A.K. Kakar vs Sheela Khanna
2012 Latest Caselaw 962 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 13.02.2012

+     RCR No. 67/2012, CM Nos. 2722-2723/2012 & Caveat
      No.155/2012

A.K. KAKAR                                       ..... Petitioner
                            Through:   Mr. V.K. Verma, Mr. Y.R.
                                       Sharma Markanday, Advocate.

                   versus

SHEELA KHANNA                                      ..... Respondent
                            Through:   Mr. Sudhir Nandrajog, Sr. Adv.
                                       with Mr. Siddharth Aggarwal,
                                       Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

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

23.09.2011 vide which the eviction petition filed by the landlady Smt.

Sheela Khanna widow of Late. Sh. Dwarka Nath Khanna against her

tenant Dr. A.K. Kakkar who was running a Dental Clinic from the

disputed premises (a shop located in property bearing No. 23/19, East

Patel Nagar Market, New Delhi) had been decreed. The application

seeking leave to defend filed by the tenant had been dismissed.

2. Record shows that the eviction petition had been filed by the

landlady claiming herself to be the owner of the disputed premises

which had been let out to the tenant vide a registered lease deed dated

20.07.1963. Contention was that the premises are required bonafide for

running a business of Harware and Pipe Fittings which is proposed to be

run by her son Rakesh Khann who is residing with her and is dependent

upon her. Contentions as borne out from the eviction petition are that

the landlady is a widow; she has two sons, namely, Yashpal Khanna

and Rakesh Khanna; Rakesh Khanna is stated to be out of job; earlier

he was running a business with his brother-Yashpal Khanna in

partnership at 38, Shankar Market, Connaught Place, New Delhi from

where he has retired on 31.03.2005. The dissolution deed of the

partnership between Yashpal Khanna and Rakesh Khanna is on record

substantiating this submission that this business of the two sons of the

landlady finally stood dissolved with effect from 31.03.2005. There is

also no dispute to this contention. Further contention of the landlady is

that she alongwith her son Rakesh Khanna had thereafter shifted to

Gurgaon as he had started his new business of hardware and pipe

fittings under the name and style of 'M/s. M.G. Hardware' at Gurgaon;

the fact that she was residing at Gurgaon with her son Rakesh Khanna

has also been substantiated by the fact that the present petitioner i.e.

tenant-A.K. Kakkar had in this intervening period continued to pay rent

to her at her residence at Gurgaon. This factual position is also not

disputed. It is also not in dispute that in fact Rakesh Khann was filing

his Income Tax Return at Gurgaon and last return filed by him is dated

31.03.2009; a perusal of this document has revealed that the income of

Rakesh Khanna was about Rs. 47,000/- per annum which was for the

year ending March 2009. This document is also not in dispute.

3. Further contention in the eviction petition is that the son of the

landlady -Rakesh Khanna has since closed his business at Gurgaon; now

they have shifted back to Delhi; Rakesh Khanna has no employment.

Present premises are required for running his business of hardware and

pipe fittings The need of the petitioner is thus bonafide as her son is

dependent upon her for his need for accommodation.

4. The averments made in the application for leave to defend have

been perused.

(i) First contention which is raised is that the need of the landlady is

not bonafide; this shop is only a small portion on the part of the ground

floor; the back portion on the ground floor of the premises is in her

possession which can also be used her; it is lying useless and locked.

(ii) Second submission is that the property bearing No. 38, Shankar

Market, Cannaught Place, New Delhi where Rakesh Khanna was

carrying on a business with his brother-Yashpal Khanna is also available

to the parties and Rakesh Khann can continue his business with his

brother.

(iii) Third submission is that the landlady has another shop at 55,

Shankar Market, Delhi which is lying closed which fact has been

concealed from the court.

(iv) Last submission is that the averment of Rakesh Khanna that he

has closed his business at Gurgaon is in fact a false statement. There is

no document to substantiate this fact.

5. Although the averments made in the application for leave to

defend also state that the conduct of the petitioner has been fraudulent

and the documents which he has filed in support of his petition are

fraudulent yet no such argument has been addressed before this court

today. Submissions which have been urged and argued vehemently

before this court have been outlined above.

6. The reply to the corresponding paras of the application for leave

to defend has also been perused. The landlady has specifically denied

that she has any connection with shop at 55 Shankar Market, Delhi;

contention being that she is in no manner related to this property.

Although rejoinder had been filed to this specific denial made by the

landlady in reply, this is only a bald averment; the petitioner admittedly

does have any evidence either oral or documentary to substantiate this

plea that property bearing No. 55, Shankar Market, Delhi belongs to the

landlady which contention has been specifically refuted by her on

affidavit. As such this appears to be only a sham plea which has been

taken by the tenant and having no force, being a mere illusory defence,

it cannot amount to a triable issue.

