Delhi High Court

Usha Kalra vs Arya Samaj Bhogal (Jangpura) on 16 January, 2012

Author: Indermeet Kaur

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Date of Judgment: 16.01.2012


+ RC.REV. No.431/2011 & CM No.19791-92/2011
& CM No.22616/2011

USHA KALRA                                    ...........Appellant
                       Through:   Dr.J.C.Batra, Sr. Advocate with
                                  Mr.Rajan Khosla, Advocate.

                  Versus

ARYA SAMAJ BHOGAL (JANGPURA)         ..........Respondent
                  Through: Mr.Rajeshwar Kumar Gupta,
                           Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1. Order impugned is the order dated 23.7.2011 whereby the

application filed by the petitioner seeking leave to defend in a

pending eviction petitioner under Section 14(1)(e) of the Delhi

Rent Control Act had been declined.

2. Record shows that the present petition has been filed qua

the suit premises which is a shop No.2,407, Arya Samaj Bhogal

(Jangpura), Hospital Road, Bhogal, New Delhi. Contention is that

the petitioner is the owner and landlord of the said shop;

respondent was inducted as a tenant in September 1988 at a

monthly rent of `600/- per month; petitioner is an association of

the followers of Mahrishi Dayanand and is attached with the Delhi

Arya Pratinidhi Sabha, 15, Hanuman Road, New Delhi. Resolution

no.5 was passed in their Annual General Meeting by virtue of

which the managing committee of the petitioner had decided to

open a sale counter for the exhibition and sale of vedic

literature/material/articles from the aforenoted tenanted shop

which is located on the main road known as the hospital road.

Premises are required bonafide by the petitioner for the sale and

exhibition of the aforenoted vedic literature.

3. Application for leave to defend has been perused.

Contention is that there are four shops in the same row and

petitioner does not require the premises bonafide; shop No.2

which was initially given to Grover Departmental Store has been

taken back by the petitioner and is lying vacant since the last 12

years; so also is the position of shop No.1 which has been given to

Haveli Ram and which has now been taken back and is lying

vacant; contention is that the third shop i.e. Shop No.4 which had

been got vacated from the earlier mechanic has now been given to

Dr. Meenkashi Gupta.

4. Site plan by both the parties i.e. the landlord and the tenant

had been filed which are not disputed documents. Photographs

have also been filed. The site plan filed by the landlord shows that

the shutter of shop No.2 opens out on to the main hospital road;

shop No.1 is the only other shop in the premises; it is in the back

portion and opens out into a bye lane; this shop is admittedly with

Dr.Meenakshi from where a homeopathic dispensary is being run.

The landlord in his reply has clearly and categorically stated that

there is no other shop in the tenanted premises which is available

with him. This is also clear from the site plan filed by him. The

corresponding site plan which has been filed by the tenant has

also been perused. This shows that the store and the office which

are with the landlord have been depicted as shops; the further

submission of the tenant that all these four shops are in a row is

negatived from the site plan itself; shop no.1 is admittedly on the

back portion and the size of the store and the office (dimensions

not given) are definitely much smaller in size than the other two

shops; less than 1/5th of shop No.2 and 1/3rd of shop No.2; this

store and office thus cannot qualify as a shop. The landlord has

specifically averred that keeping in view the nature of the work

which has been assigned to the petitioner an office and a store are

essential requirements of the Association and as depicted and

shown in the site plan. The submission of the tenant that the

store and the office are in fact shops which have been tenanted

out to other persons and which have since been vacated has been

vehemently denied. Moreover the photographs filed in the

eviction proceedings also depict no such feature.

5. The only other shop which is available in the premises is

shop no.1 which is admittedly with Dr. Meenakshi Gupta from

where a homeopathic dispensary is being run; the said shop is not

available with the landlord; he has no other alternate

accommodation. The bonafide need of the need of the landlord to

carry out the exhibition and sale of Vedic literature and material

from the tenanted premises which open out in the main road has

thus been substantiated and established.

6. The alternate argument vehemently raised by the petitioner

is that the landlord is not the owner of the disputed premises;

further the Association is not permitted to file the present eviction

proceedings through its President. These issues now raised were

never pleaded in the trial court and nowhere form a part of the

pleadings in the application for leave to defend filed by the tenant.

They thus do not have to be addressed not being a part of the

pleadings of the tenant. Whether or not a triable issue arises has

to be gathered from the pleadings which comprise of the

application for leave to defend and the reply filed by the tenant

which have to be on affidavit; these submissions and arguments

now urged not being a part of his pleadings cannot thus be gone

into. A tenant cannot be allowed leave to defend on pleas which

are vague and unsubstantiated without any material in support

thereof. Petitioner has categorically and clearly states that he is

the owner and landlord of the premises. There is no denial to this;

no objection has been raised in the application for leave to defend

qua this submission now urged. The landlord is even otherwise

the best judge of his requirement and it is not open to the tenant

to dictate terms to the landlord for his requirement either for his

residential or commercial purpose. It is also not in dispute that

the premises which have been claimed by the landlord opens on to

the main road which would be a much more viable proposition to

exhibit vedic literature and material for sale; shop opening in to

the bye lane cannot not be equated or compared with a shop

opens on the main road, both on count of profitability as also its

viability. Even otherwise that shop as admitted by the tenant

himself is with Dr.Meenkashi Gupta from where she is running a

homeopathic clinic.

7. In Ragavendra Kumar Vs. Firm Prem Machinery and Co.

reported in [2000]1SCR77 it was held that it is the choice of the

landlord to choose the place for the business which is most

suitable for him. He has complete freedom in the matter. In

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

it was held that the landlord is the best Judge of his requirement

and Courts have no concern to dictate the landlord as to how and

in what manner he should live. The bona fide personal need is a

question of fact and should not be normally interfered with.

8. Again in G.C. Kapoor Vs. Nand Kumar Bhasin reported in

AIR2002SC200 it was noted as follows:

"It is settled position of law that bonafide requirement

means that requirement must be honest and not tainted with

any oblique motive and is not a mere desire or wish. In

Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde

and Anr. : [1999]2SCR912 this Court while considering the

bonafide need of the landlord was of the view that when a

landlord says that he needs the building for his own

occupation, he has to prove it but there is no warrant for

'presuming that his need is not bonafide'. It was also held

that while deciding this question. Court would look into the

broad aspects and if the Courts feels any doubt about

bonafide requirement, it is for the landlord to clear such

doubt."