Delhi High Court
Batliboi Ltd vs Kiran Sharma on 9 April, 2026
Author: Amit Sharma
Bench: Amit Sharma
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 28th January, 2026
Pronounced on: 9th April, 2026
+ RC.REV. 294/2023 & CM APPL. 55270/2023
BATLIBOI LTD .....Petitioner
Through: Mr. Alok Kumar, Sr. Adv. with
Mr. Akshay Ringe, Mr.
Rambhakt Agarwal, Ms. Megha
Mukherjee, Mr. Suyash D. Mr.
Ravi Sharma, Mr. Anjum Singh,
Mr. Amit Kr. Singh, Mr. Varun
Maheshwari, Mr. Manan Soni,
Advs.
versus
KIRAN SHARMA .....Respondent
Through: Mr. Sunil Mittal, Sr. Adv. with
Mr. Amit Sharma, Mr. Sourav
Kumar, Mr. Praveen Tanwar &
Ms. Kashish Jain, Advs.
CORAM:
HON'BLE MR. JUSTICE AMIT SHARMA
JUDGMENT
AMIT SHARMA, J.
1. The present petition under Section 25B(8) of the Delhi Rent Control
Act, 1958 (hereinafter referred to as the “DRC Act“), seeks the following
prayers: –
“The Petitioner humbly prays before this Hon’ble Court:
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i. That the impugned order dated 27.04.2023 passed in RC ARC
no. 5026 of 2015 titled Kiran Sharma Vs. Batliboi Ltd. be reversed
and the eviction petition be dismissed;
ii. Pass any other or further orders in favour of the petitioner and
against the respondent as this Hon’ble Court may deem fit in the
facts and circumstances of the case.”
2. The present petition assails the order dated 27.04.2023 (hereinafter
referred to as the “Impugned Order”), passed by the learned Senior Civil
Judge-cum-Rent Controller, South East District, Saket Courts, New Delhi
(hereinafter referred to as the “Learned ARC”), in RC ARC No. 5026/15
(hereinafter referred to as the “Eviction Petition/Eviction Proceeding”),
whereby, eviction petition under Section 14(1)(e) read with Section 25B of
the DRC Act, preferred on behalf of Mr. Kiran Sharma, i.e., the present
Respondent, against M/s Batliboi Ltd., i.e., the present Petitioner, was
allowed and an eviction order was passed qua the present Petitioner.
3. Relevant facts, necessary for adjudication of the present petition are as
under: –
i. The property bearing Plot No. N-197-A, Greater Kailash-1, New Delhi
(hereinafter referred to as the “Tenanted Premises”) was acquired by
the mother of the Respondent, namely Mrs. Sumitra Devi Sharma, by
virtue of a Registered Sale Deed dated 20.01.1961. Thereafter, after her
demise on 20.07.1991, the tenanted premises devolved upon her legal
heirs, i.e., the Respondent along with his brother and sister;
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ii. The tenanted premises were let out by the mother of the Respondent, to
the present Petitioner, vide a lease deed dated 02.11.1976 at a monthly
rent of INR 1150/-;
iii. It was stated that the Petitioner had stopped paying rent for the tenanted
premises after the year 1997 and because of successive defaults in
payment of rent, the Respondent had preferred an eviction petition
under Section 14(1)(e) of the DRC Act, in the year 1997. It was further
stated that since the Respondent and the other co-owners of the
tenanted premises were residing in Malaysia, the said eviction petition
could not be pursued diligently and the same was dismissed in default
for non-prosecution in the year 2000;
iv. It was further stated that a legal notice dated 06.06.2012 was issued by
the Respondent to the Petitioner for terminating the tenancy and
seeking vacation of the tenanted premises. Thereafter, a reply dated
12.07.2012 to the said notice was received by the Respondent, whereby
the Petitioner had refused to vacate the tenanted premises;
v. A Civil Suit bearing No. 247/2014 was preferred by the Respondent
before the Court of learned ADJ, South East District, Saket Courts,
New Delhi, against the Petitioner, seeking ejectment of the latter from
the tenanted premises. The said Civil Suit was dismissed vide order
dated 02.02.2015, being barred by Section 50 of the DRC Act, and
thereafter, the present eviction petition was preferred by the
Respondent against the Petitioner;
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vi. The bona fide requirement as stated by the Respondent was that the
tenanted premises are required by the Respondent and his daughter, as
they wanted to settle in Delhi and further the Respondent required the
tenanted premises, not only for his family, but also for his brother and
sister and their family members, as when they visited India, they had no
residence to stay;
vii. An application seeking leave to defend was preferred by the Petitioner
in the eviction proceeding, wherein several grounds were taken by the
Petitioner. The said application was dismissed by the learned ARC vide
order dated 15.10.2015, resultantly granting an order of eviction in
favour of the Respondent. The said order was then challenged before
this Court in RC. REV. 111/2016. The learned Predecessor Bench of
this Court, vide order dated 18.04.2018, while disposing of the said
petition, had set aside the order dated 15.10.2015 and remanded the
matter back for further proceedings.
viii. Thereafter, the Petitioner had filed its written statement and
evidence was led by both the parties in the eviction proceedings, and
consequently, the impugned order was passed by the learned ARC.
SUBMISSIONS ON BEHALF OF THE PETITIONER
4. At the outset, learned Senior Counsel appearing on behalf of the
Petitioner submitted that though the Respondent had sought to settle in Delhi,
his need had changed mid-way into the litigation, as the Respondent had
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initially stated in his evidence by way of affidavit that he required the
tenanted premises as and when he visited Delhi, and thus, the need had been
significantly watered down. It was further submitted that the Respondent had
projected the bona fide need for his daughter, i.e., Ms. Sarita Sharma, in order
for her to start practicing as an Advocate in India. However, it was stated by
Ms. Sarita Sharma, in her evidence by way of affidavit that she would require
the tenanted premises only when she would be visiting India for her
profession as a lawyer.
5. Attention of this Court was further drawn to the cross-examination of
the Respondent dated 30.05.2022, to contend that the Respondent had
admitted that there was no need of the tenanted premises for his daughter as
on 07.04.2015, i.e., the date of filing of the eviction petition. The relevant
portion of the said cross-examination is reproduced as under: –
“The need in the petition dated 07.04.2015 was for me and on
behalf of my brother and sister and not my daughter specifically
record at the time of filing of present petition, there was no
requirement of my daughter for the demised premises. I do not
remember if my daughter was a practicing advocate or not in 2015.
I also do not remember the time and period when my daughter was
appearing before courts in Malaysia.”
6. It was further submitted by the learned Senior Counsel that as of now,
no foreign national is allowed to practice law in India, unless and until rules
are framed in this regard with that foreign country on a reciprocal basis, and
that particular individual of Indian origin is allowed, on a case to case basis,
by the Bar Council of India to practice in India, and therefore, the need of the
Respondent is an impossibility as of today.
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7. It was further contended that the Respondent had produced evidence of
only two visits to India, and the same was done to pursue the present
litigation, and in absence of any evidence, it was not open for the Respondent
to claim that his need was for visiting Delhi. Attention of this Court was
further drawn to the cross-examination of the Respondent dated 30.05.2022,
wherein it had been admitted by the Respondent that when he visits India, he
does not visit Delhi. The relevant portion of the said cross-examination is
reproduced as under: –
“At this stage, witness is shown site plan Ex.PW1/4 and asked to
point out the portion where he used to stay on his visit to the suit
property. I used to stay in master bedroom with an attached
bathroom in the suit property but I am not able to point the master
room in site plan Ex.PW1/4 today as I used to stay a long time ago
in the suit property. To the best of my knowledge, I stayed in that
portion of the suit property in year 1997 or 1998. 1 do not
remember my visit to India after 1998 but I have visited many
times after 1998.
It is wrong to suggest that I have not stayed in any portion of
suit property after 1997. After 1998 when I visited India, I did visit
Delhi. On every trip to India, I do not visit Delhi. I do not recall
when I visited Delhi after 1997. After 1997 1 went to the premises
but I was refused entry. I do not remember the month or the year in
which I was refused entry.”
8. Learned Senior Counsel further submitted that the other siblings for
whom the Respondent had pleaded bona fide requirement in the eviction
petition, did not appear before the learned ARC, and thus, the Respondent
failed to prove any of their respective bona fide needs. It was further
contended that once a landlord projects any need and does not prove it, the
failure casts a very long shadow on the credibility of the entire eviction
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petition, and in the present case, the eviction petition had been filed on false
grounds, as the projected need was for the Respondent, his brother and his
sister, and both of his siblings failed to appear before the learned ARC.
9. It was further contended that the Respondent had previously filed an
eviction petition being E-143/1997, and the same was dismissed vide order
dated 14.09.2000, and thus, the very same grounds cannot be pleaded in the
present eviction petition, without change in circumstances, and thus, the
present eviction petition is hit by the principles of Res Judicata. The said
order of dismissal is reproduced as under: –
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10. Learned Senior Counsel had further submitted that it is only incumbent
upon the landlord to prove its bona fide need, but also the conscience of the
Court has to be satisfied as to the genuineness of the need being projected. It
was argued that the Respondent had issued a notice dated 06.06.2012 to the
Petitioner, demanding a rent of INR 1,00,000/-, and thus, the Respondent
wanted to encash upon the demised premises and nothing else. The relevant
portion(s) of the said notice is reproduced as under: –
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“13. You are holding the arrears of the rent as stated herein above
illegally hence liable to pay the above said amount on account of
the rent alongwith interest at the rate of 18% P.A. to our client.
14. That our client is a resident of Malaysia and none of the legal
heir of Mrs Sumitra Devi Sharma is residing in India and thus you
the addressee are taking advantage of their alibi and is enjoying the
prime property at a meager rent of Rs. 1,265/- per month for single
storey house at N 197 -A, Greater Kailash 1, Now Delhi consisting
of two bed rooms, one dining cum drawing room, two baths, one
kitchen and one servant room with W.C.
15. That the area rent of locality such as Greater Kailash fetches a
rent of Rs. 1,00,000/-per month for the ground floor portion given
in lease and under your possession and hence you are not interested
in vacating the same.
xxx xxx xxx
17. That if you want to remain in the premises further for a period
of one year then the same may be allowed by our client of a rent of
Rs. 1,00,000/- per month after executing a fresh lease deed with our
rent on certain terms after termination of tenancy on 30.06.2012.”
