Delhi High Court
Rajhans Realtors Pvt Ltd vs Rajinder Kumar Goyal & Anr on 22 October, 2024
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: September 27, 2024
Decided on: October 22, 2024
+ RC.REV. 557/2018
RAJHANS REALTORS PVT LTD
.....Petitioner
Through: Mr. Rajat Aneja, Mr. Satya
Sabharwal, Mr. Ajay
Sabharwal, Ms. Alka and
Ms. Shivangi, Advocates
V
RAJINDER KUMAR GOYAL
& ANOTHER
.....Respondents
Through: Mr. Rajesh Yadav,
Sr. Advocate with
Ms. Ruchira V. Arora and
Mr. Dhananjay Mehlawat,
Advocates
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present revision petition is filed under section 25B (8) of
the Delhi Rent Control Act, 1958 (hereinafter referred to as "the
Act") on behalf of the petitioner/landlord to challenge the judgment
dated 27.09.2018 (hereinafter referred to as "the impugned
Signing Date:04.11.2024 RC.REV. 557/2018 Page 1
judgment") passed by the court of Mr. Vikrant Vaid, ACJ-cum-
ARC, South East, Saket Court, Delhi, (hereinafter referred to as "the
trial court") in eviction petition bearing no. 5203/2016 titled as
Rajhans Realtors Private Limited V Sh. Rajinder Kumar Goyal
and others whereby the eviction petition filed by the petitioner was
dismissed by the trial court.
2. The petitioner/owner/landlord (hereinafter referred to as "the
petitioner") filed the eviction petition titled as Rajhans Realtors
Private Limited V Rajinder Kumar Goyal and others bearing no.
5203/2016 on ground of bona fide need against the respondents in
respect of the shop measuring 13'.6" x 37' (about 503 sq.' feet)
situated on the front side of the property bearing no M-2, Greater
Kailash Part-I, Main Market, New Delhi, 110048 (hereinafter
referred to as "the tenanted premises") as shown in red colour in
site plan annexed with the petition. The petitioner pleaded that the
petitioner was incorporated in the year 2001 and is engaged in the
business of real estate dealings and of selling handicrafts, objects of
art, precious metal, gold, silver and diamond stones, jewellery etc.
The petitioner initially was focusing on the business of real estate but
Signing Date:04.11.2024 RC.REV. 557/2018 Page 2
for last 2-3 years, the petitioner is doing business of precious and
semi-precious stones, jewellery, artificial jewellery etc. The
petitioner is the owner and the landlord of tenanted premises and
required the tenanted premises for running its business and does not
have any other reasonably suitable accommodation available with it.
The petitioner purchased the property bearing no. M-2, Greater
Kailash Part-1, Main Market, New Delhi vide sale deed dated
09.10.2002 from its erstwhile owner. The respondent has attorned the
petitioner as its landlord and is tendering rent to the petitioner.
2.1 The tenanted premises was let out to the respondents in the
year 1968 by the predecessor in interest of the petitioner through oral
tenancy at a monthly rent of Rs. 302.50/-. The respondents is using
the tenanted premises for running business of cosmetics, garments
and general items under the name and style "Goyal Store". The
petitioner at present is operating its jewellery business from the
rear/back side portion of the property as shown in green colour in the
site plan which is not suitable for the business of the petitioner. The
said portion is admeasuring only about 169 sq. feet and is situated on
the rear side which abuts on the back side service road of the market.
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The petitioner is running its business from small space. The petitioner
wants to shift its business to the tenanted premises which is situated
on the front side and opens towards the market side. The front side of
the property is directly accessible to the main road/varandah of the
Greater Kailash Market. The main road/atrium of the Greater Kailash
Market remains abuzz and humming with the people/customers. The
market road (front side) has tremendous movement and the footfall
and the shops opening on the front side attracts lot of customers. The
nature of business of the petitioner is wholly displayed oriented and,
therefore, the petitioner requires to have its showroom on the market
side which is suitable in terms of prospective customers as well as
proper exhibition of the jewellery and other items. The rear side
premises is wholly unsuitable in view of the nature of business
involving jewels/jewellery items etc. as such the petitioner wants to
shift its business to the tenanted premises which opens on front side
towards the market road and the tenanted premises is only suitable
premises for the business of the petitioner. The petitioner does not
have any other premises to run its showroom or to operate its
registered office.
