Delhi High Court
Kiran Sachdeva & Anr. vs Pushpa Devi & Anr. on 21 December, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ R.C.REV. 216/2012
Date of Decision: 21.12.2012
KIRAN SACHDEVA & ANR. ......Petitioner
Through: Ms. Amrit Kaur Oberoi, Adv.
Versus
PUSHPA DEVI & ANR. ......Respondent
Through: Mr. Vivek Singh, Adv.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. This revision petition under Section 25-B(8) of the Delhi Rent
Control Act (for short the 'Act') is directed against the order of Addl.
Rent Controller (ARC), North, Tis Hazari Courts dated 04th February,
2012, whereby the leave to defend application filed by the petitioners,
was dismissed.
2. The petitioners are the tenants in respect of one shop at the
ground floor of the property bearing No. 29-E, Kamla Nagar, Delhi
under the respondents/landlords. Their eviction was sought from the
tenanted shop on the ground of bona fide requirement thereof by the
respondents for running therein business of readymade garments. It
was their case that they do not have any other reasonably suitable
space for this purpose in the suit premises or otherwise. It was averred
that there are three other shops, besides the suit shop, which are with
different tenants. It was averred that the respondents are engaged in
the business of garments and the respondent No. 1 is doing the
garments' business in partnership with her son-in-law Anil Khurana,
whereas, the respondent No. 2, who was carrying her business of
garments from the tenanted shop taken by her son at Noida, has
surrendered the tenancy of the said shop to its landlord. Thus, they
intend to start the garment's business from the tenanted shop, which is
very convenient to them, and also because they do not have any other
commercial property to carry on their business.
3. The application seeking leave to defend was filed by the
petitioners on various grounds. The learned ARC, vide the impugned
order, dismissed the leave to defend application, which order is under
challenge in the instant petition.
4. I have heard learned counsel for the petitioners as also the
respondents and perused the records including the impugned order. It
is noticed that all the grounds which were taken by the petitioners
seeking leave to defend have been adequately dealt with by the learned
ARC except one, which will be discussed hereinafter. All the pleas,
which were taken by the petitioners regarding availability of alternative
accommodations with the respondents at Greater Kailash, Majlis Park
and Najafgarh, and also that the respondents have sold various portions
of the suit premises to different tenants at different times, have been
dealt with by the learned ARC, and I do not see any infirmity or
illegality in those findings.
5. However, it is noticed that the learned ARC seems to have
overlooked very important aspect from his consideration. It was the
case of the respondents that they are engaged in the business of
garments and the respondent No. 1 is a partner of her son-in-law Anil
Khurana, and running garments business under the name and style of
M/s. Fury Fashion, and further that her daughter/respondent No. 2 was
doing the garments business from a tenanted shop at Noida, which she
has now surrendered. The plea of the petitioners in this regard as set
out was that the respondents are admittedly in the business of garments
and are well settled, having spacious space available for this purpose.
In response thereto, the respondents had stated in the reply that such
averments are misconceived. It was averred that they desired to start
readymade garments business and thus, required the tenanted shop for
their business.
6. The learned ARC here committed an error in observing that
there is no law, which requires the respondents to show the extent of
business being carried by them. This observation in the context of the
averments seems to be misplaced. What was averred by the
respondents themselves was that the respondent No. 1 is engaged in the
garments business with her son-in-law Anil Khurana, and was carrying
the business under the name and style of M/s. Fury Fashion. It has not
been disclosed in the petition and the reply to leave to defend
application as to from where this business of M/s. Fury Fashion was
being carried by her. If the respondent No. 1 had been carrying such
business of garments, then, it was required to be ascertained that from
where it was being carried and that the accommodation there, was
suitable or not, and further whether the tenanted shop was required for
the said partnership firm or by the respondent No. 1 alone. This aspect
directly goes to the bona fide requirement of the respondents as also to
assess the suitability or otherwise of the space from where the
respondent No. 1 was carrying the said business. There is no dispute
that a landlady is entitled to have the expansion of her business, and
can also seek additional accommodation for the same, but, then, it is
necessary to know that the space available was either insufficient or
not suitable for doing the business. It was also necessary to know if it
was for the expansion of the said business in the new location i.e. the
tenanted shop. This was a vital triable issue, which is seen to have
been raised by the petitioners, and in the light of this, projected
requirement of the respondents is required to be tested objectively by
the Controller. From the respondents' own pleadings, a triable issue is
seen to have been raised by the petitioners.
7. In view of above discussion, I am of the view that the learned
ARC has erred in appreciating the averments as set out in the petition
as also in the leave to defend application, and reply thereto in this
regard. Thus, it could be seen that the petitioners have been able to
raise prima facie, triable issue which seems to have been overlooked
by the learned ARC, and which could not be prematurely decided,
without adjudication by way of evidence. As such, the petitioners
cannot be thrown out of the tenanted premises at the threshold at least
till the time, the respondents are able to make out their case of bona
fide requirement of the same. The impugned order is thus set aside.
The petition is allowed, and the leave to defend is granted to the
petitioners. The parties are advised to appear before the learned ARC
on 16.01.2013.
M.L. MEHTA, J.
DECEMBER 21, 2012
akb
