Delhi High Court
Sudershan Kumar vs Suresh Kumar Gupta on 23 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: October 14, 2024
Decided on: October 23, 2024
+ RC.REV. 230/2018
SUDERSHAN KUMAR
.....Petitioner
Through: Mr. P.P. Malhotra, Senior
Advocate with Ms. Sonia
Malhotra Kumar and
Mr. Vishal, Advocates
V
SURESH KUMAR GUPTA
.....Respondent
Through: Mr. Rajeev Kumar,
Advocate with respondent in
person
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present revision petition is filed under section 25(B)(8) of the
Delhi Rent Control Act, 1958 (hereinafter referred to as "the Act")
to challenge the judgment dated 06.02.2018 (hereinafter referred to as
"the impugned judgment") by the court of Shri Prashant Sharma,
Signing Date:04.11.2024 RC.REV. 230/2018 Page 1
SCJ-cum-RC, Central, Tis Hazari Court, Delhi (hereinafter referred
to as "the trial court") in eviction petition bearing no. E-77/2012 (E-
80621/2016) titled as Dr. Sudershan Kumar V Suresh Kumar
Gupta whereby the eviction petition filed by the petitioner/landlord
was ordered to dismissed in respect of the shop forming part of the
property bearing no. 29/5, Shakti Nagar, Delhi-110007 measuring
front 8'4" and length 23'9" as shown in the red color in the site plan
(hereinafter referred to as "the tenanted shop").
2. The petitioner being landlord/owner filed the eviction petition
titled as Dr. Sudershan Kumar V Suresh Kumar Gupta bearing
no. E-77/2012 (E-80621/2016) against the respondent/tenant under
section 14(1)(e) of the Act on the ground of bona fide requirement.
The petitioner pleaded that he is the owner of the tenanted shop
having purchased from previous owner Vijay Kumar and tenanted
shop was let out to the respondent by the previous owner Vijay
Kumar at monthly rent of Rs.200/- excluding electricity and water
charges which are being paid by the respondent directly to the
concerned authority. The petitioner required the tenanted shop bona
fide for establishing his own new dental clinic and the petitioner does
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not have any other reasonable suitable accommodation for
opening/establishing his own new dental clinic. The petitioner is a
highly qualified medical practitioner (Dentist) and has obtained
master's degree in the dental surgery in the year 1968 from Lucknow
University. The petitioner also received expert training in the dental
surgery and various other disciplines relating the dentistry namely
maxilla-facial surgery and orthodontia from abroad. The petitioner
was a senior consultant and the head of the department in St.
Stephens' Hospital for almost 16 years besides being the consultant
in various other hospitals. The petitioner has established his name as
a reputed dental surgeon. The petitioner had established his dental
clinic and is practicing from the shop bearing no. 3 having area of
16'-4 ½" X 14' - 4 ½" situated on the ground floor at Municipal
Market, Mandelia Road, Kamla Nagar, Delhi but the dental clinic can
accommodate only two dental chairs and one X-ray machine is
installed in a very cramped manner and it has become very difficult
for the petitioner and his associate doctors and assistant to attend the
patients and perform the dental surgery in such cramped conditions.
There is no proper sitting space in the clinic which can be used as a
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waiting area for patients who have to stand outside the clinic with
severe pain. The petitioner due to paucity of space is unable to cater
and provide even the basic facilities to the patients and has to refer
his patients to different hospitals/clinics. The petitioner has decided
to provide dental care, surgery and ultra-modern facilities round the
clock to the patients, attendants, associates junior doctors and clinical
staff under one single roof which will also encourage and promote
dental tourism. The petitioner bona fide requires/needs a bigger space
for dental clinic/hospital to meet competitive modern conceptual
facilities and also to cater the essential needs and requirements of
patients.
2.1 The petitioner is residing in house bearing no. 11/8, Shakti Nagar,
Delhi-110007 and the tenanted shop is situated near to the residence.
It will be convenient for the petitioner to establish dental clinic near
to his residence and as such the tenanted shop is the most suitable
accommodation for the petitioner to establish the dental clinic with
latest facilities and infrastructure. The petitioner is a senior citizen
and if he opens a clinic near to the place of residence then he would
be able to take proper rest at his residence as and when required and
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would also be convenient for the petitioner to approach to the dental
clinic/hospital in case of immediate and urgent dental surgery or
treatment.
2.2 The property bearing no 29/5, Shakti Nagar, Delhi-110007 is
consisting of two shops including tenanted shop which are situated
on the front side and main road. The petitioner has already filed an
eviction petition against another tenant. The petitioner is residing at
house no 11/8, Shakti Nagar, Delhi-110006 and said property is
being used for only residential purpose. The petitioner does not have
any other reasonable and suitable accommodation available with him
to establish and run his proposed dental clinic. The vacant portion of
the property bearing no 29/5 which is under possession of the
petitioner is not sufficient to execute plan of establishing modern
dental clinic. The second floor of the property bearing no 29/5 is
owned by the wife of the petitioner and cannot be used for
performing dental surgery and can only be used for purpose of resting
of staff of the petitioner and is not suitable for purpose of establishing
24 hours dental clinic. It is prayed that the eviction order be passed
in favour of the petitioner and against the respondent with respect to
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the tenanted shop.
3. The respondent after service of summons as per third schedule
filed an application for leave to defend along with affidavit which
was ordered to be dismissed vide order dated 12.12.2013. The
respondent being aggrieved challenged the order dated 12.12.2013
before this court vide RC Rev. no. 113/2013 which was decided vide
order dated 13.06.2014 and the trial court was directed to decide on
merits.
