Kusum Jain vs Rajesh Kumar Singh
2012 Latest Caselaw 4870 Del

*                THE HIGH COURT OF DELHI AT NEW DELHI

+                        R.C.REV. No. 14/2011

                                          Date of Decision: .21.08.2012

KUSUM JAIN                                             ...... Petitioner

                         Through: Mr. Sunil Malhotra, Advocate.
                               Versus

RAJESH KUMAR SINGH                                  ...... Respondents

                         Through:     Mr. M.L. Sharma, Advocate.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This revision petition assails judgment dated 03.12.2010 whereby

the eviction petition filed by the petitioner against the respondent

seeking eviction of the tenanted premises being shop No. 1/196/1 Sadar

Bazar, Delhi Cantt., was dismissed.

2. The respondent is a tenant in the aforesaid shop under the

petitioner. The petitioner has sought eviction of the respondent from the

tenanted shop on the ground of her needing the same for her son Sachin.

It was her case that she has no other alternative accommodation

available for setting up business of her son Sachin who is physically

handicap and cannot move properly. Sachin is a qualified BBA and

intended to settle by establishing a readymade garments business. As he

was unable to do the business independently and would require the

assistance, the petitioner being his mother would be assisting him in his

business. They are residing on the first floor, the tenanted shop, which

is just below their residence, was stated to be more suitable for setting

up business for her son Sachin. It was her case that there was one shop

available with them adjoining the tenanted shop; but that was too small

in width and not suitable for readymade garment showroom. She thus

required the tenanted shop to have proper width and where they can

have two tailors and two try rooms.

3. After obtaining leave to defend, the respondent filed written

statement. Beside others, it was alleged that the petitioner and her

husband and son have several other properties. The description was

given of as many as six such properties. In addition, it was also

averred by the respondent that the suit premises measured 21'.10" x

59'.6" and that the shop in his possession measured 10'6" x 18' feet and

the rest of the ground floor as also the first floor was with the petitioner.

It was also alleged that Sachin was doing the business of steels at shop

No. 2140/12 and also imparting tuitions. It was denied that the shop

available with the petitioner was small in width and not suitable for

readymade garments. It was specifically stated that the rear wall of this

shop has already been removed and the rear portion of the ground floor

has been joined with the shop which is lying vacant and which is more

than sufficient to run the business.

4. In replication, the petitioner denied that Sachin was doing the

business of steel works at 2140/12 or that the rear wall on the ground

floor was removed and joined with the shop in their possession and that

it was lying vacant and was sufficient.

5. Both the parties led their evidence. Learned ARC returned a

finding that the petitioner and her son could very well run readymade

garment showroom from the shop already in their possession and that

the need of requiring the tenanted premises was not bona fide. He

accordingly dismissed the petition.

6. I have heard learned counsel for the parties and perused the

records. The learned counsel for the petitioner placed reliance on

certain judgments to contend that it was the prerogative of the owner of

decide as to how and which premises would be suitable for his/her

requirement and that the tenant could not dictate his terms. He also

contended that the owner was within his rights to provide an

accommodation to his/her son to set up his independent business. There

does not appear to be any dispute with regard to the legal propositions

which are enunciated in various judicial pronouncements. However,

this is also undisputed settled proposition of law that the requirement

sought to be projected by the owner has to be bona fide and also that he

was not having any other alternative suitable accommodation. In the

given facts, this is undisputed that the petitioner has one shop on the

ground floor of the premises. As per the site plan, which has been filed,

the width of the said shop is 9' x 16' which is also the width of the

tenanted shop. The petitioner desires her son to set up a showroom of

readymade garments by joining the tenanted shop with the shop already

in her possession on the ground floor of the premises. She also desires

to have two tailors and two try rooms in the showroom. Though, it was

not specifically stated in the petition, but it is gathered that the petitioner

and her family was residing on the first floor of the premises. It was

averred by her that the tenanted shop would be more suitable for

running readymade garments business as it was just below their

residence and her son being physically handicap. The respondent

tenant had taken a specific plea that except the tenanted shop, which

measured approximately 19' x 6', the entire ground floor was in the

possession of the petitioner. This was nowhere denied by the petitioner.

It was also specifically alleged by the respondent that the rear wall of

the shop in the possession of the petitioner was removed and joined with

the shop making it a bigger space available with the petitioner for

running readymade garments shop. The petitioner has denied having

removed the said wall or joined the said portion with the shop already in

her possession. It was nowhere her case that the rear portion of the

ground floor premises was being used by her for residence. As is noted

earlier, her case was that they are residing on the first floor of the

premises. It was in fact mentioned in the petition that the petitioner was

in possession of the rear portion of the premises, which was about 2/3rd

of the entire ground floor premises. During the course of arguments, the

learned counsel appearing for the respondent showed few photographs

of the removed rear wall and joined rear portion with the shop and this

entire space lying vacant. This could not be controverted by the learned

counsel for the petitioner. The learned counsel for the petitioner

tried to urge that this rear portion was also being used for residential

purpose, which was neither her case before the trial court nor before

this court. Even the site plan which was filed along with the petition,

was not filed by the petitioner in this court. It was during the course of

arguments and at the instance of the court that the copy of the same was

filed. From the said site plan, it is seen that except the two shops of the

size of 9'x16, the entire rear portion was shown as built up hall. In the

site plan it was shown as built up portion. As per plan the size of the

entire ground floor is about 1080 sq. feet (18x60'). That being so,

excepting the tenanted portion of 9' x 16' say about 144 sq. feet, the

entire area measuring about 936 sq. feet comprising of 144 sq. feet of

vacant shop and 792 sq. feet of rear portion was available with the

petitioner. It has been observed by the ARC, and rightly so, that there

was no requirement of tailors in the case of readymade garments

showroom. The requirement in this regard seems to have been pleaded

only to exaggerate the need of the bigger space. Assuming that the

petitioner needs the space for tailors as also for try rooms, the shop in

her possession and the adjoining back rear portion which has been

joined, is certainly suitable and sufficient for establishing a showroom.

Though the court is not required to dictate such terms to the

owner/landlord, but while examining, evaluating and adjudicating the

requirement projected by the petitioner, the facts which have not been

truthfully presented by the landlord, have to be considered.

7. Without going into the other alleged properties in different

places, which are alleged by the respondent to be in the possession of

the petitioner or her husband or whether her son Sachin was engaged in

steel business and also tuitions, I am of the view that the petitioner is in

possession of sufficient and suitable accommodation on the ground

floor of the premises which can be used for setting up a readymade

garments showroom by her son. She along with her family is residing

on the first floor The petitioners requirement of the tenanted premises

does not seem to be bonafide. Having regard to the nature and extent of

revisionary powers of this court U/s 25-B (8) of the DRC Act and in

view of the discussion as above, I do not see any infirmity or illegality

in the impugned order of the ARCT. The same does not call for any

interference by this court. The petition has no merit and is hereby

dismissed.

M.L. MEHTA, J.

AUGUST 21 , 2012/pkv