11. It was further submitted that the Respondent is a citizen of Malaysia
and is well established over there, having his own properties, and his
daughter, Ms. Sarita Sharma, is also a well-established lawyer in Malaysia,
having her own independent practice and a separate residence. It was argued
that the earlier rules and even the fresh Bar Council of India Rules (Gazetted
by the Union of India on 13.03.2023) prohibits foreign nationals to practice in
India, unless registered with the Bar Council of India and the fresh rules
further prohibits setting up of an office in India unless registered, and
admittedly, Ms. Sarita Sharma is not registered with the Bar Council of India
and is not eligible to practice law in India. It was further contended that the
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daughter of Respondent is not dependent upon him for any sort of
accommodation. It was further argued that the Respondent had disclosed the
said details in the eviction petition, but however, the daughter of the
Respondent in her cross-examination dated 31.05.2022, had acknowledged
that she has her own residence in Malaysia. The relevant portion of the said
cross-examination is reproduced as under: –
“I am aware of the contents of my affidavit. The address as
mentioned in my affidavit is not my permanent address. I am not
owner of any residential property in Malaysia. Vol. I live in a
mortgaged residential property in Malaysia presently. My present
address in Malaysia is B-13 A-3 A, Viva Residency, 378, Jalan
Ipoh, 51200 Kuala Lumpur, Malaysia. The ownership documents of
this property in Malaysia reflects my name as mortgagor of the said
property and the bank as the mortgagee.”
12. Learned Senior Counsel had further submitted that the daughter of the
Respondent had admitted in her cross-examination that the need of the
tenanted premises had only arisen recently, in past 5-6 years only, and thus,
no cause of action arose on the date of institution of the present eviction
petition. It was further argued that the said fact of the ostensible need being
changed only in the evidence by way of affidavit, and without any
corresponding amendment in the pleadings, could not have been relied upon
by the learned ARC, and the Respondent could not have altered his stand
without any amendment in the eviction petition.
13. Attention of this Court was drawn to the evidence by way of affidavit
of Ms. Sarita Sharma, to contend that in paragraph 12 of the said affidavit, she
had stated that she wanted to settle in Delhi, whereas in paragraph 5, it was
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stated by her that she wanted a place to stay, when she was visiting Delhi. The
relevant portion of the said affidavit is reproduced as under: –
“5. I say that I am in need of the property bearing the address of
N 197 – A, Greater Kailash-I, New Delhi and the need is bonafide
as I intend to reside in the said property whenever I am in India
either for visits or for stay in Delhi.
xxx xxx xxx
12. I say that the Petitioner has no other residential
accommodation in India or in Delhi except the suit property. The
Petitioner and myself as his daughter i.e. the Deponent wants to
settle in Delhi and thus the Petitioner requires the suit premises for
his and family members bonafide residential use.”
14. It was argued by the learned Senior Counsel that the existence of
admitted suitable alternate accommodation at L-26, Kailash Colony, Delhi,
had been totally ignored by the learned ARC. The Respondent during his
cross-examination on 30.05.2022, had been confronted with the said
accommodation and the Respondent had not been able to explain as to how
the said accommodation was not available to him and the learned ARC had
failed to consider the said aspect while rendering the impugned order. The
relevant portion of the said cross-examination is reproduced as under: –
“Q. Witness is shown 4th page of Ex. PW1/2 i.e. Sale deed of suit
property. I put it to you that the property mentioned in the sale deed
showing address of L- 26, Kailash colony, New Delhi, was another
property belonging to your mother?
A. It is incorrect. My mother never owned any property except the
suit property.
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It is wrong to suggest that the above mentioned Kailash
colony property belonged to my mother or that the said property
now belongs to me after death of my mother. It is wrong to suggest
that I am also the owner of property bearing no. 42, Birbal Road,
Jangpura, Ext. New Delhi.”
15. It was further argued that the Respondent, in paragraph 9 of his
evidence by way of affidavit, had accepted that he is the co-owner and co-
sharer of the property at 42, Birbal Road, Jangpura. It was further pointed out
that during the cross-examination of the Respondent, he was confronted with
an alternate accommodation being L-26, Kailash Colony, Delhi, and thus, two
alternate accommodations were available with the Respondent at the time of
filing the eviction petition and the projected need was not bona fide. The
relevant portion of the said affidavit is reproduced as under: –
“9. It is stated that neither myself nor my family members ever
owned or occupied or possessed the property bearing 42, Birbal
Road, Jangpura Extension, New Delhi 110014 as falsely stated by
the respondent. It is stated that one person namely Sh. Gagan
Anand was residing/working in the property bearing 42, Birbal
Road, Jangpura Extension, New Delhi 110014 and this fact is
known to the respondent and further I as the Petitioner have only
used the address for my correspondence and intimation. The
respondent has not filed any document related to the right, title or
interest of the Petitioner in the said property, this clearly shows that
a vague plea in order to delay the proceedings has been taken by the
respondent. I as the Petitioner am the owner and co-sharer of the
Property and have the full right to write his permanent address
therefrom.”
16. Attention of this Court was drawn to the impugned order passed by the
learned ARC, and particularly on the following paragraph(s): –
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“25. One of the contentions raised by the respondent is that the
petitioner has an alternative accommodation available in the form
of one property at 42, Birbal Road, Jangpura Extension, New Delhi.
It has been claimed by the respondent that petitioner has been using
the said property and therefore, has an alternate accommodation
available for their use in Delhi. The same is disputed and denied by
the petitioner who has claimed that except for demised premises,
the petitioner and his family members do not have any other
property in Delhi. The petitioner has explained that the said
property no. 42 was owned by some other person known to the
petitioner and he has consented to allow the petitioner to use the
said property as a correspondence address only. In cross-
examination of PW1 also, this fact has been duly explained by
PW1. He has deposed “…. and one of my friends was living at 42,
Birbal road and therefore, with his permission I had used the said
address for my correspondence in India. (VOL. I authorized my
advocate to search from property records to establish that I am not
owner of 42, Birbal road at any point of time). My advocate never
found any document in my name as owner of 42, Birbal Road, New
Delhi”.
xxx xxx xxx
29. The respondent has also claimed that there is no bonafide
requirement of the petitioner or his family members for the demised
premises. It has been claimed that the bonafide requirement of the
petitioner is projected to be the requirement for daughter of the
petitioner to start her business as a qualified lawyer in India. It has
been argued that the daughter of petitioner may be qualified as a
lawyer to practice in Malaysia but whether her educational
qualification is recognized for practicing as an advocate in India or
not, has not been stated anywhere in the petition. It has been
claimed that lawyers having foreign degrees are permitted to
practice only for limited purpose and therefore the alleged bonafide
requirement is not a true statement made by the petitioner.
30. In the present petition, the bonafide requirement stated by the
petitioner is not in respect of his daughter’s requirement for a place
to start her business in India. As the petition was instituted in the
year 2015, it is possible that daughter of petitioner became qualified
during pendency of the present petition and her requirement for theSignature Not Verified
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demised premises also arose during pendency of this petition, but
the bonafide requirement, which is to be adjudicated upon is not the
bonafide requirement of daughter of petitioner, rather the bonafide
requirement as disclosed in the petition filed in the year 2015. In
the present petition, the bonafide requirement disclosed by the
petitioner is the requirement for a residential accommodation for
the petitioner and his daughter in Delhi/India as they want to settle
in Delhi. Further, the bonafide requirement claimed is on behalf of
the brother and sister of the petitioner and their family members
who require a place to stay when they visit India. It is on these
grounds of bonafide requirement, that the present petition is to be
tested.
xxx xxx xxx
32. This particular proposition of the petitioner that he and his
daughter want to settle in Delhi, has not been challenged by the
respondent anywhere during-trial. The respondent has not produced
any material to show that the claim of the petitioner that he intends
to shift along with his daughter to Delhi is not a genuine claim.
Even in cross-examination of petitioner and his daughter i.e. PW1
& PW2, the respondent has not been able to establish that they do
not intend to shift to Delhi and reside at the demised premises. As
already noted above, availability of alternative accommodation has
not been established by the respondent. Thus, the desire of the
petitioner and his daughter to shift to Delhi is practically possible
only if demised premises is vacated by the respondent.
Furthermore, it is also the claim of respondent that legal notice
dated 06.06.2012 issued by the petitioner clearly establishes his
intention to evict the respondent for the purpose of increasing rent
for the demised premises. This has also been put to the petitioner in
his cross-examination and he has duly explained the demand for
increased rate of rent in legal notice dated 06.06.2012. he has
categorically stated that as shifting from Malaysia to Delhi would
have approximately taken time of one year, therefore, the
respondent was given the choice to renew tenancy at an increased
rate of rent. He has deposed “Fresh tenancy at Rs. 1 lac was offered
to the respondent only because it was not practical for me and my
family to immediately shift from Malaysia to the suit Property and
keeping in mind the time required for shifting i.e. approximately
one year, fresh tenancy for that period was offered to theSignature Not Verified
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respondent. I cannot say now if approximately period of one year
would still be required as on date to shift from Malaysia to the suit
property. VOL. In case I get Possession, I will make full efforts to
shift at the earliest”.”
17. It was argued that the learned ARC had also erred in accepting the
alleged bona fide requirement of the Respondent, without any supporting
evidence. During the course of the trial, the Respondent had sought to project
a vague need of visiting Delhi occasionally, whereas the eviction petition had
projected an entirely different case of permanently settling in Delhi. Instead of
requiring the Respondent to substantiate the case as pleaded in the eviction
petition, the learned ARC had suo moto accepted the alleged requirement of
settling down in Delhi as genuine, despite there being complete absence of
evidence on record to support such a claim.
18. It was argued that the impugned order was vitiated by complete
absence of any discussion of the examination-in-chief and cross-examination
of the Respondent and his witnesses. The learned ARC had failed to analyse
the evidence on record, and had instead proceeded on presumptions,
unsupported by the trial record.
19. It was submitted by the learned Senior Counsel that the learned ARC
had rejected the alleged OCI status of the Respondent and his daughter and in
the absence of such status, neither the Respondent nor his daughter would
have been legally entitled to carry on commercial activities in India, thereby
rendering the alleged intention of shifting to Delhi wholly untenable.
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SUBMISSIONS ON BEHALF OF THE RESPONDENT
20. Per contra, learned Senior Counsel appearing on behalf of the
Respondent submitted that the present petition had been filed by the
Petitioner, on wholly frivolous and untenable grounds, with the sole intention
to prolong the litigation between the parties and deprive the Respondent of the
use and enjoyment of his own property. The Respondent is a senior citizen,
aged about 71 years, and he had been struggling since 1997 in order to
recover possession of the tenanted premises, for his bona fide residential
requirements.
21. It was further contended that the Petitioner had himself admitted during
his cross-examination dated 14.12.2022, that the tenanted premises had
originally been taken on lease for residential purposes. It was further admitted
that permission for commercial electricity connection was obtained only in
the year 2015, long after the demise of the original landlady, i.e., Late Smt.
