Subhash Chand Gupta vs Yoginder Kumar Raj Kumar
2012 Latest Caselaw 1044 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of Judgment: 15.02.2012

+     RC.REV. 29/2011 and CM No. 1967/2011

      SUBHASH CHAND GUPTA              ..... Petitioner
                  Through Mr. Rajesh Bhatia and
                          Mr. Abhishek Gupta, Adv.

                   versus

      YOGINDER KUMAR RAJ KUMAR            ..... Respondent
                  Through  Mr. S.K. Kalia and Mr. K. K.
                           Bhalla, Adv.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1. The order impugned before this court is the order dated

16.12.2010 whereby the two applications seeking leave to defend filed

by the tenants in pending eviction proceedings under Section 14(1)(e) of

the Delhi Rent Control Act (DRCA) had been allowed and leave to

defend had been granted in favour of the tenant. Petitioner/landlord is

aggrieved by this order.

2. The facts emanating are that the petitioner-Subhash Chand Gupta

has filed an eviction petition seeking recovery of tenanted shop

measuring 98.83 sq. ft. in premises bearing No. 581, Kucha Pati Ram,

Bazar Sita Ram, Delhi-110006. The tenant has been described as

Yoginder Kumar Raj Kumar. The bonafide requirement of the landlord

has been pleaded in para 18(a); contention being that the premises is

required bonafide by the landlord for his son Anupam Gupta who is an

advocate and dependent upon his father for the purpose of opening his

office; landlord is the owner of the disputed premises; he has no other

reasonable accommodation for opening the office for his son-Anupam

Gupta and as such his need is bonafide. Present eviction petition was

accordingly filed.

3. Two separate applications seeking leave to defend had been filed

by the tenants raising various contentions; it was contented that the

petitioner is not the owner of the premises; his need is not bonafide;

there is also an alternate accommodation available with the landlord; all

these are triable issues and leave to defend should be granted.

4. Impugned order has dealt with these contentions raised by the

tenants. After detailed arguments and a consideration of the pleadings of

the parties, the ARC had returned a finding that the landlord is the

owner of the suit premises; original owner was Raunak Mal; petitioner-

Subhash Chand Gupta is admittedly one of his legal representatives;

mutation of the property had been effected in his name; rent receipts

showing that he is the landlord have also been placed on record. These

facts are not disputed. In fact the tenants in their individual applications

seeking leave to defend had stated that the rent receipts were in their

joint name i.e. Yogender Kumar Raj Kumar; the ARC in this scenario

had returned a clear finding that the petitioner Subhash Chand Gupta

was the owner and the landlord of the suit premises; the purpose of

letting out was also held to be commercial; in view of the judgment of

2008 (3) SLT 553 titled as Satyawati Sharma vs. Union of India an

eviction petition on the ground of bonafide requirement was held

maintainable even for commercial purpose. On the aspect of alternate

and a suitable accommodation being available with the landlord a clear

finding was returned by the ARC that the need of the landlord was

bonafide which was the need for setting up an office premises for his

advocate son who had no alternate accommodation available. Court had

noted that it is not for the tenant to dictate terms to the landlord about

his need and requirement; since the son of the petitioner is practicing in

Delhi, he needs to open an office in Delhi and even if an alternate place

was available at Noida i.e. property No. C-23, Sector 44, Noida, it

would not substantiate the request of the landlord to set up a business

office which was required to set up in the precincts of Delhi. There was

also no other accommodation available with the landlord; property at B-

90, Pandara Road which was a government accommodation and after

the retirement of the petitioner he had surrendered this accommodation.

Clear finding was returned in favour of the landlord that the need of the

landlord was bonafide and he had no alternate accommodation available

with him to set up business office for his son who was a practicing

advocate in Delhi .

5. The Trial Court had however granted leave to defend. This was

on an illegal finding returned by it that Yoginder Kumar Raj Kumar is a

partnership firm and since a partner does not have any entity apart from

its partners, the partners not having been impleaded in their separate

capacity, it has a raised triable issue which would entitle the tenant for

leave to defend. This is clearly an erroneous finding and is outside the

para meters and scope of Section 14(1) (e) of the DRCA.

6. Before adverting to the requirement of Section 14(1)(e) of the

DRCA it would be necessary at this stage to advert to the pleadings of

the tenants in the two applications seeking leave to defend filed by both

Yoginder Kumar and Raj Kumar separately. Both of them in their

separate applications for leave to defend have contended that they are

individual tenants in the suit premises; they have admitted that rent

receipts have jointly been issued in their name i.e. Yoginder Kumar Raj

Kumar. They have nowhere raised any dispute or even whispered a

word that the eviction petition has arrayed Yoginder Kumar Raj Kumar

as a partnership firm and in the absence of the partners having been

impleaded, this petition is bad. In fact in the body of the applications for

leave to defend, a ground of mis-joinder of the parties has been averred

but the mis-joinder is to the effect that the other legal representatives of

the deceased tenant have not been arrayed as parties; there is no

objection raised in these applications seeking leave to defend that the

partnership firm could not have been sued as a tenant. In fact in the

applications seeking leave to defend it has been categorically contended

that there is no firm running the business from the disputed premises;

both Yoginder Kumar and Raj Kumar are individual tenants.

7. In these circumstances, this court is at a loss to understand how

the ARC has returned a finding that a triable issue has occurred on this

count. Triable issues have to emanate necessarily from the pleadings of

the parties which in the summary procedure as contained under Section

25B of the DCRA has to be read from the application filed by the tenant

seeking leave to defend, the reply of the landlord and the eviction

petition. No objection has been raised by the tenant in his application

seeking leave to defend qua this finding returned by the Trial Court,

Trial Court thus holding that a triable issue has arisen because Yoginder

Kumar Raj Kumar is a firm and in the absence of the partners of the

firm having been impleaded, leave to defend had been granted is clearly

a manifest illegality committed by the Trial Court which is accordingly

set aside.

8. In an eviction petition under Section 14(1)(e) of the DRCA the

following are the essential requirements:-

(a) The applicant has to be a landlord/owner;

(b) The premises in question should have been let out for

residential or commercial purpose or both;

(c) The said premises are required bona fide by the landlord for

occupation as a residence for himself or his family dependent

upon him and;

(d) That the landlord or such person dependent upon him has no

the reasonably suitable accommodation.

9. All these stand fulfilled and in fact have been noted in the order

by the ARC. The tenant is not in appeal before this court and as such

any arguments advanced by the tenant on this count cannot be adverted

to.

10. In these circumstances, impugned order is set aside. Petition is

allowed; eviction petition is decreed.

INDERMEET KAUR, J February 15, 2012 rb