Sh. Surinder Singh vs Sh. Jasbir Singh
2010 Latest Caselaw 4474 Del

*     HIGH COURT OF DELHI : NEW DELHI

      RCR No. 95/2010 & CM No. 7848/2010

%     Judgment reserved on: 25th August, 2010

      Judgment delivered on: 23rd September, 2010

      Sh. Surinder Singh,
      S/o Late Ujagar Singh,
      C/o Shop in Property No. 228,
      Gandhi Nagar (Main Road)
      Delhi.
                                                   ....Petitioner.

                          Through:      Mr. Rakesh Tiku, Adv.

                   Versus

      Sh. Jasbir Singh,
      S/o Sujan singh,
      Shop in Property No. 228,
      Gandhi Nagar (Main Road)
      Delhi.
                                                   ....Respondent

                          Through:      Mr. S. M. Chopra, 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

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


RCR No. 95/2010                                          Page 1 of 17
 V.B.Gupta, J.

Present petition under Section 25 B (8) of Delhi Rent Control

Act, 1958 (for short as „Act‟) has been filed by petitioner challenging

order dated 11th February, 2010, passed by Additional Rent

Controller, Delhi, vide which petitioner‟s application for leave to

defend was dismissed and eviction order was passed.

2 Brief facts as emerges from eviction petition filed under Section

14 (1) (e) read with section 25 B of Act are that, respondent is

owner/landlord of property no. 228, Main Road, Gandhi Nagar, Delhi.

The shop under the tenancy of petitioner was let out for commercial

purposes. Respondent has no other commercial accommodation,

except the shop adjoining the shop of petitioner. Respondent requires

the shop in dispute bonafidely for himself and his family members

dependent upon him for the purpose of businesses premises.

Respondent requires the shop in dispute to enhance the business, as

his family has grown up and require more accommodation to run the

business. Son of respondent is working with the respondent and is

participating in the business activities of the respondent and is

dependent upon respondent for the purpose of business.

Accommodation available with respondent has been shown in green

colour in the site plan. As family of respondent has grown up, he

needs the shop in dispute to settle his son along with him to enhance

the business.

3. In affidavit filed along with application for leave to defend, it is

stated by petitioner that respondent has filed two suits on the same

cause of action, one under Section 14 (1) (j) of the Act, while another

case was filed before the Court of Senior Civil Judge, Delhi, which

was dismissed. Present petition is counter blast of that suit.

4. It is stated that respondent has suppressed the material and true

facts. Property in which petitioner is a tenant in respect of one shop

and using the same for commercial purposes measures 80 sq. yds

consisting of basement, ground floor and first floor. The

measurement of the shop in question is about only 11 sq. yds which is

in the use, occupation and possession of the petitioner, and rest of the

property, which is about 69 sq. yds is in use, occupation and

possession of the respondent. Respondent is also having a big shop

adjoining the tenanted shop. Respondent knowingly has not filed the

correct site plan and has not given total description of the

measurement of the shop, which is in his possession. Respondent can

easily extend his shop towards the back of the shop in the remaining

portion of the property as entire portion of property, except the

tenanted shop, is in possession of the respondent. The basement and

first floor are also lying vacant, which are in the possession of

respondent and same can be used for business purpose by the

respondent.

5. It is further stated that respondent has only one son who is

working with him since last 10-12 years and is well settled in the

business. The business of respondent and his son is well settled in the

adjoining shop. The respondent has sufficient commercial

accommodation at present and he can enhance his business on the

remaining portion of the suit property. Requirement of respondent is

neither bonafide nor genuine.

6. In reply, respondent denied that he can easily extend his shop

towards the back of the shop in the remaining portion of the property.

The basement behind the shop of the petitioner which is small space

for storing the goods, cannot be used or termed as a business

place. The first floor is also being used for storing the goods but

neither the first floor nor any basement cannot be used for business

purposes as the front of the tenanted shop is situated on the main road

where customers come for purchasing and nobody can expect that

customers will go to the basement which is a small one to purchase

goods from respondent, nor customers can approach first floor as

there is no stairs from the front side. Even otherwise, it is the choice

of the respondent from where he has to run the business. The grounds

raised in the affidavit do not raise any triable issues.

7. It is contended by learned counsel for the petitioner that facts

disclosed by petitioner in the affidavit filed along with leave

application disentitle respondent from seeking eviction since

petitioner has raised triable issues.

8. Other contention is that, respondent has failed to disclose the

alternative accommodation/areas available with him since he has got

other area available with him and site plan filed by the respondent is a

vague and on this short ground eviction petition is liable to be

dismissed.

9. Other contention is that the son of respondent cannot be taken

as a member of its family dependent upon respondent and it is not

case of respondent that he needs additional space for running his own

business. Son of respondent is having own business and as such he

cannot be said to be dependent upon respondent.

10. Another contention is that, respondent has sought eviction on

the ground of enhancement of his business but has not produced any

relevant documents to this effect as to what is his income and

financial status.

11. Further, Petitioner is having a shop which is about 11 sq. yards

only, while area under occupation and possession of respondent is

about 69 sq. yards, which includes basement, ground floor and the

first floor. Since, it is a matter of evidence as to whether area under

the portion available with respondent is sufficient or not, as such

impugned order is liable to be set aside.

