Munna Alias Manoj vs Ram Narain
2011 Latest Caselaw 5302 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                          RC.REV. NO. 142/2011
                                 Date of Decision: 2nd November, 2011

#     MUNNA ALIAS MANOJ                          ...Petitioner
!                    Through: Mr. Rajeev Mehra, Sr. Advocate
                              with Mr. I.C. Kumar,
                              Mr. Arvind Sharma & Mr. Jalraj
                              Aggarwal, Advocates

                                Versus

$    RAM NARAIN                                        ....Respondent
                                Through: Mr. R.K. Sharma, Advocate

      CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN

1.    Whether Reporters of local papers may be allowed
      to see the judgment? (No)
2.    To be referred to the Reporter or not? (No)
3.    Whether the judgment should be reported in the digest? (No)

                              ORDER

P.K BHASIN,J:

This revision petition under Section 25-B(8) of the Delhi Rent

Control Act, 1958(in short 'the Act') has been filed by the petitioner-

tenant against the order dated 11th February, 2011 passed by the

Additional Rent Controller(West) whereby the eviction petition filed

against him by his landlord, respondent herein, under Section 14(1)(e) of

the Act to have the possession from him of one shop no. 6 on the ground

floor of property no. WZ-297-C, Village Madipur, New Delhi (hereinafter

referred to as the 'tenanted shop') has been allowed and he has been

directed to vacate the tenanted shop.

2. The relevant facts, as were pleaded by the respondent-landlord in

para no. 18 of the eviction petition to secure an order of eviction against

the petitioner-tenant, are re-produced below:

"It is stated that the Petitioner is an ex service and is not doing any job and his son namely Hemant Yadav and daughter-in-law had already expired left behind two issues and the Petitioner has to maintain them also and the petitioner requires the tenanted premises under the possession of the Respondent bonafide for himself for running a showroom/shop of fancy light and also for two of the family members dependant upon him for the purpose of commercial accommodation. The Petitioner is senior citizen as the Petitioner is also residing in Madipur therefore he required less time for reaching of the shop and more over the Petitioner has to maintain his family members. The Petitioner is well experienced with dealing in the fancy light business and more over the family members of the Petitioner have grown up hence the family members of the Petitioner has increased and the Petitioner has increased and the Petitioner is unable to meet out the expenses of the family members from his meager income which he is getting from his pension. It is stated that when the Petitioner will start his business, then the income of the Petitioner will also increased and he will be able to meet out the expenses of his family members as deceased son of the Petitioner was having son and daughter, who will be attaining the age of marriage and if the Petitioner would not be able to start his business of fancy light showroom/ shop after evicting the Respondent from the tenanted premises then it will be very difficult to bear the expenses

of the marriage of dependants, thus the Petitioner is required the tenanted premises in possession of the Respondent for his bona fide requirement for the purpose of opening a fancy light showroom/shop and also for the bright future of the dependants and the petitioner has got not suitable shop available to him at Delhi except the tenanted premises in possession of the Respondent which is best suited for his business as the dimension of the said shop is best suited for the Petitioner.............................."

3. The petitioner-tenant had contested the eviction petition after grant

of leave to contest to him by the learned Controller. The various pleas

which he had raised in his written statement, were noticed, dealt with and

rejected by the learned Controller in the impugned order. The relevant

parts from that order where the pleas, which were urged before the

Controller as well as before this Court, were dealt with are also being re-

produced below:-

6. .............. I am taking firstly the issue whether the petitioner seeks the tenanted premises for bona fide requirement. The case of the petitioner is that he is retired from the army and presently have a meager income and he is having liability of two grand children. The petitioner has examined himself as PW-1 and during cross examination he has admitted that he has given 12 shops to the tenants including respondent on rent. He further admitted that he is receiving rent from the tenants who are occupying twelve shops in property bearing no. WZ-297 C, Village Madi Pur, Delhi. From the perusal of testimony of PW-1, it proved that he is having substantial income from rent.