Sumitra Devi Sharma on 20.07.1991, and thus, these admissions clearly
demonstrated that the tenancy continued even after the death of the landlady,
and that the Petitioner had misused the premises for commercial purposes
contrary to the terms of tenancy. The relevant portion of the said cross-
examination is reproduced as under: –
“At this stage witness is shown rejoinder to reply to application
seeking lead to defence dated 07.09.2015, to which witness admits
his signature at point A and the said rejoinder is Ex. RWI/Pl. It is
correct that there are electricity bill annexed with the rejoinder,
which is already as marked as Ex. PWI/Dl (colly). Rakesh Bagga
was the General Manager of the respondent company and has sinceSignature Not Verified
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then retired. It is correct that Ex. PWI/Dl is in the name of
respondent company. (Vol. I did not recall the name due to lapse of
time.) I do not know if the respondent company had taken
permission/NOC from land lady or her legal heirs prior to taking
electricity connection at the demised premises as per energization
date of 19.06.2015 in Ex. PWI/Dl. In usual course the general
manager of the respondent company would have ask for
permission/NOC from the land lord.”
22. It was further submitted that the Petitioner had failed to lead complete
evidence during the course of trial. The cross-examination of RW-1 revealed
several material admissions, including that the Petitioner had not paid rent
since the year 2007 and had been using the tenanted premises for commercial
purposes, despite the tenancy being residential in nature. It was averred that
the Petitioner had also admitted the site plan and failed to produce any
document to substantiate the plea of adverse possession.
23. It was argued that the Petitioner admittedly entered the tenanted
premises as a tenant, and therefore, could not raise a claim of adverse
possession against the landlord, in view of Section 116 of the Indian Evidence
Act. It was contended that the settled principle of law that “once a tenant,
always a tenant” squarely applies to the facts and circumstances of the present
case.
24. Attention of this Court was further drawn to the eviction petition filed
by the Respondent before the learned ARC and particularly on the following
portion: –
8. Details of accommodation The property in question was let out by the
available together with mother of petitioner in the year 1976 at aSignature Not Verified
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particulars as regards ground rate of 1150/- consisting of two bed room
area garden and out house, in one dining cum –drawing room, one baths,
any. (Plan to be attached) one kitchen, one Servant room with W.C.
However after the death of the mother of
the petitioner in the year 20.07.1991, one
front bed room with attached bath room
is also in possession of the respondent.
Now the tenant is holding over the entire
built up property as per site plan attached
as Annexure 1.
25. Learned Senior Counsel further drew attention of this Court to the
eviction petition, to contend that the Respondent had no other alternative
residential accommodation available in India, or in Delhi, except the tenanted
premises and that the Respondent, along with his daughter, intends to settle in
Delhi. The relevant portion of the eviction petition is reproduced as under: –
“That the petitioner has no other residential accommodation in
India/Delhi except the suit property. The petitioner and his daughter
namely Ms. Sarita wants to settle in Delhi and thus the petitioner
requires the suit premises for his and family members bonafide
residential use.
The petitioner not only requires the suit property not only for his
and his family but also for his brother and sister and their family
members also who more often visit India and have no residence to
stay except the suit premises. But due to non availability of their
own residence, they have to stay at Hotel.”
26. It was further submitted that the Petitioner had taken inconsistent pleas
with respect to the existence of alternative properties, allegedly available with
the Respondent. The Petitioner had failed to place on record any documentary
proof regarding the properties at Birbal Road or Kailash Colony, and such
pleas had not even been taken in the leave to defend application or written
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statement. The said allegations were therefore clearly afterthoughts, raised
only to delay the eviction proceedings.
27. It was further submitted that the Respondent had earlier initiated
eviction proceedings being E-147/1997 under Section 14(1)(e) of the DRC
Act, and the same was dismissed in default for non-prosecution, and not on
merits. Therefore, the Respondent was fully entitled to institute fresh
proceedings for eviction on the ground of bona fide requirement.
28. It was further contended by the learned Senior Counsel that the
Respondent had issued a legal notice dated 06.06.2012, demanding
possession of the tenanted premises, which was replied by the Petitioner on
12.07.2012. In the said reply, the Petitioner had admitted that the entire
property had been taken on rent by the Petitioner, thereby completely
demolishing the subsequent plea of adverse possession as raised by the
Petitioner. The relevant portion of the said reply is reproduced as under: –
“2. That the contents of para 2 of your notice are a matter of
record as property No. N-197A, Greater Kailash, Part-1, New Delhi
was leased out to my client M/s. Baltiboi Ltd. Having their Branch
Office at the relevant time at Jeevan Vihar Building, Parliament
Street, New Delhi for three years.
3. That the contents of para 3 of your notice are not correct. The
entire house constructed at N-197A, Greater Kailash Part-1, New
Delhi consisting of three bed room, one drawing dining room, one
kitchen, two bath rooms and one servant room are leased out to my
above said client at Rs. 1150/- per month for a period of three
years. After three years my clients M/s. Baltiboi remained as tenant
till the death of Smt. Sumitra Devi on 20.07.1991 and thereafter
continued to be in possession of the entire House No. N-197A,Signature Not Verified
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Greater Kailash, Part-l, New Delhi without any interference or
disturbance from any person till today.
4. In reply to of para of your notice it is submitted that it is
incorrect to say that Smt. Sumitra Devi Sharma had kept one
attached bed room for her use. In fact the possession of the entire
house was handed over to my above said client at the time of
creation of the tenancy and after the death of Smt. Sumitra Devi
Sharma in 1991, my client has exclusive uninterrupted possession
of the entire house till date.
5. In reply to para 5 of your notice it is submitted that the total
tenure of my client was not limited to 30th October, 1982. In fact
they continue to remain as tenant till the death of Smt. Sumitra
Devi Sharma on 20th July, 1991 and after her death the tenancy of
my above said client came to an end as none of the legal heirs of
Smt. Sumitra Devi Sharma contacted them for creation of fresh
tenancy. My client has acquired absolute right of ownership by
virtue of law of adverse possession.
6. In reply to contents of para 6 of the notice it is submitted that
Smt. Sumitra Devi Sharma W/o Shri Khushi Ram Sharma expired
on 20th July, 1991 at Kaulalumpur, Malasiya is not denied.
However, it is specifically denied that she left behind her 3 person
as her legal heir because till date none of the legal heir has
approached my client with the authentic proof of their being
successor of Smt. Sumitra Devi Sharma.
7. That the contents of para 7 of your notice are not correct and
denied. It is specifically denied that my above said client has taken
possession of one room with attached bath room without the
consent of legal heirs of Smt. Sumitra Devi Sharma in 1991. In fact,
the entire house was leased out to my above said client by late Smt.
Sumitra Devi Sharma in 1976 and since then the entire house is in
possession of my above said client. The possession of entire House
No. N-197A is with my client since 1976 without any interference
from any person.
xxx xxx xxx
10. That the contents of para 3 of your notice are matter of record.
In reply to this para it is submitted that that the above said petitionSignature Not Verified
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for eviction filed by your client was dismissed by the learned
Additional Rent Controller twelve years back and no application for
restoration or any appeal against that order was filed by your client
to get it restored/ set aside from the Appellate Court till date and the
said order of dismissal has become final and binding.”
29. It was further pointed out that a civil suit being CS No. 247/2014 had
earlier been preferred by the Respondent, wherein vide order dated
02.02.2015 the learned Civil Court had categorically held that the learned
Rent Controller had jurisdiction to decide the dispute between the parties. The
relevant portion of the said order is reproduced as under: –
“In these circumstances, plaintiff failed to place on record any facts
which suggests that how the last admitted rent (by the plaintiff), @-
Rs.1,150/- is increased and come to Rs,3,810/-.
So, in these circumstances, from all the facts on record it can be
safely concluded that as per the admission of the plaintiff the last
paid rent appears to be Rs.1,150/-.
It is also admitted fact by the plaintiff that the parties to the Suit are
related to each other as landlord and tenant.
It is also admitted by the plaintiff that the tenanted premises is
situated in Delhi and was given on lease vide lease deed dated
02.11.1976.
In these circumstances, I think the suit of the plaintiff comes within
the purview of DRC Act and thus beyond the purview of the
jurisdiction of this court.
So, the suit of the plaintiff is barred in view of Sec.50 of DRC Act
and thus plaint is rejected u/o 7 r 11 CPC.
However, this expression is made on the basis of material of this
case and in no way affects the case of the parties, if decided on
merits, by the Rent Controller.
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File be consigned to Record Room.”
30. It was further submitted that the eviction petition had been adjudicated
upon by the learned ARC after a complete trial, and a reasoned eviction order
dated 27.04.2023, i.e., the impugned order, had been passed in favour of the
Respondent, which shows that the Petitioner had failed to dislodge the
Respondent’s case, even after a complete trial.
31. It was argued by the learned Senior Counsel that the present petition is
nothing, but an attempt of the Petitioner to prolong the litigation between the
parties, and the dispute between the parties had already seen multiple rounds
of litigation, including proceedings before this Court and the Hon’ble
Supreme Court of India, all of which had affirmed the jurisdiction of the
learned ARC to adjudicate the matter.
32. Learned Senior Counsel further drew attention of this Court to the
impugned order, and particularly on the following paragraph(s), to contend
that the learned ARC had rightly rejected the plea of adverse possession as
raised by the Petitioner: –
“16. Ownership of the demised premises has been challenged by
the respondent, despite admitting that initially, respondent came
into possession of demised premises as tenant of mother of
petitioner. Payment of rent for the demised premises is admitted by
the respondent till the year 1997. It is not disputed by the
respondent that the petitioner is not the son of Sumitra Devi or a
legal heir of Sumitra Devi. The respondent has not disclosed who is
the landlord of the demised premises after coming to know about
death of Sumitra Devi in 1997. It is also admitted fact by the
respondent that previously a petition under Section 14 (1)(e) DRCSignature Not Verified
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Act was instituted by the petitioner in 1997 and a civil suit for
recovery of possession was instituted by the petitioner in 2014. It is
also not in dispute that the respondent is a company and juristic
entity.
17. In this factual backdrop of various admissions of the
respondent, the respondent has claimed ownership over the demised
premises by way of adverse possession. How a juristic entity can
claim ownership by way of adverse possession is not explained by
the respondent. The first ingredient required to establish ownership
by way of adverse possession, is actual physical possession of any
property. The respondent, being a juristic entity only, is incapable
of being in actual physical possession of the demised premises.
Furthermore, adverse possession can be established only when the
possession has been open and hostile to the actual owner. In the
instant case, when previous suits/petitions have been filed by the
petitioner to reclaim possession of the demised premises, how can it
be claimed by the respondent at that the respondent has been in
possession, openly hostile to the petitioner. The petitioner has been
pursuing his remedies since 1997, available under law to recover
possession from the respondent. Such proactive approach of the
petitioner completely belies the claim of adverse possession of the
respondent.”