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2.2 The petitioner further stated that M-Block, Greater Kailash
Market has gradually become a hub of jewellers and is being widely
recognized as a jewellery market having about 60 jeweller‟s shops
which are competing with each other. The shops which open on the
market road are in a distinctly advantageous position as compared to
the premises being occupied by the petitioner which is opening on the
rear/service road. The petitioner requires the tenanted premises to
compete with other jewellery shops for the growth and development
for its business. The premises under occupation of the petitioner is
wholly unsuitable as it does not cater basic needs of the petitioner.
There is hardly any space for placing wide counter for an effective
display and space is even not enough for more than two customers.
The lack of proper sitting space and display acts as a deterrent to the
prospective customers. The petitioner at present had employed 4
persons including 2 female employees. The premises under
occupation of the petitioner is situated adjacent to a toilet which is
also being used by the respondents. The petitioner due to the suits
filed by the respondents is under constant fear of the premises under
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occupation of the petitioner is being demolished by MCD. The
petitioner urgently requires the tenanted premises to shift its business.
2.3 The petitioner has sold other portions of the property to sitting
tenants i.e. Navyug Store and Jagdish Store in the year 2005 vide sale
deeds dated 26.07.2005. The petitioner retained a small passage
measuring 4‟x 9‟ as shown in yellow colour in site plan annexed with
the petition. The petitioner prayed that an eviction order be passed in
favour of the petitioner and against the respondents from the tenanted
premises.
3. The respondents after service of summons as per the Third
Schedule of the Act filed an application for grant of leave to defend
which was dismissed vide order dated 28.01.2015 passed by the court
of Ms. Pooja Talwar, ACJ/CCJ/ARC-(SE), Saket and accordingly an
eviction order was passed in respect of tenanted premises in favour of
the petitioner and against the respondents. Thereafter the respondents
being aggrieved filed Rent Revision bearing no 318/2015 titled as
Rajinder Kumar Goyal and another V Rajhans Realtors Pvt.
Ltd. and this Court vide order dated 09.05.2016 allowed the
application for leave to defend. The petitioner filed SLP bearing
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no.15998/2016 against the order dated 09.05.2016 in RC REV No.
318/2015 titled as Rajhans Realtors Pvt. Ltd V Rajinder Kumar
Goyal and another which was dismissed by the Supreme Court vide
order dated 18.07.2016.
4. The respondents filed written statement whereby contested the
present petition. The respondents in preliminary objections stated that
the present petition does not disclose mandatory requirement of
section 14 (1) (e) of the Act. The petitioner has deliberately
concealed facts including availability of various premises/properties
available with the directors and shareholders, family members and
their concerns/companies. The present case is reflection of desire of
the petitioner based on whims and fancies. There is no bona fide
requirement in respect of tenanted premises on part of the petitioner.
The respondents in preliminary submissions stated that Memorandum
of Association of the petitioner reflects that it has two shareholders
namely Devender Kumar Gupta and Rishi Gupta holding 10000
equity shares i.e. 5000 shares each as on 05.07.2001. The petitioner
has created Form DVAT-16, Department of Trade and Taxes,
Government of NCT of Delhi which is created by the petitioner
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rather the petitioner does not have any business. The petitioner is in
occupation of portion measuring 9‟x4‟ adjacent to the tenanted
premises and the petitioner never used portion marked „A‟ for its
jewellery business. The petitioner has also concealed that the
petitioner is in possession of one room situated on the terrace above
the shop which was owned by owners of erstwhile Navyug Stores but
said room is used by Jagdish Stores but the petitioner did not disclose
capacity in which Jagdish Store was using said room. The area which
is available with the petitioner i.e. 180 sq. feet (A+B) and+36 sq. feet
and one room on the first floor is sufficient for the petitioner as per
quantum of alleged business of the petitioner. The petitioner has not
disclosed that its directors namely Mohan Lal Gupta and Pushpa
Gupta and shareholders are close family members.
4.1 The respondents stated that road in front of portion in
occupation of the petitioner is main market road and is much wider
than the road in front of the tenanted premises. The plea of the
petitioner regarding unsuitability of portion under occupation of the
petitioner is incorrect as many jewellery shops are situated on same
road and adjoining roads where the shop of the petitioner is situated.