7. .................................So from the perusal of testimony of witnesses, it is proved on record that the petitioner is

having substantial income from the rent from the property bearing no. WZ-297-C, Village Madi Pur, Delhi. The question arises whether the income of the petitioner from the tenanted premises or other sources have any hindrances in the bona fide requirement of the tenanted premises by the petitioner. I am of the view that law does not create any hindrance to have income, either from the rented premises or property acquired by the person. Every person has right to increase his income by expending his existing business and by starting a new business. For the sake of argument if it is admitted that the amount received by petitioner either from rent or from pension is a substantial amount. It cannot be presumed that he does not need more income. A person may want more amount to improve his life style. So I am of the considered view that the petitioner have a bona fide requirement of shop, as he is legally entitled to expand his business or to start a new business.

Here, in the present petition, petitioner is not having business except the rental income and pension income. He wants to start a business of fancy light in the tenanted premises. To my mind the requirement is bonafide.

8. The next question arises whether the petitioner has other reasonable, suitable accommodation to start the business of fancy light. While the petitioner was cross examined, he has admitted the site plan, filed by the respondent Ex. PW- 1/R-1 is correct. I have perused the documents Ex. PW- 1/R-1 which show thirteen shops in the premises bearing no. WZ-297-C, Village Madi Pur, Delhi. The document in itself does not shows the width of the road in front of the tenanted premises and in front of the other shops. The document i.e. site plan Ex. PW-1/A placed on record by the petitioner is showing the width of the road in front of the tenanted premises and in front of the other shops. Here I would like to clear that the document Ex. PW-1/A and document Ex. PW-1/R-1 are correct document. But difference is only that the document Ex. PW-1/A is describing/showing the tenanted premises and adjacent shops while the document Ex. PW-1/R-1 is showing all the shops, situated in property bearing no. WZ-297-C, Village Madi Pur, Delhi.

9. From the perusal of these two documents it proved on record that the width of the road before the tenanted shop

is 60 feet. The width of the road in front of the shop, shown in green in document Ex.Pw-1/R-1 is of 20 feet. Although it has been brought on record that only one shop is vacated and other shops are occupied by the tenants including the respondent in property bearing no. WZ-297- C, Madipur, Village Delhi. The question is whether the tenanted premises in occupation of the respondent is more suitable, reasonable accommodation to the petitioner for starting his business for fancy light. The road in front of tenanted premises is 60 feet and width of the road in front of the vacant shop is 20 feet. The tenanted premises is also suitable on the main road where there are chances that more and more customers may approach the tenanted premises if the business is started by the petitioner. The road in front of tenanted premises is wide and the parking of the vehicle may be more convenient for the customer. The petitioner further deposed that width and length of the tenanted shop is more than other shops which is 15 feet by 20 feet. This fact has been denied by the respondent. The counsel for petitioner argued that the petitioner may start the business from shop which is lying vacant. But it is settled law that tenant cannot dictate the landlord as to how else he should adjust himself without getting possession of the tenanted premises.

10. As I have discussed above, I am of considered view that requirement of the petitioner is bona fide as well as he has no suitable/reasonable accommodation to start the business. Petition of the petitioner is allowed and eviction order is passed.............................................."

4. Feeling aggrieved with the direction of the Controller requiring him

to vacate the tenanted shop the petitioner-tenant approached this Court by

filing this revision petition since no remedy of appeal is provided to an

unsuccessful tenant against whom eviction order is passed by the

Controller in an eviction petition which has been tried in accordance with

the special procedure under Section 25-B of the Act. The High Court,

however, has been conferred with the power under Section 25-B(8) to

examine if the order passed by the Controller for the eviction of the tenant

is in accordance with law or not and so I shall now examine that aspect.

