Delhi High Court
Babita Arora & Ors. vs Rajesh Malhotra & Anr. on 29 August, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ RC REV. 254/2012
Date of Decision: 29.08.2012
BABITA ARORA & ORS. ...... Petitioners
Through: Mr. S.K.Sharma, Adv.
Versus
RAJESH MALHOTRA & ANR. ...... Respondents
Through: Mr.Nitin Gupta, Adv.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This revision petition under Section 25B(8) of the Delhi Rent
Control Act (for short the 'Act') seeks assailing the order dated
17.4.2012 whereby the leave to defend application of the petitioners
herein in the eviction petition filed against them by the respondents, was
dismissed.
2. The respondents had sought the eviction of the petitioners from
the tenanted shop bearing No. 13, Ward No. IV, Esplande Road,
Chandni Chowk, Delhi on the ground of bona fide requirement thereof
by the respondent No. 2 Rajesh Jain. The petitioners filed the leave to
defend application, which was declined by the learned ARC vide the
impugned order. The same has been assailed in the instant petition by
the petitioners/tenants. The grounds set up for seeking leave to defend
as contained in the affidavit are that the respondents are having
reasonably suitable and sufficient accommodation/properties in Delhi. It
was averred that Rajesh Jain (respondent No. 2) is the owner and
occupant of various properties such as 13-A, Chandni Chowk, Delhi, S-
24, Sunder Block, Shakarpur, New Delhi, Shop No. 26, Kuchha
Chaudhary, Chandni Chowk, Delhi, S-233, First Floor, G.K.-I and Shop
No. 33, Kuchha Chaudhary, Chandni Chowk, Delhi. It was also alleged
that in the sale deed the area of the suit shop was mentioned 63 sq. ft.,
whereas its area was not more than 33 sq. ft.
3. The respondents have given a detailed reply as regard to each and
every property as mentioned above. The learned ARC has noted the
averments of the tenants as also the clarification and explanation given
by the respondents landlords in respect of each and every property.
With regard to the property No. 13A, Chandni Chowk, the respondents
have stated that the rear portion of this property was sold in the year
2004 and the front portion was let out to one Satish Goel on 1.8.2005.
They had produced sufficient documentary evidence in the shape of rent
agreement and counter foils of rent receipts issued in this regard. With
regard to the property bearing No. S-24, Sunder Block, Shakarpur, the
respondents stated this to be a residential property, and have
substantiated the same by way of documents such as Ration Card, Voter
I.D.Card etc. and thus, it has been observed by the ARC, and rightly so,
that it could not be said to be residential-cum-commercial property.
Regarding shop No. 26, Kuchha Chaudhary, Chandni Chowk, the same
was categorically denied by the respondents to be having any right, title
or interest therein. There was nothing brought on record by the
petitioners to show otherwise. Similarly, property bearing No. S-233,
First Floor, G.K.-I was also found to be a residential property and there
is nothing on record to the contrary. With regard to the shop No. 33,
Kucha Chaudhary, Chandni Chowk, it was admitted case that the
respondent No. 1 Rajesh Malhotra was running a shop there. Noting all
this factual matrix, the learned ARC noted that none of the properties
mentioned above was available or suitable for the business requirement
of respondents.
4. The controversy was sought to be raised by the petitioners that the
MCD as also the erstwhile owner Preet Kumar were the necessary
parties. They had filed application under Order 1 Rule 10 CPC for
impleading them in the array of the parties. The said application was
also dismissed by the ARC vide the impugned order. So far as Preet
Kumar is concerned, he had sold the suit premises to the respondents
and now, had nothing to do with the same. With regard to the plea
regarding impleadment of MCD, it was noted that in front of the suit
shop, there is a Chabutra wherein unauthorized construction was raised
without the permission of the MCD. It was for the said Chabutra
existing in front of the shop that some proceedings were initiated by the
MCD against the father of the petitioners, which led him to file a case,
wherein ultimately, he started making payment of Teh Bazari in respect
of area measuring 13.5 sq.ft. under Section 317, Delhi Municipal
Corporation Act. Thus, the said portion cannot be said to be a part of
the suit shop and in fact, it was not the case of the respondents as well.
Even if the petitioners' father was granted licence to use the Chabutra in
front of the shop, that does not create any tenancy rights therein and
thus, the observation of the ARC that the MCD was not a necessary
party, cannot be faulted with.
5. From the leave to defend application, no triable issue of any kind
could be made out by the petitioners. As per the averments of eviction
petition, the respondent Rajesh Malhotra is doing his business of
photography in shop No. 33, Kucha Chaudhary, Chandni Chowk, which
is not in dispute. As per the averments, the respondent No. 2 Rajesh
Jain, who was undisputedly, working as photographer, had suffered
losses and thereafter, took up employment with M/s. Tana Bana, but that
also he left in December, 2008. Since December, 2008, he is stated to
be unemployed. He intends to set up his own business of photography
in the suit shop. From the above, it is seen that there is no commercial
property available for Rajesh to set up his independent business. None
of the properties noted above, could be said to be available with the
respondents and suitable for setting up a business. There is nothing on
record to doubt the bona fide need of the respondent No. 2 Rajesh Jain
to set up his business of photography in the suit shop.
6. In view of my discussion above, I do not see any infirmity or
illegality in the impugned order of ARC. The petition has no merit and
is hereby dismissed.
M.L. MEHTA, J.
AUGUST 29, 2012/akb