12. On the other hand, it is contended by learned counsel for

respondent that respondent requires the shop in question bonafidely

for himself and his family members dependent upon him for the

purpose of business. The son of respondent is working with him and

is dependent upon him and respondent require the shop in question for

furtherance of business being run by him and his son.

13. It is also contended that above facts have not been disputed by

petitioner in the leave application. Petitioner himself admits that

business of respondent and his son is well settled in the adjoining

shop. This goes on to show that son of respondent is dependent upon

him for business purpose.

14. With regard to the availability of basement and first floor, it is

contended that these portions are not suitable for business, as

tenanted shop is situated on the main road and that too on the ground

floor. No customer would like to go to the basement or first floor.

Moreover, petitioner has not filed any counter site plan.

15. In support, learned counsel cited following judgments;

      (i)     Ram Babu Agarwal Vs. Jay Kishan Das,
              2009 (2) RCR, 455;

      (ii)     Mukesh Kumar Vs. Rishi Prakash,
               2009 (2) RCR, 485 and

      (iii)     State of Maharashtra & Anr. Vs. M/s Super Max
                International Pvt. Ltd. & Ors.
                2009 (2) RCR 246.

16. 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 Vs. Union of

India, 2008 (5) SCC 287 it has been held,

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

17. 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."

18. 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.

19. 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.‟‟

20. In Rajinder Kumar Sharma &Ors. Vs. Leela Wati & Ors., 155

(2008) Delhi Law Times 383 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."

21. In Nem Chand Daga Vs. Inder Mohan Singh Rana,94 (2001)

Delhi Law Times 683; 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.

22. 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."

23. 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."

24. Petitioner in its affidavit has no where controverted this fact

that, son of respondent is not dependent upon him for the purpose of

business. Petitioner himself admits that son of respondent is working

with respondent for the last 10-12 years and business of respondent

and his son is well settled in the adjoining shop, and shop of

respondent is a big shop and it can also be extended on the back

portion, if respondent wants to enhance his business.

25. The mere fact that, respondent did not disclose the

accommodation of basement and first floor available with him in the

eviction petition, would not prove fatal to the present case, since the

same cannot be said to be an alternative suitable accommodation for

the purpose of business.

26. Thus, only question remains to be seen is as to whether,

respondent can get the premises in question evicted for extension of

his business for himself and also for his son who is dependent upon

him for the purpose of business.

27. In M/s John Impex (Pvt.) Ltd. Vs. Dr. Surinder Singh & Ors.

135 (2006) Delhi Law Times 265 this Court held;

"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."

28. In Ram Babu Aggarwarl (Supra) 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."

29. In Sait Nagjee Purushotham & Co. Ltd. Vs. Vimalabai

Prabhulal and Others, (2005) 8 Supreme Court Cases 252; the

Court observed:

"It is always the prerogative of the landlord that if he requires the premises in question for his bona fide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business."

30. In Sudesh Kumar Soni & anr. Vs. Prabha Khanna &

Anr.,153 (2008) Delhi Law Times 652, the Court observed;

"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."

31. Relevant findings of the trial court, in this regard are

reproduced as under;

"a) the respondent has not disputed the averment to the effect that the petitioner wants to enhance his business to fulfill the increasing needs of the family. He has merely objected that for the said purpose the petitioner can very well merge into the shop the back side portion of the property no.228 so as to enhance its size. Here it is pertinent to mention that it is none of the business of the respondent to dictate to the petitioner as to how and in what mode the property of the petitioner is to be used by him. The respondent cannot dictate the terms to the petitioner in this regard. The petitioner has every right to exercise his discretion in the mode and manner of enjoying the hard- earned immovable property.

b) as far as the objection to the effect that the petitioner can enhance his business by using the basement or first floor of the property no.228; is concerned, the premises or the space available at the basement or at the first floor can, in no way substitute the commercial space available at the ground floor of a given property.

c) the contentions of the petitioner that the shop in question is required to settle his son so as to run (independent) business there from, has also not been met with successful defence by the respondent. The respondent has merely uttered that the son of the petitioner is already working with the petitioner and is assisting him as such for the last 10-12 years. This is no defence as the petitioner as well his son are very right in saying that the son needs the shop in question to run his business there-from. Doing an independent

business by the son of the petitioner appears to be a valid and reasonable contention of bonafide requirement more particularly in the present scenario when the inflation is running so high and the purchasing power of even well to do families has been continuously decreasing. The petitioner and his son have every right to add on in the source of their income by doing the separate business or by enhancing the already existing business."

32. Admittedly, petitioner is in occupation of the shop in question

for last 52 years. During this period, respondent and his family have

grown up and son of respondent is already in business with his father

and if respondent and his son wants to expand their business and need

more space for business purposes, then by no stretch of imagination it

can be said that requirement of respondent and his son who is

dependent upon him for business purpose, is neither genuine nor

bonafide.

33. Thus, 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 his favour. The trial court has given a detailed and

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

suffer from any infirmity or erroneous exercise of jurisdiction.

34. Present petition is hereby dismissed with costs of Rs.20,000/-

(Rupees Twenty Thousand only).

35. 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. 7848/2010

36. Dismissed.

37. List for compliance on 29th October, 2010.

23rd September, 2010                                  V.B.GUPTA, J.
ac