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The road where the shop of the petitioner is situated is not a service
road but a wider road in comparison to the road in front of the
tenanted premises. The road where the shop/premises in occupation
of the petitioner is situated is having famous jewellery shops. The
premises in occupation of the petitioner is sufficient as well as
suitable to the petitioner. The petitioner has sold some portion of the
property M-2, Greater Kailash-1, New Delhi to the sitting tenants in
year 2005 and area/portion with Jagdish Store which was adjoining to
the tenanted premises was having same area as that of tenanted
premises. The petitioner purchased the property bearing no M-2 only
to sell at higher rate as the petitioner is in business of real estate.
4.2 The petitioner filed an eviction petition bearing no. E-
512/2007 under section 14 (1) (b) of the Act against the respondents
on false allegations of sub letting which was withdrawn on
06.11.2008. The petitioner also withdrawn another eviction petition
bearing no E-2/2011 under section 14 (1) (e) of the Act. The
petitioner was incorporated in the year 2001 and property bearing no
M-2 was purchased in year 2002. The petitioner sold part of the
property bearing no M-2 in year 2005 and the present shareholders
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and directors who are family members, were inducted in year 2008.
The petitioner started alleged business of jewellery in year in year
2012 and present petition was filed in year 2014. The respondents
stated that these facts combined together raised serious doubts about
requirement of the petitioner. The petitioner through its then director
Anil Ghai had entered into an agreement to sell dated 22.07.2005
with the respondent no 1 for sale of tenanted premises for sale
consideration of Rs. 46,00,000/- and thereafter the respondent no 1
issued a legal notice dated 17.10.2005 due to dispute arose
subsequently and as such requirement of the petitioner is not genuine.
There are various contradictions in the case set up by the petitioner.
The directors and shareholders of the petitioner are having large
number of properties.
4.3 The respondents on reply on merits stated that the portions
Marked as A, B and C are available with the petitioner which is more
than sufficient for the requirement of the petitioner. The petitioner is
not doing any business from the premises/shop under the occupation
of the petitioner. The petitioner has created self-serving documents.
There is no back or front portion in the property bearing no M-2. The
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respondents denied each and every contention of the petitioner as
stated in the petition.
5. The petitioner filed replication wherein reasserted and
reaffirmed contents of the petition.
6. The petitioner examined Som Prakash Gupta, Director of the
petitioner as PW1 who tendered affidavit Ex. PW1/A in evidence and
Rohit Gupta as PW2 who tendered affidavit Ex. PW2/A in evidence.
PWs relied on documents which are Ex. PW1/1 to PW1/5 and PW2/1
to PW2/3. The respondents examined the respondent no 2 Narender
Kumar Goyal as RW1 and tendered affidavit Ex. RW1/A in evidence
and relied on documents which are Ex. RW1/1 to Ex. RW1/9.
7. The trial court vide the impugned judgment dated
27.09.2018 dismissed the eviction petition. The relevant portion
of the impugned order dated 27.09.2018 is reproduced as under:
14. The petitioner/landlord had the notice of the fact which
he had to prove i.e. the fact that his business is flourishing
and that consequent thereto the need of additional space
arose to satisfy the needs of the growing business.
Unfortunately, the petitioner had not produced the
books/statement of accounts of its business for the years
after the moving of present petition which would have at
least led the court to infer that the business of petitioner is
moving in direction of succession and flourish. Thus, what
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is apparent is that the foundation on which the petition is
brought is false.
15. The fact that the electricity consumption - as manifest
fi-om the electricity bills raised by the service provider for
the existing place of business of the petitioner and recorded
in the balance-sheet for the year ending 31/03/2013- is
miniscule i.e Rs 20,740/- corroborates the inference of fact
that 'flourishing business' is a moonshine. Electricity
consumption was -'Nil' for the year ending 31/03/12 and
this is now anybody's guess as to what it meant.
16. At the cost of repetition, it may be noted that the
petitioner/landlord had the notice to prove that his business
is flourishing and that consequent thereto the need of
additional space arose to satisfy the needs of the growing
business. The petitioner, failed to lead such evidence which
would have overthrown the reasonable suspicion of the
court on the fact that whether the business of the petitioner
is a flourishing or not. Rather the facts and circumstances
placed before me prove otherwise. Thus, the petitioner
failed to discharge the burden on him regarding the state of
his business.
