M/S. Kharati Ram Khanna & Sons vs Smt. Krishna Luthra
2010 Latest Caselaw 4302 Del

*            HIGH COURT OF DELHI : NEW DELHI

      R.C. REV. No. 113/2010 and C.M. No. 9000/2010 (Stay)

%            Judgment reserved on: 17nd August, 2010

             Judgment delivered on: 15th September, 2010

      M/S. KHARATI RAM KHANNA & SONS
      THROUGH ITS PARTNER
      SH. PREM PARKASH KHANNA
      SHOP NO. 538, KATRA NEEL,
      CHANDNI CHOWK, DELHI-110056
                                                   ....Petitioner.

                          Through:      Mr. Harish Malhotra, Sr. Adv.
                                        with Mr.Vivek Singh & Mr.
                                        Abhinav Bajaj, Advs.

                   Versus

      SMT. KRISHNA LUTHRA
      W/O SH. KRISHAN LAL LUTHRA
      R/O B-2/34, ASHOK VIHAR-II
      NEW DELHI-110052                              ..... Respondent

                          Through:      Mr. J. M. Sabharwal, Sr. Adv.
                                        with Mr. S. K. Chaudhry and
                                        Mr. K. N. Singh, Adv.



Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                 Yes

2. To be referred to Reporter or not?              Yes

RCR No. 113/2010                                         Page 1 of 22
 3. Whether the judgment should be reported
   in the Digest?                                   Yes

V.B.Gupta, J.

Present revision has been filed against order dated 18 th

February, 2010 passed by Additional Rent Controller (for short as

„Controller‟) Delhi, vide which application under Section 25-B of

Rent Control Act 1958 (for short as „Act‟) seeking leave to contest

filed by respondent, was dismissed and eviction order has been passed

against petitioner.

2. Brief facts are that respondent (who is petitioner in trial court)

is owner/ landlord of shops number 538 and 539, Katra Neel, Chandni

Chowk, Delhi and is in occupation of shop no. 539. Petitioner (who is

respondent /tenant in trial court) had taken shop no. 538, measuring

approximately 65 sq. yards, at a monthly rent of Rs.18/- per month,

from predecessor-in-interest of respondent. In 1988, husband of

respondent took on rent one shop bearing no. 540 in same vicinity

from Sh. Vijay Sharma and shifted his family business to the same.

However, Wakf Board raised dispute about ownership of the said

shop and initiated action against the husband of respondent, who filed

a suit for injunction against Wakf Board, but lost the same. Appeal

against same is pending. The occupation of the said shop has now

become uncertain.

3. Sh. K. L. Luthra, husband of respondent and her two sons

namely, Sh. Deepak Luthra and Sh. Manoj Luthra shifted major part

of their business of fancy embroidery suits and other apparels to shop

number 539. The width of its front portion is about 8 feet in all. Rest

of the portion of shop is behind the demised shop. Family business of

respondent is facing lot of difficulties as front portion of shop is too

narrow and inadequately spaced to attend all the customers.

Invariably, customers at the shop of respondent have to stand outside

till the customers already inside the shop leave the shop. Respondent

has claimed bonafide requirement for the premises in question on the

ground that a sufficient big space is required to display embroidery

work in the shop and windows. Respondent also wants to make

division of entire space available in shops no. 538-539 to establish her

sons separately and independently in her property and in the same

trade. Since width of shop in occupation of respondent is only around

8 feet, it is not possible to divide it further to carve out two

independent shops. Only option for respondent is to get the demised

shop vacated and divide entire portion of two shops bearing no. 538

and 539 in equal shares up to the rear portion and have two

independent shops of the same dimensions.

4. It is also stated that petitioner has already acquired another shop

bearing no. 741, Nai Basti, Katra Neel, Chandni Chowk, Delhi-

110006 and has shifted his business there.

5. Respondent does not have any other shop or commercial space

to accommodate her sons separately and independently without

disturbing the existing business. The members of family of

respondent who are dependent on her for the purpose of space to run

their business from the shop are; her 73 years old husband, Sh. Manoj

Kumar Luthra and Sh. Deepak Luthra, her married sons.

6. In affidavit for leave to contest, it is stated that shop under

litigation cannot be used as accommodation. Sh. Deepak Luthra, son

of respondent owns and runs his business from the ground floor of

property no. 770, Katra Neel, Chandni Chowk, Delhi, who also owns

property no. B-2/27, Ashok Vihar, Phase-II, New Delhi and is living

in the said property.

7. It is also stated that property No. 538 and 539, cannot be

divided into two portions separately as they are already separated.

