Siraj Khan vs Mohd Ahmed
2012 Latest Caselaw 1008 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Judgment: 14.02.2012

+     RC.REV. 545/2011 & CM Nos.23406-08/2011


      SIRAJ KHAN                      ..... Petitioner
                           Through    Mr. M.S.Khan, Adv.

                  versus


      MOHD AHMED                       ..... Respondent
                           Through    None.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 Impugned judgment is dated 27.09.2011 whereby the eviction

petition filed by the landlord Mohd. Ahmed seeking eviction of his

tenant Siraj Khan under Section 14 (1)(e) of the Delhi Rent Control Act

(DRCA) had been decreed in his favour. The summary procedure

contained in Section 25-B of the DRCA had been adverted to; the

application seeking leave to defend filed by the tenant had been

dismissed.

2 Record shows that the present eviction petition has been filed by

the landlord on the ground of bonafide requirement. The premises in

dispute is shop bearing No. 1641, ground floor, Gali Andheri, Ward No.

IX, Gali Andheri, Pahari Bhojja, Jama Masjid, Delhi. Contention of the

petitioner is that his parents had purchased this property vide a

registered sale deed dated 12.08.1992; after the death of his parents i.e.

on 07.02.2002 and 25.07.2007 respectively, their legal heirs inherited

this property which included the petitioner and his four other siblings;

all the aforenoted siblings are minors and they are dependent upon the

present petitioner for all purposes; all of them are joint owners of this

property. Further contention is that the petitioner was having no source

of income; he was earning a meager amount by way of running a

telephone booth in the residential portion of his premises; his brother

Osama aged around 15 years is not doing anything and he could

complete his studies because of paucity of funds; present premises

which is a shop are required by both the petitioners in order that they

can earn a livelihood for themselves. Further contention is that their

sister Ms. Sara aged 17 years has also not been able to continue with her

studies because of financial constraint and the premises are required by

her as well for setting up a business for herself. Further contention of the

petitioners is that the apart from the present shop which has been

tenanted out to the petitioners, there are two other shops on the ground

floor one of which has been tenanted out to Furqan and other is with the

other tenant Chand; they are old tenants. Further contention being

reiterated that the petitioner is doing job work of telephone booth in a

small portion of the ground floor; present premises are required bonafide

by him and his brother for carrying out a business to fend for

themselves. Site plan has been filed along with eviction petition and is a

part of the record.

3 In the application for leave to defend, various grounds have been

raised but the petitioner has confined himself only to the following

grounds:-

(i) Site plan is not correct and there is no explanation as to why in

the site plan filed by the landlord only one shop has been depicted apart

from the tenanted shop when in the eviction petition he has clearly

stated that apart from the tenanted shop, there are two other shops.

(ii) The need of the landlord is not bonafide; he has not come to the

Court with clean hands; he has several rooms and space in his

possession both on the ground floor, first floor and second floor; this

eviction petition has been filed malafide only to evict the tenant.

(iii) This is a case of expansion of business and in view of the

judgment of the Apex Court reported in Dr. S.N. Mehra Vs. D.D. Malik

dated 11.01.1990 passed in Civil Appeal No. 120/90 arising out of an

SLP (Civil) No. 236/1990 in all such cases, leave to defend should be

granted.

4 The reply filed by the tenant to the corresponding paras and the

objection raised by the tenant in his leave to defend have been perused.

5 Ownership and locus-standi of the petitioner to file eviction

petition has however not been disputed. Admittedly the parents of the

petitioner were the owners of this property which they have purchased

by way of registered sale deed dated 12.08.1992; it is also not in dispute

that a co-owner can maintain an eviction petition in the absence of other

co-owner.

6 The site plan filed by the landlord has depicted the tenanted

portion as a shop measuring 6'X7'; another shop measuring 6'X12' is

stated to be tenanted out to Furqan. This is not in dispute. The rest of the

site plan has shown it as a room, passage and a WC; the shop which is

tenanted out to Chand has not been shown as a shop. However, there is a

clear and categorical averment in the eviction petition which states that

there are three shops on the ground floor one of which is with the

present tenant; one is with Furqan and one is with Chand to which there

has been no denial whatsoever in the leave to defend filed by the tenant.

In fact, in the application seeking leave to defend, the tenant has

admitted that Furqan is a tenant; there is no mention about the status of

Chand. The site plan filed by the tenant is almost in conformity with the

site plan filed by the landlord; the only difference is that the room which

has been depicted in the site plan filed by the landlord has been shown

as a shop; there otherwise being no dispute to the factum that all the

three shops which are on the ground floor one of which is with the

present tenant and two are with other old tenants namely Furqan and

Chand. These are the specific averments made by the landlord in his

eviction petition. Thus this submission of the petitioner that the site plan

has not depicted all the three shops which in turn has raised a triable

issue is an argument without any merit. It is accordingly rejected.

