Shri Ramesh Chand Bhardwaj vs Smt. Kusum Gupta
2012 Latest Caselaw 4990 Del

*          THE HIGH COURT OF DELHI AT NEW DELHI

+            RC.Rev.470/2011 & CM Nos.21389-21390/2011

                                           Date of Decision: 24.08.2012

Shri Ramesh Chand Bhardwaj                               ...... Petitioner

                          Through:     Mr. S.C.Singhal, Adv.

                                 Versus

Smt. Kusum Gupta                                       ...... Respondents

                          Through:     Mr. R.K. Gupta & Mr. Rajiv
                                       Kanwar, Advs.

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

M.L. MEHTA, J. (Oral)

1. This revision petition has been filed under Section 25-B (8) of the

Delhi Rent Control Act (herein after referred to as the "Act") against the

order dated 27.08.2011, whereby eviction order qua tenanted shop

bearing private no. 3 measuring 13'x10' situated on ground floor of

property bearing no. 3767, A-2, Kanhiya Nagar, Tri Nagar, Delhi (suit

premises), was passed against the petitioner tenant.

2. The respondent landlord had preferred an eviction petition under

Section 14 (1) (e) of the Act for the bonafide requirement of the

tenanted shop, stating that she is the owner and landlord of the suit

premises and the tenanted shop was let out to the petitioner on

01.04.1994 for commercial purpose . It was submitted that there are

three shops on the ground floor of the suit premises, including the

tenanted shop, and two of which are occupied by her son Naveen,

wherein he is running a small unit of making handkerchiefs. It was

stated that there are two rooms each on the first and second floor of the

suit premises. It was further stated that at the time of letting out the

tenanted shop, her children were teenagers but, with the passage of time,

her family had expanded and the accommodation available with her is

not sufficient to meet the residential requirements of herself, her

husband, and her two married sons. It was stated that they do not have

any guest room for overnight stay of guests and married daughter

Meena. It was further stated that the respondent wanted to shift to the

tenanted shop on the ground floor, so that each of her sons could have

an independent floor, and the drawing room on the first floor could be

used as a guest room.

3. The petitioner/tenant was granted leave to defend vide order dated

18.4.2009. He filed his written statement wherein the ownership of the

respondent over the suit premises was disputed. It was further averred

that the tenanted shop was let out for commercial purpose and the

eviction petition was filed on the ground of bonafide requirement for

residential purpose and, hence not maintainable. The next contention

raised by the petitioner/tenant was that the two shops on the ground

floor, which are alleged to be in possession of the respondent's son, are

lying vacant and her son is not running any small unit of handkerchief in

the said shops, as projected in the eviction petition. It was further

averred that the said two shops could easily be used by the respondent to

meet her residential requirements and therefore, the eviction petition

was liable to be dismissed. The respondent filed replication to the

written statement of the petitioner, and reaffirmed the contents of the

eviction petition and denied the submissions made by the

petitioner/tenant.

4. The respondent examined herself as PW-1 and deposed in terms

of the petition. The husband of the respondent was examined as PW-2,

who admitted the ownership of the respondent over the suit premises in

his cross examination. PW-3 Naveen Gupta, son of the respondent also

reiterated the contents of the eviction petition and maintained in his

cross examination. Sachin Gupta, another son of the respondent was

examined as PW-4. The petitioner/tenant examined himself as RW-1

and reaffirmed the contents of his written statement and affidavit. Upon

perusal of the testimony of the witnesses and evidence produced on

record, the learned Trial Court arrived at a conclusion that the

respondent/landlord was able to prove the factum of a small unit of

handkerchief being run in the two shops situated on the ground floor of

the suit premises, by her son Naveen, and also her bonafide need of the

tenanted shop for meeting her residential requirements and,

consequently decreed the eviction petition in favour of the

respondent/landlord. Hence, the present petition.