17. The postulate on which the petitioner raised the theory
of his claim to possession fails and thus the petitioner fails.
The need of the petitioner for possession of tenanted shop
cannot be said to be bonafide.
8. The petitioner being aggrieved filed the present petition to
challenge the impugned judgment on grounds. The petitioner besides
narrating factual background as stated in eviction petition challenged
the impugned judgment on grounds that the impugned judgment is ex
facie illegal, and perverse. The impugned judgment is based on
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conjectures and surmises. The petitioner has duly established its
requirement for tenanted premises. The trial court has not passed a
speaking and reasoned judgment rather unnecessarily influenced by
the observation made in order dated 09.05.2016 passed by this court.
The trial court passed impugned judgment which is presumptive in
nature. The trail court has ignored admissions made by the RW1 in
cross examination. The trial court has failed to consider that the
business of the petitioner is display oriented. The business of the
petitioner is having promising future. The petitioner also challenged
the impugned judgment on various other grounds and prayed the
impugned judgment be set aside and eviction order be passed in
favour of the petitioner in respect of tenanted premises.
8.1 The respondents filed a reply to the present revision petition
wherein the averments and contentions of the petitioner were denied.
The respondents stated that the trial court passed the impugned
judgment in accordance with law and does not suffer from any
illegality or infirmity. The trial court has correctly held that the
petitioner had to prove that his business is flourishing and the need of
additional space arose to satisfy the needs of growing business,
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however, the petitioner had not produced the books/statements of
accounts of its business. The trial has given cogent reason in support
of his findings and has correctly held that the petitioner has failed to
lead evidence which would have overthrown the reasonable suspicion
of the court whether the business of petitioner is flourishing or not.
The trial court correctly held that the petitioner does not require the
tenanted premises. The respondents besides reiterating contents as
stated in written statement has denied bona fide requirement of the
petitioner for its alleged business. The intention of the petitioner is
not bona fide but are mala fide. The respondents prayed that the
petition be dismissed and heavy cost be imposed upon the petitioner.
9. Sh. Rajat Aneja, Advocate advanced arguments on behalf of
the petitioner and written submissions were also submitted on behalf
of the petitioner. Sh. Aneja argued that the impugned judgment
passed by the trial court is non-speaking, unreasoned and extremely
sketchy. The impugned order is not sustainable as the trial court has
not appreciated the site plan Ex. PW1/4 which was admitted to be
correct by the respondents. The trial court did not appreciate that the
respondents are having large area under their tenancy and if the
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tenanted premises is available to the petitioner, then it would have
been sufficient for the petitioner. The trial court has misplaced
reliance on order dated 09.05.2016 passed by coordinate bench of
this court in Rent Revision bearing no 318/2015 and ignored order
dated 18.07.2016 passed by the Supreme Court wherein it was
ordered that the trial court shall not be influenced by any discussion
made in order dated 09.05.2016. The trial court has also overlooked
documentary evidence produced on record as well as oral
testimony/deposition of witnesses examined by the petitioner. The
petitioner does not have any other alternate accommodation for its
business of jewellery. The trial court also not appreciated testimony
of the chartered accountant Rohit Gupta PW2. The trial court has
given subjective interpretation to expression „Flourishing‟ as the
petitioner being landlord of the tenanted premises is master of its
requirement. The petitioner is having under its occupation which is
measuring 169 sq. meter and one alleged room on the first floor of
the property M-2. Sh. Aneja in argument as well as in written
submissions attacked para no 14 of the impugned judgment which
has already been produced verbatim herein above. It was forcefully
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argued that space available to the petitioner at backside of the
property is not suitable. Section 22 of the Act is not a bar in filing
eviction petition on ground of bona fide requirement in case of the
petitioner which is a company. It was argued that the present petition
be allowed and the impugned judgment be set aside. The counsel for
the petitioner during arguments relied on Pawan Kumar V Premjit
Singh, 2015 (4) AD (Delhi)) 423 and Bhupender Singh Bawa V
Asha Devi, 2014 (214) DLT 745. Sh. Aneja also relied on Bhaskar
Refractories and Stoneware Pipes Pvt Ltd V Ishwar Industries
Ltd., RC REV 257 of 2022 decided on 02.06.2023 by this court and
Ravinder Kumar Verma V Laxmi Narayan Mandir Nirman
Sabha and another, 2016 SCC Online Del 6024 and various other
decisions rendered by the Supreme Court and this Court.
