inherited by a person.

19. I have carefully considered this submission of the learned

counsel for the parties and I find considerable merit in the

submission of Mr. Ganju, the learned senior counsel.

20. The question of non existence of relationship of landlord and

tenant or the ownership which has been sought to be urged by

Mr. Ansari is only a mirage. He seems to be oblivious to the fact

that RW-1 in his cross-examination has admitted on 20.02.2015

that after the death of Dr. Brij Mohan it was Dr. Jaideep Rohtagi

who was collecting the rent from the petitioners/tenants. The

very fact that the petitioners had paid the rent to the respondent,

the relationship of landlord and tenant gets conclusively

established and by virtue of Section 116 of the Evidence Act, the

petitioners are also precluded from challenging the ownership of

the respondent/landlord.

21. In addition to this, the proposition of law which has been laid

down in Bantam Enterprises Pvt. Ltd. squarely fits in to the facts

of the present case that the petitioners who were admittedly

inducted as tenants by Dr. Brij Mohan, respondent/landlord

predecessor-in-interest of Dr. Jaideep Rohtagi, could not be

permitted to raise a frivolous plea with regard to ownership of

the suit property so far as respondent/landlord is concerned. It is

established by preponderance of probabilities that Dr. Jaideep

Rohtagi is the son and legal heir of Dr. Brij Mohan apart from

his other legal heirs. Dr. Brij Mohan had died during the

pendency of the eviction petition. On an application being filed

for substitution of his LRs the other legal representatives gave no

objection Affidavit to the substitution of the name of Dr. Jaideep

Rohtagi. Dr. Jaideep Rohtagi had also relied on a Will to have

received the entire suit property by way of testament and

accordingly his name was substituted in place of his father which

clearly establishes that not only he stepped into the shoes of his

father to continue the eviction proceedings against the petitioners

but also claiming himself to be the owner of the suit property. It

is no longer res interga that for the purpose of declaring the

ownership of the suit property, a person is not required to be the

absolute owner. All that he is required to show is that he has

superior title than the title than that of the tenant which has been

established by him by ample measure. Accordingly, the

aforesaid submission made by the learned counsel for the

petitioners is without any merit and the same has rightly been

rejected even by the Rent Controller.

22. So far as issue No.2 is concerned that is the purpose for which

the premises have been let out that issue is not in dispute. The

property is situated in a commercial market of Chandni Chowk

and obviously it is admitted case of the parties that the property

has been let out for the purpose of running a commercial activity

by the petitioners. Issue No.2 has not been assailed by the

petitioners in the present appeal nor does it require any further

comment to be passed by this Court.

23. With regard to requirement, the learned counsel for the

petitioners has challenged the bona fide requirement of the

respondent and has contended that the respondent has number of

other properties including a hospital being run by them at DDA

Community Centre, Zamrudpur, Kailash Colony, Delhi and

therefore, on this ground the petitioners does not deserve to be

evicted so as to result in their displacement, when the respondent

can run his clinic at any of the spaces so owned by him.

24. This argument challenging the bona fides of the present

petitioners has also been controverted by Mr. Ganju, the learned

senior counsel who has contended that the bona fides of the

landlord are in no way suspect. It has been contended that the

respondent requires the extra space to treat his patients. The

petitioners have accepted before the trial Court that there is no

X-ray machine or a medical bed on the ground floor of the

premises. The respondent has a requirement to install the same

in order to treat emergency patients, especially the accident

cases. It was stated that the patients who has just met with an

accident cannot be first asked to go all the way upto the first

floor in order to get the requisite medical attention or treatment.

The precious time which may be lost in such a process may lead

to a threat to the life of the patient.

25. Further, RW-1 in his cross examination dated 23.02.2015 has

admitted that the gali next to the clinic i.e. Satte wali gali has

two iron poles embedded in it as it is difficult even for a

rickshaw puller to go through therefore by making a patient go

through the area in order to get medical help would not be

feasible.

26. It is further stated that the tenant cannot dictate the terms as to

how the landlord is supposed to live or conduct his affairs. The

learned counsel for the respondent has placed reliance on Anil

Bajaj v. Vinod Ahuja, AIR 2014 SC 2294; S.R. Babu v. T.K.

Vasudevan & Ors., AIR 2001 SC 2881; Sh. Labhu Lal s/o Jeevan

Lal v. Smt. Sandhya Gupta w/o Luxmi Dutt Gupta, 173 (2010)

DLT 318; Sh. Gurcharan Lal Kumar v. Srimati Satyawati &

Ors., 2013 (2) RCR (Rent) 120; K.K. Ohri v. Dr. Balraj Sethi &

Ors., 82 (1999) DLT 906; John Impex Pvt. Ltd. v. Dr. Surinder

Singh & Ors., 135 (2006) DLT 265; and Bhatia Cloth House v.

Dr. Raj Kumar Gupta & Anr., (2008) 151 PLR 796.

27. It has been further stated that the Hon'ble Supreme Court in

Uday Shankar Upadhyay & Ors. v. Naveen Maheshwari (2010)

1 SCC 503 has held that even the Courts cannot direct the

landlord the manner in which the property is to be used by him.