Respondent has taken contradictory stand and she did not

intentionally mention that her husband and sons are running business

under the name and style of M/s Kishan Lal Luthra and Sons HUF at

539-540 and 770, Katra Neel, Chandni Chowk, Delhi. Respondent

has more than sufficient accommodation of residence as well as that

of the business. Thus, eviction petition does not disclose any cause of

action.

8. In counter affidavit filed by respondent, it is stated that her son

is not running any business from the ground floor of property bearing

no. 770, Katra Neel, Chandni Chowk, Delhi. The store in property no.

770, Katra Neel is used as godown and the same is not suitable for

running the business. It is further stated that property bearing No. B-

2/77, Ashok Vihar, Phase-II, New Delhi, is an exclusive residential

accommodation of respondent and members of the family dependant

on her for purpose of residence.

9. It is denied that her sons and husband are running their business

activities from premises bearing no. 539-540 and 770, Katra Neel

Chandni Chowk, Delhi. Store in premises no. 770, Katra Neel, is a

godown and same is not suitable for running business. However,

Shop bearing No. 540, Katra Neel, does not belong to her husband or

sons of respondent and they do not have any vested right in the same.

This shop is in occupation of her husband as a license and the same in

dispute. Her husband may have to leave the same as he was unable to

get order of stay of dispossession against Wakf Board which claims

ownership of the same. Her sons are running their business only from

shop no. 539, Katra Neel, Delhi. She has decided to provide separate

shops to both her sons, so as to enable them to run their independent

and separate business.

10. It is contended by learned counsel for petitioner that in leave

application, triable issues for consideration have been raised and as

such leave to defend ought to have been granted. A statutory duty is

cast on the Controller to grant leave to the tenant to contest and

defend the eviction petition, if affidavit filed by tenant discloses such

facts as would disentitle the landlord for an order to recover

possession. The test is to see whether the defence raises a real issue

and not a sham one, that is, if the facts alleged by petitioner are

established there would be a good and plausible defence on those

facts.

11. It is further submitted that respondent have made a false

averment on oath and have concealed facts, as she owns and possess

shop no. 770 in the vicinity of shop no. 539-540 and her husband and

children are carrying on their business from the said premises. Total

area of that shop is 150 sq. yard and fact of existence of shop no. 770

has been subsequently admitted by respondent, though the same has

been allegedly termed as godown. Since, factum of shop no. 770 has

not been disputed thus, only issue is whether shop has reasonable area

and is suitable and sufficient for carrying on business. The issue of

purpose of use is certainly a question of trial and no document has

been produced to show that shop no. 770 is being used as a godown.

Thus, respondent has sufficient space for expansion of their business.

Present eviction petition is utterly malafide, as respondent has

alternate accommodation by way of shop no. 770 available to her.

12. In support, learned counsel relied upon following judgments:-

(i) Precision Steel and Engineering Works and Another Vs. Prem Deva Niranjan Deva Tayal, 1983 (1) SCR, 498;

        (ii)    Satto Devi Vs. Om Prakash Saini,
               1997 IV AD (Delhi) 534;

(iii) Charan Dass Duggal Vs. Brahma Nand, 1983 (1) SCC 301 and

(iv) Inderjeet Kapur Vs. Nirpal Singh JT 2001 (1) SC 308.

13. The underlying principle of law laid down in above judgments

is that;

"Leave to defend must be granted where tenant raises triable issues making out a prima facie case against landlord‟s eviction suit on ground of personal requirement filed u/s 14 (1) (e) read with Section 25B of the Act."

14. On the other hand, it is submitted by learned counsel for

respondent that averments made by respondent in para 18 (a) (iv),

(vii), (viii) and (x) of the eviction petition have not been denied by

petitioner. Son of respondent is not running any business on the

ground floor of property no. 770, as the same is being used as a

godown and same is not suitable for running the business.

15. It is also contended that though property no. 540 is being used

for business by husband of respondent but it does not belong to her

husband or sons. Her husband is only a tenant in this premises.

16. It is further contended that sons of respondent are running their

business only from shop no. 539 and respondent has decided to

provide separate shops to her sons so as to enable them to run their

independent and separate business. Thus, respondent bona fide

requires the shop in question for her sons who want to carry out

separate business in their respective portion. As far as Ashok Vihar

property is concerned the same is residential one. Thus, there is no

triable issue in this case.

