Delhi High Court

Sushil Mittal vs Arun Kumar on 1 February, 2012

Author: Indermeet Kaur

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 01.02.2012.

+              RC.REV. 242/2011 & CM No. 818/2012

SUSHIL MITTAL                                      ..... Petitioner
                             Through    Mr. Sameer Dewan, Adv.

                    versus

ARUN KUMAR                                          ..... Respondent
                             Through    Mr. Sudhir Nandrajog, Sr.
                                        Advocate with Mr. Siddharth
                                        Bhambha, Adv.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 Order impugned before this Court is the judgment and decree

dated 23.05.2011 wherein in a pending eviction petition filed by the

landlord Arun Kumar seeking eviction of his tenant under Section 14

(1)(e) of the Delhi Rent Control Act (DRCA) i.e premises comprising

one shop in property No. 2855, Sirkiwalan, Hauz Qazi, Delhi as

depicted in the red colour in the site plan filed by the petitioner had been

decreed. The triable issues sought to be raised in the application for

leave to defend filed by the tenant had been declined.

2 Record shows that the averments of the petitioner in his eviction

petition is that he is the owner of the premises; premises were earlier

owned by his grandfather Nihal Chand who had become owner by virtue

of a registered sale deed dated 08.01.1948; after his death on 21.10.1985

in terms of his Will dated 11.04.1980, the property in dispute was

bequeathed to his son Ramesh Kumar and to his grandson i.e the present

petitioner Arun Kumar. Further contention is that the tenant had also

attorned to the landlord and the accepted hiM as the landlord and owner

of the demised premises; further contention being that the petitioner is

carrying on business of iron and hardware in the name of „M/s Satyadev

and Company‟ being the sole proprietor thereof in a shop on the ground

floor of property No. 2855 at Sikriwalan, Delhi just beneath the

premises in dispute i.e. in contiguity with the premises which have been

tenanted out to the tenant. This factual position is not in dispute and is

also borne out from the site plan. Further averment of the petitioner in

his eviction petition is that he is using the said shop for storage of stocks

as also for sale as also as an office of the said business; he has huge

stocks which are kept in the shop which space is not sufficient to

accommodate the stocks as also to provide an office for the business of

the petitioner; he has no other accommodation except this shop in his

possession; he cannot conveniently run the aforenoted business as there

is an insufficiency of space; tenanted premises on the first floor are

accordingly bonafide required by him.

3 Application for leave to defend has been perused. The first

contention of the tenant is that the bonafide requirement of the landlord

is in fact malafide; he has concealed material facts and he has not come

to the Court with clean hands; contention being that he has not disclosed

the entire accommodation which is available with him; further

contention being that on the ground floor although there are admittedly

two shops, one with the present tenant and another with another tenant

M/s Gobind Ram & Sons yet that apart there is availability of space

even on the ground floor which space is adjoining the staircase;

photographs have been affixed along with the eviction petition in the

trial Court and the learned counsel for the petitioner has drawn attention

of this Court to the said photographs depicting the ground floor;

vehement contention being that there is a room measuring 16ft X 4.5

feet which is lying locked; there is another space which is below the

staircase which is in „L‟ shape and total space available is thus

approximately 100-120 square feet. In the corresponding para of the

reply, the landlord has denied this submission; the site plan and the

photographs placed on record have also been perused. Admittedly there

are only two shops on the ground floor, one of which is in occupation of

the landlord from where he carrying on his business; it measures 320

square yards; the other adjoining shop is tenanted out to M/s Gobind

Ram & Sons who is a tenant in the said premises for last more than 50

years. The L shaped space as pointed out by the petitioner is only a

passage which is accessing the staircase and is for the purpose of going

to the upper floors and can in no manner be said to be a space available

to the petitioner either for the purpose of running his business or for

storage of stocks or as a office space which are the requirements of the

landlord. The other space on the ground floor as per the contention of

the petitioner measures 16 X 4.5 feet; perusal of the site plan shows this

space to be a longitudinal passage which as per the submission of the

landlord (present in Court) is the passage containing the sewerage pipe

lines of the whole building which run through this space; this

submission of the landlord has not been disputed by the petitioner

(Sushil Mittal present in Court); thus in no manner can it be said that

this is an alternate space available to the landlord.