10. Sh. Rajesh Yadav, the learned Senior Counsel for the
respondents advanced oral arguments and written submissions are
also submitted on behalf of the respondents. It was also argued that
the petitioner has concealed various properties available with the
directors and shareholders of the petitioner and their family members
and other concerns/companies of the petitioner. The petitioner owns
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large number of properties and can be used by the petitioner for its
alleged needs/ requirements which are available to the petitioner. The
present petition is not maintainable as per section 22 of the Act. The
accommodation as per site plan filed by the respondents is sufficient
for the petitioner for its business. The premises under occupation of
the petitioner is not situated on service road. Sh. Yadav also referred
Income Tax Return of the petitioner for the assessment year 2013-14
which reflects gross income as Rs. 1,44,223/- and balance sheet of
the petitioner as on 31.03.2013 reflects that shareholders are family
members and stock in trade as on 31.03.2013 as per financial
statement was of Rs. 3,41,365.20/- and closing stock as on
31.03.2013 was of Rs. 4,90,779.55/-. The electricity bill for year
ending on March,2013 as per financial statement was of Rs. 20,740/-.
It was also highlighted that petitioner entered into an agreement to
sell with the respondent no.1 on 22.07.2005 in respect of tenanted
premises which was subsequently cancelled but it reflects that the
need of the petitioner is not bona fide. The order dated 09.05.2016
passed by this court was also highlighted during course of arguments.
Sh. Yadav also referred cross examination of PW1 and cross
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examination of RW1. It was also argued that non-examination of
Mohan Lal Gupta who instituted present eviction petition and due to
non-filing of balance sheet of the petitioner till 31st March, 2016 and
other documents pertaining to the alleged business of the petitioner
such as VAT returns, IT returns, salary paid to the employees and
electricity bills, an adverse inference can be drawn against the
petitioner regarding his bona fide requirement. It was argued that the
present petition be dismissed. Reliance was placed on Janki
Vashdeo Bhojwani and another V Indusind Bank Ltd and others,
(2005) 2 SCC 217, Nibro Limited V National Insurance Company
Limited, 41(1990) DLT 633, M/s Weston Tubes Pvt Ltd V
National Insurance ,2013 (137) DRJ 449 and Sudhir Engineering
Co. V Nitco Roadways Ltd, 1995 (2) AD (Del) 189
11. 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:
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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: -
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.
11.1 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
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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.
11.2 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
residential accommodation, the twin conditions
mandated under Section 14(1) (e) stand satisfied.
12. It is reflecting from record that the petitioner is the owner and
landlord of the property bearing no. M-2, Greater Kailash-I, Main
Market, New Delhi vide registered sale deed dated 09.10.2002 Ex.
PWl/3. The tenanted premises measuring 13'6" X 37' (approx. 503 sq.
feet) as shown in site plan Ex. PW1/4 was let out to the respondents
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in the year 1968 by the predecessor of the petitioner. The petitioner
sold part of the property bearing no M-2 to the sitting tenants in year
2005. The respondents are running business of cosmetics, garments
and general items under the name and style of 'Goyal Stores'. The
respondents/tenants have already attorned the petitioner as the
landlord of the tenanted premises. The petitioner has claimed that it is
operating its business along with a registered office from the back
portion of property admeasuring about 169 sq. feet. The area where
the property M-2 is situated is a prominent place of jewellers. The
respondents after service of summons filed an application for grant of
leave to defend which was dismissed vide order dated 28.01.2015
and said order was set aside by this court vide order dated 09.05.2016
passed in RC Rev. No. 318/2015. The petitioner being aggrieved
filed SLP Civil No. 15998/ 2016 which was disposed vide order
dated 18.07.2016 with observation that the trial court shall not be
influenced by any of the discussions made in the order dated
09.05.2016 passed by this court.