33. It was further submitted that the learned ARC, after perusing the
material available on record, had rightly disregarded the plea of the Petitioner
with respect to availability of alternative accommodation. The relevant
portion of the impugned order is reproduced as under: –
“26. On the other hand, in cross-examination of respondent witness,
it has clearly come on record that the respondent never even
bothered to find out about ownership of said property no. 42. RW1
has deposed “I do not know in whose name the property bearing no.
42, Birbal Road, Jangpura Extension, New Delhi-14 is registered.
My knowledge regarding this property has been derived from the
pleadings filed by the petitioner but I cannot specify in which
Pleading has this Property been mentioned by the petitioner. I
cannot produce any document to show property bearing no. 42,
Birbal Road, Janpura Extension, New Delhi- 14 belongs to theSignature Not Verified
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petitioner or their family members…..The respondent company did
not carry out any documents search for the said Property before
any authority. I cannot say if any other alternative Property in
Delhi is available to the petitioner….. I have not made any online
search regarding ownership of property bearing no. 40 & 42,
Birbal Road, Jangpura Extension, New Delhi”.”
34. Learned Senior Counsel further argued that the bona fide requirement
in the present case had to be examined on the basis of the pleadings contained
in the eviction petition filed in the year 2015, and the requirement pleaded
therein was not in respect of the daughter of the petitioner, but was
specifically for residential accommodation for the Respondent and his
daughter, who intended to settle in Delhi. Reliance was placed on the
following portion of the impugned order: –
“30. In the present petition, the bonafide requirement stated by the
petitioner is not in respect of his daughter’s requirement for a place
to start her business in India. As the petition was instituted in the
year 2015, it is possible that daughter of petitioner became qualified
during pendency of the present petition and her requirement for the
demised premises also arose during pendency of this petition, but
the bonafide requirement, which is to be adjudicated upon is not the
bonafide requirement of daughter of petitioner, rather the bonafide
requirement as disclosed in the petition filed in the year 2015. In
the present petition, the bonafide requirement disclosed by the
petitioner is the requirement for a residential accommodation for
the petitioner and his daughter in Delhi/India as they want to settle
in Delhi. Further, the bonafide requirement claimed is on behalf of
the brother and sister of the petitioner and their family members
who require a place to stay when they visit India. It is on these
grounds of bonafide requirement, that the present petition is to be
tested.”
35. Learned Senior Counsel had further drawn attention of this Court to the
impugned order, and particularly on the following paragraph, to contend that
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the Petitioner had failed to place any material on record to demonstrate that
the bone fide requirement, as stated by the Respondent, was not genuine: –
“32. This particular proposition of the petitioner that he and his
daughter want to settle in Delhi, has not been challenged by the
respondent anywhere during trial. The respondent has not produced
any material to show that the claim of the petitioner that he intends
to shift along with his daughter to Delhi is not a genuine claim.
Even in cross-examination of petitioner and his daughter i.e. PW1
& PW2, the respondent has not been able to establish that they do
not intend to shift to Delhi and reside at the demised premises. As
already noted above, availability of alternative accommodation has
not been established by the respondent. Thus, the desire of the
petitioner and his daughter to shift to Delhi is practically possible
only if demised premises is vacated by the respondent.
Furthermore, it is also the claim of respondent that legal notice
dated 06.06.2012 issued by the petitioner clearly establishes his
intention to evict the respondent for the purpose of increasing rent
for the demised premises. This has also been put to the petitioner in
his cross-examination and he has duly explained the demand for
increased rate of rent in legal notice dated 06.06.2012. he has
categorically stated that as shifting from Malaysia to Delhi would
have approximately taken time of one year, therefore, the
respondent was given the choice to renew tenancy at an increased
rate of rent. He has deposed “Fresh tenancy at Rs. 1 lac was offered
to the respondent only because it was not practical for me and my
family to immediately shift from Malaysia to the suit Property and
keeping in mind the time required for shifting i.e. approximately
one year, fresh tenancy for that period was offered to the
respondent. I cannot say now if approximately period of one year
would still be required as on date to shift from Malaysia to the suit
property. VOL. In case I get Possession, I will make full efforts to
shift at the earliest”.”
36. Attention of this Court was further drawn to the evidence by way of
affidavit of PW-2, i.e., Ms. Sarita Sharma, and particularly on the following
paragraph(s): –
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“6. I also want to use my ancestral property for my personal as
well as for my professional requirements and the tenant has no right
to interfere in the bonafide need of the landlord and his family. It is
further stated that whenever I visited India I was constrained to
remain in hotels only and having to spend large sums of money on
stay despite our property in India.
xxx xxx xxx
9. I say that I am lawyer by profession who has obtained a Law
degree from a foreign university and am a person of Indian origin
has been allowed by the Bar Council of India to practice subject to
certain terms.
10. I say that since all these preparations require long term stay in
India which is quite expensive as the Petitioner and I are
constrained to stay in hotels and thus the same is not feasible.
xxx xxx xxx
13. I say that the need of the Petitioner for suit premises for
residential premises is bonafide as he and other relatives have no
other residential property other than the suit premises.”
It was contended by the learned Senior Counsel that the aforesaid
testimony of PW-2, clearly established the bona fide requirement as pleaded
in the eviction petition. It was submitted that PW-2 had clearly deposed that
she intended to utilize the tenanted premises for her personal, as well as
professional requirements, and that despite having their own property in India,
she and the Respondent were compelled to stay in hotels during their visits,
thereby incurring substantial expenses.
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REJOINDER SUBMISSIONS ON BEHALF OF THE PETITIONER
37. Learned Senior Counsel further drew the attention of this Court to the
Bachelor of Law degree of Ms. Sarita Sharma, to contend that she had
obtained the said degree on 29.06.2007, i.e., much prior to the institution of
the eviction petition in the year 2015. It was further submitted that the
professional qualification of Ms. Sarita Sharma was well within the
knowledge of the Respondent at the time of filing of the eviction petition, and
it was not a case where such development had arisen during the pendency of
the proceedings and the requirement arising from her professional background
could not have been be said to be a subsequent development.
FINDINGS AND ANALYSIS
38. Heard learned Senior Counsels for the parties and perused the records.
39. One of the primary contentions raised by the learned Senior Counsel
for the Petitioner was that the Respondent could not prove the bona fide
requirement of the tenanted premises. It had been contended that the bona fide
requirement by the Respondent was projected to be for his daughter, to start
her venture, as a qualified lawyer in India, which is not possible in view of the
prevalent rules of the Bar Council of India, whereby the lawyers having
foreign degrees are permitted to practice in India for limited purpose and that
too on a reciprocal basis. It was similarly contended that the Respondent had
proved the evidence of only two visits to India, which was done to pursue the
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litigation and in absence of any other evidence to demonstrate that the
Respondent or his daughter was regularly visiting India, the very basis of
bona fide requirement disappears.
40. Another contention raised by the learned Senior Counsel for the
Petitioner was that prior to filing of the eviction petition, the Respondent had
issued a legal notice dated 06.06.2012 demanding a rent of INR 1,00,000/-,
and therefore, the so-called bona fide requirement for his daughter is again
not believable. It would be apposite to refer to the cross-examination dated
30.05.2022 of the Respondent, and the relevant portion of the same is
reproduced as under: –
“Witness is shown para 17 of legal notice dated 06.06.2012, Ex.
PW 1/15
Q. I put it to you that you have offered for fresh execution of a
lease deed @ of Rs. 1,00,000/- per month no bona fide need existed
at that time or even now?
A. It is incorrect. Fresh tenancy at 1,00,000/- was offered to the
respondent only because it was not practical for me and my family
to immediately shift from Malaysia to the suit property and keeping
in mind the time required for shifting that is approximately one
year, fresh tenancy for that period was offered to the respondent.
I cannot say now if approximately a period of one year would
still require as on date to shift from Malaysia to the suit property.
Vol. In case I get possession, I will make full efforts to shift at the
earliest.”
The Respondent in his cross-examination had explained that some time
would be required, in order for him to shift from Malaysia to Delhi, and
therefore, the Petitioner was given the choice to renew the tenancy at an
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increased rent. The said explanation was duly accepted by the learned ARC in
the impugned order. In these circumstances, this Court finds no reason to
interfere with the said finding of the learned ARC.
41. At this stage, it would be apposite to refer to a portion of the evidence
by way of affidavit filed on behalf of PW-2, Ms. Sarita Sharma, daughter of
the Respondent herein. The relevant portion(s) of the said affidavit are
reproduced as under: –
“6. I also want to use my ancestral property for my personal as
well as for my professional requirements and the tenant has no right
to interfere in the bonafide need of the landlord and his family. It is
further stated that whenever I visited India I was constrained to
remain in hotels only and having to spend large sums of money on
stay despite our property in India.
7. I say that with the advent of technology and requirements, I
want to explore the possibility of setting up a law
office/firm/consultancy business in Delhi because I am a
professionally qualified lawyer. The setting up of a law
office/firm/consultancy premises in Delhi can only happen while
residing there as this requires substantial time and effort and
connections and renovation in setting up the office in the premises.
However, without the eviction of the tenant the same cannot
happen. To set up the same I would be required to live in Delhi
which is a costly affair now as I will have to remain in a hotel as
the property is still not vacated by the respondent tenant.
8. It is stated that I have acquired Overseas Citizen of India
(“OCI”) status and that as an OCI holder who obtained a foreign
law degree, I would be able practice law but with riders as per Bar
Council of Delhi. However there is no bar to set up a consultancy in
the premises either by any authority or any law against the
owner/landlord in the suit premises.
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9. I say that I am lawyer by profession who has obtained a Law
degree from a foreign university and am a person of Indian origin
has been allowed by the Bar Council of India to practice subject to
certain terms
10. I say that since all these preparations require long term stay in
India which is quite expensive as the Petitioner and I are
constrained to stay in hotels and thus the same is not feasible.”
42. The cross-examination dated 31.05.2022 of the said witness, for the
sake of completeness, is reproduced as under: –
“31.05.2022
PW-2
Statement of Ms. Sarita Sharma, aged about 37 years, R/o 15,
Jalan SS21/13, Damansara Utama, Petaling Jaya, 47400,
Selangor, Malaysia. (recalled for cross examination after
30.05.2022)On SA
XXXXXXX by Sh. Rambhakt Aggarwal, i/b Ms. Megha
Mukherjee, Adv. for respondent.
I am aware of the contents of my affidavit. The address as
mentioned in my affidavit is not my permanent address. I am not
owner of any residential property in Malaysia. Vol. I live in a
mortgaged residential property in Malaysia presently. My present
address in Malaysia is B-13 A-3 A, Viva Residency, 378, Jalan
Ipoh, 51200 Kuala Lumpur, Malaysia. The ownership documents of
this property in Malaysia reflects my name as mortgagor of the said
property and the bank as the mortgagee.
