Delhi High Court
Inderjeet Singh vs Harish Chandra Bhutani on 6 July, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ R.C.REV. 98/2010
Date of Decision:06.07.2012
INDERJEET SINGH ...... Petitioner
Through: Mr. D.P. Bhatia, Advocate.
Versus
...... Respondent
HARISH CHANDRA BHUTANI
Through: Mr. J.K. Bhola, Advocate.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (ORAL)
1. The present petition has been preferred against the order of the Ld. Additional
Rent Controller dated 25.03.2010 whereby the respondent was granted leave to
defend the eviction petition filed by the petitioner.
2. The petitioner had filed an eviction petition no. E-283/09 dated 23.11.2009 in
respect of shop and godown in property bearing no. 1/810 G.T. Road, Delhi,
against the respondent on the ground of bonafide requirement of setting up the
business for his son in the suit premises. It was submitted by the petitioner that the
suit property was let out to the respondent for commercial purposes which is now
required by him for his dependent son. Admittedly, the son of the petitioner
carries on the business of mobile phones from a tenanted shop taken on rent at
Rs.3600/- per month. Upon receiving the summons, the respondent filed an
application for leave to contest the petition stating that the requirement of the
petitioner is not bona fide as his son was financially sound and not dependent on
him. The petitioner filed reply to the application to which rejoinder was filed by
the respondent. Upon consideration of the averments of the respondent, the ld.
ARC granted leave to the respondent to defend the eviction petition.
3. The impugned order has been challenged in the present proceedings by the
petitioner on the ground that the ld. ARC has wrongly concluded that the
petitioner's son was not dependent on him and that the requirement of the
petitioner was not bona fide. It has been averred that it was established by the
petitioner that his son had been carrying on his business in a rented shop and no
other suitable property was available to him from which his son could carry his
business and thus the petitioner was entitled to an eviction decree as there was no
triable issue established by the respondent.
4. On the other hand, the respondent has contended that the order of ld. ARC
requires no interference which has been passed after taking into account the triable
issues raised by the respondent. It has been submitted that there is discrepancy in
the pleas taken up by the petitioner which is evident from the fact that before the
trial Court, the rent of the alleged tenanted premises used by the petitioner's son
was stated to be Rs. 4000/- per month whereas it has been stated to be Rs 3600/-
per month before this Court. It has also been averred that the petitioner has not
been consistent in his stand as to who is the payer of the rent of the tenanted shop
used by his son. It has been further contended that the petitioner has no locus to
file the eviction petition as he is not the sole owner of the premises and the other
co-owners have not been joined in the proceedings.
5. I have given my thoughtful consideration to the rival submissions made by the
counsel for the parties.
6. On the perusal of record, it is evident that the Ld. ARC has opined that the son of
the petitioner is financially independent on the basis of his credit card statements.
In my opinion such an observation was patently erroneous. Holding a credit card
is a common practice and not a yard stick to the financial status of a person. In any
case, this issue is irrelevant to the current proceedings due to the fact that even if
the son of the petitioner is carrying on his business still as a father the petitioner is
obliged to make efforts for setting up a business in a suitable place for his son.
Such a requirement is quite reasonable and justified and cannot be termed as
malafide. It is not the case of the respondent that the petitioner is in possession of
any alternate accommodation from where his son could carry his business. If a
person is owner of a commercial property, but is forced to pay rent towards a
tenanted premises, then his requirement for possession of his property is bonafide
and must be recognized. The respondent has failed to show as to how the son of
the petitioner is not dependent on him for the requirement of the premises for
carrying his business. I find no merit in this plea taken up by the respondent and
admitted by the ARC. Such unfounded pleas cannot become a reason for denying
the petitioner the right to use his property for setting up a shop for his son. In
Labhu Lal Vs. Sandhya Gupta 2011(1) RCR,(Rent) 231 (Delhi), it has been held
by this Court that the children are very much dependant on the landlord for the
purpose of setting up their business and such a requirement is a bonafide one. The
right of the landlord for possession of his property for setting up a business for his
son has been also recognized by the Apex Court in Ram Babu Aggarwal Vs. Jay
Kishan Das 2009(2) RCR 455.