13. There is no dispute between the petitioner and the respondents
regarding relationship of landlord and tenant which is also observed
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by the trial court. The perusal of impugned judgment reflects that the
trial court regarding bona fide need of the petitioner regarding
tenanted premises observed that the claim of the petitioner regarding
tenanted premises is based on premise that due to the ever increasing
needs of the business of the petitioner as the said business is
flourishing and the space available with the petitioner is wanting in
satisfying the said needs and the tenanted premises when added to the
existing space will satisfy needs of the petitioner. The trial court also
observed that the business of the petitioner is not flourishing as per
books of account of the petitioner. It also appears that the trial court
was influenced with the observations made by this court in order
dated 09.05.2016 while deliberating on expression „Flourishing‟. The
trial court also observed that the petitioner had to prove that its
business was flourishing and for this the petitioner needs additional
accommodation to satisfy need of growing business and further the
petitioner had not produced the books/statement of accounts of its
business for the years after the moving of present petition which
would have at least led the court to infer that the business of
petitioner is moving in direction of succession and flourish. The trial
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court ultimately observed that foundation of the petition is false. The
trial court ultimately dismissed the petition.
14. The prime contention of the petitioner is that the petitioner is
doing business of jewellery in the portion of the property measuring
169 sq. feet which is situated on back portion of the property towards
service lane. The business of the petitioner is flourishing and due to
this reason, the petitioner requires the tenanted premises which is
measuring 503 sq. feet and is situated on front portion of the property
and suitable for the jewellery business of the petitioner. The business
of the petitioner is display oriented to attract customers but there is
no space for sitting for the staff and the customers. There is no proper
toilet for the staff and customers of the petitioner. The space
available with the petitioner is not suitable for the business of the
petitioner while the tenanted premises is more accessible for the
proposed customers of the petitioner. The respondents to the contrary
contended that the petitioner and its directors and shareholders are
having various properties in Delhi and alleged requirement of the
petitioner qua the tenanted premises is an example of fanciful desire
which is based on whims and fancies. The petitioner is not running
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business of jewellery and space which is available with the petitioner
is sufficient to run its business and is situated on main market road.
The petitioner in past sold portion of property bearing no. M-2 to the
sitting tenants and also entered into an agreement with the respondent
no 1 to sell the tenanted premises. The respondents as such opposed
the claim of the petitioner.
15. PW1 Som Prakash Gupta in affidavit Ex. PW1/A also deposed
about ownership of the petitioner in respect of tenanted premises and
requirement of tenanted premises for running of its business of
primarily jewellery etc. as it is situated on front side of property
facing main road. PW2 Rohit Gupta who is a Chartered Accountant
in affidavit Ex. PW2/A deposed that he audited balance sheet of the
petitioner for the financial year ended on 31.03.2013 and for
subsequent financial years. PW1 was extensively cross examined by
the respondents. However, PW1 in cross examination deposed that
the petitioner started business of jewellery from a portion of the
property bearing no M-2 in September, 2012 and the petitioner as on
01.04.2016 was maintaining stock of Rs. 20,00,000/-. PW1 denied
suggestion that the petitioner never carried any jewellery business
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from any portion of the property bearing no M-52. RW1 in cross
examination admitted that the petitioner is having space around 200
sq. feet at the ground floor. RW1 also admitted that area under
occupation of the respondents is at about 540 sq. feet. The evidence
on record reflects and proved that the petitioner is in occupation of
portion measuring 169 sq. situated on back portion of the property
bearing no M-2 and from there the petitioner is doing business of
jewellery etc. since September, 2012. The respondents are in
occupation of tenanted premised measuring about 503 sq. feet. The
petitioner is not doing business of jewellery on large scale as
reflected from documents placed on record.
16. The requirement of the petitioner qua the tenanted premises is
appearing to be genuine and bona fide. The business of jewellery
items and other related items needs sufficient space for staff and
customers. The tenanted premises which is more spacious in
comparison to the space under occupation of the petitioner is more
convenient and suitable as it is situated on front side of the road and
being on front side of the road shall be attracting more customers and
as such business of the petitioner may flourish. The business of the
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petitioner at present is flourishing or not is to be assessed by the
petitioner itself and it is not for the respondents being tenants to
judge or assess whether the business of the petitioner being landlord
is not flourishing. The petitioner has every right to take appropriate
measures and steps for expansion of his business and to make its
business for flourishing. The claim of the petitioner regarding
requirement of the tenanted premises is justified and genuine and
cannot be doubted. The display of jewellery articles/items is
important facet of jewellery business. There is no evidence on record
to infer that the petitioner is not doing business of jewellery and other
related items. The petitioner cannot be forced or compelled to
continue its business in small space situated on back portion of the
property bearing no M-2 to the suitability of the respondents. It is not
open for the tenant to dictate to the landlord about modalities and
manner in which the business is to be conducted by the landlord. The
landlord is master of assessment of his own requirement qua the
premises under tenancy and it is not open for the tenant to cast doubts
as to the requirement of landlord if otherwise case of the landlord is
established on record. There is also no evidence that the petitioner is
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having any other suitable accommodation for further expansion and
smooth running of its jewellery business in the area where the
tenanted premises is situated.