17. In support, learned counsel for respondent cited following

judgments:-

(i) Narinder Kumar Vs. Vishnu Kumar Nayyar, 49 (1993) Delhi Law Times 684;

       (ii)    J. Chatterjee Vs. Mahinder Kaur,
               2000 RLR 561 (SC);

(iii) M/s John Impex (Pvt.) Ltd. Vs. Dr. Surender Singh and Ors.

Delhi High Court, 2007 (1) RCR 509;

(iv) Mohd. Usman Vs. Siraj Ahmed, 154 (2008) Delhi Law Times 342;

(v) Nem Chand Daga Vs. Inder Mohan Singh Rana, 94 (2001) Delhi Law Times 683;

(vi) Hari Shankar Vs. Madam Mohan Gupta, 111 (2004) Delhi Law Times 534;

(vii) Shamshad Ahmed & Ors. Vs. Tilak Raj Bajaj (Deceased) 152 (2008) DLT 301 (SC);

(viii) Rajinder Kumar Sharma & Ors Vs. Leela Wati & Ors.

155 (2008) Delhi Law Times 383;

(ix) Om Prakash Vs. Chaman Industries and Ors.

159 (2009) Delhi Law Times 400;

(x) Sudesh Kumar Soni & anr. Vs. Prabha Khanna & Anr., 153 (2008) Delhi Law Times 652;

(xi) Rupareal & Company (Delhi) Vs. S. Avtar Singh Puri (Decd.) Through LRs. & Ors, 159 (2009) Delhi Law Times 101 and

(xii) Satyawati Sharma Vs. Union of India, 2008 (5) SCC 287.

18. There is no dispute about relationship of landlord and tenant

between the parties. As far as letting purpose is concerned, same is

for non residential purpose. In Satyawati Sharma (Supra) it has been

held,

"The premises let out either for residential or commercial purposes can be got vacated by the landlord for bonafide requirement".

19. Present petition has been filed under Section 25B (8) of the Act.

A full Bench of this Court in Mohan Lal Vs. Ram Chopra and

another, 1982 (2) Rent Control Journal 161 exhaustively considered

the provisions of Section 25B of the Act. On the scope of the proviso

to sub-section (8) of this Section, after examining the judgment of

Supreme Court in Hari Shanker and others. Vs. Rao Girdhari Lal

Chowdhury, A.I.R. 1963 S.C. 698 and Bell and Co. Ltd. Vs. Waman

Hemraj, AIR 1938 Bombay (223) it was laid down as follows:-

"In our opinion the jurisdiction of the High Court under proviso to section 25B (8) has to be interpreted, keeping in view the legislative intent. The revision under section 25B (8) cannot be regarded as a first appeal and nor can it be as restricted as the revisional jurisdiction under Section 115 CPC. The High Court would have jurisdiction to interfere if it is of the opinion that there has been a gross illegality or material irregularity which has been committed or the Controller has acted in excess of his jurisdiction or has not exercised the jurisdiction vested in him. A finding of fact arrived at by the Controller would not be interfered with by the High Court unless it can be shown that finding has been arrived at by misreading or omitting relevant evidence and this has resulted in gross injustice being caused. If none of the aforesaid circumstances exist the High Court would not be entitled to interfere with the order of the Controller in exercise of its jurisdiction under proviso to Section 25B (8) of the Act."

20. Upon examination of above judgment it may safely be held that

this court in exercise of the powers vested by proviso to sub-section

(8) of Section 25B of the Act may reappraise the evidence only for a

limited purpose of ascertaining whether the conclusion arrived at by

the Rent Controller were wholly unreasonable that no reasonable

person acting with objectivity could have reached on the material

available to test the order of the Rent Controller on the touchstone of

whether it is in accordance with law.

21. In Praveen Jain & Ors (Shri.) Vs. Dr. Mrs. Vimla, 2009 IV

AD (Delhi) 653, this court observed;

"The powers of this Court under Section 25B(8) are not appellate powers and this Court has only to see that the Trial Court had acted in accordance with law and not transgressed the limits of its jurisdiction.‟‟

22. In Rajinder Kumar Sharma (Supra) the court observed;

"Section 25B was inserted by the legislature in Delhi Rent Control Act as a special provision for eviction of the tenants in respect of specified category of cases as provided therein. Where a landlord seeks eviction on the basis of bonafide necessity, a summary procedure is provided and tenant has to seek leave to defend disclosing such facts which disentitled the landlord from seeking eviction."

23. In Nem Chand Daga (Supra), it was held;

"That before leave to defend is granted, the respondent must show that some triable issues

which disentitled the applicant from getting the order of eviction against the respondent and at the same time entitled the respondent to leave to defend existed. The onus is prima facie on the respondent and if he fails, the eviction follows.