4. The respondent filed written statement. The respondent in the
preliminary objections stated that the plea of bona fide requirement
by the petitioner is misleading and is based on incorrect facts. The
respondent was a tenant under Vijay Kumar but the petitioner is
claiming to be the owner/landlord of the tenanted shop. The
petitioner allegedly purchased the tenanted shop along with another
shop only for the investment purpose. The petitioner at the time of
purchase of the property bearing no 29/5 was also doing the same
profession and also enjoying the same repute and respect in the
society. The petitioner had never intended to open the alleged dental
clinic. The alleged bona fide requirement of petitioner is artificial and
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he only wants to evict the respondent on artificial and flimsy
grounds. The petitioner is already running a clinic from shop no. 3,
Municipal Market, Mandelia Road, Kamla Nagar, Delhi which is of
much bigger size in comparison to the tenanted shop. The petitioner
has not made any offer to shift the respondent to shop no. 3 to prove
his bona fide. The house bearing no. 11/8 Shakti Nagar, Delhi-
110007 is a bigger house and is constructed on 350 Sq. yards and is 3
side open which is more convenient for the petitioner to open his new
proposed clinic.
4.1 The petitioner is running a clinic from shop no. 3, Municipal
Market, Mandelia Road, Kamla Nagar, Delhi -110007 but concealed
that he is also running similar clinics from shops which are i). M-3
Greater Kailash Enclave, New Delhi-110048, ii). G-3, Greater
Kailash Enclave, New Delhi-110048, iii). M-7, Greater Kailash
Enclave, New Delhi-110048 and as such the petitioner is not entitled
to the eviction of the respondent from the tenanted shop. The
petitioner can also start his proposed clinic from the second floor of
the property bearing no. 29/5, Shakti Nagar, Delhi-110007 and also
from the portion which is situated on backside of the tenanted shop
Signing Date:04.11.2024 RC.REV. 230/2018 Page 7
on the ground floor of the property bearing no. 29/5, Shakti Nagar,
Delhi-110007.
4.2 The respondent on reply on merits stated that the petitioner had
purchased the property bearing municipal no 29/5, Shakti Nagar
Delhi-110007 on 27.07.2006 which at that time was comprising of
two shops occupied by two separate tenants. The petitioner at that
time was around 72 years old and was running a very reputed dental
clinic from shop no. 3, New Market, Mandaliya Road, Kamla Nagar,
Delhi-110007. The son of the petitioner is already settled in USA and
his daughters are already married. The petitioner does not require the
shop for his bona fide requirement. The petitioner could have opened
a new dental clinic from house bearing no. 11/8 Shakti Nagar, Delhi-
110007 which has been constructed on the area of about 350 square
yards and is open from three sides. The tenanted shop is not suitable
for the petitioner for opening a dental clinic. The petitioner has not
disclosed that he is also running a similar clinic from other places as
detailed hereinabove. The petitioner is not entitled for the relief as
prayed for and the eviction petition is liable to be dismissed.
5. The petitioner filed the replication wherein retreated and
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reaffirmed the contents of the petition. The petitioner stated that he
intended to open a new dental clinic from the two shops out of which
one is the tenanted shop and another is in the occupation of another
tenant Harish Chand Garg, but he could not open the new clinic due
to the paucity of space. The petitioner is using the property bearing
no. 11/8 Shakti Nagar, Delhi comprising two floors as residence for
himself and his family including the daughter.
6. The petitioner in evidence examined himself as PW1 and tendered
the affidavit which is Ex. PW1/A and relied upon the documents
which are PW 1/1 to Ex. PW 14. The petitioner as PW 1 was not
cross examined by the respondent.
6.1 The respondent examined himself as RW1 and tendered the
affidavit which is Ex. RW 1/A and relied upon the documents which
are Ex. DW1/1 to DW1/15. The respondent also examined Mahesh
Kumar Gupta as RW2 and Dinesh Kumar as RW 4 who visited clinic
of the petitioner and found that the said clinic was large in area and
also deposed that the clinic of the petitioner is very spacious. The
respondent also examined Brahm Prakash Goyal as RW3.
7. The trial court vide impugned judgment dated 06.02.2018 has
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dismissed the eviction petition by observing that the petitioner has
failed to prove the ingredients of section 14 (1)(e) of the Act.
7.1 The trial court opined that there exist relationship of landlord and
tenant between the parties on basis of rent receipt Ex. PW1/4 and
registered sale deed Ex.PW1/1 in favour of the petitioner in respect
of property bearing no 29/5, Shakti Nagar, Delhi-110007. The trial
court on basis of documentary evidence and testimony of the
petitioner as PW1 has right held that there is relationship of landlord
and tenant between the petitioner and the respondent and this finding
of the trial court does not warrant any interference. Accordingly,
relationship of landlord and tenant between the petitioner and the
respondent duly established and proved.
7.2 The trial court regarding bona fide need of the petitioner qua the
tenanted shop observed that it is the responsibility of petitioner that
his requirement is bona fide based on preponderance of probabilities.
The trial court has observed that the petitioner has failed to explain
the exact future plan for running his proposed specialized dental
clinic from the tenanted shop. It was also not clear as to whether the
petitioner would stop working at Tirath Ram Shah Hospital at Civil
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Lines, Sunder Lal Jain Hospital at Ashok Vihar and Pentamed
Hospital at Model Town besides various clinics which are 3, New
Market Kamla Nagar, Delhi-7; M-3, Greater Kailash Enclave, New
Delhi-48; G-3, Greater Kailash Enclave, New Delhi-48; M-7, Greater
Kailash Enclave, New Delhi-48 and C-3, Greater Kailash Enclave,
New Delhi-48. The trial court also observed that the petitioner could
not explain the stand he has taken before the High Court as reflected
from the judgment dated 13.06.2014.
