Delhi High CourtPawan Kumar vs Paramjit Singh Gill on 25 March, 2015Author:Mukta GuptaBench:Mukta Gupta*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+     RC.REV. 50/2015 & CM 1636/2015 (stay)

%                                           Reserved on: 13th March, 2015
                                            Decided on: 25th March, 2015

      PAWAN KUMAR                                         ..... Petitioner
                          Through       Mr. Keshav Dayal, Sr. Adv. with Ms.
                                        Sheetal Mishra and Ms. Saumitri
                                        Pradhan, Advs.
                          versus

      PARAMJIT SINGH GILL                                ..... Respondent
                   Through              Mr. Rajesh Aggarwal with Mr. Sushil
                                        Thakur, Advs.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J.1.    Aggrieved by the order dated 26th September, 2014 dismissing the
leave to defend application filed by the petitioner in an eviction petition filed
by the respondent underSection 14(1)(e)of the Delhi Rent Control Act,
1958 (in short theDRC Act) the petitioner prefers the present petition.2.    In the eviction petition, the respondent stated that the tenanted
premises was a shop on the ground floor in suit property bearing No. C-145,
Hari Nagar, Clock Tower, Main Market. The suit property was purchased
by the father of the respondent who executed a Will in favour of the
respondent. Thus, he is the sole and absolute owner of the property after the
father‟s demise.     The tenanted shop has two shops merged togetherRC.REV. 50/2015                                                  Page 1 of 9admeasuring 8 ft x 15 ft and the other 12 ft x 21 ft.          Thus the total
measurement of the shop is 372 sq. feets. The premises was let out on a rent
of `2260/- per month. The respondent‟s family comprises of himself, his
mother, his wife, two daughters, one son and one niece. Three of the
children are studying in college. The respondent has a shop from where he
does the business of property dealing but his earning is not much from the
said shop. The only source of income for the respondent‟s family is the rent
received from the tenants of the suit property. The respondent is living on
the first floor of the suit property. The daughter of the respondent aged 24
years is a graduate and doing the Company Secretary course.                The
respondent wants his daughter to supplement the income of his family and
thus she is interested in running a coaching centre, for which he has asked
the petitioner to vacate the premises.          He has no other suitable
accommodation for running a coaching centre for the daughter other than the
tenanted premises.3.    In the leave to defend application the petitioner stated that the
respondent had filed a wrong site plan and besides the tenanted premises
there are three other shops on the ground floor. The respondent has not
mentioned how the tenanted premises was suitable. Further the respondent
is in possession of the second, third and fourth floor of the suit property
which fact has also been concealed. There is no explanation about the
vacant second and third floor of the property. It is further stated that in the
locality of Hari Nagar, Clock Tower there are number of coaching centers
which are being run from upper floors for the last many years. Besides it is
stated that the daughter of the respondent after doing the CS course wouldRC.REV. 50/2015                                                 Page 2 of 9prefer doing job in a big company or multinational company rather than
running a coaching centre. It is further stated that the respondent is living a
luxurious life and has no paucity of money.4.    In the reply to the leave to defend application the respondent clarified
that he had only filed the site plan of the tenanted premises whereas the
petitioner has filed the site plan of the entire property. The respondent
admitted that he had three shops also on the ground floor adjacent to the
tenanted premises, however there was no concealment of facts as the site
plan filed by the petitioner himself would show that the tenanted shop has a
wide front face and was thus more suitable for running a coaching centre.
