Raja Khanna & Ors vs Ashvani Kumar Singh
2019 Latest Caselaw 820 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                     Reserved on: 05th February, 2019
                                    Pronounced on: 08th February, 2019

+        RC.REV. 524/2016 & CM APPL Nos.40818/2016, 27799/2018

         RAJA KHANNA & ORS                               ..... Petitioners
                     Through :         Mr.Rajiv Mehra, Advocate.

                           versus

         ASHVANI KUMAR SINGH                             ..... Respondent
                     Through :         Mr.Vivek Sood, Sr Advocate with
                                       Mr.Akhil Mittal, Advocates.

CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA

YOGESH KHANNA, J.

1. This revision challenges the impugned order dated 05.07.2016 passed by the learned Additional Rent Controller-02 (Central), Tis Hazari Courts, Delhi (hereinafter 'Trial Court') in Eviction Petition E- 797324/2016 titled Sh.Ashvani Kumar Singh Vs Sh.Raja Khanna & Ors filed by the landlord/respondent herein against the tenants/petitioners under Section 14 (1) (e) of the Delhi Rent Control Act, 1958 (DRC Act).

2. The learned Trial Court vide impugned order dismissed the application for leave to defend filed by the petitioners and passed an eviction order in respect of premises in favour of the respondent.

3. Before coming to the impugned order, let me find out the grounds on which the eviction petition was filed by the respondent. The premises

in dispute comprise of two rooms and an open space, shown in red colour in the site plan of property bearing No.636, Ground Floor, Gali Sethon Wali, Katra Neel, Chandni Chowk, Delhi - 110006 (hereinafter 'tenanted premises'). The respondent alleged to be the lawful and registered owner of the premises vide registered sale deed dated 15.01.2003 built upon plot admeasuring 72 square yards consisting of ground, first, and second floors with roof. The copy of registered sale deed is filed on record. Two rooms on the ground floor i.e. tenanted premises is in possession of the petitioners. It was let out for residential purposes by the erstwhile owner, but now the premises is lying abandoned being not used by the petitioners presently. It is lying locked and occupied by the petitioners and their family members and is lying in dilapidated condition, as alleged by the respondent.

4. The first floor of the premises is being occupied by an old tenant namely Mr.Vishwanath Mishra and second floor is occupied by the respondent and is being used for storing his items. The respondent is a practicing lawyer with enrolment No.D-3291/12 and is practicing in all District Courts of Delhi and assisting his associates before this Court and Supreme Court. The respondent is resident of House No.4/372, Bhola Nath Nagar, Gali No.13, Shahdara, Delhi-32 and is living with joint family in joint premises. The part of portion in said house which comes to the share of respondent is small and cannot be used as an office or to invite his clients at house. He is not having Chamber in the District Courts or in any Court elsewhere and presently is practicing from the Bar Rooms which is common for lawyers. He has also no other office in Delhi. It is alleged he has to deal with civil and criminal matters in

different Courts, Forums and Tribunals and wants to start his own office now. There is another property bearing No.2981, Kali Masjid, Turkman Gate, Delhi comprising two small shops being occupied by sub-tenant / trespasser and said property is also in joint ownership of the respondent with his brothers namely Mr.Ajay and Mr.Sanjay. Since there is no sufficient or suitable alternative accommodation for the respondent to start his professional office, hence the eviction petition was filed against the petitioners.

5. The main ground for leave to defend as raised by the petitioners is that respondent is having a house of 200 square yards at Shahdara which has ground floor, first floor, and barsati and he has sufficient rooms there at his disposal and can start the practice from that place. However, the petitioners have not filed any site plan of the premises bearing No.4/372, Bhola Nath Nagar, Gali No.13, Shahdara, Delhi-32.

6. The second contention raised by the learned counsel for the petitioners herein is the respondent can very well start the office from the second floor of the property at Chandni Chowk, Delhi, which admittedly is lying vacant. However, as submitted by the respondent, the second floor of the premises is in old and dilapidated condition and is being used as a store. Further the said building has no lift and hence it would not be suitable for his clients to climb the second floor. Admittedly, as per the settled law, premises at the ground floor is more apt for the business and / or professional purposes.

