Sh. Abdul Malik & Anr vs Shashi Bhalla
2011 Latest Caselaw 6330 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 23.12.2011

+                  RC.Rev. No. 536/2011

SH. ABDUL MALIK & ANR                          ...........Petitioner
                   Through:         Mr. Sanjeev Sindhwani,
                                    Advocate.

                   Versus

SHASHI BHALLA                                  ..........Respondent
                        Through:    Mr.    Sandeep    Sethi,   Sr.
                                    Advocate with Ms. Prathiba M.
                                    singh, Mr. Kirtiman singh and
                                    Mr. Sumeet Bhatia, Advocates.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

CM No. 23065/2011 (exemption)

Exemption allowed subject to just exceptions.

RC.Rev. No. 536/2011 and CM Nos. 23063-23064/2011

1. In the first instance, parties were exploring possibility of a

settlement through negotiation and for this purpose, matter had

been adjourned for short dates but it has been reported by the

parties that no settlement is possible.

2. Arguments have been heard. Impugned order is the order

dated 09.09.2011 vide which the application for leave to defend

filed by the tenant in a pending eviction petition under Section

14(1)(e) of the Delhi Rent Control Act (hereinafter referred to as

„DRCA‟) had been dismissed.

3. Record shows that the petitioner Smt. Shashi Bhalla has

filed the present petition seeking eviction of the tenant from the

ground floor shop in property bearing No. 1813, Chandni Chowk,

Delhi-110006; the shop measures 6ft. x 18 ft; contention being

that the premises were required bonafide for carrying on her

business which she was doing under the name and style „M/s.

Union Traders‟ which is her proprietorship concern dealing with

electrical goods and trading. In the eviction petition, it has been

explained that the premises in question were originally owned by

her father-in-law who pursuant to a Will dated 02.02.1993 had

bequeathed this property to the petitioner and the respondent is

also since attorning to her. Premises are bona fide required by her

for aforenoted business.

4. In the application for leave to defend this position was

disputed. It was denied that the petitioner requires these

premises bona fide for her use. The main contention urged by the

petitioner/tenant and it has been argued even today is that the

petitioner is already doing her business under that name and style

„M/s Union Traders‟ from 1746, Dariba Kalan, Kucha Lattoo Shah,

Chandni Chowk, Delhi-6 and this is evident from the documents

filed by the petitioner herself. Contention being that since „M/s

Union Traders‟ already has a place of business, it cannot be said

that she has no other reasonable, suitable accommodation to carry

on her business and it in no manner can be said that the premises

are required by the landlord bona fide; this need is only malafide;

application is liable to the dismissed.

5. Vehement contention of the petitioner is that in para 2 (iv)

(b) of his application for leave to defend it has been stated that the

husband of the landlord has a commercial premises at 1746,

Dariba Kalan, Kucha Lattoo Shah, Chandni Chowk, Delhi-6 and

from where the business of the petitioner i.e. of „M/s Union

Traders‟ is being transacted; it is a double storied building and as

such the present premises are not required by her. Attention has

also been drawn to the averments made by the tenant in para

2(iv)(c) wherein it has been contended that the petitioner and her

husband are also owners of the property bearing No. 1812,

Chandni Chowk, Delhi which has been sold out to A.C. Soni and if

the requirement of the petitioner was bona fide this sale would

not have been effected.

6. In the corresponding paras of the reply filed by the landlord

it has been stated that the petitioner namely Shashi Bhalla has no

legal right in this property at 1746, Dariba Kalan, Kucha Lattoo

Shah, Chandni Chowk, Delhi-6; „M/s Standard Electric Trading

Company‟ is a tenant there which is a partnership firm of Surinder

Bhalla, Alok Bhalla and Amit Bhalla; all the aforenoted persons

are the close relatives of the petitioner being her husband and two

sons; contention being that „M/s Standard Electric Trading

Company‟ is a tenant in these premises. Qua property No. 1812,

Chandni Chowk, Delhi it is stated that the property was earlier

owned by the petitioner but has since been sold which was

admittedly a sale prior to the filing of this eviction petition; this

has been rightly noted in the impugned order. The landlady has

averred that this property had been sold by her father-in-law in

the year 1984 and was thus not owned by the landlord at the time

of the filing of the present eviction petition; as such this point has

no relevance for the decision of the present petition.