7.3 The trial court also observed that the case of the petitioner is
suffering from various shortcomings. The petitioner had taken the
stand that he is finding it difficult to accommodate the visiting
patients on account of shortage of space in his clinic which is a bald
claim and is not supported by any documents regarding the influx of
the patients in the clinic situated at Shop No. 3, Municipal Market,
Mandelia Road, Kamla Nagar, Delhi. The petitioner could have
examined his fellow doctors/ intern or any of the patients who had
visited clinic of the petitioner situated at Shop No. 3, Municipal
Market, Mandelia Road, Kamla Market, Delhi-110007. The trial
court did not believe in the claim of the petitioner regarding the
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shortage of space as founded on bald claims. The trial court also
observed that the petitioner had claimed that he wanted to encourage
dental tourism by providing his expert skills to the foreign tourists at
cheaper cost but again said claim in the opinion of the trial court
remained a bald claim as the petitioner did not furnish any proof
which could establish the cost of dental services in other countries is
at higher rates as claimed by the petitioner. The petitioner also did
not specify the countries where the dental services are allegedly at
high cost. The petitioner has also not provided any comparative
details/study regarding the charges of dental services in India and
charges of dental services outside India. The trial court also opined
that the petitioner could not explain as to how the portion of the
building bearing no 29/5, Shakti Nagar, Delhi-110007 as shown in
blue color in the site plan Ex.PW 1/3 is not sufficient for running the
proposed dental clinic. The trial court also did not believe in the
layout plan of the Ex. PW1/12 regarding the proposed dental clinic of
the petitioner. The trial court noticed that it was merely a desire of
the petitioner to run the propose clinic from the tenanted shop and not
his need. The petitioner also did not furnish any proof regarding the
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referral of patients to other hospitals and clinics by him due to the
paucity of space. The petitioner also did not examine any patient to
establish that it would not be convenient to establish a clinic at the
second floor of the property bearing no. 29/5, Shakti Nagar, Delhi
stated to be owned by the petitioner. The trial court ultimately
observed that the petitioner has failed to establish his case based on
preponderance of probabilities.
7.4 The trial court also observed that the petitioner during the cross
examination of the respondent as RW1 did not give any suggestion
regarding his future plan for establishing a new dental clinic and how
the clinic at shop no. 3, Mandelia Road, Kamla Market, Delhi-110007
is not sufficient to the petitioner. The petitioner has also not disputed
the documents placed on record by the respondent regarding his visit
to 2-3 hospitals. The trial court also believed in the testimonies of
RW2 Mukesh Kumar Gupta and RW4 Dinesh Kumar who deposed
that the area of the clinic of the petitioner running at shop no. 3,
Mandelia Road, Kamla Market, Delhi-110007 is large and spacious
and also denied the suggestion that the said area is not sufficient for
the petitioner. The petitioner did not dispute that the RW2 Mukesh
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Kumar Gupta and RW4 Dinesh Kumar were not his patients who
visited his clinic at shop no. 3, Mandelia Road, Kamla Market, Delhi-
110007 for treatment. The trial court had opined that the veracity of
those witnesses cannot be doubted. Accordingly, after analyzing the
respective evidence laid by the petitioner and the respondent came to
the conclusion that the need of the petitioner is not bona fide.
8. It is appearing from the record that the petitioner had purchased the
property bearing no. 29/5, Shakti Nagar, Delhi from Vijay Kumar
and the tenanted shop and another shop which is under the tenancy of
another tenant, namely, Harish Chand Garg are the part of said
property. The petitioner is also the owner of another property bearing
no. 11/8, Shakti Nagar, Delhi-110007 which is being used for
residential purposes. The petitioner is a highly qualified dentist and at
present running his clinic from the shop no. 3, Mandelia Road,
Kamla Market, Delhi-110007. The petitioner also remained
employed with various hospitals including Tirath Ram Shah Hospital
at Civil Lines, Sunder Lal Jain Hospital at Ashok Vihar and
Pentamed Hospital at Model Town and also use to visit to various
clinics which are situated at M-3, Greater Kailash Enclave, New
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Delhi-48; G-3, Greater Kailash Enclave, New Delhi-48; M-7, Greater
Kailash Enclave, New Delhi-48 and C-3, Greater Kailash Enclave,
New Delhi-48. The petitioner is an old age person and at present is
aged about more than 80 years. There is no serious dispute regarding
the relationship of the landlord and the tenant between the parties.
The petitioner is claiming that he needs the tenanted shop and another
shop under the tenancy of Harish Chand Garg for establishing a
dental clinic provided with all modern facilities, equipment and
apparatus where there should be proper space for the patients,
associate doctors and nursing staff.
9. Shri P.P. Malhotra, learned senior counsel for the petitioner
advanced oral argument and written submissions were also submitted
on behalf of the petitioner. The learned senior counsel for the
petitioner stated that the petitioner is owner of the tenanted shop vide
registered sale deed dated 27.07.2006 Ex. PW1/1 which is situated on
ground floor of the property bearing no. 29/5, Shakti Nagar, Delhi-
110007 as shown in site plan Ex. PW1/3. Sh. Malhotra argued that
the petitioner requires the tenanted shop for establishing/opening a
dental clinic with ultra-modern facilities. The petitioner is a highly
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qualified Dentist and has already received expert training in various
disciplines of dentistry namely orthodontia and maxilla-facial surgery
from abroad. The petitioner was also Head of the Department in St.
Stephen's Hospital and as Senior Consultant in many hospitals. Shri.
