Prem Prakash Malik vs Ram Gopal Rajvanshi
2012 Latest Caselaw 5096 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                           RC.Rev.344/2011

                                           Date of Decision: 29.08.2012

Prem Prakash Malik                                 ...... Petitioner

                      Through :   Mr. M.S. Vinaik, Adv.

                                  Versus

Ram Gopal Rajvanshi                                 ...... Respondent

                      Through:    Ms. Geeta Dhingra, Adv.

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 21.04.2011, passed by ld. ARC/ACJ/CCJ whereby the leave to defend application filed by the petitioner tenant was dismissed and eviction order qua tenanted shop bearing no. 97, Bhagat Singh Market, Near Gole Market, New Delhi, was passed in favour of the respondent landlord.

2. The eviction petition was filed by the respondent, against the petitioner in respect of the tenanted shop, submitting that he is the shop's owner and landlord and it was let out to the tenant for

commercial purpose at Rs. 500/-p.m. It was submitted that the tenanted shop is now required by him for his own commercial use. It was also stated by the respondent that he is carrying on the business of trading scientific items under the name and style of M/s Kawanjit Traders in a portion of shop no. 91, Bhagat Singh Market, Near Gole Market, New Delhi, along with his two sons who are also running their independent and separate businesses of trading scientific items in the same shop. It was also stated that his younger son is also using a small portion of tenanted shop for the purpose of storage. It was averred by the respondent that his business had substantially expanded with the passage of time, and both his sons are also engaged in separate businesses and one shop is not sufficient to accommodate the customers and his sons and hence he bonafidely required the tenanted shop.

3. Upon receiving summons, the petitioner tenant filed an application for leave to defend and raised the plea that the landlord already had a shop in the commercial area from where he is running his business for last several decades and it is adequate to meet his requirement and there is no bona fide necessity of the tenanted shop. It was also alleged that the landlord and his sons are running one business only and the same business is being shown split up as three firms for the purpose of saving tax and the shop no. 91, Bhagat Singh Market is sufficient for running a single business by the landlord and his sons. It was also stated that the landlord is in possession of several other

properties which are concealed from the Court. Lastly, it was urged that the sons of the respondent are not dependant on him for commercial premises and the requirement, as projected by the landlord, is not a bonafide one.

4. Vide order dated 21.04.2011, the ld. ARC/ACJ/CCJ, passed an order of eviction while holding that no triable issue was raised by the petitioner in his application for leave to defend.

5. In the present revision petition, the learned counsel for the petitioner has argued that the impugned order is bad in law as the facts stated in the application raised several triable issues, which could not be decided at the time of considering the application for grant of leave. The submissions made by the learned counsel for the petitioner before the learned ARC/ACJ/CCJ, were reiterated before this Court. The learned counsel for the respondent submitted that the contentions of the petitioner were dealt with by the learned ARC/ASJ/CCJ at length and finding no merit in them, they were rightly rejected as the petitioner was unable to raise any triable issue. It has been submitted that it is settled legal proposition that leave to defend cannot be granted to the tenant merely on the basis of false averments and bald pleas and hence the order of the learned ARC/ACJ/CCJ, decreeing the eviction requires no interference.

6. I have heard the rival submissions and perused the record.

7. The first plea taken up by the petitioner tenant is that the respondent landlord has sufficient accommodation for the business of himself and his two sons as he is in occupation of shop no. 91, Bhagat Singh Market and a portion in the suit shop. In this regard, it would suffice to state that the landlord is the best judge of his need and requirement. It can be said without any doubt that accommodating numerous customers as well as two permanent employees and two sons in a shop measuring 18.9'x 12' is certainly inconvenient and an arduous task. If a landlord pleads paucity of space which is very evident from the current factual scenario, then it cannot be said that such a plea is guided by any ulterior motive or is unfounded. The landlord cannot be directed to squeeze himself into a space, which is not sufficient to meet the requirement of himself and his sons, who are dependent on him for commercial premises, only to prevent any hardship to the tenant. It is not open to the Court or the tenant to dictate terms to the landlord as to how he should adjust himself only to preclude the tenant from being evicted. In Pratibha Devi vs. T.V. Krishnan 2001 AIR SCW 4661, the Hon'ble Supreme Court held that it is a settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Consequently, I find no force in this contention of the petition.

