Anand Prakash vs Ram Murti Devi
2010 Latest Caselaw 2332 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

              + RC.REV.100/2010 and CMs 8110-11/2010

                                                 Date of decision : 03.05.2010
IN THE MATTER OF :

ANAND PRAKASH                                                ..... Petitioner
                            Through: Mr. Pradeep Gupta, Mr. Suresh Bharti and
                            Mr. Arvind Bansal, Advocates

                      versus

RAM MURTI DEVI                                                        ..... Respondent
                            Through: Nemo.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may                         Yes
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?                        Yes

     3. Whether the judgment should be                                Yes
        reported in the Digest?

HIMA KOHLI, J. (ORAL)

1. The petitioner/tenant has assailed an order dated 03.03.2010

whereby the Additional Rent Controller, dismissed his leave to defend

application filed in reply to the eviction petition preferred by the

respondent/landlady under Section 14(1)(e) of the Delhi Rent Control Act

(hereinafter referred to as 'the Act'), in respect of a shop situated on the

ground floor of property bearing No.B-8, Shopping Centre II, Vivek Vihar,

Delhi, and simultaneously passed an eviction order in favour of the

respondent/landlady, with a condition that the same shall not be executed

for a period of six months from the date of passing of the order.

2. In the eviction petition, the respondent/landlady has claimed

that she is the owner of the tenanted premises situated on the ground floor

and that she and her husband live on the floor above. While the

respondent/landlady is aged 67 years, her husband is 71 years old. It is

averred that she is suffering from a number of ailments and is unable to

take care of herself and her husband has undergone a heart surgery. It is

further stated that the respondent/landlady and her husband have no male

issue to look after them and their three daughters are married and well

settled in their marital homes. The respondent/landlady states that she

needs the constant presence of her husband to look after her and to provide

her medical assistance in case of need. The husband of the

respondent/landlady conducts his business from a tenanted premises

situated in Naya Bazar, Delhi. It is stated that as Vivek Vihar, i.e., the

place of residence of the respondent/landlady is far from Naya Bazar, her

husband is unable to conduct his business from such a long distance on

account of having to attend to the medical contingencies of his wife and as a

result, his business suffers on account of his absence. Thus the

respondent/landlady has sought the eviction of the petitioner/tenant from

the tenanted shop situated on the ground floor of her residential premises,

to enable her husband to shift there and conduct his business therefrom.

3. Summons were issued in the eviction petition under the Third

Schedule whereafter, the leave to defend application was filed by the

petitioner. In the leave to defend application, the petitioner/tenant stated

that the respondent/landlady has filed the eviction petition only to harass

him and that earlier also she had filed a petition against him under Section

14(1)(k) of the Act, which was dismissed. There are also certain FIRs stated

to have been lodged by both the parties against each other in respect of

which, proceedings are pending in the concerned courts. The

petitioner/tenant further averred in his leave to defend application that the

husband of the respondent/landlady is settled in his business of selling rice

and other commodities in a tenanted premises situated in Naya Bazar and

that the tenanted shop at Vivek Vihar is not required by the

respondent/landlady for bonafide purposes. The petitioner/tenant further

submitted that the husband of the respondent/landlady is hale and hearty

and regularly attending to his business at Naya Bazar and that the

respondent/landlady has three shops in the suit premises, including the

tenanted premises, which are let out by her and that sufficient

accommodation is available to her on the upper floor of the suit premises.

4. After considering the respective submissions made by the

counsels for the parties and perusing the leave to defend application, the

Additional Rent Controller examined the stand of the petitioner/tenant and

arrived at a conclusion that he had not been able to raise any triable issue in

the leave to defend application and as a result, the said application was

dismissed and the eviction petition was allowed.

5. Counsel for the petitioner/tenant has raised three-pronged

arguments. He firstly submits that the learned Additional Rent Controller

failed to take into consideration the submission of the petitioner that apart

from the shop let out to him, there were two other shops, which were

available to the respondent/landlady, and which could have been got

vacated by her, but she concealed the said fact from the Court. He submits

that while one of the shops is under the occupation of the son-in-law of the

respondent/landlady, the other shop is under the tenancy of another tenant.