Q. Have you paid any consideration qua the above said property
in Malaysia?
A. I have paid some consideration as monthly payment for the
said property.
Q. Do you have any independent office in Malaysia?
A. No.
Q. What is your area of specialization in law?
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A. I am working in financial and banking industry specifically in
treasury and global markets.
Q. When did the purported need for the suit premises for conduct
of your practice arise?
A. I have been working in the banking and financial industry for
more than 10 years. In the last 5-6 years I have gathered sufficient
expertise in the said field on account of which I wish to enter into
consultancy business in India and Malaysia.
Q. Does this mean you will be continuing practice in Malaysia?
A. Yes. Off and on. I intend to bring some clients from Malaysia
to India and take some clients from India to Malaysia.
Q. In paragraph 2 of the affidavit you state that your uncle and
Aunt have authorized your father to do certain acts towards the suit
property. What is your source of knowledge?
A. The power of attorneys provided by both my uncle and aunt
in favor of my father and they have also told me.
Q. In para 4 of your affidavit you have stated that you are one of
the legal heirs of the petitioner. Under Malaysian law can any
person be a legal heir of a living person?
A. I do not know the Malaysian law on this point but what I
stated in my affidavit is only that I am entitled to inherit interest of
the petitioner.
Q. In the last 5 to 6 years how many times have you visited India
towards furtherance of your practice and what have been your
duration of stays in
Delhi?
A. About 2 to 3 times. The duration of stay in Delhi has been 1
to 2 weeks.
Q. Do you have document to show the number of visits to India
and stay in Delhi?
A. Presently I am not carrying such documents.
It is wrong to suggest that I am not entitled to practice law in
India as on date.
Q. When you will be in Malaysia how will you be able to cater to
purported clients in India?
A. In order to cater to clients in India I need the suit property so
that I can physically come to Delhi, stay in the suit property for the
purpose of my professional requirement.
Q. How will you cater to Malaysian clients while in India?
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A. My Malaysian clients have shown interest to do business in
India and I already answered that I will travel back and forth to
cater to both clients- sets.
Witness is shown the para 7 of her affidavit.
Q. I put to you that you can easily conduct business in India
while being physically in Malaysia by use of tools like Video
Conferencing and therefore suit property is not required.?
A. Use of video conferencing is possibility for business but
nothing replaces face to face meetings for conducting better
business.
It is wrong to suggest that I am deposing falsely and that I have no
bona fide requirement of the suit premises.
RO & AC”
43. The Bar Council of India has come out with rules regarding Entry,
Rules and Regulations of Foreign Lawyers and Law firms in India, and the
press release dated 19.03.2023, which would make a useful reference in the
present case, is reproduced as under: –
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44. The aforesaid press release would demonstrate that foreign lawyers,
except for those practising before Courts, which would require reciprocity, are
otherwise permitted to function and advise their clients about Foreign laws
and International laws. As per the aforesaid document, they would also be
permitted to render advisory work about such laws for their foreign clients. In
these circumstances, the contention on behalf of learned Senior Counsel for
the Petitioner that under no circumstances could the daughter of Respondent
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work in India is completely untenable. The contention on behalf of learned
Senior Counsel for the Petitioner that daughter of the Respondent is not
dependent upon him and therefore there is no bona fide requirement for her to
use the tenanted premises for her work is again not acceptable.
45. Learned Senior Counsel for the Petitioner drew attention of this Court
to the cross-examination dated 30.05.2022 of PW-1/Mr. Kiran Sharma,
wherein he admitted that the need at the time of filing of petition in the year
2015, was for his brother, his sister and himself and not his daughter
specifically. He further deposed that he could not remember if his daughter
was a practicing advocate or not in the year 2015. In these circumstance,
attention of this Court was drawn to the law degree of the daughter of the
Respondent dated 29.06.2007, and therefore, it was contended that at that
relevant point of time, when the eviction petition was filed, the daughter of
the Respondent was admittedly a law graduate, and still, there was no mention
of her requirement to come to India and practice law, however, in the cross
examination of the said date it was further recorded as under: –
“Qns. What was the reason that your daughter wanted to shift her
practice from Malaysia to India?
Ans. Earlier my daughter has gained a lot of experience in Malaysia
by working with law firm and subsequently with banks. With her
experience, specifically in last 5-6 years, she feels a possibility of
expanding her profession in India as India is one of the upcoming
economy in the world. Vol. She is presently not practicing in India.
She is working as a consultant in India.
My daughter has come to India 2-3 times in between 2018 to 2020.
Vol. She has not come as a consultant only.”
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46. It is pertinent to note that the Respondent, in the eviction petition, had
taken the following stand(s): –
“That the petitioner has no other residential accommodation
in India/Delhi except the suit property. The petitioner and his
daughter namely Ms. Sarita wants to settle in Delhi and thus the
petitioner requires the suit premises for his and family members
bonafide residential use.
The petitioner not only requires the suit property not only for
his and his family but also for his brother and sister and their family
members also who more often visit India and have no residence to
stay except the suit premises. But due to non availability of their
own residence, they have to stay at Hotel.
The need of the petitioner for suit premises for residential premises
is bonafide as he and other relatives have no other residential
Property other than the suit premises.
That if the respondent is evicted it would not suffer any
hardship because it being a Public Limited Company. The
petitioner issued a legal notice dated 06.06.2012 through their
counsel for the termination of lease deed dated 02.11.1976 which is
annexed as Annexure-10. The legal notice issued on behalf of the
petitioner was duly received by the respondent who replied the
same vide reply dated 12.07.2012. The copy of reply given by the
respondent is annexed as Annexure 11.
The contention and intention of the respondent were very
clear and were against the interest of the petitioner as expected
which clearly shows the bad intention of the respondent towards the
interest of the property of petitioner.
That the respondent paid the rent till 1997 and since then the
respondent has not paid any rent.
Moreover the petitioner required the premise for his
bonafide personal and family need as he has no other residential
property in Delhi or in India and the family of the petitioner used to
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or at some other place which causes harassment and mental torture
on the part of respondent since last so many years.”
47. Thus, the requirement of the tenanted premise for his daughter was also
pleaded by the Respondent, although, not specifically with regard to her
professional requirements. Thus, the contention of learned Senior Counsel for
the Petitioner that the aforesaid could not have been taken into consideration,
without a formal amendment, is not acceptable. The fact remains that if the
daughter of the Respondent has to come to India, the requirement of the
subject premises would still be in existence. Even otherwise, the learned ARC
while disposing of the petition had categorically observed as under: –
“30. In the present petition, the bonafide requirement stated by the
petitioner is not in respect of his daughter’s requirement for a place
to start her business in India. As the petition was instituted in the
year 2015, it is possible that daughter of petitioner became qualified
during pendency of the present petition and her requirement for the
demised premises also arose during pendency of this petition, but
the bonafide requirement, which is to be adjudicated upon is not the
bonafide requirement of daughter of petitioner, rather the bonafide
requirement as disclosed in the petition filed in the year 2015. In
the present petition, the bonafide requirement disclosed by the
petitioner is the requirement for a residential accommodation
for the petitioner and his daughter in Delhi/India as they want
to settle in Delhi. Further, the bonafide requirement claimed is
on behalf of the brother and sister of the petitioner and their
family members who require a place to stay when they visit
India. It is on these grounds of bonafide requirement, that the
present petition is to be tested.”
(emphasis supplied)
48. With respect to the aforesaid bona fide requirement of the Respondent
and his family, it had been contended by learned Senior Counsel for the
Petitioner that the Respondent in his cross-examination dated 30.05.2022, had
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admitted that whenever he visits India, he necessarily does not visit Delhi. It
was further pointed out that the brother of the Respondent, Mr. Ajay Sharma,
and his sister, Ms. Usha Sharma, both did not appear before the learned ARC
to lead the evidence to show that the requirement, as pleaded by their brother,
i.e., the Respondent, was a genuine and bona fide. Learned Senior Counsel for
the Petitioner has further placed reliance upon the copy of the passport of the
Respondent, to contend that the Respondent has no intention to stay in India.
During the course of the proceedings, the Respondent had also placed on
record immigration stamps showing the Respondent’s entry into India, as well
as multiple Visas. The aforesaid contention was dealt by the learned ARC in
the following manner: –
“33. The above testimony is clear and categorical about the
bonafide requirement of the petitioner for the demised premises.
Additionally, the respondent has the protection under Section 19 of
DRC Act. In case, the petitioner does not utilize the demised
premises for the purpose of his and his daughter’s residence, then
the respondent can seek restoration of possession. In this regard,
reliance is placed upon the judgment of Hon’ble Supreme Court of
India in Baldev Singh Bajwa v. Monish Saini (2005) 12 SCC 778.
34. It has been also claimed by the respondent that the petitioner
or his family members are not regular visitors to Delhi as claimed
in the petition and therefore, the bonafide requirement for the
demised premises is an artificial requirement. The respondent has
claimed that copies of hotel bills and passport of the petitioner
clearly Shows that the petitioner is an infrequent visitor to Delhi
and such irregular visits does not merit evicting the respondent
from the demised premises, who is a protected tenant.”
35. As already noted above, the main bonafide requirement
disclosed by the petitioner is for his and his daughter’s residence in
the demised premises as they intend to shift to Delhi. Hence prior to
their actual shifting to Delhi, the regularity of their visits to Delhi
does not negate their bonafide requirement for a residential
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accommodation in Delhi. Furthermore, it cannot be said that the
petitioner or his family members would have anticipated their
bonafide requirement for the demised premises, that arose in the
year 2015, prior to 2015 and thus would have saved evidence of
their regular visits like hotel bills etc. to be used in petition of this
nature. Furthermore, it is admitted by the respondent that one
portion of the demised premises was retained for use of deceased
mother of the petitioner. In cross examination of PW-1 he has
categorically stated that he used to stay in that portion of the
demised premises during his visits to Delhi from 1976 to 1991,
Only thereafter, did the need arise for hotel accommodations as the
respondent trespassed into that portion of the demised premises
also. Hence, even if it is assumed to be correct that the petitioner
and his family members are mere irregular visitors to Delhi, it does
not negate the bonafide requirement for the demised premises for
the petitioner and his family to shift their residential base from
Malaysia to Delhi.”
The relevant part of the cross-examination dated 30.05.2022, which is
relied upon by the learned Senior Counsel for the Petitioner, in which the
Respondent had answered to the following effect: –
“…After 1998 when I visited India, I did visit Delhi. On every trip
to India, I do not visit Delhi. I do not recall when I visited Delhi
after 1997.”