The respondent admitted that he was occupying the first floor of the property
and the second and third floor have been given on rent for residential
purposes thus the two floors as noted in the leave to defend application were
not available to the respondent.5.    In the rejoinder affidavit the petitioner reiterated that the second and
third floor of the property was vacant and that the respondent had not filed
any document with regard to letting out of the second and third floor of the
property and that there were two store rooms on the fourth floor.6.    Vide the impugned order learned Trial Court held that the landlord
tenant relationship has not been denied. The learned ARC held that the
respondent was the landlord of the petitioner. Further admittedly the shops
at the ground floor were not vacant and were under tenancy as admitted by
the petitioner and thus the same were not available to the respondent for
opening the coaching centre. In Surender Singh Vs. Jasbir Singh 172 (2010)
DLT 611 it was held that mere fact that the landlord did not disclose ofRC.REV. 50/2015                                                 Page 3 of 9accommodation of basement and first floor available to him the eviction
petition would not be fatal as same cannot be said to be an alternative
accommodation for the purpose of business.           Thus, the learned ARC
observed that the respondent had shown the suitability of the tenanted
premises for the reason that it was located on the main road and had a bigger
frontage on the basis of the site plan filed by the petitioner himself. It was
further held that since premises was required for commercial purposes, the
ground floor was more suitable and it was not necessary for the respondent
to have disclosed in the eviction petition that first, second, third and terrace
floors portions were utilized by him for the purpose of his residence or given
on rent for residential purposes and storing the goods. Even if it is assumed
as stated by the petitioner that the respondent was a rich person, the same
cannot be a ground to reject the eviction petition and the landlord cannot be
restrained from further progress and earning additional income for the
purpose of better living. It is for the landlord‟s daughter to decide what
work she wants to do and nobody can force her to do a particular kind of job
and there is no necessary inference that after doing the CS the daughter
would do only a job in MNC. With regard to the contention that Jagpreet
Kaur was the adopted daughter it was held that the fact that Jagpreet Kaur
was living with him and dependent on him was not disputed and as per the
CBSE certificate of Ms. Jagpreet Kaur she is the real daughter of the
respondent and hence the eviction order was passed.7.    Before this Court learned counsel for the petitioner does not contest
the landlord tenant relationship or the relationship of Jagpreet Kaur with the
respondent. The contention of learned counsel for the petitioner is that thereRC.REV. 50/2015                                                 Page 4 of 9is material concealment in the eviction petition for the reason that there are
three other shops which have not been disclosed.           The fact that the
respondent has second floor and rooms on the terrace have also not been
disclosed. It is not universally applicable formula that ground floor is more
advantageous for commercial purposes Further it is only a whim and desire
of the respondent that his daughter has to run coaching classes which can be
easily run from the upper floors. Reliance is placed onKhem Chand & Ors.
Vs. Arjun Jain & Ors.202 (2013) DLT 613.8.    Heard learned counsel for the parties. Indubitably in the eviction
petition the respondent did not disclose that besides the tenanted premises
there are three other shops on the ground floor, however he clarified that out
of the said shops one was in possession of the respondent and two were with
other tenants which fact has not been disputed by the petitioner. The case of
the petitioner in the leave to defend application is that the respondent cannot
play a game of pick and choose. Even as regards the second, third and
fourth floor of the property is concerned, there is no denial to the fact that
there are no tenants in the said premises. Further the respondent has stated
in his eviction petition that his main source of income is the rent being
received from the tenants and it will be for the landlord to decide that out of
a number of tenanted premises available which one is the best suitable for
him. The respondent has given a reason that the tenanted premises is a shop
on the ground floor with a wide front face and thus obviously the same
would be more suitable. Learned counsel for the petitioner has heavily
relied upon a decision of this Court inKhem Chand & Ors. Vs. Arjun Jain &
Ors.wherein this Court noted its opinion that while applying the principlesRC.REV. 50/2015                                                 Page 5 of 9of "landlord is the best Judge" in cases of residential requirements of the
properties which are subject matter of commercial tenancy, the Court should
act cautiously and should not apply the said principle to such cases as
liberally as applied to the residential premises.This Court relied onSatyawati Sharma Vs. Union of Indiaand observed:"49. In my considered opinion, it is necessary to emphasize
      that while applying the principle of „landlord is a best judge‟ in
      cases of residential requirement of the properties which are
      subject matter of commercial tenancy, the court should act
      cautiously and should not apply the said principal to such cases
      as liberally as applied to the residential premises. It has to be
      noted that the judgment passed in the case ofSatyawati
      Sharma v. Union of India, AIR 2008 SC 3148, has merely held
      that the provisions ofSection 14(1)(e)of the DRC Act would
      be applicable in the cases of commercial premises in the same
      manner as applicable to the residential premises. However, the
      principle that the landlord is the best judge to decide his
      residential requirement and the courts have no business to
      interfere, cannot be applied as a matter of necessary
      consequence without application of the judicial mind. This is
      due to the reason that even though the ground of the eviction
      available to the landlord to evict the tenant for both residential
      and commercial premises is same, still the requirement of the
      landlord in both the cases may vary from case to case basis.
