Krishan Lal vs R N Bakshi
2010 Latest Caselaw 2651 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

             + RC.REV. No.117/2010 & CMs No.9379-80/2010

                                        Decided on 19.05.2010

IN THE MATTER OF :

       KRISHAN LAL                      ..... Petitioner
                        Through : Mr. Nishant Dutta, Adv.

                  versus

       R N BAKSHI                         ..... 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.

1. The present petition is directed against the order dated

5.3.2010 passed by the learned Additional Rent Controller dismissing

the leave to defend application filed by the petitioner/tenant in respect

of an eviction petition filed by the respondent/landlord under Section

14(1)(e) read with Section 25-B of the Delhi Rent Control Act, 1958

(in short 'the Act') and simultaneously passing an eviction order in

favour of the respondent/landlord, in respect of one shop bearing

private No.1, situated on the ground floor of the property bearing

No.J-80, Rajouri Garden, New Delhi.

2. Briefly stated, the facts of the case are that the

respondent/landlord filed an eviction petition under Section 14(1)(e) of

the Act, stating inter alia that the aforesaid shop was let out to the

petitioner/tenant for commercial purposes in the year 1959 at a

monthly rent of Rs.30/-, which subsequently stood enhanced to

Rs.720/- per month. The respondent/landlord is a senior citizen aged

82 years and has got three sons and one daughter. All the children

are stated to be married. His three sons are settled abroad. The

respondent/landlord averred that he wanted to carry on his business of

stationery and photostat in the shop in question, for maintaining

himself and his dependent family members. It is an admitted position

that there are three rooms on the front side of the suit premises, out

of which one is in occupation of the petitioner/tenant and the second

room is in occupation of the other tenant. The respondent/landlord

has stated that the third room is being used by him as a garage for

parking his car for the past 20 years. He, therefore, claimed that he

did not have other suitable accommodation to start his business,

except for the tenanted premises under the occupation of the

petitioner/tenant, subject matter of the eviction petition.

3. After service was effected on the petitioner/tenant under

the Third Schedule, a leave to defend application was filed by him. In

the said application, while the petitioner/tenant did not dispute

relationship of landlord and tenant between the parties, he sought

leave to contest the eviction petition on various grounds including the

ground that the requirement as set out by the respondent/landlord for

getting the tenanted premises vacated, is not bona fide; that the

respondent/landlord does not have any other financial obligation,

except for looking after himself and his spouse, his three sons being

well settled abroad; that the eviction petition is being used as a handle

to pressurize the petitioner/tenant to increase the rate of rent; that

the respondent/landlord did not specify as to what kind of business he

intends to carry on and lastly, it was stated that the

respondent/landlord has ample space in his drive way to park his car

there, while putting to use the space for the garage, as a shop.

4. In the reply to the application for leave to defend, it was

stated by the respondent/landlord that he had retired from

government service in the year 1984 and at that time, his pension was

fixed at Rs.873/- per month, which after revision is Rs.7,721/- per

month. It was averred that the said amount is insufficient to maintain

him and his family members and that he does not have any other

source of income and hence, the requirement to use the tenanted

premises under the occupation of the petitioner/tenant for carrying on

his business, is bona fide. It was further stated that the garage could

not be converted into a shop and that he wanted to use the garage for

parking his car as he could not keep his car outside the house.

5. After hearing the counsels for the parties, the learned

Additional Rent Controller dismissed the leave to defend application of

the petitioner/tenant by holding that he had not been able to raise any

triable issue which entitled him to contest the eviction petition on

merits. Aggrieved by the said order, the petitioner/tenant has filed

the present petition.

6. Counsel for the petitioner/tenant has raised two fold

grounds to assail the impugned order, which are interlinked. His first

contention is that the learned Additional Rent Controller failed to

consider the submission of the petitioner/tenant that the

respondent/landlord could easily put the garage to use as a shop by

parking his car in the drive way of the suit premises. His second

argument is that the learned Additional Rent Controller failed to

appreciate the submission made on behalf of the petitioner/tenant that

considering the fact that the garage in question was available for being

put to use as a shop and was not being so used by the

respondent/landlord, his requirement for the tenanted premises could

not be treated as bona fide. He stated that on many occasions, the

landlord has actually parked his car in the drive way which shows that

the car could be parked there on a permanent basis, without displacing

the petitioner/tenant. In support of his submissions, he relies on the

judgment of the Supreme Court in the case of Shiv Sarup Gupta vs.

Dr. Mahesh Chand Gupta, reported as (1999) 6 SCC 222.

7. Learned counsel for the petitioner/tenant has been heard

and the documents placed on the record, perused. This Court need

not delve into the other contentions raised in the leave to defend

application filed by the petitioner/tenant in view of the limited grounds

urged to assail the impugned order, as set out in the foregoing para.