The Respondent had, although, said that he does not remember any
visit to India after the year 1997, but the fact remains that his cross-
examination is of 30.05.2022 and he was admittedly present in India at that
time.
49. At this stage, it would be apposite to refer to judgments passed by
learned Benches of this Court, in respect of bona fide requirement of a
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landlord who was residing abroad and was desirous to come and stay in his
premises situated in India. The said judgments are as under: –
i. Hi-Bred (India) (P) Ltd. v. Ravi Kumar1; ii. Saroj Khemka v. Indu Sharma2; iii. Sumitra Devi v. Raj Rani Sehdev3; iv. Harminder Singh Koghar v. Ramnath Exports Private Ltd4.
49.1. In Hi-Bred (India) (P) Ltd. (Supra), the learned Single Judge of this
Court was adjudicating upon a civil revision preferred on behalf Petitioner-
tenant therein, assailing the eviction order passed by the Rent Controller
against the latter. Arguments were advanced by the Petitioner-tenant therein,
that bona fide requirement of the Respondent-landlord therein was a sham as
he was a Green Card holder. The learned Single Judge of this Court had held
that neither the Court nor the tenant, can dictate to the landlords not to come
back to their own country and live in their own house. Relevant portion(s) of
the said judgment is reproduced as under: –
“3. The facts, in brief, are that the respondent No. 1 and his wife
respondent No. 2 were employed and were working at Sharjah, but
respondent No. 1 had to resign his job as he developed some
serious ailment and respondent No. 2 also resigned her job. She is
M.B.B.S. Both of them are Green Card Holders from United States
of America and in 1984 they went to America and the case set up
was that the respondents have now decided to live in Delhi
permanently in the house in question. At the time of the filing of
the petition, the sons of the respondents were studying in Delhi, but
admittedly now they have been sent to United States of America for1
1988 SCC OnLine Del 243
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1999 SCC OnLine Del 159
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higher education. It is the case of the respondents that they have not
taken any employment in America and they want to live in India.
The Additional Controller believing the statement made by
respondent No. 1 on oath held that the respondents have proved that
they bona fide require the premises in question for their residence.
The Counsel for the petitioner-tenant has vehemently argued that
both the respondents hold Green Cards of U.S.A. which should
have led the Court to come to the conclusion that in fact they are
not at all keen to settle in Delhi and the testimony of respondent
No. 1 in Court that they wanted to live permanently in Delhi should
not be believed when the factum of their holding greencards shows
that they have the intention of living permanently in United States
of America. The Counsel for the petitioner has drawn my attention
to the various provisions of the United States Code Service, Titles 8
to 9 pertaining to Aliens and Nationality and the provisions of
American Jurisprudence, 2d, pertaining to the same subject in order
to show that the Green Cards are given by the United States of
America to some special category of persons who have intention to
live permanently in that country. The mere fact that the landlords
have obtained the Green Cards in United States of America,
which enabled them to live in America without the necessity of
their seeking frequent permission after expiry of some time,
would not lead to any inference that they have no bona fide
need to come over to India and live in India. After all it was for
the landlords to make up their minds as to where they would
like to live in India. After all it was for the landlords to make
up their minds as to where they would like to live and at one
point of time they have for convenience sake obtained the
Green Cards from the Government of United States of America
would not throw any doubt on the resolve made by them
subsequently that they would like to live in their own country. It
has been argued that if the landlords are to disclose their intention
of living permanently in India to the authorities in the United States
of America, their green cards may be liable to be cancelled. The
question which is necessary to be decided is whether they have
taken a bona fide decision to live in India. The mere fact that
their sons are receiving higher education in U.S.A. also does
not, in my opinion, throw any doubt regarding the intention of
the landlords to live in India in their own house. Neither the
Court nor the tenant can dictate to the landlords not to come
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fide motive was imputed to the landlords to show that they have
sought eviction of the tenant for some ulterior motive. The
Additional Controller has believed the testimony of petitioner No. 1
landlord, I see no reason to interfere. I find no merit in this Civil
Revision which dismiss in limine.”
(Emphasis supplied)
49.2. Similarly, in Saroj Khemka (Supra), a civil revision was preferred by
the Petitioner-tenant therein, against the order passed by the Rent Controller,
thereby rejecting the leave to defend filed on behalf of the Petitioner-tenant
therein. The learned Single Judge of this Court, while dealing with the issue
of bona fide requirement of a landlord living abroad and visiting India for a
short duration, had held and observed as under: –
“Let us examine the plea of petitioner in the application for leave to
defend. A statement made in the counter affidavit that the
owner while staying in U.S.A. and the income of the husband of
the owner-landlady was enormous and they are accustomed to
the lifestyle of U.S.A. and respondent was only coming in a year
for couple of days to meet its relatives and, therefore, the
requirement of the petitioner for their stay in Delhi does not
amount to bona fide requirement. It is not denied that the
owner had not any other place to stay in Delhi or anywhere else
except the house of the relatives/parents. Along with the petition,
present respondent/owner landlady had filed on record before the
Trial court bills from Hotel Vasant Continental showing that they
had to stay in a Hotel. Respondent-landlady has also filed the letter
from Centre for Policy Research dated 4.6.1995, inter alia, granting
internship to the daughter of the respondent to start her assignment
in or around September’ 1994 wherein it was specifically
mentioned that the daughter of the respondent would have to
provide her own housing and transportation arrangements and as no
accommodation was available to the daughter, Charunidhi Sharma,
she could not join Centre for Policy Research. I do not see any
force in the arguments of the learned counsel for the petitioner
that even if the petitioner visits India, she cannot have her own
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fact she has a flat of her own in Delhi. No Court can compel a
person to stay in a house of a relative or a hotel and because the
said person is staying abroad, he/she has no right to stay in
his/her own premises. That will be totally negating the
provisions of Section 14(1)(e) of the Act. If a person is residing
abroad, he/she owns a flat or a house in Delhi, he/she wants to
spend a few weeks or a few months then he/she must be allowed
to stay in his/her own house. I do not find any infirmity with the
finding recorded by learned Additional Rent Controller on this
score also.”
(Emphasis supplied)
49.3. In Sumitra Devi (Supra), the learned Single Judge of this Court, while
deciding a civil revision preferred by the Petitioner-tenant therein, assailing
the eviction order passed against the latter, had categorically held that the
desire of the landlord to come back to one’s own county gives rise to bona
fide need. Relevant paragraph(s) of the said judgment is reproduced as under:-
“7. The plea of the petitioner that the respondent and her
family is settled in U.K. for the last about 35 years and have
become citizens and green card holders and as such have no
intention to shift to India, requires consideration for the reason
that the Courts exercising powers under Section 14(1)(e) read
with Section 25-B of the Act have to ensure that no
unscrupulous landlord is able to evict a tenant on a false and
frivolous plea of bona fide requirement. However, the Courts
also have to ensure that no landlord/owner is kept deprived of
his property, in the hands of a tenant, inspite of the fact that he
bona fide needs the same for his own residence and the
residence of his family members. The respondent who appeared
as AW 1 made a statement on oath that she wanted to shift to India.
AW 2 Varinder Kumar Sahdev, son of the respondent-landlady also
stated that he was unemployed for the last about 10 years and he
alongwith his wife were desirous of shifting to India. According to
him his younger brother was also interested in coming back to
India. The respondent-landlady, who is suffering from various
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the reason that all those who move out of their own country for
the sake of business or career, at one stage or the other feel like
going back to their roots so that towards the end of their lives
they are in their own country and with their own people. In
such cases the desire to come back to one’s own country gives
rise to bona fide need and cannot be out right rejected as mala
fide unless there is some positive evidence to show that the
desire is a hoax and real motive is somethingelse. The
respondent and her family, even if they do not shift to India
permanently require the premises for use and occupation in the
course of their visits and as such the plea of the learned counsel
for the petitioner that the plea of bona fide need as set up by the
respondent should be rejected cannot be sustained.
8. In Sri Kempaiah’s case (supra) the Apex Court while dealing
with a case of eviction on the ground of bona fide requirement
emphasised that a mere wish or desire on the part of the landlord is
distinguishable from “bona fide requirement” and a duty is cast
upon the Court to satisfy itself in regard to the bona fide of the
requirement. The emphasis is this judgment was that Courts
should not be influenced by mere wish or desire but try to look
for something more to know as to whether the plea of
requirement is oona fide or not. It may be stated that in cases
like the present one requirement is preceded by a wish or desire
to shift to one’s own country and if there is nothing on record to
show that the wish or desire on the part of the owner is sham or
mere pretence to make out a case of bona fide requirement the
existence of such wish or desire assists the Court in ascertaining
the bona fides of the plea of requirement. The plea of the
petitioner that the respondent wants to sell off or let out the
premises on a higher rent after evicting the petitioner cannot be
accepted for the reason that there is no evidence on record to
suggest even that the respondent is going to sell or let out the
premises in question after evicting the petitioner. Moreover such
apprehension can be echoed by every tenant to oppose an eviction
petition, but as rightly observed by learned ARC, Section 19 of the
Act takes care of such apprehensions.
9. A Single Judge of this Court in T.D. Dhingra v. Pritam Rai
Khanna, 48 (1992) DLT 208 upheld the claim of bona fide
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citizenship but was claiming eviction on the ground of bona fide
requirement for his stay in India. In the present case the respondent-
landlady and her two sons have deposed on oath before the Trial
Court that they intend to return to India. Nothing could be brought
out in their cross-examinations to falsify them on this issue. The
petitioner inspite of raising a plea that the respondent intends to sell
the property in question has not produced any evidence to establish
that the respondent has been negotiating with some one in regard to
sale of this property. The fact that the respondent had never let out
the first floor portion and had kept in with her sister for so many
years fully corroborates her plea that she is not interested in any
monetary gain and she genuinely intends to come back to India
with her one or two sons and stay here. The respondent being an
old lady and suffering from so many ailments and physical
problems is unable to use the first floor portion and as such is in
bona fide need of premises in possession of the petitioner. In view
of the status, life style, habits, size of family of the respondent and
her sons their need for the ground floor as well as first floor of the
building in question for residential use is neither unreasonable nor
exaggerated. This Court does not find any good ground for holding
that the plea of bona fide need as raised by the respondent is a
pretence only and the respondent does not require the premises in
question for residential use.”