7. There is no dispute to the factum that property bearing No. 38,

Shankar Market was a shop where Yashpal Khanna and Rakesh Khanna

were earlier carrying on their joint business of hardware and pipe

fittings; it is not disputed that the said business was dissolved by a

dissolution deed dated 31.03.2005 which has been placed on record and

adverted to by the Trial Court. The fact that Rakesh Khann and the

landlady had in an intervening period thereafter shifted to Gurgaon has

also been substantiated and in fact could not have been disputed for the

reason that the tenant had been sending cheques of rent at her Gurgaon

address for this intermediate period; income tax return for the year

31.03.2009 filed by Rakesh Khanna from Gurgaon supports his

submission that his income from the business which he was running at

Gurgaon was about Rs. 47,000/- per annum which being meager was

not sufficient to support his financial needs which had led to the closure

of this business. It is not disputed that after 2009 the petitioner with her

son Rakesh Khanna and his family are living at Punjabi Bagh which is

also the address in the eviction petition.

8. The last submission urged by the tenant and which has been

raised as an alleged triable issue is the submission that the area on the

back portion of the premises is also an area which is lying locked and

available with the landlady. This has been vehemently denied by the

landlord. In fact a reply filed by the tenant to a legal notice of the

landlady has been placed on record; this is a document dated 18.03.2008

which had been written by the petitioner to his landlady wherein in para

7 he has averred as under:-

"That at the back of the said premises i.e. 23/19, East Patel Nagar Market, New Delhi-110008, your client's nephew is residing with his

family and there is no rupture of the building from anywhere."

9. This is an admission of the tenant himself admitting that the

landlord's nephew is residing with his family on the back portion of the

disputed premises. Thus the contention of the tenant that this premises is

now available to the landlady is both contrary and conflicting to the

submission now sought to be raised.

10. These were the only issues raised and being illusory and

imaginative were rightly declined by the ARC; by no stretch of

imagination can they be pre-judged as triable. There is no doubt that as

and when a triable issue arises and the application for leave to defend

discloses such facts which would disentitle the landlady to a decree of

eviction , leave to defend should be granted. This is the ratio of the

judgment of the Apex Court reported in AIR 82 SC 1518 titled as

Precision Steel & Engineering Works and Anr. vs. prem Deva Niranjan

Deva Tayal and hereby relied upon by the petitioner. There is no doubt

to this proposition.

11. While dealing with an application for leave to defend the court

must advert to the pleadings of the parties which includes the eviction

petition, the application for leave to defend and the reply filed by the

parties which are supported by their documents. This is the recourse

which has been taken to by the ARC. It was on the basis of the oral and

documentary evidence which had come on record that the Trial Court

was of the view that the triable issues have not arisen.

12. At the cost of repetition, it is reiterated that this shop i.e. demised

premises measuring about 240 sq. feet is the only commercial space

which is available with the landlady for setting up a business for her son

who is presently unemployed. He was earlier carrying on a business of

hardware and pipe fittings with his brother which partnership was

dissolved in the year 2005; thereafter, to fulfill his financial needs he

had shifted his business and residence at Gurgaon with his mother; from

where he was running the same business which business also he could

not successfully establish and this is evident from his last Income Tax

Return filed in the year ending 2009 which had reflected his annual

income to be less than Rs. 50,000/-; this had lead to the closure of this

business at Gurgaon and had cut short his stay at Gurgaon. Petitioner

with her son Rakesh Khanna and family had returned to Delhi to run a

business; he is staying with his mother/landlady in East Punjabi Bagh,

New Delhi which is admittedly a residential accommodation; there is no

commercial space available with the landlady from where her son can

run his proposed business of hardware and pipe fittings in which has

acquired considerable experience and expertise having been in this

business for almost a decade. The back portion of the demised premises

is admittedly in the occupation of the nephew of the landlady who lives

there alongwith his family. Submission of the tenant that this back

portion is lying locked and available with the landlady is a submission

without any force as the tenant himself in his reply which he had sent to

the landlady on 18.03.2008 had admitted this fact.

13. The Courts time and again have held that unless and until a triable

issue arises leave to defend should not be granted in a routine and a

mechanical manner. If this is allowed, the very purpose and import of

the summary procedure as contained in Section 25 B of the DRCA shall

be defeated and this was not bonafide intention of the legislature.

14. In Nem Chand Daga Vs. Inder Mohan Singh Rana 94 (2001) DLT

683, a Bench of this Court had noted as under:-

"That before leave to defend is granted, the respondent must show that some triable issues which disentitle the applicant from getting the

order of eviction against the respondent and at the same time entitled the respondent to leave to defend existed. The onus is prima facie on the respondent and if he fails, the eviction follows."

15. Landlord is also the best judge of his need and how and in what

manner he should live or earn his livelihood is his prerogative alone. In

Prativa Devi (Smt.) Vs. T.V. Krishnan reported in (1996)5SCC353 it

was noted:-

"The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own."

16. In this factual scenario, the application seeking leave to defend

was rightly dismissed; the eviction petition was decreed as a necessary

corollary.

17. Impugned judgment suffers from no infirmity; dismissed.

INDERMEET KAUR, J FEBRUARY 13, 2012/rb