5. The learned senior counsel for the petitioner argued that the

respondent-landlord had concealed the fact from the trial Court that he

was having three vacant shops and also that his income of rent from

various tenants in the same property who were running their businesses

was around ` 60,000 p.m. which facts he had admitted only in his cross-

examination and so the eviction petition should have been dismissed on

this grounds alone. On the other hand, learned counsel for the respondent

argued that there is no infirmity in the impugned order justifying

interference by this Court.

6. From the fore-going narration of the facts of the case as well as the

findings of the learned Additional Rent Controller it is clear that the

eviction petition was filed by the landlord - respondent only on the

ground that he was having only pension income which was also too

meager with which he could not support his family comprising of himself

and two minor grandsons and, therefore, he had decided to start a

business in the tenanted shop. The petitioner - tenant had categorically

claimed in his written statement that the respondent - landlord had apart

from pension income rental income also from various other tenants in the

property in question. Earlier to that, the petitioner - tenant had taken the

same stand in his leave to defend application also and at that stage the

respondent - landlord also had denied this allegation of the petitioner -

tenant. However, the learned Additional Rent Controller had come to the

conclusion that the case of the landlord that he was having no other

income apart from meager pension was falsified because of the admission

made by the landlord during the course of arguments that he had 13 shops

none of which was lying vacant (and during trial he had admitted that he

was getting about ` 60,000 per month as rent of other portions in the

same property). At that stage, petitioner - tenant had also claimed that

the respondent herein was having possession of three vacant shops also

with him in the property in question and that fact was also denied by the

respondent - landlord. That controversy was also considered to be a

triable issue by the Additional Rent Controller and so leave to contest was

granted to the petitioner-tenant. However, when the case was put to trial,

the petitioner - tenant, as noticed in the impugned order also, was

successful in establishing the pleas that his landlord was having rental

income of about ` 60,000 per month and also that he was having three

vacant shops with him. After having accepted these pleas put forth by

the petitioner - tenant, which had entitled him to the leave to contest the

eviction petition, the learned Additional Rent Controller, in my view, was

not justified in allowing the eviction petition by making out a new case

for the respondent - landlord that even if the respondent - landlord had

sufficient income apart from the pension income he could desire to have

more income also since no such case was pleaded in the eviction petition

by the respondent - landlord. Similarly, the learned Additional Rent

Controller was also not justified in coming to the conclusion that even

though the respondent - landlord had with him three vacant shops, as was

being claimed by the petitioner - tenant, on the ground floor (which fact

had been categorically denied by the respondent - landlord during the

trial) the respondent - landlord could still decide to have the tenanted

shop vacated from the petitioner - tenant because it was more suitable for

the business which he intended to start there. Since this was also not the

case pleaded by the respondent - landlord in his eviction petition that

though he had other shops available at his disposal but the same were not

suitable for the kind of business which he intended to start, the order of

eviction could not have been passed in his favour on the ground that the

tenanted shop was more suitable for the respondent - landlord. When the

respondent had sufficient rental income and he also had three vacant

shops in his property he could have very well averred these facts in his

eviction petition and claimed that he wanted to earn more money and also

that the vacant shops available with him were not suitable for the kind of

business which he wanted to start. He had, however, chosen not to plead

these facts in the eviction petition, perhaps under the impression that if he

would plead these facts in the eviction petition itself his case of bona fide

requirement of the tenanted shop may not be accepted by the Rent

Controller. Concealment of these material facts by the respondent -

landlord, in fact, should have been considered by the learned Additional

Rent Controller to be sufficient by itself to doubt his case of bona fide

requirement. For this view, I find support from a decision of the Supreme

Court in"Kishan Chand vs. Jagdish Pershad", 2003 (9) SCC 151,

wherein the Supreme Court had upheld the High Court's judgment

dismissing the eviction petition only on the ground of concealment of

material facts.

7. For the afore-said reasons, this revision petition is allowed. The

impugned eviction order is set aside and consequently the eviction

petition of the respondent - landlord stands dismissed.

P.K. BHASIN, J nd November 2 , 2011