(Emphasis supplied)
49.4. In Harminder Singh Koghar (Supra), the Petitioner-landlord therein
had assailed the orders of dismissal passed in the eviction petitions filed by
him before the Rent Controller. The Petitioner-landlord therein was non-
resident Indian settled in Thailand, and was running his business from there. It
was the case of the Petitioner therein that the suit property was bona fidely
required by him and his family, as they had decided to set up their business in
Delhi. The learned Single Judge of this Court, while holding that if the
landlord is settled outside India, and was frequently visiting for his need and
temporary stay, the same has to be judged as bona fide need. Further, the
learned Single Judge, while relying upon Saroj Khemka (Supra), had
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dispelled the argument of the Respondents-tenants therein that temporary stay
in Delhi for a person settled abroad would not constitute bona fide
requirement. It was further held by the learned Single Judge that a mere
belief/opinion that the landlord is well settled abroad and there is not even
remotest chance of him and his family coming back and living in India is
irrelevant. The relevant portion of the said judgment is reproduced as under: –
“32. The main reason why the learned ARC dismissed the eviction
petitions was that there were negotiations for sale of the suit
property on the basis of evidence as noted above and thus there was
no bonafide requirement of Harminder Singh Koghar for the suit
property. It may be noted that this was an assertion of fact by the
respondents who were required to prove the same. RW-1 Vivek
Lall in his cross-examination stated that he accepted the down
payment which he returned, however he admitted that this fact was
beyond the pleadings and he had led no evidence to prove the same
to show that down payment had been made. As a matter of fact the
two witnesses he stated about were also not produced in the witness
box. These suggestions were denied by Harminder Singh Koghar.
Further no material particulars as to when and where the meetings
took place have been stated by RW-1 to show that the petitioner did
not intend to set up the business in Delhi rather wanted to sell the
property. The assertion of RW1 in his evidence by way of affidavit
that “the family of the petitioner is so well established in
Thailand/Singapore/abroad, that there is not even a remotest chance
of the petitioner and his family coming back and living in India,
neither the petitioner nor his family members will shift to India and
will never set up their residence in India” is only a belief/opinion
and not an assertion of fact and thus not relevant. Moreover it is not
even the case of petitioner that he and his family are permanently
shifting to Delhi. They want to set up a residence in the suit
property to be available as and when they come.”
50. At this stage, it would be apposite to refer to a judgment relied upon by
the Respondent, passed by the learned Single Judge of this Court in S.P.
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Kapoor v. Kamal Mahavir Prasad Muraka & Others5, pertaining to the
bona fide requirement of a landlord/owner of the premises in Delhi, despite
being a permanent resident of Mumbai, whereby it was held and observed as
under: –
“10. After considering the submissions made by learned counsel
for the parties, this Court is of the considered view that Section
14(1)(e) of the Act nowhere provides that the bona fide need of a
landlord/owner in respect of his residential premises should be for a
permanent residence only. If a landlord/owner is permanently
settled outside Delhi but his visits to Delhi are frequent his need
even for temporary stay in his own premises has to be viewed as
bona fide need. No landlord/owner, inspite of having his own
property in Delhi, can be compelled to live here and there and face
inconvenience. It is true that a Single Judge of this Court in
Chander Sain Berry’s case (supra) held that mere desire of a
landlord/owner cannot be equated with bona fide need and as such
leave to defend ought to be granted to a tenant so that he may show
that there is no bona fide need but the facts of the said case were
entirely different in as much as it was not clear from the material on
record that the desire of the landlord/owner to shift to India was
genuine. However, in a case where the facts and circumstances
clearly suggest that the desire of landlord/owner isnot a mere
pretence or a made up plea to evict a tenant, the prayer for bona
fide need may be accepted and leave to defend declined with a view
to accomplish the underlying object to Section 14(1)(e) read with
Section 25-B of the Act.
11. In Calcutta Film Library & Associates v. Dr. Shila
Sen (supra) a Single Judge of the Calcutta High Court upheld the
plea of the landlady regarding her bona fide requirement in respect
of a house in Calcutta although she was permanently settled at
Delhi. The learned Single Judge was of the view that the Courts
could not suggest to a landlord/owner that he should hire another
accommodation or should stay with his relatives. It was held that
even during temporary visits a landlord may require his own
premises and could not be suggested to stay in some Hotel or in5
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some friends or relative’s house. Learned Single Judge was further
of the view that it was not necessary that the need should not
permanent or continuous. His Lordship Hon’ble Mr. Justice B.N.
Kirpal (as his lordship then was), in Mehra & Mehra v. Dr. (Mrs.)
Sant Kaur Grewal (supra) upheld a claim under Section 14(1)(e) of
the Act, by a landlord who was living at Srinagar and wanted her
premises in Delhi only to pass winter months, holding that it was
her bona fide need. It was held that since the landlady had no other
alternative accommodation available to her in Delhi her need was
to be treated as bona fide. In Saroj Khemka‘s case (supra) a Single
Judge of this Court upheld an order of the Controller, rejecting
leave to defend application, in case of a landlord/owner who was
living abroad and wanted his premises at Delhi for stay in India for
short durations. It was categorically observed that an owner can not
be compelled to stay at a Hotel or have an alternative
accommodation.
12. In the case in hand it is satisfactorily shown on record that the
respondent No. 1 the landlord/owner of the premises in question,
although a permanent resident of Mumbai has to visit Delhi off and
on in connection with his political and business matters. He is a
man of status who needs sufficient accommodation even in the
course of his short visits to Delhi so that he may live comfortably
and discharge his social and business obligations effectively. It is
true that his two daughters are already married but the averment in
the petition is that they may also stay in the premises in question
during their visits to Delhi. This demand is neither unjust or unfair.
He has no other suitable alternative accommodation available to
him at Delhi. The Courts have no justification to insist that he
should either live in Hotels or hire some other accommodation
merely for the sake of protecting the tenancy of the petitioner. The
respondent No. 1 owner/landlord cannot be asked to face
inconvenience and adjust in smaller accommodation here and there
in the course of his visits to Delhi. This Court, therefore, has no
hesitation in concluding that the claim of respondent No. 1 in
regard to his bona fide need of the premises in question for his
residential use was reasonable and bona fide. The plea of the
petitioner that this plea is not bona fide or a mere pretence to evict
him is unfounded and does not give rise to any triable issue for
grant of leave to defend to him.
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13. The respondent No. 1 had neither made any concealment nor
any mis-statement of facts in his eviction petition so as to suggest
that he was acting mala fide and his need was not bona fide. He had
clearly mentioned in his petition that he had earlier filed an eviction
petition against the petitioner for fixation of standard rent and
thereafter had filed a petition under Section 14(1)(d) of the Act also
which was not pressed as it was shown that the petitioner/tenant
was living in the premises in question. He had also not made any
mis-statement in regard to his family and had categorically stated
that his both the daughters were married out of Delhi. Their need
was not set up for permanent residence in the premises in question
and the suggestion was they may also use the premises during their
visits to Delhi. The respondent No. 1 had impleaded other co-
owners also as proforma respondents and as such no arguments
have been addressed on the question of locus of respondent No. 1 to
file the eviction petition. The hotels bills placed on record by
respondent No. 1 even if ignored on the principle of ‘post litem
motam’ the affidavit filed by respondent No. 1 in regard to his
political and business engagements in Delhi can be safely accepted
to hold that respondent No. 1 needs the premises in question bona
fide for his residential use during his visits to Delhi The leave to
defend application and affidavit filed by petitioner did not disclose
that respondent No. 1 was not visiting Delhi off and on as pleaded.
This Court is therefore, of the considered view that the learned
ARC was fully justified in refusing leave to defend to the petitioner
and passing an eviction order under Section 14(1) (e) of the Act in
favour of respondent No. 1.”
51. Similarly, in Dr. Jain Clinic Pvt. Ltd. Vs. Sudesh Kumar Jassal6,
learned Single Judge of this Court, while relying on the aforesaid judgment,
S.P. Kapoor (supra), had observed and held as under: –
“23. Section 14(1)(e) of the Act nowhere provides that the bonafide
need of the landlord/owner should be in respect of residential
premises for a permanent residence only. It is settled law that if the
landlord/owner is settled outside India but his visit to India are
frequent, his need even for temporary stay in his own premises has6
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to be judged as bonafide need. Therefore, he inspite of having his
own property in Delhi cannot be compelled to live in the places
other than his own property and to face inconvenience. His lordship
Hon’ble Mr. Justice B.N. Kirpal (as his Lordship then was), in M/s
Mehra & Mehra vs. Dr. (Mrs.) Sant Kaur Grewal, 21 (1982) DLT
196 upheld a claim under Section 14(1)(e) of the Act, by a landlord
who was living at Srinagar and wanted her premises in Delhi only
to pass winter months, holding that it was her bonafide need. It was
held that since the landlady had no other alternative
accommodation available to her in Delhi, her need was to be treated
as bonafide. In the case of Saroj Khemka vs. Indu Sharma,
reported in 1999 (49) DRJ 719, a Single Judge of this Court upheld
an order of the Controller, rejecting leave to defend application, in
case of a landlord/owner who was living abroad and wanted his
premises at Delhi for stay in India for short durations. It was
categorically observed that an owner cannot be compelled to stay at
a Hotel or have an alternative accommodation.
24. Reliance can also be placed upon the case titled as Sarla
Ahuja vs. United India Insurance Co. Ltd., reported in AIR 1999
Supreme Court 100. The facts of this matter were that the
petitioner who was a widow wanted to shift her residence from
Calcutta to New Delhi to occupy her own building which was in the
possession of her tenant M/s United India Insurance Company
Limited. Though she got an order of eviction from the Rent
Controller under Section 14(1)(e) of the Delhi rent Control Act
1958 (for short “the Act”), a single Judge of this Court non-suited
her by reversing the order which she challenged before the
Supreme Court by way of Special Leave to Appeal. It was held by
the Supreme Court that:-
“……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 in
bona fide. It is often said by courts that it is not for the tenant
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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.”
In S.P.Kapoor Vs. Kamal Mahavir Prasad Murarka and Ors.,
97 (2002) DLT 997, this Court had observed that even the
requirement of the landlord to have his premises vacated for
his frequent visits to Delhi and for temporary stay in his own
premises has to be viewed as bonafide requirement.”
52. In view of the aforesaid judgments, as well as the observations
rendered by the learned ARC, it is evident that the mere fact that the
Respondent and his family members are residing abroad or are irregular
visitors to Delhi, cannot, by itself, negate their bona fide requirement. The law
is well-settled that neither the Court nor the tenant can dictate to a landlord as
to where he should reside, and the desire of a landlord to return to India or to
establish a residence here, constitutes a legitimate and bona fide need, unless
shown to be a mere pretext. In the present case, no material has been brought
on record to demonstrate that the requirement set up by the Respondent is
sham or mala fide. Hence, even if it is assumed that the Respondent and his
family members were not frequent visitors to Delhi in the past, the same does
not dilute or discredit their bona fide requirement for the tenanted premises.
