Narender Kumar Manchanda & Anr. vs Hemant Kumar Talwar
2012 Latest Caselaw 7036 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                           R.C.REV. 107/2012

                                           Date of Decision: 10.12.2012

NARENDER KUMAR MANCHANDA & ANR. ...... Petitioner
               Through: Ms.Amrit     Kaur     Oberoi,
                        Ms.Kanica Sabharwal, Adv.

                                  Versus

HEMANT KUMAR TALWAR                                ...... Respondent
               Through:                  Mr.Diwan Singh Chauhan, Adv.

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

M.L. MEHTA, J. (Oral)

1. This revision petition under Section 25-B(8) of the Delhi Rent Control Act (for short the 'Act') impugns the order dated 25.11.2011 of the Commercial Civil Judge-cum-Addl. Rent Controller (Central), Delhi, whereby the leave to defend application filed by the petitioners in the eviction petition filed against them by the respondent, was dismissed.

2. The petitioners are the tenants in one shop measuring 8' x 20' in property No. 5319, Hardhayan Singh Road, Karol Bagh, New Delhi under the respondent. Their eviction was sought on the ground of bona fide requirement of the suit shop by the respondent for himself and for his son, who had become major and wanted to set up a business. The

case of the respondent as set out in the eviction petition was that he is a heart patient and is unable to do labour and thus, intended to establish his son to set up a business in the tenanted shop. It was his case that he has no other source of income, and thus, bonafidely required the suit shop for his son, who is completing his education by correspondence. It was then averred that he bonafidely required the suit shop for himself as also for setting up a business by his son.

3. The petitioners filed leave to defend application on various grounds, which came to be dismissed by the learned ARC vide impugned order. The same is under challenge in the instant petition.

4. The learned counsel for the petitioners has contended that the learned ARC has completely erred in ignoring the triable issues, which were raised by the petitioners. It was submitted that the learned ARC has also ignored that the requisite ingredients of Section 14(1) (e) of the Act were also not pleaded in the eviction petition inasmuch as it was nowhere pleaded by the respondent that he does not have any other suitable accommodation. It was also alleged that the learned ARC also overlooked that the respondent was already in possession of adjoining shop where he was doing his business, which he had not disclosed and had also not averred the said accommodation available with him to be not sufficient. It was further submitted by the learned counsel that the nature of the business, which was sought to be set up by the respondent for himself and his son, has also not been disclosed.

5. I have heard learned counsel for the petitioners and also the respondent and perused the record.

6. It is undisputed that the respondent is in possession of accommodation adjoining the suit shop. It is also not disputed by the learned counsel for the respondent that the respondent had not disclosed in the eviction petition regarding his possession of this adjoining space. His submission in this regard was that it was not a shop, but a passage where the respondent was doing some business. In the leave to defend application, the petitioners had taken a specific plea of the respondent to be having this adjoining accommodation, which was a shop and where he alongwith his son, was carrying business under the name and style of M/s. Hemant Enterprises. The petitioners had also filed some documents in support of this submission. It was only in reply to this averment that the respondent, while admitting that he is the sole proprietor of M/s. Hemant Enterprises, stated that he is carrying on business of this firm at the space, which is only 4'x 20' feet. The learned ARC has relied upon the report of the Local Commissioner, who also reported this space to be 4.2 feet x 34 feet with a door in between that passage and back space. He also relied upon the observations of the Local Commissioner that the respondent was carrying on this business at this space. Without commenting as to whether this accommodation available with the respondent was not suitable or sufficient for his projected need of setting up the business for himself and for his son, the fact remains that this was not disclosed

by the respondent that he was in possession of this accommodation, which is adjoining the suit shop and from where, he is doing business of M/s. Hemant Enterprises. It is also not disclosed as to what is the nature of business which he is carrying from this accommodation. The need of any accommodation and also the extent of accommodation required, would certainly be dependent upon the nature of business to be carried therefrom. For some businesses, a small space may be sufficient, whereas for others, larger space would be the necessity. The site plan which was filed by the petitioners is not in dispute. This would show that the accommodation, which is available with the respondent, has an opening of 4.2 feet in width and about 20 feet in depth and thereafter, it becomes 15 feet x 25 feet. It was undisputed that he was keeping his tables and chairs etc. at the front space and was doing his business from the whole of this accommodation. This is also not disputed that he also has full built up first floor in his possession, which was also not disclosed by the respondent in the eviction petition.

7. Moving further, it is also noticed that the respondent has only stated about requiring the suit shop for himself and his son for setting up a business. As is noted above, he has nowhere averred in whole of the petition that he has no other reasonably suitable accommodation for this purpose, and which, as noticed above, was concealed and was disclosed only after the filing of leave to defend application by the petitioners. In any case, the respondent has also nowhere disclosed as to what is the business that he intends to set up for himself or his son.

If he is having cardiac problem and is unable to do any labour work, then, it would also be required to be tested as to whether his projected requirement for himself is genuine and authentic. On the one hand, he stated his son to be studying Graduation by correspondence and about to complete his education, and on the other, he has projected the requirement of the tenanted shop for establishing his son in some business therein. Again, it is nowhere disclosed as to what is the business which is sought to be set up by the respondent for his son. There is no dispute to the proposition that it is the prerogative of the landlord to set up any business of his choice and neither the tenant nor this Court can question that, but, when he has neither disclosed the nature of business that is sought to be set up by his son, and is otherwise in possession of the accommodation from where he is doing his business, it becomes a triable issue as to whether his son genuinely intended to set up a business, and if so, when.

8. When admittedly the respondent is in possession of adjoining accommodation from where he is doing business, his so-called need would be nothing, but that of an additional accommodation for setting up a new business or expanding his existing business. In either case, the projected requirement would be required to be tested objectively by the Controller. It is necessary to bear in mind that when leave to defend is refused, the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party by cross- examination.

9. In view of my above discussion, it is seen that the petitioners have been able to raise prima facie, triable issues, which seem to have been overlooked by the learned ARC, and which could not be prematurely decided, without adjudication by way of evidence and not merely on the affidavits of the parties. As such, the petitioners cannot be thrown out of the tenanted premises at the threshold. I strongly feel the impugned order suffering from infirmity, which has resulted in miscarriage of justice to the petitioner. Thus, the impugned order is liable to be set aside. The petition is allowed and the leave to contest is granted to the petitioners. The parties are advised to appear before the learned ARC on 19.12.2012 for further proceedings.

M.L. MEHTA, J.

DECEMBER 10, 2012/akb