17. The impugned judgment passed by the trial court is purely
based on presumptions and assumptions and is reflective of mere
conjectures and surmises. The trial court has not considered merit of
the case rather appear to be influenced by observation made by this
court in order dated 09.05.2016 which is in contravention of order
dated 18.07.2016 passed by the Supreme Court. The trial court in
impugned judgment did not consider and discussed evidence led by
the parties. The impugned judgment is clearly reflective of non-
application of judicial mind by the trial court.
18. There is force in arguments advanced by the counsel of the
petitioner that impugned judgment is non-speaking, unreasoned and
extremely sketchy and the trial court has not appreciated the evidence
led by the parties. The counsel for the petitioner rightly argued that
the respondents are having large area under their tenancy which if
vacated would be sufficient for the petitioner and further the trial
court incorrectly placed reliance on order dated 09.05.2016 ignored
Signing Date:04.11.2024 RC.REV. 557/2018 Page 27
order dated 18.07.2016 passed by the Supreme Court. Sh. Aneja
rightly argued that space available to the petitioner at backside of the
property is not suitable. It was rightly argued that section 22 of the
Act is not a bar in filing eviction petition on ground of bona fide
requirement. The arguments advanced by Sh. Yadav on behalf of the
respondents that the petitioner has concealed various properties
available with the directors and shareholders of the petitioner and
their family members are without any force in absence of any
supporting evidence. There is no factual force in arguments advanced
by Sh. Yadav that the accommodation as per site plan filed by the
respondents is sufficient for the petitioner for its business. The
reliance on financial documents pertaining to the business and
electricity bills is misplaced rather financial documents reflect that
the petitioner is in business of jewellery and other related items. It
was also argued on behalf of the respondents that the petitioner
entered into an agreement to sell with the respondent no.1 on
22.07.2005 in respect of tenanted premises which was subsequently
cancelled which reflects that the need of the petitioner is not bona
fide. The said argument is also misplaced due to reason that the
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present petition was filed after 09 years of execution of agreement to
sell on 22.07.2005 and at that time the petitioner was not doing
business of jewellery which the petitioner has started in year 2012.
Sh. Yadav also argued that the petitioner has not filed balance sheet
till 31st March, 2016 and other documents pertaining to the business
of the petitioner such as VAT returns, IT returns, salary paid to the
employees and electricity bills and as such an adverse inference can
be drawn against the petitioner regarding his bona fide requirement.
It is not open for the respondents being tenant to ask these documents
from the petitioner as the petitioner is able to prove that the petitioner
has started jewellery business in year 2012 and the petitioner wanted
to expand its business which as per the petitioner was flourishing.
The arguments advanced on behalf of the petitioner and the
respondents are considered and analyzed in right perspective.
19. In view of above discussion, the impugned judgment cannot
sustain and is liable to be set aside. Accordingly, the present petition
is allowed and impugned judgment is set aside. The eviction petition
filed by the petitioner under section 14 (1) (e) of the Act is allowed
and an eviction order is passed in favour of the petitioner and against
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the respondents in respect of tenanted premises i.e. shop measuring
13'.6" x 37' (about 503 sq.' feet) situated on the front side of the
property bearing no M-2, Greater Kailash Part-I, Main Market, New
Delhi, 110048 as shown in red colour in site plan Ex. PW1/3 annexed
with the petition. The benefit of section 14 (6) of the Act shall be
available to the respondents from date of this judgment.
20. The pending applications, if any, also stand disposed of.
DR. SUDHIR KUMAR JAIN
(JUDGE)
OCTOBER 22, 2024
tk
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