M/S. Kishori Lal Krishan Kumar vs Shri Ankit Rastogi
2011 Latest Caselaw 5165 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 20.10.2011

+             RCR No. 413/2011

M/S. KISHORI LAL KRISHAN KUMAR         ...........petitioner
                   Through: Mr. R.K. Kapoor, Ms. Anita
                            Sharma and Ms. Ritu Sharma,
                            Advocates.

                   Versus

SHRI ANKIT RASTOGI                               ..........Respondent
                         Through:    None.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?                 Yes

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

INDERMEET KAUR, J. (Oral)

CM No. 19377/2011(exemption) in RCR NO. 413/2011

Exemption is allowed subject to just exceptions.

RCR No. 413/2011 and CM No. 19376/2011 (stay)

1. This petition has impugned the order dated 04.07.2011

whereby the petition under Section 14(1)(e) read with 25(B) of the

Delhi Rent Control Act (DRCA) had been dismissed.

2. Record shows that the present eviction petition had been

filed by the landlord-Ankit Rasogi under Section 14(1)(e) of the

DRCA. He claimed himself the owner and landlord of premises

forming a part of property bearing No. 4479-80, Dau Bazar, Cloth

Market, Delhi comprising of ground floor, first floor and a second

floor. The ground floor was in occupation of the present tenant.

Petitioner is stated to be 34 years of age; he has experience in the

business of sale and purchase of sarees and other textiles and

handicraft as he was a partner of M/s. Ankit Saree; thereafter he

had started his individual commission business in textile since

1997. Petitioner has no immovable property in Delhi; he intends to

start his own business and for his own bona fide requirement he

wants eviction of the suit premises.

3. The defendant/tenant had filed his application for leave to

defend. The first contention raised is that the petitioner is not the

landlord/owner of the suit premises. This has been disputed by the

petitioner. It is not in dispute that the premises were originally

owned by Smt. Bhagwati Devi; petitioner in his affidavit has stated

that Bhagwati Devi was his grandmother and in terms of her Will

dated 14.07.1982, the suit premises had been bequeathed to him;

the same has also been mutated in the municipal records. The

application for leave to defend shows that the tenant has in fact

not challenged the fact that Ankit Rastogi is not his landlord; in

fact in his application, he has stated that the petitioner had

stopped receiving rent from the respondent, in these

circumstances, the rent was being rendered by the tenant by way

of a money order to the petitioner. Thus, the relationship of

landlord and tenant stands admitted between the parties. For a

petition under Section 14(1)(e) of the DRCA, the relationship of

landlord and tenant is a crucial factor and this relationship having

been admitted this objection is clearly without merit.

4. The second contention raised by the tenant is that the

defendant /tenant has been arrayed in the eviction petition as M/s

Kishori Lal Krishna Kumar; the other partners of the firm have not

been joined as a party and the petition is thus bad for non-joiner

of the parties; in para 15 of the application for leave to defend, it

has so been stated; contention being that all partners of the

respondent/tenant have not been made a party. In reply affidavit

of the petitioner, the explanation furnished by the petitioner is

that the name of the partners were not known to the petitioner

and that is why, the respondent has been arrayed in the manner

as depicted in the eviction petition. These circumstances had

correctly been noted in the impugned judgment; that this was only

a bald objection raised by the petitioner and not being a triable

issue, this objection had not been paid heed to.

5. The last objection raised by the petitioner is that the Trial

Court has not appreciated the facts in the correct perspective and

the bona fide requirement of the landlord was not really bona fide

and to substantiate this submission, he has drawn attention of this

court to the averments made in his application for leave to defend;

contention of the tenant is that the respondent/landlord is a owner

of one shop No. 969, Bhojpura, Maliwara, Chandni Chowk, Delhi

under the name and style of M/s. P.S. Creation and is carrying on

his business from there; he also has another building i.e. bearing

No. 1186, Kucha Mahajani, Chandni Chowk, Delhi which

comprises of 30 shops; in this view of the matter, the present

eviction petition has not been filed for bona fide requirement as

there is a sufficient accommodation available with the landlord.

In the reply affidavit, the contention of the landlord was

specifically to the effect that he is not the owner of either of the

two premises; contention being that by Smt. Bhagwati Devi in

terms of her Will date 14.07.1982 had bequeathed the disputed

property i.e. Shop No. 4479-80, Dau Bazar, Cloth Market, Delhi to

the respondent; he has no other immovable property; this is his

only immovable property; further contention being that property

bearing No. 969, Bhojpura, Maliwara, Chandni Chowk, Delhi is

owned by his father; the property i.e. building No. 1186, Kucha

Mahajani, Chandni Chowk, Delhi has been bequeathed by his

grandfather in the name of his brother; even otherwise, this

property under the occupation of old tenants; rent receipts to

substantiate this submission have also been placed on record. The

assertion of the landlord that he is bona fide requiring this

premises for his commission business which he has started in the

year 1997 has also been substantiated by documentary evidence.

Income tax returns in respect of his commission business have

been placed on record. In these circumstances, the court had

rightly noted that no triable issue having arisen between the

parties, the application for leave to defend was rightly dismissed.

6. In 2010 IV AD (Delhi) 250 Sarwan Dass Bange vs. Ram

Prakash, a bench of this court has noted that it is for the tenant to

disclose facts which would show that this desire of the landlord

was fanciful and not bona fide. In Prativa Devi vs. T.V. Krishnan

1996 (5) SCC 353, the Apex Court had reiterated that the landlord

is the best judge of his residential requirement and has a

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;

there is no law which can deprive the landlord of the beneficial

enjoyment of his property. The Apex Court in (1999) 6 SCC 222

Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta has laid down the

scope of a revision petition to this Court holding that the court is

to interfere in revision only when the order of the Controller is

found to be not in accordance with law or when the same is

perverse and based on a conclusion which no reasonable person

could have reached.

7. Applying the said test and on the basis of records it cannot

be said that the impugned order passed by the Controller in the

present case is not in accordance with law.

Petition is accordingly dismissed.

INDERMEET KAUR, J.

OCTOBER 20, 2011 rb