28. Reliance is also placed on Sarwan Dass Bange v. Ram Prakash,

167 (2010) DLT 80, wherein it has been held that whenever the

landlord would approach the Court his requirement shall be

presumed to be genuine and bona fide and heavy burden lies on

the tenant to prove otherwise. The above decision was further

reiterated by this Court in Sh. Labhu Lal s/o Jeevan Lal v. Smt.

Sandhya Gupta w/o Luxmi Dutt Gupta.

29. It has been argued by the learned senior counsel that the

petitioners have urged that the respondent is financially very

sound and has other multiple assets and therefore the

requirement is not bona fide and the respondent may be directed

to use other premises. It is reiterated that the tenant cannot

dictate the terms as to how and in what manner the landlord is

supposed to use his properties. The respondent in cross

examination before the trial Court has not only conceded but

also stated the reasons as to why the other properties are not

feasible for his use. RW-1 during his cross examination dated

27.02.2015 has admitted that none of the other properties

mentioned by them are in actual and physical possession of Dr.

Jaideep Rohtagi. He has also not been able to show that the same

are feasible to run a Clinic as contended.

30. It is further stated that Dr. Brij Mohan had been running his

clinic for more than sixty years prior to his death. Dr. Jaideep

'Rohtagi has also been practicing in the clinic with his father and

after his father's death in January, 2011 he continues to carry on

the practice from the said premises and now his son and his

daughter-in-law have also joined. After more than 60 years he

has earned a name and reputation for his clinic and professional

capability in the area. His reputation has constantly grown over

the year which has consequently led to a growth in his clientele

as well. If the argument of the petitioners is accepted and the

respondent is asked to arrange for another area, it would not only

cause a harm to his practice as Doctor but shall even cause a

huge harm towards his clientele as patients in need would not

travel so many kilometers to get treatment as few seconds are

extremely precious in a patient's life let alone minutes and

hours. The respondent who has three members in his family as

doctors must be given a free hand to arrange his affairs to run the

clinic in a manner in which he likes. Therefore, argument of the

appellant cannot be taken into consideration.

31. It has been further argued that the respondent's financial status is

very sound cannot be a reason to deny his bona fide requirement.

Reliance is placed on Aero Traders Pvt. Ltd. v. Mohan Singh &

Ors., 207 (2014) DLT 202 wherein it was laid down that the

financial status of the landlord cannot be a ground to deny his

bona fide requirement of the property.

32. As discussed earlier, it is no more res integra that the tenant

cannot dictate the terms as to how the landlord is to utilize the

premises or as to how he must arrange his affairs which will

result in the escape of the petitioners from eviction in the event

of bona fide requirement being shown by the

respondent/landlord. It may also be pertinent here to mention

that the respondent during his cross-examination recorded on

27.02.2015 has admitted that none of the properties mentioned

by them are in actual and physical possession of Dr. Jaideep

Rohtagi nor he been able to show as to how these properties are

conducive for the purpose of running medical clinic as is sought

to be urged by him. Therefore, this contention of the learned

counsel for the petitioners Mr. Ansari does not have any merit.

33. It may also be pertinent here to mention that Late Dr. Brij

Mohan has been running his clinic for more than 60 years before

his unfortunate demise. Dr. Jaideep Rohtagi his son also a

practicing doctor who is looking after the clinic now and was

also doing so, earlier when his father was alive. The son and the

daughter-in-law of Dr. Jaideep Rohtagi are also stated to be

qualified doctors who are also stated to be intending to utilize

the suit premises for the purpose of carrying out the family

tradition of running the medical clinic at the place in question.

In such a contingency where a person is running clinic and has

taken generations to set up his medical practice for last more

than 60 years, it does not lie in the mouth of the

petitioners/tenants to question the bona fide requirement of the

respondent/landlord to say that he should shift his medical clinic

to some other place or that he is not providing a particular

service to any patient. The case which is set out by the

respondent/landlord is that he wants additional accommodation

by evicting the present petitioners/tenants so that he is able to

arrange his affairs in such a manner whereby he renders a better

medical service by shifting certain provisions to the ground floor

and also gives him an opportunity to install lift at the rear portion

so that the patients can be taken conveniently on to the first

floor. It will cause immense harm to the landlord in a case of

this nature where the eviction is not ordered and it is held by the

Court that he must shift his clinic to some other place that will

be literally holding the landlord to ransom by the tenant. The law

does not countenance such a situation. Therefore, I feel that this

is a classic case where the petitioners are holding on to the

premises only with a view to deprive the respondent/landlord

from additional accommodation so that he could arrange his

affairs of running a medical clinic in a better and efficient

manner only for the sake of benefit of the public at large.