8. The next plea taken by the petitioner is that the respondent landlord and his sons are running one business only and the same

business is being shown split up as three firms for the purpose of saving tax and the shop no. 91, Bhagat Singh Market is sufficient for running a single business by him and his sons. However, it is not disputed by the petitioner that there are three firms in existence and being run by the respondent and his two sons in the name of M/s Kawanjit Traders, M/s Sunder Electronics and M/s Zenith International. Even if the firms are split up and run under three different names for taxation purposes, the fact remains that these firms are run under the same roof by three persons along with employees and a number of customers have to be accommodated in a single shop on daily basis. I do not find this plea to be of any relevance to the present case, much less needing any triable.

9. The petitioner also raised the contention that the sons of the respondent are not dependant on him for commercial premises. To my mind this defence taken up by the petitioner is misplaced. Certainly, in the society that we live in, a father has an obligation to fulfill the requirement of residential and commercial property of his sons. In Labhu Lal Vs. Sandhya Gupta 2011(1) RCR,(Rent) 231 (Delhi), it has been held by this Court that the children are very much dependant on the landlord for the purpose of setting up their business and such a requirement is a bonafide one. The right of the landlord for possession of his property for setting up a business for his son has been also recognized by the Apex Court in Ram Babu Aggarwal Vs. Jay Kishan

Das 2009(2) RCR 455. I do not find any merit in this contention of the petitioner.

10. Lastly, the learned counsel for the petitioner raised a vague plea that the respondent/landlord had acquired two other properties in Delhi, without furnishing any details of such properties, whatsoever. In the absence of any iota of evidence, such false averments cannot be accepted as gospel truth and were rightly discarded by the ld. ARC/ACJ/CCJ.

11. It is settled legal principal that leave to defend is granted to the tenant in case of any triable issue raised before the trial Court which can be adjudicated by consideration of additional evidence. The whole purpose and import of summary procedure under Section 25-B of the DRCA would otherwise be defeated. In Precision Steel & Engineering Works & Anr. Vs. Prem Devi Niranjan Deva Tayal (1982) 3 SCC 270, the Apex Court has held that the prayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclosed a prima facie case i.e. such facts as to what disentitles the landlord from obtaining an order of eviction, the Court should not mechanically and in routine manner grant leave to defend. In Nem Chand Daga Vs. Inder Mohan Singh Rana, 94 (2001) DLT 683, a Bench of this Court had noted as under:

"That before the leave to defend is granted, the respondent must show that some triable issues which disentitle the applicant from getting the order of eviction against the respondent and at the same time entitled the respondent to leave to defend existed. The onus is prima facie on the respondent and if he fails, the eviction follows."

12. In the instant case, the petitioner has miserably failed to raise any important triable issue that could merit grant of leave to defend, whereas the respondent has succeeded in proving his bonafide requirement of the tenanted shop. In Siddalingamma & Anr. Vs. Mamtha Shenoy (2001) 8 SCC 431, the Hon'ble Supreme Court while considering the reasonable and bona fide requirement of landlord, held that the question to be asked by a judge of facts, by placing himself in the place of the landlord, is, whether in the given facts proved by the material on record, the need to occupy the premises can be said to be natural, real, sincere and honest. If the answer be in the positive, the need is bona fide.

13. In view of my above discussion I could not find any infirmity or illegality in the impugned order of ld. ARC/ACJ/CCJ warranting any interference by this Court. The petition is devoid of any merit and is hereby dismissed.

M.L. MEHTA, J.

AUGUST 29, 2012/ss