Delhi High Court
Mohan Lal Gupta vs Satish Chand Sharma on 13 January, 2012
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 13.01.2012
+ R.C.REV. No.78/2011 & CM No.5585-86/2011
MOHAN LAL GUPTA ...........Petitioner
Through: Mr.Mukesh, Advocate.
Versus
SATISH CHAND SHARMA ..........Respondent
Through: Dr.Anurag Kumar Aggarwal,
Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1. Order impugned before this Court is the order dated
08.2.2011 wherein the application seeking leave to defend filed by
the petitioner in a pending eviction petition under Section 14(1)(e)
of the Delhi Rent Control Act (hereinafter referred to as the
„DRCA‟) had been dismissed.
2. Record shows that the present eviction petition has been
filed by the landlord Satish Chand Sharma seeking eviction of his
tenant Mohan Lal Gupta from a shop measuring 9‟.3‟‟ x12‟.8‟‟ sq.
feet on the ground floor of the premises bearing No.F-2/7, Krishna
Nagar, Delhi (hereinafter referred to as the „tenanted property‟)
which had been rented out on a monthly rental of `60/- per month;
this was on the basis of a written document. The landlord-tenant
relationship between the parties is not disputed. It is not in
dispute that the landlord is also the owner of the suit property and
is entitled to maintain the eviction petition. The only ground
which has been urged and argued before this Court is that the
bonafide need of the petitioner has not been established.
Contention is that along with the eviction petition the petitioner
has filed a project report to substantiate his submission that he
wants to carry on a business of readymade garments from the
proposed show room to be set up in the suit premises. Contention
is that in this project report the area of the proposed show room
has been described as 407 sq. feet whereas the shop in question
with the petitioner is only measuring 112 sq. feet and as such this
project report filed by the petitioner is liable to be thrown out;
moreover the expertise of the petitioner to start a business of
readymade garments at the fag end of his life when admittedly he
proposes to start this business after his age of retirement which
makes him a senior citizen has not been established is also a
submission which is worthy of little credit. Contention of the
petitioner is that it is impossible to imagine that a service man
who has spent all his life in government service would have the
necessary training or skill to start or carry on such a business;
this was a triable issue which has been declined by the trial court;
as such the impugned order suffers from an illegality and it is
liable to be set aside.
3. Reply filed by the landlord to the corresponding paras of
this averments made in the application for leave to defend has
also been perused. This reply read along with the eviction petition
as also site plan clearly show that the shop which is the disputed
premises is a shop opening out on to the main road of Krishna
Nagar which is located in the area as aforenoted. There is
another shop on its left side and in between there is an entrance
gate which provides access to the back portion of the property
which is the residence of the landlord and his family; this
accommodation comprises of two bed rooms and a lobby with a
kitchen and toilet. Admittedly this portion is being used for
residence of the landlord and being in the service lane having no
access to the main road, it cannot be used for any other purpose
moreover this is also not the contention of the tenant. The
contention of the tenant as noted supra is that the landlord has
filed project report which is not substantiated in terms of its
averments as it is difficult to imagine that a retired government
personnel can start a business after his retirement. This is the
main gist of the argument urged before this Court.
4. As noted supra the site plan has depicted the disputed
premises in red colour and alongside there is an entrance which
provides an access to the back side of property which is the
residence of the landlord; alongside there is another shop which is
also tenanted out for which also an eviction petition has been
filed; learned counsel for the respondent submits that the
proposal and the project report has been based on a show room to
be set up after both the shops are vacated; this project report
further clearly states that the items for sale proposed are ladies,
garments and kids garments and the total cost of the project has
been assessed at `16.73 lakhs for which the petitioner has taken a
term loan of `10 lakhs from bank and ` 6.73 lakhs is the
promoter‟s contribution; which is the finance available with him;
he wishes to carry out this business with his daughter-in-law who
has expertise in this area whereas the petitioner (in terms of the
project report) has a rich expertise for starting, sustaining and
growing a general business like the present. This document
i.e.the project report is also on record to substantiate this
submission. The landlord is also present in person. He had retired
approximately five years ago and appears to be physically fit to
put this project into action; his submission is that he wishes to
have an active life in his post retirement years with the assistance
of his daughter-in-law which will not only occupy his hours of life
but also provide him a steady income which would be a satisfying
and fruitful experience. It was in these circumstances that the
trial court had note that the landlord has been able to establish a
bonafide need from himself. The argument that the project report
filed by the landlord being a false document which in turn has
raised triable issue is an argument without any merit.
5. In 2009(2) RCR 455 titled as Ram Babu Agarwal vs. Jay
kishan Das, the Apex Court 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."
6. 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."
7. Reliance by the learned counsel for the petitioner on the
judgment of Jatinder Singh Nandra Vs. Sarita Rani reported in
2011 (124) DRJ 574 is misplaced. There is no dispute to the ratio
that if a triable issue has been raised by a tenant leave to defend
should be granted and at that stage if the tenant is able to
establish a strong prima facie case which would non suit the
landlord leave to defend should be granted. However, the
converse is also true if that no triable issue is raised and the
defence sought to be raised by the tenant is moonshine and sham
the court should not in routine manner grant leave to defend; the
very purpose and import of the summary procedure contained in
Section 25B of the DRCA would be defeated.
8. Impugned order decreeing the eviction petition thus suffers
from no infirmity.
9. Dismissed.
INDERMEET KAUR, J
JANUARY 13, 2012
nandan