7. Let me now see as to how the learned Trial Court has dealt with the above issues so raised by the petitioners herein. The relevant portion of the impugned order notes:-

9. It is pleaded by the respondents that the petitioner is guilty of concealment of various facts i.e. that the petitioner has concealed the exact details and particulars of the available accommodation with him.

In his reply filed by the petitioner, it is pleaded that as the said accommodation was residential house, wherein the petitioner does not has enough space to set up his office nor he does not want to set-up the lawyer's office from the said residence and wants to set-up it separately. It is further explained by the petitioner that he has to deal with the various types of clients like corporate, criminals, businesses sector etc and that he do not want to entertain them at his residence.

It need not be mentioned here that it is for a professional to decide as to which one of the client should visit at his residence and accordingly he cannot forced to deal with his clients at his residence itself. The petitioner has already disclosed the accommodation available with him.

It is also pleaded by the respondents that the petitioner has not disclosed that he has initiated eviction petition against another tenant, Sh. Vishwanath Mishra which is pending before the court ofLd. CCJ- cum-ARC-I (C) Delhi.

It becomes pertinent to mention here that in para 18 (a) (7) (at page 7) of the petition it has already been disclosed by the petitioner regarding the dismissal of the petition by the said contents of Ms.Namrita Aggarwal, Ld. CCl-cum-ARC-I (C) Delhi vide order dt. 20.01.2015 on technical grounds.

It is pleaded by the respondents in their affidavits annexed with the leave to defend application that the premises no. 4/372, Gali no.13, Bhola Nath Nagar, Shahdra, Delhi-32 is the exclusive property of the petitioner having the area of about 200 sq. yards which is constructed upto ground floor and Barsati Floor. That the front portion of the said property is having the sole name of the petitioner at its door and that the same is the sufficient alternate accommodation available with the petitioner.

In his reply affidavit it is denied by the petitioner that the said property belongs to him. It is also pleaded by the petitioner that the said property was a joint property and that merely by affixing his name plate/does not confer any exclusive ownership of the petitioner over the said residence.

It need not be mentioned here that mere by putting a name plate in front of a house, no one can become the owner/landlord of the same. Hence, the contention of the respondents does not give rise to any triable issue in this petition.

It is well settled law that it is the petitioner himself! herself, who is the best person to explain as to what is his/ her bona-fide necessity. As per the petitioner, in the case in hand, the suit premises is required by the petitioner, who is a practising lawyer in Delhi and is enrolled with Bar Council of Delhi and is residing alongwith his family members in a joint premises which is very small and cannot be used for an office of Advocacy. That the petitioner has no chamber in any

District Court or in the High Court of Delhi. That the petitioner is the sole earning member in the family. That the petitioner is not having any source of income except the professional income and has no suitable accommodation with him in Delhi.

So far as the contention of the respondents that the petitioner are having sufficient accommodation available with them and that the requirement of the petitioner are not bona-fide, the petitioner have already disclosed about the availability of the premises with him alongwith details of the persons residing there and also about his bona-fide requirement.

10. In the considered opinion of the court, the contentions of the respondents are without merit and cannot be sustained as the petitioner is the owner and landlord of the premises. In so far as the question of necessity is concerned, the law is well settled that the landlord is the best judge of his necessity and he has got complete freedom in the matter. Therefore, a tenant cannot dictate the terms to the landlord regarding his necessity.

The petitioner have pleaded the bonafide requirement of the suit premises on the grounds that same is required by the petitioner, who is a practising lawyer in Delhi and is enrolled with Bar Council of Delhi and is residing alongwith his family members in a joint premises which is very small and cannot be used for an office of Advocacy. That the petitioner is not having any source of income except the professional income and has no suitable accommodation with him in Delhi. That the petitioner are not having any other alternate accommodation except the suit premises.