7 The eviction petition has been bordered on the bonafide need of

the petitioner for his brother Osama; because of financial constraint,

Osama has even left his studies; on the date of filing of the eviction

petition which was in July, 2008 his brother Osama was about 15 years

of age; his need to set up a business was the need depicted in the

eviction petition. The case of the petitioner himself is that he is running

a small telephone booth from the ground floor. In view of these

averments made in the eviction petition, it can in no manner be said that

what the petitioner is seeking is an expansion of his business; the

bonafide need is to start a business for his brother Osama who being a

co-owner is admittedly dependent upon the petitioner for his need for

accommodation. The judgment of D.D. Malik (Supra) relied upon by

learned counsel for the petitioner would thus be inapplicable.

8 Admittedly, the ground floor is for commercial user. Apart from

his shop, there is no other commercial space available with the petitioner

to fulfill the need of his brother Osama. The petitioner himself is doing

his business of STD booth only from a small portion from his residential

premises. Thus the need of the petitioner for running a business for his

brother Osama who is dependent upon him for all his needs including

his need for accommodation has been established.

9 In 2009(2) RCR 455 titled as Ram Babu Agarwal vs. Jay kishan

Das, the Apex Court in the context of an applicant wishing to start a

new business had inter-alia observed as under:-

"However, as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to do footwear business in the premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also."

10 In Sait Nagjee Purushotham and Co. Ltd. v. Vimalabai Prabhulal and Ors. reported in 2005 8 SCC 252; the Apex Court observed:

"It is always the prerogative of the landlord that if he requires the premises in question for his bona fide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business."

11 Thus this argument of the petitioner is also without force.

12 The last vehement submission of learned counsel for the

petitioner is that he had filed certain documents which are a part of the

trial court record which depict that there are admissions made by the

landlord in his cross-examination in a connected eviction petition which

would fortify his submission that the landlord does not require these

premises bonafide; said documents be adverted to. Record shows that

these documents had been filed in the trial Court on 07.12.2009 whereas

his application for leave to defend had been filed much prior in time i.e.

on 20.10.2008. It is also not the contention of the petitioner that this a

plea now raised was a pleading in his application for leave to defend;

that apart these documents had been filed by him more than 10 months

after the filing of his application for leave to defend and thus cannot be

looked into in order to decide whether a triable issue has been raised by

the tenant or not. If this is permitted, the whole purport of the summary

procedure engrafted under Section 25-B of the DRCA would be given a

go-bye which specifically postulates that the application for leave to

defend has to be filed within 15 days of the service of summons and no

defence after that period can be set up by the tenant for this special class

of landlords.

13 The landlord is also the best Judge of his requirement and it is not

open for any person i.e. neither the tenant and nor even the Court to

dictate terms as to how and in what manner he has to meet his needs for

an accommodation. Landlord in order to obtain an eviction decree must

however show his needs is genuine and bonafide; it should not be

malafide. The tenant unless and until sets up a prima faced defence

cannot in a routine or a mechanical manner be granted leave to defend

otherwise the very purport of Section 25-B of the DRCA which is the

summary procedure depicted for a special class of landlords would be

defeated and this was not the intent of the legislature. If the defence

raised by the tenant is merely bald, whimsical or fanciful having no

basis or foundation, leave to defend may not be granted.

14 In 111 (2004) DLT 534 Shri Hari Shanker Vs. Shri Madan

Mohan Gupta and 155 (2008) DLT 383 Rajender Kumar Sharma &

Others Vs. Smt. Leela Wati and Others the Courts have time and again

reiterated:-

"The Courts cannot and should not in a mechanical or in a routine manner

grant leave to defend."

15 In the instant factual scenario no triable issue has arisen. On the

other hand, it is clear that the landlord has been able to establish his

genuine and bonafide need for these premises which are required by him

for his brother to run a business who because of paucity of funds was

not even able to complete his studies; he was around 15 years in the year

2008 when the eviction petition was filed; his need to stand on his own

feet for a stable financial status has been established. Decree which had

followed in favour of the landlord thus suffers from no infirmity.

16     Petition is without any merit. Dismissed.

17     Trial Court record be sent back.



                                             INDERMEET KAUR, J
FEBRUARY 14, 2012
A