4 Further contention of the tenant is that there is a space measuring

6 feet X 8.5 feet which is locked and is part of the mezzanine floor.

There is categorical denial by the landlord to this submission of the

tenant; submission being that this is only a kolki measuring 4feet X

5feet having a height of 6 feet and before this Court both the parties do

not dispute this factual position. This area even as per its dimensions

also can in no manner be said to be an alternate place possible for the

landlord to use it either as an office space or for any other business

activity.

5 On the first floor, it is not in dispute that there are two shops, one

of which is with the present petitioner and the other has been let out to

another tenant; contention of the tenant is that on the first floor, there is

one chajja measuring 4feet X 9feet which is also available with the

petitioner; this has been vehemently denied in the corresponding para of

the reply; moreover photographs as depicted and relied upon by the

tenant nowhere shows that this chajja has an available space of 4feet X

9feet space available on which any activity of the petitioner (as has been

averred in ground 18-A of the eviction petition) can be carried out. This

plea of alternate space available to the landlord on the first floor is thus

clearly negatived. There is no dispute that there is one bathroom on the

first floor.

6 The second floor has depicted two rooms; it is not in dispute that

both these rooms are tenanted out; they are admittedly with the tenants;

contention of the petitioner is that the back portion is with the petitioner;

this is contrary to his earlier stand as admittedly the second floor has not

been divided and the entire second floor has been tenanted out to two

different tenants; contention of the landlord that he has no portion on the

second floor has to be accepted.

7 Same is the position with the mumty/third floor. This is a mumty

area. There is no construction on the third floor. The photographs show

that there is an asbestos sheet covering on either side of the mumty but

again the submission of the landlord that this mumty area which is on

the third floor is neither feasible and nor suitable to the landlord for the

purpose for which he has filed the present eviction petition is

substantiated. The landlord cannot be expected to extend his business

activity (admittedly being carried out from the ground floor) to the tin

shed on the mumty floor.

8 These are by and large the contentions which have been raised by

the petitioner qua the alternate accommodation which is available with

the petitioner. The vehement contention of the tenant being that there

has been concealment of material facts there which by itself entitles the

petitioner for grant of leave to defend thus becomes a triable issue; for

this proposition he has placed reliance upon a judgment reported as 184

(2011) DLT 590 Mohd. Illyas Vs. Nooruddin & Others.

9 Perusal of the record of this case shows that there has been no

concealment of facts by the landlord. The landlord is admittedly

carrying out his business of sale of hardware material; he is using the

premises available with him which is a 320 square yards area on the

ground floor for the purpose of sale as also for the storage of his

business as also for an office space. His contention is that this

accommodation which is available with him is falling short; to support

his submission he has placed on record certain documents which include

the balance-sheet of the company (M/s Satyadev & Company) for the

year ending 31.03.2008, income tax records and the Statement of

Account. The assets of the company as per schedule is worth

` 5,14,028.25 with evidence of cash in hand of `1,49.390.65 and cash

in the Canara Bank is `29,876.30; contention of the petitioner being that

he has more than `2 lacs of cash in hand but he is not able to buy the

stocks as the business space available with him is insufficient for

stocking these stocks; although he has the means to expand his business

yet he cannot do so because of insufficiency of space. This submission

of learned counsel for the petitioner is prima-face borne out from these

documents placed on record. The profit & loss account for the year

31.03.2008 also shows that opening stock of the company is to the tune

of `5,56,285/- and purchases of `35,44,004.44 have been made; gross

profit for the year ending 31.03.2008 is `47,24,964.61. Area presently

available with the petitioner is 320 square yards; tenanted portion with

the present petitioner is contiguous and in line with the office space

from the petitioner is presently functioning; by making an opening in

the roof in between present space in occupation of the landlord and that

in occupation with the tenant, an area of 640 square yards can be made

available to the landlord which will serve his business need for his

tripartite purpose i.e. for storage of stocks as also for sale of his goods

and for office of the said business which requirement as detailed by him

in his is eviction petition. His bonafide need has been established.