P.P. Malhotra attacked the impugned judgment and argued that the
impugned judgment passed by the trial court is absurd and erroneous
and was passed after ignoring settled principles of law and is liable to
be set aside. The trial court has not appreciated the facts/evidence in
the right perspective that tenanted shop is situated at the walking
distance from the residence of the petitioner and the petitioner needs
the tenanted shop to establish a dental clinic from where he can
provide 24x7 dental services to the patients. The petitioner, at
present is running his dental clinic from the shop bearing no. 3,
Ground Floor, Mandela Road, Shakti Nagar, Delhi-110007 which is
insufficient for the clinic of the petitioner and is having the space
only to accommodate two dental chairs and one X-ray machine
which is installed in a very cramped manner. Shri. P.P Malhotra also
argued that the petitioner is not having sufficient space in the said
clinic for the patients who have to stand outside the clinic. The
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residential house bearing no. 11/8, Shakti Nagar having area of
265.42 square yards is required by the petitioner and his family
members for residence and the married daughter of the petitioner also
used to visit at the residence of the petitioner. The measurements of
the tenanted shop are 8' 4" at the front and the length is 29' 9" as
shown in the site plan Ex. PW-1/3 and sale deed Ex. PW-1/1. Sh.
Malhotra further stated that another shop which is under the tenancy
of Harish Chand Garg is also having the same area and the petitioner
has already filed revision petition bearing no. 226/2018 which is also
pending before this Court.
9.1 Shri P.P. Malhotra also argued that the trial court has given
perverse finding in the impugned judgment dated 06.02.2018 as the
testimony of the petitioner remained un-challenge by the respondent
as the respondent did not cross-examine the petitioner. The trial court
has given the perverse finding in the impugned judgment by
observing that the petitioner has failed to explain the exact future
plans for running the proposed specialized dental clinic from the
tenanted shop and there was no proof of the influx or shortage of
patients in Kamla Nagar Clinic or shortage of space there. Shri P.P.
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Malhotra also attacked the impugned judgment by arguing that the
trial court has perversely observed that the petitioner could have
examined the doctor, patients or interns to support his claim of
shortage of space and also did not furnish any proof of difference in
the cost of dental services in India and in other countries. Shri. P.P
Malhotra argued that the landlord is the best judge of his own
requirement and the petitioner had established that his need was bona
fide. RW2 and RW4 also deposed that the petitioner is having the
vast reputation and is a famous doctor in the area and the trial court
has wrongly observed that the petition did not explain as to how the
back portion of the property bearing no. 29/5, Shakti Nagar, Delhi is
not suitable for running the proposed clinic. Shri. P.P Malhotra
ultimately argued that the eviction order be passed in favour of
petitioner. He relied on Abid-Ul-Islam V Inder Sain Dua, (2022) 6
SCC 30; Anil Bajaj & another V Vinod Ahuja, (2014) 15 SCC
610; Sarla Ahuja V United India Insurance Co. Ltd, (1998) SCC
119 ; Ragavendra Kumar V Firm Prem Machinery, (2000) 1 SCC
679; Sait Nagjee Purushotham & Co. Ltd V Vimalabai Prabhu
lal, (12005) 8 SCC 252; Ram Dulari & another V Dr. Brij Mohan
Signing Date:04.11.2024 RC.REV. 230/2018 Page 18
2016 SCC online Del 748 and various other decisions/judgments
delivered by the Superior Courts.
10. Shri. Rajeev Kumar, Advocate for the respondent argued that
there is no infirmity in the impugned judgment and the revision
petition is liable to be dismissed. That the petitioner has miserably
failed to prove that the tenanted shop is required by the petitioner
bona fide and he does not have any suitable accommodation. The
alleged modern dental clinic proposed to be opened by the petitioner
is an eye-wash sham/illusory and lacks bona fide requirement as the
area where the tenanted shop is situated is not conducive for opening
a dental clinic with modern facilities as the said area is very
congested and there is always heavy traffic jam. The petitioner has
concealed that he is running similar various clinics bearing nos. M-3,
Greater Kailash Enclave, New Delhi-48, G-3, Greater Kailash
Enclave, New Delhi-48, M-7, Greater Kailash Enclave, New Delhi-
48 and C-3, Greater Kailash Enclave, New Delhi-48 and as such the
present petition is liable to be dismissed. The petitioner has not filed
the details of the patients being attended him every day and the
details of the patients which were referred to by him to various
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hospitals and how many NRIs have approached the petitioner for
treatment. The petitioner is already running a clinic from the shop no.
3 municipal market, Mandelia Road, Kamla Nagar, Delhi-110007
which is much bigger in size and sufficient to establish/settle the
proposed dental clinic. The counsel for the respondent has referred
testimony of RW2 who proved that the space at Kamla Nagar Clinic
is good enough for the petitioner. The petitioner is also having an
alternate sufficient accommodation at the second floor of the property
bearing no. 29/5, Shakti Nagar, Delhi which is owned by the wife of
the petitioner and is lying vacant. The counsel for the respondent
argued that the present petition is liable to be dismissed. The counsel
for the respondent referred and relied on Hindustan Petroleum
Corporation Ltd. V Dilbahar Singh, MANU/SC/0738/2014;
Gandhe Vijay Kumar V Mulji, MANU/SC/0953/2017,
Thankamony Amma and others V Omana Amma N. and others,
MANU/SC/1085/2019; Abid-ul-Islam V Inder Sain Dua,
MANU/SC/0431/2022; Shiv Sarup Gupta V Mahesh Chand
Gupta, MANU/SC/0432/1999, Deepak Bajaj V State of
Maharashtra & others, MANU/SC/8246/2008; Pran Nath Katyal
Signing Date:04.11.2024 RC.REV. 230/2018 Page 20
V K.C. Verma, MANU/DE/1826/2017; Mukesh Sharma V
Harmesh Singhal, MANU/DE/4949/2013 and other decisions/
judgments delivered by Superior Courts.