34. Mr. Ansari, the learned counsel for the petitioners/tenants has

taken the Court through various portions of the evidence in order

to support his submissions especially with regard to the

challenge given to be bona fides of the petitioners. As against

this, Mr. Ganju, the learned senior counsel for the respondent

has contended that the present revision petition has been filed

under Section 25-B(8) of the DRC Act under which the scope of

the revisionist court is very limited and it has to only see whether

there is any material irregularity committed by the learned

Additional Rent Controller in deciding the matter in accordance

with law. The learned senior counsel has also placed reliance on

the Full Bench judgment in Mohan Lal v. Tirath Ram Chopra &

Ors., AIR 1982 Delhi 405 wherein it has been held that when a

Court comes to the conclusion that the unsuccessful party had

not a proper trial according to the law then the Court can

interfere, however, the Court is not to interfere merely because it

thinks that possibly the Judge who heard the case may have

arrived at a conclusion which the High Court would not have

arrived at. Meaning thereby, it does not lie within the domain of

revisionist Court's power to substitute its own finding in place of

the finding of the trial Court unless trial court arrives at a finding

which no reasonable person could have arrived at.

35. The Court cannot lose sight of the fact that this is a case where

the eviction order has been passed against the present petitioners

not at the threshold while denying him to leave to defend. On

the contrary, this is a case where leave to defend was granted,

the matter was contested, parties produced their respective

evidence and it is only after such an exercise was undergone it

took considerable length of time of the Court that the learned

ARC has returned a finding that the premises in question are

required bona fide by the respondent/landlord in order to arrange

his affairs in such a manner so that it is able to run the medical

clinic not by himself but for his son and daughter-in-law also in

an efficient and proficient manner. It is also taken note of the

fact that this clinic is in the walled city has been in existence for

the last more than 60 years having been established by the father

of the respondent/landlord who himself was also a doctor.

Therefore, all these factors have been taken into account by the

learned ARC and a detailed reasoned order has been passed by

the learned ARC. The learned counsel Mr. Ansari, appearing for

the petitioner has not been able to show to the Court that there is

any illegality, irregularity or any jurisdictional error in the

finding returned by the learned ARC, therefore, I am in total

agreement with the finding recorded by the learned ARC that the

only irresistible conclusion by preponderance of probability

which has been drawn is the one which has been arrived at by

the learned ARC.

36. Another factor which weighs heavily against the present

petitioners is that the petition has been filed by two petitioners

both of whom are stated to be wife of one Shri Shankar Lal, who

was the original tenant.

37. It is also noticeable that neither Smt. Ram Dulari nor Smt.

Chand Kiran has entered into the witness box. On the contrary

son of Smt. Ram Dulari, Shri Rajiv (RW-1) has filed his

Affidavit Ex.RW-1/A by way of examination-in-chief and has

been cross-examined. Mr. Ansari, the learned counsel for the

petitioners has justified the filing of the Affidavit by the son of

Ram Dulari in the capacity of attorney by contending that Smt.

Ram Dulari was an old lady and was not in a position to come

before the Court and testify.

38. It may be possible that Smt. Ram Dulari was an old lady but it

was certainly not the case of Mr. Ansari that she was not in a

position to speak and testify or file an Affidavit. Therefore, in

such an eventuality even if she was not able to appear before the

Court, the proper course of remedy open to the

petitioners/tenants was to get her examination or for that matter

cross-examination recorded on commission. This has not been

done. On the contrary, her son has appeared as a witness and

filed his Affidavit by way of examination-in-chief in the

capacity of an attorney and permitted himself to be subjected to

cross-examination. He in his Affidavit has stated that he is

aware of the facts but it is nowhere stated by him in his Affidavit

as to whether he is living at the suit premises or not. In case he is

not living in the suit premises then it is very unlikely that he

would be aware of the actual ground position available and

therefore, the observations of the Supreme Court in catena of

judgments where a petition is filed or defend by a party in his

individual capacity ordinarily it is he/she himself to appear in the

witness box. In the absence of this, the only inference which

the Court would draw is an adverse inference against the party.

Section 114(g) of the Indian Evidence Act, 1872 clearly shows

that if there is a witness who was within the power and control

of a person and that witness is not produced then the

presumption can be drawn that if such witness had been

produced it would have gone adverse to the party concerned. On

this score also the petitioners are on very weak footing. Reliance

can also be placed on catena of judgments of the Supreme Court

where such a conduct on the part of the party who is defending

the case in person or filed the case in person does not appear as a

witness. Similar view was taken in Janki Vashdeo Bhojwani and

Anr. v. IndusInd Bank Ltd. and Ors. AIR 2005 SC 439; that a

power of attorney holder can 'act' on behalf of the principal but

he cannot depose for the principal for the acts done by the

principal and not by him. Apart from this, it was also held by

Apex Court in the case of Vidhyadhar v. Manikrao and Anr,

[1999] 1 SCR 1168; that:

"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."

39. In view of the aforesaid totality of facts and circumstances of the

case, I am fully convinced that the petitioners have not been able

to make out any case for interference by this Court as the

impugned order does not suffer from any illegality, material

irregularity or any jurisdictional error or impropriety.

Accordingly, the revision petition is dismissed. No orders as to

costs.

40. Pending applications also stands disposed of.

41. Since the period of six months has already elapsed long back, the

petitioners/tenants are given a month's time to vacate the

premises and handover the possession to the respondent/landlord

of their own. In case the possession is not handed over, the