53. The other two pleas taken by the Petitioner before the learned ARC and
in the written submissions filed before this Court was availability of alternate
accommodation with the Respondent and of adverse possession. So far as the
plea of availability of alternate accommodation is concerned, the learned
ARC had dealt with the same in the following manner: –
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“25. One of the contentions raised by the respondent is that the
petitioner has an alternative accommodation available in the form
of one property at 42, Birbal Road, Jangpura Extension, New Delhi.
It has been claimed by the respondent that petitioner has been using
the said property and therefore, has an alternate accommodation
available for their use in Delhi. The same is disputed and denied by
the petitioner who has claimed that except for demised premises,
the petitioner and his family members do not have any other
property in Delhi. The petitioner has explained that the said
property no. 42 was owned by some other person known to the
petitioner and he has consented to allow the petitioner to use the
said property as a correspondence address only. In cross-
examination of PW1 also, this fact has been duly explained by
PW1. He has deposed “…. and one of my friends was living at 42,
Birbal road and therefore, with his permission I had used the said
address for my correspondence in India.
(VOL. I authorized my advocate to search from property records
to establish that I am not owner of 42, Birbal road at any point of
time). My advocate never found any document in my name as
owner of 42, Birbal Road, New Delhi”.
26. On the other hand, in cross-examination of respondent
witness, it has clearly come on record that the respondent never
even bothered to find out about ownership of said property no. 42.
RW1 has deposed “I do not know in whose name the property
bearing no. 42, Birbal Road, Jangpura Extension, New Delhi-14 js
registered. My knowledge regarding this property has been derived
from the pleadings filed by the petitioner but I cannot specify in
which Pleading has this Property been mentioned by the petitioner.
I cannot produce any document to show property bearing no. 42,
Birbal Road, Jangpura Extension, New Delhi-14 belongs to the
petitioner or their family members….. The respondent company did
not carry out any documents search for the said Property before
any authority. I cannot say if any other alternative Property in
Delhi is available to the petitioner….. I have not made any online
search regarding ownership of property bearing no. 40 & 42,
Birbal Road, Jangpura Extension, New Delhi”.”
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27. In light of above testimonies of PW1 and RW1, it is clearly
established on record that petitioner has nothing to do with property
no. 42.
28. The respondent has made a bald averment with respect to
ownership of property no. 42. No document has been produced to
substantiate the claim that an alternative accommodation is
available to the petitioner. It is now well settled that respondent
cannot resist his eviction only on allegations made in the pleadings,
but only if some, cogent material is also produced by the
respondent to show that he has material to non suit the landlord. In
this regard, reliance is placed upon the judgment of Baldev Singh
Bajwa vs. Monish Saini (2005) 12 SCC 778. Reliance is also
placed upon the judgments of Hon’ble Delhi High Court in Ram
Swaroop v. Viney Kumar Mahajan dated 24th July, 2017 in RC
Rev. No. 112/2016 and Lalta Prasad Gupta v. Sita Ram dated 2nd
August, 2017 in RC Rev. No. 352/2017. When the tenant does not
produce any document at all before the Court on the basis whereof
there is any chance of the tenant proving what he has stated about
availability of an alternative accommodation, the only inference is
that the facts disclosed are not capable of being proved and/or not
capable of dis-entitling the landlord from obtaining an order of
eviction under Section 14 (1) (e) of the Rent Act.”
Nothing has been produced by the Petitioner before this Court to
contradict the aforesaid findings of the learned ARC, and therefore, the said
findings need not be interfered with. Reliance placed by the learned Senior
Counsel on the portion of the affidavit of the Respondent is misplaced, as the
same has been explained by him in his cross examination, and even the cross-
examination of the Petitioner’s witness as RW-1, demonstrates that the plea of
alternate accommodation could not be substantiated by them.
54. So far as the issue of adverse possession is concerned, the same had
been dealt with by the learned ARC in the following manner: –
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“19. The claim of adverse possession is also not tenable on account
of categorical and clear admission of the respondent that initial
possession was in the capacity of a tenant only. Once possession
has been admitted to be in the capacity of a tenant, then without
execution of any proper sale documents as per applicable laws,
ownership cannot be claimed merely on the strength of long
possession. Possession as a tenant is permissive possession only
and can never be said to be hostile to the ownership of the actual
owner. This is also Strengthened by the fact that there is no dispute
qua the petitioner being one of the legal heirs of his deceased
mother Sumitra Devi. Respondent has disputed ownership claim of
the petitioner on the ground that there is no Will in favor of the
petitioner by Sumitra Devi for the demised premises. As the
demised premises is located in India, its devolution shall also be in
accordance with the laws of succession applicable in India. In
India, succession is in accordance with personal laws and
succession for Hindus is governed by Hindu Succession Act. The
respondent has not showed by any material that Hindu Succession
Act would not be applicable on the deceased mother Sumitra Devi
or the petitioner. Respondent has also not produced any material
during the entire trial to show why the laws of succession as
applicable in India, be not applied to the demised premises, As it is
not disputed that petitioner is son of Sumitra Devi, then even
without any Will in his favour, he is entitled to inherit share in the
demised premises as per applicable laws of succession. Having so
held, it is necessary to deal with objection of the respondent qua the
general power of attorney issued by the other legal heirs in favor of
the petitioner, at this stage itself. The petitioner has claimed to be
authorized by the other legal heirs to deal with demised premises
and to take all necessary steps in respect of the demised premises,
by way of general power of attorneys executed in his favour by the
other legal heirs. Even if it is presumed that no such general power
of attorney was ever executed by the other legal heirs in favour of
the petitioner, then also the maintainability of the present petition
cannot be challenged. It is now well settled that an eviction petition
under Section 14(1)(e) DRC Act is maintainable even by one of the
legal heirs/co-owners of the demised premises and
consent/authority of other legal heirs/co-owners is not necessary.
Reliance is placed upon Kanta Goel vs. D.P. Pathak, 1979 (1) RCR
(Rent) 485; (1977) 2 Supreme Court cases 814, Pal Singh vs.
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cases 444; Seshasyana Rao & Ors Vs. Manuri Venkatesa Rao &
Ors AIR 1954 Madras 531, Sri Ram Pasricha V. Jagannath &
Ors (1976) 4 SCC 184. Infact, in M/s Indian Umbrella
Manufacturing Co. & Ors. vs. Bhagabandei Agarwalla (Dead) by
LRS Smt. Savitri Agarwalla & Oks., AIR 2004 1321, the Hon’ble
Supreme Court went a step ahead and opined that even if no prior
no objection is obtained from the remaining co-sharers then also the
petition is maintainable.
20. In view of the above, it is clear that being son of Sumitra
Devi, the petitioner has inherited co-ownership in the demised
premises and is entitled to pursue the present petition under Section
14(1)(e) DRC Act.
21. Even from the cross examination of RW-1, it is clearly
coming on record that the respondent was never in hostile
possession of the demised premises, after death of mother of
petitioner. In his cross examination dated 14.12.2022, RW-1 has
admitted one electricity bill for demised premises Ex.PW1/D1,
which is in the name of respondent. He further stated that he was
not aware if any permission/NOC was taken prior to obtaining
electricity connection as evidenced by Ex.PW1/D1. Thereafter, he
goes on to state that in general course the general manager of
respondent would have asked for such permission/NOC from the
landlord. He has deposed:
“I do not know if the respondent company had taken
permission/NOC from land lady or her legal heirs prior to
taking electricity connection at the demised premises as per
energization date of 19.06.2015 in Ex.PW1/D1. In usual
course the general manager of the respondent company would
have asked for permission/NOC from the landlord”.
22. In view of this testimony of RW-1, it is clear that some
permission/NOC must have been sought from the landlord in the
year 2015 by the respondent. If respondent is owner by way of
adverse possession, then there would have been no requirement of
seeking any permission/NOC. Furthermore, despite claiming that in
usual course such permission/NOC would have been taken, the
respondent has failed to disclose the name of the landlord from
whom such permission/NOC was sought.
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23. It is admitted case of the respondent that there is no
ownership document in favour of the respondent for the demised
premises. On the other hand, the petitioner has produced the
ownership record in favour of his deceased mother, lease agreement
between deceased mother and the respondent, admission of the fact
that petitioner is son of the deceased mother who was the previous
owner of the demised premises, are sufficient to establish a better
title in favour of the petitioner than the respondent. It is well settled
that in a petition under Section 14(1)(e) DRC Act, the ownership of
demised premises is not to be examined as in a title suit. Landlord
merely has to show a better title to the demised premises to seek
eviction of the respondent. Reliance is placed upon Dr. Jain Clinic
Pvt. Ltd. Vs. Sudesh Kumar Dass in RC Rev. No. 136/12, decided
on 22.08.2013 (Delhi HC), Shanti Sharma Vs. Smt. Ved Prabha
[AIR 1987 SC 2028], Ramesh Chand Vs. Uganti Devi reported as
157 (2009) DLT 450, Sheela and ors Vs. Firm Prahlad Rai Prem
Parkash, (2002) 3 SCC 375 and Sushil Kanta Chakarvarty Vs.
Rajeshwar Kumar, 79 (1999) DLT 210.”
Again, nothing has been brought on record by the Petitioner to
contradict the aforesaid findings rendered by the learned ARC, and therefore,
there is no ground to interfere with the same.
55. Hon’ble Supreme Court in Sarla Ahuja v. United India Insurance
Co. Ltd.7, and Abid-Ul-Islam v. Inder Sain Dua8, held that the scope of
interference by this Court, in exercise of its revisional jurisdiction under
Section 25B (8) of the DRC Act, is limited. Such jurisdiction is confined to
examining whether the impugned order suffers from any error apparent on the
face of the record. The Revisional Court cannot reappreciate evidence or
substitute its own view, unless the impugned order is shown to be arbitrary,
perverse, or vitiated by material impropriety. In the absence of such
7
(1998) 8 SCC 119
8
(2022) 6 SCC 30
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infirmities, there remains narrow scope for interference with the impugned
order.
56. Having regard to the aforesaid discussion, no interference with the
impugned order dated 27.04.2023 passed by the learned ARC is called for,
and the same is accordingly upheld.
57. Interim order dated 04.01.2024 passed by the learned Predecessor
Bench of this Court, stands vacated.
58. The Petitioner-tenant is directed to vacate and hand over vacant,
peaceful and physical possession of Plot No. N-197-A, Greater Kailash-1,
New Delhi 110048, to the Respondent-landlord, forthwith, as the benefit of
six months’ period as per Section 14(7) of the DRC Act has already lapsed.
59. In view of the aforesaid, the present petition is dismissed and disposed
of accordingly.
60. Pending application(s), if any, also stands disposed of.
61. Judgment be uploaded on the website of this Court, forthwith.
AMIT SHARMA
(JUDGE)
APRIL 09, 2026/bsr/kr/db
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