11. Section 14 (1) (e) of the Act deals with eviction of tenant from
tenanted shop are required bona fide by the landlord. It reads as
under:
14. Protection of tenant against eviction:
(1) Notwithstanding anything to the contrary contained
in any other law or contract, no order or decree for the
recovery of possession of any premises shall be made by
any court or Controller in favour of the landlord
against a tenant:
Provided that the Controller may, on an application
made to him in the prescribed manner, make an order
for the recovery of possession of the premises on one or
more of the following grounds only, namely: -
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.
Signing Date:04.11.2024 RC.REV. 230/2018 Page 21
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
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
Signing Date:04.11.2024 RC.REV. 230/2018 Page 22
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. The main contention of the petitioner is that he needs tenanted
shop under the tenancy of the respondent for establishing a dental
clinic having modern facilities, apparatus, infrastructure coupled with
sufficient space for patients as well as staff of the petitioner including
associate doctors, nurses etc. The claim of the petitioner is contested
by the respondent by alleging that there is enough space in present
dental clinic of the petitioner which is being run at shop no 3.
Municipal Market, Mandelia Road, Kamla Nagar, Delhi-110007 and
the petitioner can open proposed dental clinic at back portion of the
property bearing no 29/5, Kamla Nagar, Delhi-110007 which is
shown in blue colour in site plan Ex. PW1/3 and second floor of the
said property. It is necessary to analyze evidence led by the petitioner
and the respondent to appreciate controversy between the petitioner
and the respondent. The petitioner to justify bona fide requirement
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qua the tenanted shop examined him as PW1 and tendered affidavit
Ex. PW1/A in evidence. The petitioner in affidavit Ex. PW1/A
primarily deposed in consonance with the contents of eviction
petition and deposed that he purchased property bearing no. 29/5,
Shakti Nagar, Delhi-110007 from its erstwhile owner on 27.7.2006
vide registered sale deed Ex. PW l/l. The tenanted was let out to the
respondent by previous owner as shown in red colour in site plan Ex.
PW1/3 and the petitioner is in possession of back portion of said
property as shown in blue colour in site plan Ex. PW1/3. The
petitioner PW1 further deposed that he requires tenanted shop and
adjacent shop which is under tenancy of another tenant for
establishing his new dental clinic and he does not have any other
reasonably suitable accommodation for opening / establishing new
dental clinic. The petitioner is a highly qualified medical practitioner
(Dentist) with specialized qualifications and training in field of dental
surgery and other disciplines of dentistry. The petitioner had been
employed as Senior Consultant in various reputed hospitals. The
petitioner established his dental clinic situated at shop bearing no. 3,
Ground Floor, Municipal Market Mandelia Road, Kamla Nagar,
Signing Date:04.11.2024 RC.REV. 230/2018 Page 24
Delhi as shown in site plan Ex. PW1/13 and in said dental clinic only
two dental chairs and one X-ray machine are installed in a very
cramped manner. The petitioner further deposed that space available
at said clinic is not sufficient for patients and his associate/junior
doctors and the petitioner due to paucity of space is unable to provide
basic facilities to his patients. The petitioner has decided to provide
24 hours basic ultra-modern facilities to patients which will also
promote dental tourism due to low cost of dental treatment. The
petitioner also deposed that he is residing in house no. 11/8, Shakti
Nagar, Delhi - 110007 and the tenanted shop is situated at a walking
distance from there and it would be very convenient for the petitioner
to establish his modern dental clinic near to his residence and hence
the tenanted shop is the most suitable to establish dental clinic. The
petitioner is also having property bearing no 11/8, Shakti Nagar,
Delhi-110007 which is being used as residence by the petitioner and
his family. The tenanted shop is most suitable accommodation to
establish dental clinic with latest facilities and infrastructure as
detailed in plan Ex.PW1/12. The vacant portion of the property
bearing no 29/5, Shakti Nagar, Delhi which is in possession of the
Signing Date:04.11.2024 RC.REV. 230/2018 Page 25
petitioner alone is not sufficient for establishing proposed dental
clinic. The petitioner was not cross examined by the respondent and
as such testimony of the petitioner remained unchallenged and
unrebutted.
12.1 The respondent in affidavit Ex.RW1/A deposed that he is a
tenant in respect of tenanted shop under the petitioner who is owner
of the tenanted shop and another shop in said property is occupied by
another tenant Harish Chand Garg. The petitioner also filed eviction
petition against another tenant. The plea of the petitioner to establish
Modern Dental Clinic as per proposed plan Ex. PW1/12 is
misleading, eye wash, fanciful, illusory and liable to be rejected. The
petitioner is running a dental clinic of high repute from shop no.3,
Municipal Market, Mandelia Road, Kamla Nagar, Delhi which is of
much bigger size and sufficient to establish/set up proposed dental
clinic. The petitioner had purchased the property bearing no 29/5 for
investment purposes. The petitioner is aged about 72 years and was
carrying same profession when he purchased the property bearing no
29/5 and never intended to open alleged dental clinic. The petitioner
is having various other clinics in Delhi and for this relied on Ex.