The submissions made on behalf of the petitioner/tenant with regard

to the availability of the garage to the respondent/landlord for being

put to use as a shop, has been dealt with by the learned Additional

Rent Controller in para 12 of the impugned order. It was observed

that the tenant could not dictate to the landlord the manner in which

he was to use the space available with him and further, that no space

would be left for ingress and egress into the house, if the car is parked

in the drive way. For arriving at the said conclusion, the learned

Additional Rent Controller relied on the following judgments :

1. Sarla Ahuja vs. United India Insurance Co. Ltd., (1998) 8 SCC

119;

2. Rishi Kumar Govil vs. Maqsoodan, 2007 (1) RCR (Rent) 405.

3. Sudesh Kumari Soni vs. Prabha Khanna, 2008 (2) RCR (Rent)

534; and

4. Mahendra Trivedi vs. Jai Prakash Verma, 157 (2009) DLT 690

8. It is settled law that it is not for a tenant to dictate the

terms to the landlord as to how and in what manner he should adjust

himself, without calling upon the tenant to vacate a tenanted

premises. While deciding the question of bonafides of requirement of

landlord, it is quite unnecessary to make an endeavour as to how else

the landlord could have adjusted. When the landlord shows a prima

facie case, a presumption that the requirement of the landlord is

bonafide, is available to be drawn. It is also settled position of law

that the landlord is the best judge of his requirement for residential or

business purpose and he has got complete freedom in the matter and

it is no concern of the courts to dictate to the landlord how, and in

what manner, he should live or to prescribe for him a residential

standard of their own. The tenant cannot compel a landlord to live in

a particular fashion and method until and unless the requirement

shown is totally mala fide or not genuine. In this regard, a few

decisions, apposite on this point may be referred to: -

1. Prativa Devi vs. T.V. Krishnan (1996) 5 SCC 353

2. Sarla Ahuja vs. United India Insurance Co. Ltd. AIR 1999 SC

3. K.K. Ohri vs. Dr. Balraj Seth & Ors. 82(1999)DLT 906

4. Ragavendra Kumar vs. Firm Prem Machinery & Co.(2001) 1

SCR 77

5. Deep Chandra Juneja vs. Smt. Lajwanti Kathuria (Dead)

through LRs AIR 2008 SC 3095

6. Smt. Sudesh Kumari Soni & Anr. Vs. Smt. Prabha Khanna &

Anr. 153 (2008) DLT 652

9. In the present case, the question of testing the bona fides

of the landlord merely on the ground raised by the petitioner/tenant

that the space available to him and being put to use for parking his

vehicle, can be utilized for running a shop, does not arise. The

foundation on which this argument has been laid, is itself fallacious.

The petitioner/tenant is under a misconceived conception that it is for

him to choose as to how the respondent/landlord ought to live and put

to use his premises. The submission of the counsel for the

petitioner/tenant that the drive way can be put to permanent use by

the respondent/landlord as a garage, is held to be devoid of merits.

Merely because the respondent/landlord has on some occasions used

the drive way to park his vehicle, cannot be a ground to urge that he

should park his car in the drive way on a permanent basis.

10. It is a matter of common knowledge that the roads in Delhi

are spilling over with vehicular traffic. While vehicles on the road are

ever increasing in numbers, the parking space available on the roads

has shrunk on account of development work and road expansion

activities undertaken by the civic authorities. Thus, the stress and

strain of living in a metropolitan city is most visible on the roads,

where competing claims are often sought to be resolved by use of

muscle power. Every other day there are reports of altercations and

ugly disputes, sometimes resulting in physical assault and murder,

sparked off from paucity of parking space for vehicles. In such

circumstance, the insistence on the part of the petitioner/tenant that

the respondent/landlord, who is a senior citizen, aged 82 years, ought

not to use the space available as a garage in his own premises, for

purposes of parking his car, and instead, put it to use for running a

shop, is wholly untenable and cannot be sustained. In today's day and

time, parking of the car by the respondent/landlord in a portion of his

residence facing the road, which he has designated as a garage,

cannot be called a luxury, but a sheer necessity, particularly, when

even the civic authorities have woken up to the need of imposing road

tax on users of public space for the purposes of parking private

vehicles.

11. The submission made on behalf of the petitioner/tenant

that the respondent/landlord ought to park his car in the drive way is

therefore, unacceptable and turned down. The landlord is the best

judge of his requirements. He is justified in stating that the ingress

and egress to his residence would be jeopardized/obstructed if the car

was to be parked permanently in the drive way. In any case, as noted

above, it is the choice of the respondent/landlord where to park his

vehicle and if the room facing the main road is available for being used

as a garage for parking his car, he cannot be asked to put it to a

different use, only to ensure that status quo with regard to the

tenanted premises is maintained in favour of the petitioner/tenant.

Nor can the need of the respondent/landlord be treated to be mala fide

or non-genuine. The grounds raised by the petitioner/tenant for

seeking leave to defend, if accepted, would amount to depriving the

respondent/landlord of the garage for the purposes of parking his

vehicle, which are neither bona fide, nor reasonable. The judgment

cited by the counsel for the petitioner/tenant also does not advance

his case. The respondent/landlord is not under any obligation to use

the garage as a shop, as suggested by the petitioner/tenant. His

refusal to do so, cannot be treated as unreasonable. Nor can the

space being put to use as a garage, be treated as an "reasonably

suitable alternate accommodation", so as to disentitle the

respondent/landlord to the relief sought under Section 14(1)(e) of the

Act.

12. This Court, therefore, concurs with the findings of the

learned Additional Rent Controller. The impugned order is held to be in

accordance with law. The present petition is dismissed as being

devoid of merits.

                                                          (HIMA KOHLI)
       MAY 19, 2010                                         JUDGE
       sk