Merely because he has a kolki measuring 20 square feet on the

mezzanine floor and even presuming a small space on the ground floor

(denied by the landlord) this would not be sufficient to serve his needs

and requirements; moreover learned counsel for the landlord has pointed

out that this „L‟ shape passage on the ground floor is the space from

where the sewerage line of the entire building passes to which

submission there has been no dispute.

10 No concealment of any material fact by the landlord as has been

vehemently contended by the tenant is made out. An accommodation

which is useless or which is of no consequence is not specifically

required to be averred in the eviction petition; kolki forming a part of

the mezzanine floor or the inadequate space on the ground floor are

accommodations which can in no manner be said to be accommodations

which are alternate availabilities which can serve the purpose of the

landlord i.e. either for storage or sale or for office space. Admittedly in

this case, this business is already being carried out in an area of 320

square yards; the portion with the tenant is also 320 square yards; by

joining it with the accommodation available with the landlord it will

become a spacious space i.e. 640 square yards which would serve the

need of the landlord. In these circumstances, the landlord cannot be held

guilty of any concealment. The judgment of Mohd. Illyas (Supra) is

inapplicable.

11 A Bench of this Court in 1988 (2) RCJ 179 R.D. Aggarwal Vs.

Smt. Arjan Kaur in this context has held as under:-

"In an eviction petition on the ground of bona fide requirement it is only where a particular landlord intentionally conceals the residential accommodation available to him from the court that he/she can be non-suited on this ground. Concealment of innocuous accommodation which cannot be used as a regular room should not result in dismissal of her/his claim for more accommodation."

12 Thus the submission of the petitioner that the space presently

available with the petitioner is sufficient for his need is an argument

clearly without any merit.

13 A bald plea has also been taken by the tenant that the petitioner is

not the landlord; tenant has however not disputed the fact that the

grandfather of the petitioner was the owner of these premises and after

his death by virtue of a Will the present premises have fallen to the share

of the present petitioner and to his father. It is also not in dispute that the

present petitioner has attorned to the landlord and he has been paying

rent to him. In this view of the matter, this submission of the tenant is

clearly without any force. Provisions of Section 116 of the Evidence Act

are also attracted; tenant is estopped from questioning the ownership or

title of the landlord.

14 In 1995 RLR 162 Jiwan Lal Vs. Gurdial Kaur & Ors. a Bench of

this Court while dealing with the concept of ownership in a pending

eviction petition under Section 14(1)(e) of the DRCA had noted as

follows:

"There is a tendency on the part of tenants to deny ownership in cases under Section 14(1)(e). To test the substance of such a plea on the part of the tenants the Courts have insisted that they should state who else is the owner of the premises if not the petitioner. In the present case it is not said as to who else is the owner. Further these cases under Section 14(1)(e) are not title cases involving disputes of title to the property. Ownership is not to be proved in absolute terms. The respondent does not claim the owner of the premises."

15 The last submission of learned counsel for the petitioner is qua his

averments in para 7-A of his application for leave to defend; submission

being that in terms of the Will of the grandfather, the petitioner has

inherited one fourth share in shop No. 2883-84, Teliwara, Bahadurgarh

Road, Delhi. In the corresponding para of the reply, it has been stated

that this shop had been sold by the grandfather Nihal Chand during his

lifetime itself and as such the question of the petitioner having a share in

the aforenoted shop does not arise.

16 No other argument has been urged. Triable issues as sought to be

raised cannot be and should not in a routine manner be granted.

17 In (1982) 3 SCC 270 Precision Steel & Engineering Works &

another Vs. Prem Devi Niranjan Deva Tayal the Apex Court has held