Signing Date:04.11.2024 RC.REV. 230/2018 Page 26
DW1/1 to Ex. DW1/4. The petitioner is having alternative sufficient
/adequate accommodation for running the proposed clinic in question
in property bearing no 11/8 Shakti Nagar which is measuring about
350 sq. yards and is opening on two sides on the main road. The
petitioner is also having alternative/sufficient accommodation at the
Second Floor of the property bearing no 29/5 Shakti Nagar, Delhi
which is owned by the wife of the petitioner and is lying vacant. The
respondent as RW1 was extensively cross examined on behalf of the
petitioner and in cross examination deposed that he has mentioned in
affidavit Ex. RW1/A and written statement that existing clinic/shop
of the petitioner is bigger in comparison to the tenanted shop and
cannot comment whether the petitioner is running clinic in cramped
manner without any basic facility for the patients. The respondent
admitted that he does not have any documentary proof to prove that
the petitioner is owner of any other shop/clinic/hospital except shop
no. 3, Mandelia Road, Kamla Nagar, Delhi. The respondent denied
suggestions that the back portion of property no.29/5 cannot be used
by the petitioner for his proposed dental clinic until tenanted shop
and another tenanted shops are vacated or that second floor of the
Signing Date:04.11.2024 RC.REV. 230/2018 Page 27
property no. 29/5, Shakti Nagar, can only be used by the petitioner
for storage of material and staff. RW2 Mukesh Kumar Gupta deposed
that the petitioner is a dentist and running his clinic at Kamla Nagar.
RW1 visited clinic of the petitioner in year 2008 which is spacious
and had seen two dental unit and dental chairs, one X-ray machine
and 2/3 other machines and can accommodate 2/3 more doctors.
RW2 in cross examination deposed that there were chairs and one
table in the cabin of the clinic of the petitioner and denied suggestion
that area available with the petitioner for running clinic is not
sufficient for him. RW4 Dinesh Kumar deposed that he had gone to
the clinic of the petitioner for treatment of teeth and clinic of the
petitioner is very big/spacious with two cabins and machines
including X-ray machine. There were also some chairs for waiting
patients. RW4 in cross examination admitted that Harish Chand Garg
who is a tenant in another shop in the property bearing no 29/5 has
sent him to the petitioner and the petitioner is having vast reputation
and is a famous doctor in the area. RW4 denied suggestion that the
space available in the clinic is not sufficient. The respective
testimony of RW2 and RW4 reflects that the petitioner is enjoying
Signing Date:04.11.2024 RC.REV. 230/2018 Page 28
high reputation in area as a dentist and his clinic at shop no.3 can
accommodate only 2/3 dental units and one X-ray machine which is
also stated and deposed by the petitioner as PW1. It is also reflecting
that they visited clinic of the petitioner only once and that is too for
collection of evidence at the instance of the respondent and another
tenant Harish Chand Garg.
13. The counsel for the respondent argued that the petitioner has
failed to prove his bona fide requirement qua the tenanted shop and
alleged dental clinic as proposed by the petitioner is an eye wash,
sham and illusory and the tenanted shop is situated in the densely
populated area which would not be convenient for proposed dental
clinic of the petitioner. The argument so advanced by the counsel for
the petitioner is misplaced and misconceived as it is not open for the
respondent being tenant to assess the suitability of tenanted shop for
opening a dental clinic by the petitioner. The petitioner is highly
qualified and trained doctor in field of dentistry with vast experience
and knowledge and as such the petitioner is best person to judge and
assess the suitability of place for establishing a new dental clinic
proposed to be equipped with modern facilities, infrastructure and
Signing Date:04.11.2024 RC.REV. 230/2018 Page 29
equipments.
14. It was also argued that the petitioner is running a dental clinic at
shop no 3, Municipal Market, Mandelia Road, Kamla Nagar, Delhi-
110007 and also concealed that he is running similar clinics from i)
M-3, Greater Kailash Enclave, New Delhi-100048; ii), G-3, Greater
Kailash Enclave, New Delhi-100048; iii), M-7, Greater Kailash-1,
New Delhi-100048 and (iv) C-3, Greater Kailash Enclave, New
Delhi-100048 and as such the petition is liable to be dismissed. The
counsel for the respondent relied on Pran Kant Katyal V
K.C.Verma, Mukesh Sharma V Harmesh Singhal and Kanta
Gupta V Goverdhan Dass Gupta. It is accepted legal proposition
that if the landlord is guilty of concealment of material facts in
eviction petition, then he may not be entitled for any relief from the
court. It is equally true that the petitioner being landlord/owner is
obliged to disclose true facts and no litigant can derive benefit from
the court of law out of his own wrongs. There should not be any
wilful concealment of facts and if such attempt is made then the
guilty party is not entitled for any relief from the court. In the present
case the petitioner has disclosed that he is running his dental clinic
Signing Date:04.11.2024 RC.REV. 230/2018 Page 30
from shop no 3, Municipal Market, Mandelia Road, Kamla Nagar,
Delhi-110007, however, the petition is silent about other clinics of
the petitioner situated at from i) M-3, Greater Kailash Enclave, New
Delhi-100048; ii), G-3, Greater Kailash Enclave, New Delhi-100048;
iii), M-7, Greater Kailash-1, New Delhi-100048 and (iv) C-3, Greater
Kailash Enclave, New Delhi-100048. The respondent did not cross
examine the petitioner about running of these clinics exclusively by
the petitioner. The respondent in affidavit Ex. RW1/A also deposed
that the petitioner apart from his current clinic is also running similar
clinics as detailed herein above and relied on visiting cards Ex.
DW1/1 to Ex. DW1/3 and profile of the petitioner Ex. DW1/4. The
respondent also referred medical prescription and receipt no.915
which are mark DW-A and DW-B. The perusal of these documents
reflect that the petitioner may be visiting these clinics but there is no
evidence that these clinics as referred and detailed herein above are
owned by the petitioner. The petitioner in the petition has disclosed
other accommodations available with him. The petitioner cannot be
said to be guilty of concealing of material facts and such argument
advanced by the counsel for the respondent is without any basis.