The said submission of the learned counsel is not borne out from the record.

It is not a case of concealment of the extent of accommodation available

with the respondent. Rather, a perusal of the site plan annexed with the

eviction petition reveals that all three shops on the ground floor have been

duly reflected by the respondent/landlady. She has further elaborated in the

reply to the leave to defend application that apart from the shop under the

occupation of the petitioner, one of the remaining two shops is under the

tenancy of Sh.Ashok Kumar, her son-in-law who is running a provision store

therefrom, and the other one is let out to one Sh.Ranjit Singh, a tailor.

Therefore the alleged failure on the part of the respondent/landlady to reveal

the existence of three shops on the ground floor, cannot be treated as a

triable issue for the purposes of permitting the petitioner to contest the

eviction petition by filing a written statement.

6. In any case, it is the discretion of the petitioner/landlady to

determine her needs when asking for vacation of a tenanted premises,

subject of course to the said need being bonafide. Similarly, it is the

discretion of the respondent/landlady to select the tenant against whom she

initiates proceedings for eviction. Mere availability of two other tenanted

shops on the ground floor cannot be a ground on which the respondent can

be ousted.

7. Counsel for the petitioner/tenant next contends that the

respondent/landlady has not revealed the fact that the shop on the ground

floor under the occupation of her son-in-law for running a provisional shop,

is a camouflage and that in fact, the said shop is being run by the husband

of the respondent. A perusal of the leave to defend application shows that

no such plea was raised by the petitioner/tenant before the learned

Additional Rent Controller. Instead, in para 5(j) of the leave to defend

application, on which reliance is placed by the counsel for the petitioner, the

only allegation made was that the son-in-law and the daughter of the

respondent/landlady are running a provisional store from the shop in

question and taking care of the respondent/landlady. Taking care of the

respondent/landlady cannot be equated with the contention sought to be

raised now that the shop is actually being run by the husband of the

respondent/landlady and not their son-in-law. The said ground having not

been raised in the leave to defend application, cannot be permitted to be

urged at this stage.

8. Lastly, it is alleged by the counsel for the petitioner that there is

no bonafide need for the tenanted premises made out by the

respondent/landlady inasmuch as her husband is running his business from

Naya Bazar, which shop is available to him. It is however not denied by the

petitioner/tenant that the shop at Naya Bazar is a tenanted shop. It is also

not stated if there is any other commercial premises apart from the suit

premises, which is available to the respondent/landlady for her husband to

shift his business from the presently occupied tenanted premises at Naya

Bazar to the other premises. It is an admitted position that the

respondent/landlady and her husband are senior citizens, and that they have

no male issue to take care of them. The state of health of the

respondent/landlady and the necessity of her care and supervision by her

husband is also not disputed. It is also undisputed that the sole earning

member of the family is the husband of the respondent/landlady, who has to

travel from Vivek Vihar to Naya Bazar to conduct his business.

9. In these circumstances, it is not unreasonable for the Additional

Rent Controller to have concluded that the shop in question being located

right beneath the residential premises of the respondent/landlady, is

bonafide required for being used by her husband to run his business

therefrom. At the same time, he would be readily available to take adequate

care of his wife in case of an emergency on account of her poor health. It

has been correctly concluded in the impugned order that the husband of the

respondent/landlady is well entitled to carry out his business from the

tenanted premises which is the most suitable option available to them, given

the age and the health condition of the respondent/landlady and her

husband.

10. No other ground is urged by the counsel for the petitioner to

assail the impugned order.

11. The impugned order is found to be in accordance with law and it

is held that the same does not suffer from any irregularity, perversity or

illegality, which deserves interference.

12. Accordingly, the present petition is dismissed alongwith the

pending applications, as being devoid of merits.

                                                           (HIMA KOHLI)
      MAY   03, 2010                                          JUDGE
      rkb