24. In Frank Anthony Public School Vs. Smt. Amar Kaur, 1984

(6) Delhi Reported Judgment 47, it was held;

"The legislature has devised a ''special procedure for the disposal of the application for eviction on the ground of bonafide requirement". It is modelled on Order XXXVII of the Code of Civil Procedure. The object is to reduce delays in litigation. The object is to introduce a "summary trial" in place of full length trial."

25. In Sarwan Dass Bange Vs. Ram Parkash, 2010 IV AD (Delhi)

252, observations made by Supreme Court in Baldev Singh Bajwa Vs.

Monish Saini, (2005) 12 SCC 778 have been quoted as under;

"It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given a right of restoration of possession; the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions

and conditions inculcate in built strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant unless his need is bona fide - no unscrupulous landlord in all probability, under this Section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that this inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his requirement shall be presumed to be genuine and bona fide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine. The tenant is required to give all the necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bona fide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord‟s favour that his requirement of occupation of the premises is real and genuine"

26. Petitioner in his affidavit has taken contradictory pleas with

regard to shop no. 770, Katra Neel, Delhi. On the one hand, he states

that Sh. Deepak Luthra son of respondent owns and runs his business

from the ground floor of this shop. While in same breadth, petitioner

states that respondent‟s husband and sons are running business under

the name and style of M/s Kishan Lal Luthra and Sons HUF at shop

no. 770. Relevant paras of petitioner‟s affidavit read as under;

3. (vi) That Sh. Deepak Luthra son of the petitioner owns and runs his business from the ground floor of property no. 770, Katral Neel, Chandni Chowk, Delhi. Deepak Luthra also owns property no. B- 2/27, Ashok Vihar, Phase-II, New Delhi and is living in the said property.

(vii) That the property no. 538 and 539 cannot be divided into two portions separately, as they are already separated.

(viii) That the petition does not disclose any cause of action and is liable to be dismissed.

(ix) That the petitioners have taken contradictory stands and petition does not intentionally mentioned that her husband and sons are running business under the name and style of M/s Kishan lal Luthra and Sons HUF at 539-540 and 770, Katral Neel, Chandni Chowk, Delhi.

27. As per petitioner‟s own case, Sh. Deepak Luthra son of

respondent, owns and run his business from ground floor of property

no. 770, Katra Neel, Chandni Chowk, Delhi. It is not petitioner‟s

case that respondent is the owner of this shop. This plea of petitioner

thus falls to the ground that respondent has concealed about shop no.

770, Katra Neel, Chandni Chowk, Delhi, where her husband and sons

are running the business.

28. Now, coming to Shop no. 539, Katra Neel, Delhi the Case of

respondent as per averments made in eviction petition is as under;

18(a) (vii) That the petitioner, her husband and sons shifted the major part of their business to and are in occupation of the shop 539, Katra Neel, Chandni Chowk, Delhi-110006. The husband of the petitioner, Sh. Krishan Lal Luthra and her sons, Sh. Deepak Luthra and Sh. Manoj Kumar Luthra run their business of fancy embroidery suits and other apparels from the said shop. Both the sons of the petitioner attend to the business from the shop no. 539, Katral Neel, Chandni Chowk, Delhi-110006.

(viii) That the width of the front portion of the shop in the occupation of the petitioner is around 8 feet in all. The rest of the portion of the shop of the petitioner is behind the demised shop. The above family members of the petitioner have fairly good business and their shop is visited by scores of customers every day.

(ix) The petitioner and her sons are facing a lot of difficulty as the front portion of the shop of the petitioner is to narrow and inadequately spaced to attend all the customers. In this regard it is pertinent to submit that the duration attendance of the customers is needed for selection of work on suits etc. In variably the customers at the shop of the petitioner have to stand outside till the customers already inside the shop leave the shop. With the narrow and inadequately width of the shop the show windows are not possible. Sufficiently big

space is required to display of embroidery works in the show windows.

(x) That both the sons of the petitioner are married and are residing at B-2/34, Ashok Vihar, Phase-II, New Delhi-110052. But due to temperamental difference both the sons of the petitioner are not in good terms with each other. The petitioner has already separated the mess of her sons and has accommodated her elder sons at the first floor; whereas her younger son, Sh. Deepak Luthra is living on the ground floor with the petitioner and her husband. This decision to separate the sons is taken by the petitioner and her husband, with heavy heart, to buy peace and tranquility at home. The said residential house is in the joint name of the petitioner and her husband.

