(1.) THE impugned judgment is dated 08.06.2011. THE eviction petition filed by the petitioners namely Sanjeev Khandelwal and Charu Khandelwal claimed to be the owners/landlords of the suit property seeking eviction of their tenant M/s Archies from the suit premises which was on the ground floor of property bearing No. 4714 Dayanand Road 21, Darya Gang, New Delhi in eviction proceedings under Section 14 (1)(e) of the Delhi Rent Control Act (DRCA) had been decreed in their favour. THE application seeking leave to defend filed by the tenant had been dismissed.
(2.) THE eviction petition discloses that there are two petitioners (hereinafter referred to as the landlords) who had filed the petition. Contention was that the premises were initially owned by the grandmother of landlord No. 1 namely Smt. Suraj Mukhi Khandelwal who in terms of a registered Will dated 11.12.1997 executed by the deceased had bequeathed this entire property to petitioner No. 1. THE respondent was a tenant of the erstwhile landlord namely Smt.Suraj Mukhi Khandelwal. THEre is no dispute to this position. Suraj Mukhi Khandelwal had died on 06.02.2000. A suit for injunction and declaration was thereafter filed by the present landlords seeking payment of rent by the tenant in their favour; in the course of these suit proceedings, a compromise was arrived at inter-se between the family members on 16.04.2004 and in terms of this compromise the portion shown in green colour in the site plan Ex. C-1 on the first floor and the second floor of the property bearing No. 4712-14 Dayanand Road 21, Darya Ganj, New Delhi had fallen to the share of the present landlords; the portion shown in blue colour in the said site plan had fallen to the share of mother and brother of petitioner No. 1; the tenanted portion red on the ground floor had also fallen to the share of the present petitioners. This was in terms of a compromise decree dated 16.04.2004. Copy of the aforenoted compromise dated 16.04.2004 is a part of the record; there is no dispute to these averments which have been substantiated from the aforenoted compromise decree. This submission of the landlord is further substantiated by documentary evidence which is mutation Sub-Division Letter dated 07.06.2004 and house tax payment receipts which have been issued in the name of Saroj Khandelwal, the mother of landlord No. 1 substantiating his submission that the blue colour portion had fallen to the share of his mother in terms of the aforenoted compromise. This has been clearly averred in the eviction petition. THE eviction petition further contends that because the parties wanted to maintain cordial relations with one another, the petitioners (who were in terms of the Will dated 11.12.1997 of the grandmother entitled to full share in the property) had given up their right in the blue coloured portion in favour of their mother Saroj Khandelwal and brother Rajiv Khandelwal; the landlords continued to remain the owners of the green coloured portion on the first and the terrace floor as depicted in the site plan; red colour portion with the tenant had also fallen to their share. Further contention of the landlord is that the accommodation presently available with the landlords is insufficient; the family of two petitioners comprises of themselves as also their adult daughter; they are three persons; present accommodation available with them on the first floor is only two rooms of which in one room along with the terrace, a beauty parlour is being run by landlord No. 2 since last 11-12 years under the name and style of 'Jhalak'; the submission of landlord that his wife i.e. landlord No. 2 is carrying out this work of a beauty parlour; there is no business space with petitioner No. 1 to carry out his business; because of compelling circumstances and lack of office space, he had in fact taken up a private service which he had left in 2007 and had started his own business in the name of 'Vasudha Impex' which was of sale of sanitary pipes and fittings for plumbing and medical applications; he is carrying out his business of 'Vasudha Impex' from the portion shown in 'X' in the site plan i.e. a small portion of the verandah (measuring 9.9'X7.5' feet on the first floor and as depicted in portion 'X') in the green colour portion which was his share. To support this submission documents i.e. the Central Sales Tax registration number of 'Vasudha Impex'; income tax returns for three consecutive years ranging from 2004-2005, 2005- 2006 & 2006-2007 have also been filed showing that landlord No. 1 is earning business income after the year 2007. Bank statement of 'Vasudha Impex' as also VAT returns also substantiate the submission of petitioner No. 1 that the business of 'Vasudha Impex' is being carried out from the portion X on the first floor of the aforenoted property. In fact this has also not been disputed by the tenant; his submission being that it is not petitioner No. 1 who is carrying on the business of 'Vasudha Impex' but it is his bua. Further contention of landlord No. 1 being that the place available with him is not sufficient for running his office for the storage of goods which includes sanitary pipes which have a standard length of 10 feet. Photographs substantiating this submission are also a part of the trial court record.
(3.) THE next argument of the learned counsel for the petitioner/tenant is that the MCD does not permit a godown to be functional from the ground floor of Darya Ganj and this is evident from the answer which the petitioner had received to his query raised under the RTI Act; attention has been drawn to this communication dated 22.01.2010 which states that property bearing No. 4712-14 Dayanand Road 21, Darya Ganj, New Delhi where a sanitary godown is not permissible; submission of the petitioner being to the effect that a sanitary godown is not permitted in the portion of the premises of which the eviction has been sought by the landlord. Thus it cannot be said that this is a bonafide need and this in fact raised a triable issue. In this context, the certification of registration under the Sales Tax Authority as noted supra is relevant; it clearly states that the business of 'Vasudha Impex' is sanitary pipes, sanitary fitting, sanitary tubes, pipe and fitting for medical applications; the requirement of the landlord as is evident from the eviction petition is not only for the purpose of storage of these goods which includes goods for medical applications but also for the purpose of an office space for business space which in terms of the eviction petition is clearly falling short and there is no other space available for the petitioner except the portion 'X' in his green colour portion of the site plan. Moreover even as per the answer to the RTI query this is Mix Use Commercial Street (MSCS) which would be both a residential and commercial purpose; the requirement of the landlord in terms of his eviction petition is for an office space which is admittedly a permissive user. Thus this submission of the petitioner is also without any merit; it does not raise any triable issue.