Signing Date:04.11.2024 RC.REV. 230/2018 Page 31
15. The counsel for the respondent also argued that case of the
petitioner is based on mere desire for establishing modern dental
clinic with all critical care near his residence which is not supported
by necessary details such as patients being attended by the petitioner
every day, the details of patients referred by the petitioner to the
hospitals, how many NRIs had approached to the petitioner for
treatment etc. It was argued that the petitioner in garb of establishing
alleged modern dental clinic at the age of about 72 years has
fabricated the alleged bona fide need with an intention to evict the
respondent from the tenanted shop. The petitioner is already running
a dental clinic of high repute from Shop No.3, Municipal Market,
Mandelia Road, Kamla Nagar, Delhi as shown in site plan Ex.
PW1/11 which is of much bigger size and sufficient to establish/set
up proposed dental clinic. The testimony of RW2 Mukesh Kumar
Gupta was also referred to prove that there is sufficient space
available with the petitioner in clinic situated at shop no 3, Municipal
Market, Mandelia Road, Kamla Nagar, Delhi-110007. The Supreme
Court in Charan Dass Duggal V Brahma Nand, (1983) 1SCC301
as referred Prem Nath Katyal V K. C. Verma,
Signing Date:04.11.2024 RC.REV. 230/2018 Page 32
MANU/DE/1862/2017 cited on behalf of the respondent held that
when the possession is sought on the ground of personal requirement
then an absolute need is not to be satisfied but a mere desire equally
is not sufficient. The need has to be something more than a mere
desire. In present case it is not disputed that the petitioner is a dentist
of extreme repute with high qualification, experience and knowledge.
The petitioner had been in past was associated with many hospitals of
repute. The petitioner has also received highly placed training in the
dentistry. It is also reflecting from the respective testimony of RW2
and RW2 that the present clinic of the petitioner as shown in site plan
Ex. PW1/11 is good enough to accommodate 2/3 dental units and one
X-ray machine. Although RW2 and RW4 deposed that enough space
is available with the petitioner in clinic as shown in site plan Ex.
PW1/11 but it is also reflecting that they visited the clinic of the
petitioner only to collect evidence for the respondent. It is well
established that enough space is not available with the petitioner in
clinic bearing shop no 3, Municipal Market, Mandelia Road, Kamla
Nagar, Delhi as shown in site plan Ex. PW1/11. If the petitioner
being a highly qualified doctor/dentist wants to open modern dental
Signing Date:04.11.2024 RC.REV. 230/2018 Page 33
clinic with facility of critical care coupled with sophisticated
apparatus, facilities, infrastructure, equipments etc. in the tenanted
shop then it cannot be equated with mere desire of the petitioner and
it is much more than the desire and not in manner less than the bona
fide requirement. Accordingly, argument so advanced by the counsel
for the respondent is without any legal and factual basis.
16. The counsel for the respondent also argued that the petitioner is
having alternative/sufficient accommodation at the second floor of
the property bearing no 29/5, Shakti Nagar, Delhi which is owned by
the wife of the Petitioner and is lying vacant. The petitioner is also
owner of the property bearing no 11/8, Shakti Nagar, Delhi-110007
which can be used by the petitioner for establishing proposed dental
clinic. The back portion of the property bearing no 29/5 as shown in
blue colour in site plan Ex.PW1/3 is also available with the petitioner
where proposed dental clinic can be established. The petitioner has
very well explained about these properties and why they cannot be
used for establishing proposed dental clinic. The property bearing no
11/8, Shakti Nagar, Delhi-110007 is being used by the petitioner and
his family for residential purpose and as such it cannot be used for
Signing Date:04.11.2024 RC.REV. 230/2018 Page 34
dental clinic. There is no force in averment made by the respondent
that the petitioner is without any family liability as his son is
permanently settled in USA and his daughters are married. It hardly
makes any difference as far as family responsibilities of the petitioner
are concerned. Even otherwise property bearing no 11/8 being used
for residential purpose cannot be suitable for establishing a dental
clinic. With respect to second floor of the property bearing no 29/5, it
is not owned by the petitioner rather admittedly it is owned by the
wife of the petitioner and such second floor is not available with the
petitioner. Moreover, the petitioner categorically stated that a dental
clinic cannot be suitably established at second floor which can be
used for storage purpose and for stay of assisting staff of the
petitioner. The petitioner is aged about 80 years and cannot be
expected to establish and run his clinic at second floor. It is also
alleged on behalf of the respondent that back portion of the property
bearing no 29/5 as shown in blue colour in site plan Ex. PW1/3 and
in possession of the petitioner can be used for proposed dental clinic.
It is apparent that said portion is situated on back portion of the
property and as such it is not suitable for proposed dental clinic
Signing Date:04.11.2024 RC.REV. 230/2018 Page 35
particularly when the tenanted shop is situated on front side of the
property bearing no 29/5. It is proved that the petitioner does not
have any other suitable accommodation for proposed dental clinic. It
was also alleged that the petitioner has purchased the property
bearing no 29/5 for investment purpose and said contention of the
respondent is without any basis and is after thought.
17. The perusal of the impugned judgment reflects that the trial Court
has passed the impugned judgment on the basis of conjecture and
surmises. The trial court was not justified while observing that the
petitioner has failed to explain the exact future plan for running his
proposed specialized dental clinic and it is not clear as to whether the
petitioner would stop working at various hospitals and other clinics.