7. Vehement contention of the petitioner is that in the

application for leave to defend he has specifically averred that the

petitioner has alternate accommodation at 1746, Dariba Kalan,

Kucha Lattoo Shah, Chandni Chowk, Delhi-6, which is owned by

her and there is no specific denial to this averment. This

submission of the petitioner is falsified from the record. Record

shows that in para 2 (iv) (b) the tenant has only stated that the

petitioner and her husband are running a business of „M/s. Union

Traders‟ from 1746, Dariba Kalan, Kucha Lattoo Shah, Chandni

Chowk, Delhi-6 which is a double storied building; the upper

portion of the property is also being used by the landlady and her

family. This has been vehemently denied; there is no denial of

ownership as there has been no corresponding averment in the

application for leave to defend; the landlady in her reply has

clearly stated that she has no legal right in this property and „M/s

Standard Electric Trading Company‟ (partnership firm of her

husband and two sons) is a tenant in these premises. It has been

specified that the partnership of her husband „M/s standard

Electrical Trading Company‟ is only a tenant in the said premises

and as such the vehement submission of the petitioner that there

is no specific denial of ownership is a submission without any

force; there being no plea of ownership having been set up by the

tenant in the application for leave to defend there was no rebuttal

of the same; the reply has otherwise specifically explained that

these premises are under the tenancy of the partnership firm of

her husband; question of ownership thus does not arise.

8. Admittedly, apart from the shop in question there is no other

property in the name of the petitioner. The documents filed by the

petitioner alongwith her eviction petition show that she is an

income tax assessee and the proprietor of „M/s Union Traders‟. In

her reply she has stated that since she has no business place in

the market, she has put up a table in the premises at 1746, Dariba

Kalan, Kucha Lattoo Shah, Chandni Chowk, Delhi-6 (which is also

a tenanted premises) for running her business and that too

occasionally. There is no denial to this submission.

9. From the record it is thus clear that the premises at 1746,

Dariba Kalan, Kucha Lattoo Shah, Chandni Chowk, Delhi-6 are not

owned by the landlady. She is admittedly carrying on business

under the name of „M/s Union Traders‟ which is evident from her

income tax record; her address has been shown as 1746, Dariba

Kalan, Kucha Lattoo Shah, Chandni Chowk, Delhi-6 therein

because admittedly being a resident of E-18, Jangpura Extension,

New Delhi 110014 which being a residential locality she cannot

give her business address from the said place as this would

amount to a misuser of the property which could attract a penalty

and on this ground this submission made by the petitioner has

force. The address of 1746, Dariba Kalan, Kucha Lattoo Shah,

Chandni Chowk, Delhi-6 mentioned in her statement of accounts

was only for this reason. Admittedly, her proprietorship concern

has no other reasonable, viable or suitable commercial

accommodation from where she can carry on her business.

10. A landlord is the best judge of his needs and it is not open

for the court or for the tenant to dictate him the terms.

11. In a judgment of this Court reported as John Impex (pvt.)

Ltd. v. Dr. Surinder Singh and Ors 135(2006) DLT 265, it was

held as under:

"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."

12. Reliance by the counsel for the petitioner on the judgments

of Mohd. Illyas vs. Nooruddin & Ors reported in 184 (2011) DLT

590 and of Satto Devi vs. Om Prakash Saini reported in 1997 IV

AD (Delhi) 534 as also another judgment of and S.S. Puri (lt.

Col.) vs. Mr. S.P. Malhotra reported in 2002 III (Delhi) 271 are all

misplaced. Facts of each case are distinct. Unless and until, a

triable issue arises, leave to contest should not be granted in

routine.

13. Impugned judgment in no manners suffers from any

infirmity; petition is dismissed.

INDERMEET KAUR, J

DECEMBER 23, 2011 rb