SHASHI KAPOOR Vs. GOPAL KUMAR GUPTA

JUDGEMENT

(1.) PRESENT petition has impugned the judgment and decree dated 14.12.2011 whereby the eviction petition filed by the landlord Dr. Gopal Kumar Gupta seeking eviction of his tenant Shashi Kapoor from the disputed premises i.e. ground floor in property bearing No. E -6A and the mezzanine Hauz Khas, main market, New Delhi (depicted in red colour in the site plan) had been decreed in favour of the landlord; this was after trial. The averments made in the eviction petition have been perused. The contention of the petitioner is that he is the owner of this property; property was earlier owned by his mother Manorma Gupta who had let it out to the tenant in the year 1988; Manorma Gupta had died on 07.11.1997 leaving behind the petitioner and his other brothers and sisters; the petitioner is the co -owner; the respondent has always been treating him as his landlord and has been paying rent to him; the other co -owners are well settled and they have separate houses; they are not contesting the petition. The petitioner is the only contesting co -owner. He is a registered medical practitioner having done his MBBS from Maulana Azad Medical College and had completed MD in Radiology from All India Institute of Medical Science; he is presently residing on the part of the mezzanine floor, first floor and barsati of the same property i.e. property bearing No. E -6A, Hauz Khas, New Delhi. The ground floor comprises of two shops numbered 1 & 2; present tenant is in occupation of shop No. 2 and mezzanine above it. Shop No. 1 is in possession of the landlord from where he is running his clinic; he is also using part of the mezzanine floor for storage purpose for keeping his records and other goods. The balance portion of the mezzanine floor is being used by him for drawing -cum -dining room and a toilet for the guests. The space available with the landlord is highly insufficient; he cannot run his clinic comfortably; he has installed two machines i.e. one X -ray machine and ultrasound machine; he has two employees i.e. one receptionist and a technician who assist the petitioner in conducting X -ray tests and in preparing images. In front of shop No. 1, (in occupation of the landlord) there is small covered verandah which is being used as a reception; only one table and chair can be accommodated therein; the petitioner is left with only one bench where two or three patients or their relatives can be accommodated; behind the reception, there is one small room in which the petitioner has made a waiting room where only six patients or their relatives can be accommodated; behind this waiting room, he is having a small passage which leads to the ultrasound room which is also a very small room and a toilet which opens in this ultrasound room; the petitioner has installed one X -ray machine in other room; in the passage which leads from the waiting room to the ultrasound room, the petitioner has put one small table where he has installed one computer and printer in order that the landlord can examine the reports and discuss the problems with his patients; this space is highly insufficient; the shop presently in occupation of the tenant when added to the existing space will enable the landlord to have an independent cabin of his own which is a necessity for him keeping in view the nature of his profession. The clinic of the petitioner as on date can accommodate only nine persons at a given time; during the clinic timings, there are more than 15 -20 persons including patients and relatives who meet him; due to lack of sitting capacity, they have to stand outside the clinic and sometimes even on the main road; place is highly insufficient. There only small toilet in whole of the clinic is also situated in the ultrasound room; if any of the patients or their relative or even the staff have to go to toilet, they have to go through this ultrasound room which cause inconvenience and also makes the clinic unhygienic. With the advancement of technology, the petitioner also proposes to install a digital system to replace the old X -ray machine which has at present but because of paucity of space, he cannot do so; this digital system requires a space of 6'X10' feet. Eviction petition has accordingly been filed.

(2.) WRITTEN statement was filed. The bone of contention urged in the written statement and argued before this Court is largely two -fold; first submission being that the petitioner is not the owner; even presuming that his mother Manorama Gupta was the owner of the premises, the present petitioner namely Dr. Gopal Kumar Gupta does not automatically get the vested right and interest in the property; there are other co -owners; their interest has also to be watched; they have not been pleaded; this ground has been seriously challenged. The second submission of the learned counsel for the tenant is that a case of bonafide need has not been established; attention has been drawn to the examination and cross -examination of PW -1; contention being that it has nowhere depicted that the accommodation presently available with the landlord/doctor is insufficient; this need is malafide; a 'pagri' had been given to the landlord at the time of initiation of the tenancy and since the rent is meager, this is only reason why the tenant is sought to be evicted.

(3.) THE need of the landlord has also been reiterated in this deposition; his submission that the space presently available is insufficient for running a clinic and he requires additional space as he has only one shop in his occupation; the landlord has installed two machines i.e. one X -ray machine and an ultrasound machine; he wishes to install a modern digital system which because of paucity of space has not been able to do so. He has a staff comprising of a receptionist and a technician who assist him in conducting X -ray tests and in preparing the images. PW -1 has further deposed that there is only one small toilet in the entire clinic situated in the ultrasound room; if any person has to go to the toilet, he has to go through the ultrasound room which also causes inconvenience and makes it unhygienic for which the practice of the doctor also suffers. He has further deposed that because of paucity of time, the patients have to sit outside the clinic and sometime even on the main road. Perusal of the site plan Ex. PW -1/4 substantiates this submission.