5. The learned counsel for the petitioner/tenant urged before this

Court that the learned Trial Court has passed the impugned order in

spite of the fact that no evidence was led by the respondent to prove that

her son is running the unit of handkerchief in the two shops situated on

the ground floor of the premises. It is further submitted that the suit

premises falls under the category of mixed land use according to the

Delhi Master Plan, and there was no proof of any permission taken from

the MCD by the respondent's son to carry the business of handkerchief,

which goes to show that the shops are, in fact, lying vacant, and not

being used for any commercial purpose by the respondent's son. It is

also urged that no proof of any employees engaged by the respondent's

son or separate commercial electricity connection being taken by the

respondent's son, has been brought on record. It is further contended

that the tenanted shop does not have any amenities like bathroom, water

connection, etc. and cannot be used by the respondent for residential

purpose. It is submitted that the Ld. ARC passed the order after due

consideration of material evidence and testimonies of witnesses and it

requires no interference by this Court.

6. Heard the submissions and perused the record.

7. The only issue argued before this Court by the learned counsel for

the petitioner is regarding the claim of the respondent that the two shops

on the ground floor of the suit premises, were being utilized by her son

for commercial purpose. This has been vehemently refuted by the

petitioner/tenant stating that no conclusive proof has been produced by

the respondent. The perusal of the evidence proves otherwise. The

respondent had examined herself, her two sons and her husband before

the learned Trial Court. They were also cross examined at length on this

issue. But, their testimonies are consistent on the point that the two

shops are, in fact, being utilized by the respondent's son Naveen to run a

small unit of handkerchief. Their testimony could not be shaken or

proved to be incorrect. Mere denial by the petitioner of this fact is not

sufficient to disregard the credible testimonies of the four witnesses.

The petitioner has not examined any independent witness to refute this

claim of the respondent and has also not brought on record any material

evidence to support his contention. Moreover, PW-2 Shri Roshan Lal

Gupta has maintained in his cross examination that there are two

electricity meters installed in the suit premises, one being commercial

and the other domestic, which lends credence to the submission of the

respondent that the two shops are utilized by her son for commercial

purpose.

8. This is common knowledge that in the premises falling in mixed

land use areas, certain commercial activities are permissible on the

ground floors and for some activities even licences are not required from

the civic Authorities. This is beyond the scope of power of tenant and

this Court to see as to why and how, the son of respondent was running

handkerchief unit and if he was paying or not mixed user charges. The

fact that the respondent has not led any evidence regarding the income

tax or the employees' records of the unit being run by her son, could not

be the factors to discredit her case in this regard. The respondent has,

from her testimony and those of her sons and the husband, which have

remained un-assailed, been able to prove that her son has been running a

small unit of manufacturing of handkerchiefs on the ground floor

portion of the suit premises.

9. It is undisputed that the family of the respondent comprised of

self, her husband and also two married sons, and the present

accommodation available with her on the first and second floor

comprised of two rooms each. Having regard to the requirement of

three couples, besides the accommodation that may be required for the

visiting married daughter as also the guests and drawing room, the

present accommodation available with the respondent cannot be said to

be sufficient and suitable for the residential purposes. There is no bar

for the respondent to use the tenanted shop for the residential purposes.

Consequently, I am of the considerate opinion that the respondent had

conclusively proved the fact that a small handkerchief unit is indeed

being run by her son Naveen in the said shops on the ground floor of the

suit premises.

10. The contention raised by the learned counsel for the petitioner

that the tenanted shop does not have any water connection or bathroom,

and hence cannot be used by the respondent for residential purpose, is

untenable. The respondent can always make such arrangement after

obtaining the possession of the tenanted shop and cannot be denied the

right to utilize her property on this frivolous ground.

11. In view of the above discussion, the findings of fact arrived at by

the learned ARC cannot be faulted with. I find no illegality or

perversity in the impugned order. The petition being without any merit

is hereby dismissed.

M.L. MEHTA, J.

AUGUST 24, 2012/ss/skw