In the absence of any substantial material brought before the court or pointed out by the respondents in the affidavits it cannot be said that the present application for eviction is actuated by mala fide and has not been made with bona fide intention. Merely stating in the affidavits that the application for eviction has been made with mala fide intention is not sufficient to sustain the contention of the respondents. The court is satisfied that there is no triable point between the parties.

As per the provisions of section 25-B of Act 59 of 1958 a tenant shall be entitled to leave to contest the petition for eviction if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the grounds specified in clause (e) of proviso to sub- section (1) of section 14 of Act 59 of 1958.

Even if there is any issue the same is insignificant and does not entitle the respondents from seeking leave to contest the application for eviction.

In view of above discussion and the documents filed by the parties, this court is of the considered view that there is no triable issue between the parties which entitles the respondents for leave to contest the present application for eviction. The application for leave to contest is without merit and the same· is dismissed."

8. A bare perusal of the impugned order do show the learned Trial Court has dealt with each and every contention of the petitioner in detail

and had passed a reasoned order. Though, the learned counsel for the petitioner has referred to Tarun Pahwa vs Pradeep Makin RC Rev No.75/2012 decided on 21.12.2012; M/s.S.K.Seth & Sons vs Vijay Bhalla RC Rev No.268/2012 decided on 25.07.2012; and Santosh Devi Soni vs Chand Kiran JT 2000 (3) SC 397 to stress where the landlord possess properties than the suit premises, the leave to defend ordinarily be given. However, I may refer to Adarsh Electricals & Others vs Dinesh Dayal 173 (2010) DLT 518 wherein the respondent after retirement from service intended to start his own practice from the ground floor of the premises at Bhagirath Place, Chandni Chowk, Delhi and despite the fact respondent was having a residential house of more than 1000 square yards at 9, Upper Bela Road, Civil Lines, Delhi, the Court noted:-

"44. The concept of alternate accommodation means that accommodation which is "reasonable suitable" for the landlord, which in this case is not, as that particular accommodation is a support of income to the family of the respondent. As to alternative accommodation disentitling the landlord to the relief of possession, it has been held time and again that it must be reasonably equivalent as regards suitability in respect to the accommodation he was claiming. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. It is to be observed that it would be incorrect to suggest that the question of accommodation, actually in possession of the landlord, being 'reasonably suitable' is to be judged solely in the context of physical sufficiency of the accommodation and that the Court may hold that accommodation is insufficient having regard to various circumstances, such as, the social status of the family or traditions and customs observed by it. As long as the landlord is able to establish that he in good faith and genuinely wishes to occupy the premises in possession of the tenant and that good faith or genuineness is of a reasonable man, it would not be open to the Controller to weigh the claim of the landlord in a fine scale and that the viability of the other accommodation will have also to be considered from the stand-point of a reasonable landlord. It is further to be observed that the law does not require the landlord to sacrifice his own comforts and requirements merely on the ground that the premises is with a tenant and for

deciding whether or not the alternative accommodation available to the landlord is suitable or not, the social customs, conventions and habits, usage and practices of the society cannot be completely ruled out and termed as irrelevant. The problem had to be approached from the point of view of a reasonable man and not that of a whimsical landlord.

50. Thus, petitioners have failed to raise any triable issue in this case, which if proved might disentitle the respondent from getting an order of eviction in their favour. The trial court has given a detailed and reasoned order which does not call for any interference nor the same suffer from any infirmity or erroneous exercise of jurisdiction."

9. In the facts of case in hand, since the premises is required bonafidely by the respondent to open his professional office; the accommodation at Bhola Nath Nagar, Shahadara being not suitable for him, which otherwise, is a joint property and since the respondent has no other chamber or office elsewhere and that the second floor of Chandni Chowk property shall not be convenient for the respondent at his age as also for his client to climb stairs, there being no lift either, hence the need of an office at the ground floor cannot be termed as malafide.

10. There being no perversity in the impugned order and hence the petition being devoid of merits is, therefore, dismissed.

11. The pending application(s), if any, is also dismissed. No order as to costs.

YOGESH KHANNA, J.

FEBRUARY 08, 2019 M