      While the question of eviction of residential premises is the one
      which affects the right to live which is the basic facet of right to
      life and human dignity as provided inArticle 21, and thus the
      right of landlord to live at the place of his desired choice along
      with the family members should normally be respected as a part
      of basic human right and fundamental right to life. On the other
      hand, the eviction of the commercial premises affects the right
      of earning and livelihood of one person who is a tenant. The
      said right to livelihood is equally the other facet of right to life
      as evident from the reading ofArticle 21of the Constitution of
      India. Thus, in the event of adopting a summary procedure toRC.REV. 50/2015                                                  Page 6 of 9evict the tenant who is earning his livelihood from a
      commercial place at the behest of the landlord and proceeding
      to affect the longstanding status quo of commercial tenancy on
      the ground of bonafide personal requirement, the court must
      take a precautious approach. While deciding the question of
      genuineness of the need or availability of alternative
      accommodation, the court must apply its judicial mind rather
      than merely reiterating the theorem based principle that the
      landlord is the best judge to decide his need. In that way, the
      test for evaluating the eviction of commercial properties on
      account of bonafide need is slightly distinct and more stringent
      than that of the one relating to residential premises. The court
      should weigh the competing rights to livelihood of both the
      landlord and tenant and adopt a balanced approach. Where
      genuineness of the need or availability of the alternative
      commercial premises is doubtful, the court should postpone the
      said issue so that the tenant be granted an opportunity to contest
      the proceedings. Doing otherwise would be whittling down the
      entire policy behind the rent control legislation which is still the
      law for the time being in force."9.    The opinion of this Court in Khem Chand is based on the fact that
eviction of a commercial premises affects the right of earning and livelihood
of one person who is a tenant. The said right to livelihood is a facet of right
to life underArticle 21of the Constitution. Thus, in the event of adopting a
summary procedure to evict a tenant who is earning his/her livelihood at a
commercial place at the behest of the landlord and proceeding to affect the
long standing status-quo of the commercial tenancy on the ground of
bonafide personal requirement, the Court must take a cautious approach.
Thus the test of bonafide requirement to be applied to a tenanted premises in
case of commercial property should be more stringent. Indubitably, whether
it is the residential premises or the commercial premises, the eviction affectsRC.REV. 50/2015                                                  Page 7 of 9the tenant‟s right to live and human dignity or the right to livelihood which
are both protected underArticle 21of the Constitution of India.10.     A tenanted premises given for commercial activity is also required for
commercial activity of the landlord which affects the right of livelihood of
the landlord also. The cautious approach emphasized by this Court does not
mean that in all cases of commercial tenancy, the leave to defend should be
granted and the matter should proceed on merits. If the landlord has been
able to make out a bonafide requirement and he has no other suitable
accommodation which is vacant and available, the landlord certainly has a
right to choose one out of the number of tenanted premises which according
to him is the best.11.     Learned counsel for the petitioner emphasizes that in all cases of
commercial tenancy it cannot be said that the ground floor is more
advantageous and the same is not a universally acceptable principle. No
doubt, number of people run coaching centers from the top floor, however
that does not mean that if a person has availability on the ground floor he
must also be compelled to run the coaching floors above the ground floor.12.     This Court inRamesh Chand Aggarwal Vs. Munshi Lal2014 SCC
OnLine Del 4245 noted:-" 13. At the stage of granting leave, the real test is whether facts
      disclosed in the affidavit filed seeking leave to defend, prima facie
      show that the landlord would be disentitled from obtaining an order
      of eviction and not whether at the end the defence may fail. Leave to
      defend must not be granted on mere asking, but it is equally improper
      to refuse to grant leave when triable issues are raised and the
      controversy can be properly adjudicated after ascertainment of truthRC.REV. 50/2015                                                 Page 8 of 9through cross-examination of witnesses. If the application filed underSection 25-Bdiscloses some substantial triable issues, then it would
      be grave injustice to brush them outrightly without testing the
      veracity of the claims made by the tenant/applicant. In Charan Dass
      Duggal v. Brahma Nand, (1983) 1 SCC 301, while dealing with the
      issue of leave to defend the Apex Court has held thus:"5. What should be the approach when leave to defend is sought
       for? There appears to be a mistaken belief that unless the tenant at
       that stage makes out such a strong case as would non-suit the
       landlord, leave to defend cannot be granted. This approach is
       wholly improper. When leave to defend is sought for, the tenant
       must make out such a prima facie case raising such pleas that a
       triable issue would emerge and that in our opinion should be
       sufficient to grant leave. The test is the test of a triable issue and
       not the final success in the action (seeSantosh Kumar v. Bhai Mool
       Singh). At the stage of granting the leave parties rely in support of
       their rival contentions on affidavits and assertions and counter-assertions on affidavits may not afford such incontrovertible
       evidence to lead to an affirmative conclusion one way or the other.
       Conceding that when possession is sought for on the ground of
       personal requirement, an absolute need is not to be satisfied but a
       mere desire equally is not sufficient. It has to be something more
       than a mere desire. And being an enabling provision, the burden is
       on the landlord to establish his case affirmatively".13.     I find no merit in the petition. Petition and application are dismissed.(MUKTA GUPTA)
                                                               JUDGE
MARCH 25, 2015
'ga'RC.REV. 50/2015                                                   Page 9 of 9