(xi) That with the passage of time of more than five years the need of the petitioner for commercial space has increased many fold due to the expansion of business and due to the fact that the petitioner and her husband want to establish their sons in separate and independent shops. The need of the petitioner is most urgent as the sons of the petitioner are not pulling on well with each other. The petitioner wants to make division of the entire space available in the shops no. 538 and 5639, Katra Neel, Chandni Chow, Delhi and establish their sons separately and independently in her property and in the same trade.

(xii) That unfortunately the width of the shop in the occupation of the petitioner is only around 8 feet and it is not possible to divide

it further to carve out two independent shops. The only option for the petitioner is to get the demised shop vacated and divide the entire portion of the two shops bearing no. 538-539, Katra Neel, Chandni Chowk, Delhi in equal share up to the rear portion and have two independent shops of the same dimensions.

(xiii) That the petitioner and her husband are elderly people. Petitioner is around 69 years of age and her husband is about 73 years of age. The petitioner and her husband are completely dependant on their sons and they cannot run the business without their assistance. The petitioner has decided to divide the property equally and establish the trade independently and separately for both the sons gracefully in their lifetime to avoid any bad blood or ill-will after their death, whilst kept domain over the property and the business.

29. The above averments made in eviction petition have not been

denied at all by the petitioner and as such they are deemed to be

admitted as correct.

30. Respondent has claimed her bonafide requirement for tenanted

premises on the ground that she wants to settle down her two sons

separately and independently. After getting the demised shop vacated,

she would divide entire portion of two shops bearing no. 538 and 539

in equal shares, as due to inadequate width of the shop in her

occupation, customers have to wait outside the shop. She is not able to

display the embroidery work in the show window. She also wants to

settle her married sons, though they are jointly running a business,

into separate business and needs separate premises for both of them.

Thus, her requirement cannot be said to be fanciful or arbitrary.

31. It is an admitted fact that respondent is having two sons and

they are already running the business of fancy embroidery suits etc in

one shop only. Respondent‟s requirement of two separate shops for

running business by her two sons separately and independently, is a

bonafide and genuine requirement.

32. Petitioner has not disputed the composition of family members

of respondent, their business and their day to day difficulties being

faced in respect of their customer‟s care due to narrow and inadequate

space in the shop in occupation of the respondent. Thus, respondent

has bonafide requirement for the premises in question for the use an

occupation of herself and her family members.

33. In John Impex (Supra) this Court observed;

"The conspectus of the aforesaid judgments shows that the broad principles have been set down of the

requirement of a landlord not being a mere whim or fanciful but that it should be a genuine need of the landlord. It is only then that the requirement can be said to be bona fide within the meaning of under Section 14(1) (e) of the said Act. This would naturally require all the necessary matrix in terms of the factual averments and the evidence to be adduced in that behalf. Simultaneously it has to be kept in mind that the landlord is the best judge of his requirement and a tenant cannot dictate the terms on which the landlord should live. The bona fide requirement of the landlord would also depend on his financial status and his standard of living. The ARC found in favor of the landlord/owner and thus what has to be considered is whether there is any illegality or jurisdictional error in the impugned order and not to sit as an appellate court though the scope of scrutiny in a rent revision would be more than a revision petition under Section 115 of the Code of Civil Procedure, 1908."

34. In Ram Babu Aggarwarl Vs. Jay Kishan Das, 2009 (2) RCR

455, Supreme Court observed;

"However, as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to do footwear business in the premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not

mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also."

35. In Sudesh Kumar Soni (Supra), it was held;

"It is not for tenant to dictate terms to landlord as to how else he can adjust himself without getting possession of tenanted premises-suitability has to be seen for convenience of landlord and his family members and on the basis of circumstances including their profession, vocation, style of living, habit and background."

36. In view of the aforesaid, if respondent wants to establish her

sons separately and independently in her property and in the same

trade, then by no stretch of imagination it can be said that

requirements of respondent are neither bonafide nor genuine.

Petitioner has failed to raise any triable issue in this case, which if

proved might disentitle the respondent from getting an order of

eviction in her favour. The trial court has given a detailed and

reasoned order which does not call for any interference nor the same

suffers from any infirmity or erroneous exercise of jurisdiction.

37. Present petition is hereby dismissed with costs of Rs.25,000/-

(Rupees Twenty Five Thousand only).

38. Petitioner is directed to deposit the costs by way of cross

cheque with Registrar General of this court, within four weeks from

today.

CM No. 9000/2010 (stay)

39. Dismissed.

40. List for compliance on 21st October, 2010.

15th September, 2010                                  V.B. GUPTA, J.
ab