The petitioner is highly qualified and experienced dentist and if the
petitioner prefers to visit other hospitals and clinics than it would be
in interest of public health as large number of patients would be
benefitted by the expertise of the petitioner. Moreover, these
considerations are totally irrelevant for purpose of present eviction
petition. The trial court was also not justified in observing that the
petitioner had made a bald claim about paucity of accommodation at
Signing Date:04.11.2024 RC.REV. 230/2018 Page 36
current clinic for the visiting patients which is not supported by any
documents regarding the influx of the patients in the clinic and the
petitioner did not examine his fellow doctors/ intern or any of the
patients to support plea of paucity of accommodation. The petitioner
in affidavit Ex. PW1/A has deposed these facts and was not cross
examined by the respondent and in this eventuality the trial court
should have believe the testimony of the petitioner as PW1 which
remained unchallenged and unrebutted. It is quality of evidence
which matters and not the quantity of evidence. The petitioner was
also not supposed to lead evidence regarding comparative cost of
dental treatment within India and outside India for supporting plea of
dental tourism. The assertions made by the petitioner are sufficient to
substantiate plea of dental tourism. The trial court should have given
due consideration to layout plan Ex. PW1/12 regarding the proposed
dental clinic of the petitioner. The trial court has committed an error
in believing testimonies of RW2 Mukesh Kumar Gupta and RW4
Dinesh Kumar who visited clinic of the petitioner only to collect
evidence for the respondent. The trial court as such came to the
illogical conclusion that the need of the petitioner was not bona fide.
Signing Date:04.11.2024 RC.REV. 230/2018 Page 37
18. The counsel for the respondent also argued that in revision, the
High Court should not have ventured to look into evidence as if in a
first appeal and entered into a different finding. It was also argued
that merely because another view is possible in exercise of revisional
jurisdiction, the High Court cannot upset the factual findings. The
counsel for the respondent also referred case law to support
arguments and argued that the present revision petition is not
maintainable. The Supreme Court in Shiv Sarup Gupta V Mahesh
Chand Gupta observed that High Court is obliged to test the order
of the Rent Controller on the touchstone of whether it is according to
law and it is for the limited purpose of ascertaining whether the
conclusion arrived at by the Rent Controller is only unreasonable or
is one that no reasonable person acting with objectivity could have
reached on the material that the High Court can examine the matter.
The Supreme Court in Abid-ul-Islam V Inders Sain Dua, (2022)
6SCC30 also observed as under: -
23. The proviso to Section 25-B(8) gives the High Court
exclusive power of revision against an order of the learned
Rent Controller, being in the nature of superintendence
over an inferior court on the decision-making process,
inclusive of procedural compliance. Thus, the High Court is
not expected to substitute and supplant its views with that
Signing Date:04.11.2024 RC.REV. 230/2018 Page 38
of the trial court by exercising the appellate jurisdiction. Its
role is to satisfy itself on the process adopted. The scope of
interference by the High Court is very restrictive and
except in cases where there is an error apparent on the face
of the record, which would only mean that in the absence of
any adjudication per se, the High Court should not venture
to disturb such a decision. There is no need for holding a
roving inquiry in such matters which would otherwise
amount to converting the power of superintendence into
that of a regular first appeal, an act, totally forbidden
by the legislature.
18.1 There cannot be any dispute regarding limitation regarding
revisional power of this court. However, the impugned judgment
passed by the trial court is in complete violation of settled legal
principles and was passed without proper appreciation of material on
record rather it is more based on assumptions, conjectures and
surmises. The trial court has failed to appreciate material on record in
right perspective. According this court can exercise its revisional
jurisdiction and present petition is maintainable.
19. It is established on record that the petitioner requires the
tenanted shop as shown in red colour in site plan Ex. PW1/3 and
other portion of the property bearing no 29/5, Shakti Nagar, Delhi for
establishing a modern dental clinic with critical care and to be
equipped with necessary infrastructure and logistic support. The
Signing Date:04.11.2024 RC.REV. 230/2018 Page 39
petitioner is highly qualified and experienced doctor with vast
experience in dentistry which may be in addition to the clinic which
is already run by the petitioner at shop no 3, Municipal Market,
Mandelia Road, Kamla Nagar, Delhi-110007 as shown in site plan
Ex. PW1/11. The need of the petitioner qua the tenanted shop is bona
fide and genuine and not mere desire. The tenanted shop is situated
near the current residence of the petitioner who is aged about 80
years and would be more convenient for the petitioner to establish
new dental clinic. There is force in arguments advanced by the
counsel for the petitioner that the trial court passed the impugned
judgment against settled principles of law and need of the petitioner
qua the tenanted shop is bona fide and further no suitable
accommodation is available with the petitioner to open proposed
dental clinic.
20. In view of above discussion, the present petition is allowed and
impugned judgment dated 06.02.2018 is set aside. Accordingly, the
eviction petition bearing no E-77/2012 (E-80621/2016) titled as Dr.
Sudershan Kumar V Suresh Kumar Gupta is allowed and a
consequence of which an eviction order in respect of the tenanted
Signing Date:04.11.2024 RC.REV. 230/2018 Page 40
shop forming part of the property bearing no. 29/5, Shakti Nagar,
Delhi-110007 measuring front 8'4" and length 23'9" as shown in the
red color in the site plan Ex.PW1/3 is passed in favour of the
petitioner and against the respondent. The respondent shall be
entitled for benefit as section 14(6) of the Act from date of this
judgment.
21. The pending application, if any, also stand disposed of.
DR. SUDHIR KUMAR JAIN
(JUDGE)
OCTOBER 23, 2024
SK/TK
Signing Date:04.11.2024 RC.REV. 230/2018 Page 41