7. Regarding the bald plea of the respondent that there is discrepancy in the amount
of rent payable for the tenanted premises and the payer of the rent, it is sufficient
to say that these minor discrepancies are not fatal to the case of the petitioner and
not patently germane to the case. It is immaterial that who pays the rent for the
tenanted shop being used by the petitioner's son. The fact of bonafide requirement
and lack of any other accommodation for business purposes has been amply
established by the petitioner. His son is in fact carrying out his business from a
tenanted accommodation; he has no other alternate suitable accommodation. In
this view of the matter, this submission of the tenant is clearly without force.
8. The contention of the respondent that the petitioner has no locus to file the
eviction petition as he is not the sole owner of the premises and the other co-
owners have not been joined in the proceedings is unsustainable in view of the
partition deed placed on record in respect of plot no. 1/810 G.T. Road of which
the suit premises is a part. According to the said partition deed the petitioner has
the exclusive ownership of the suit premises. Hence, there was no requirement of
joining any other party to the eviction suit. More so, the respondent has been
paying the rent to the petitioner and cannot dispute his ownership at this stage.
Provisions of Section 116 of the Evidence Act are also attracted; the tenant is
stopped from questioning the ownership or title of the landlord.
9. As a matter of fact, the shop of the petitioner's son is situated at a secluded spot
and if he wishes to set up the shop for his son at a different location which in his
view is more suitable for his business, then the respondent has no right to dictate
that this requirement of the petitioner is not justified. The landlord is the best
judge of his requirements and cannot be deprived of this right. In Pratibha Devi
vs. T.V. Krishnan 2001 AIR SCW 4661, the Hon'ble Supreme Court held that it
is a settled position of law that the landlord is the best judge of his requirement for
residential or business purpose and he has got complete freedom in the matter. In
Siddalingamma & Anr. Vs. Mamtha Shenoy(2001) 8 SCC 431, the Hon'ble
Supreme Court while considering the reasonable and bona fide requirement of
landlord held that the question to be asked by a judge of facts, by placing himself
in the place of the landlord , is, whether in the given facts proved by the material
on record the need to occupy the premises can be said to be natural, real, sincere
and honest. If the answer be in the positive, the need is bona fide.
10. It is settled legal principal that leave to defend is granted to the tenant in case of
any triable issue raised before the trial Court which can be adjudicated by
consideration of additional evidence. The whole purpose and import of summary
procedure under Section 25-B of the DRCA would otherwise be defeated. In
Precision Steel & Engineering Works & Anr. Vs. Prem Devi Niranjan Deva
Tayal (1982) 3 SCC 270, the Apex Court has held that the prayer for leave to
contest should be granted to the tenant only where a prima facie case has been
disclosed by him. In the absence of the tenant having disclosed a prima facie case
i.e. such facts as to what disentitles the landlord from obtaining an order of
eviction, the Court should not mechanically and in routine manner grant leave to
defend. In Nem Chand Daga Vs. Inder Mohan Singh Rana, 94 (2001) DLT 683,
a Bench of this Court had noted as under:
"That before the 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."
11. In my considerate opinion, the triable issues as sought to be raised cannot be and
should not in a routine manner be granted. The ld. ARC has passed a cryptic order
without assessing the facts and circumstances of the case and has not given any
reasoning as to the rationale behind allowing the leave to defend application in the
absence of any cogent triable issues.
12. In these circumstances, the impugned order granting leave to defend to the
respondent without any prima facie case being established by the respondent
suffers from infirmity and cannot be upheld. Consequently, the impugned order is
set aside and the petition is allowed. Accordingly, an eviction order is passed
U/S 14 (1)(e) r/w S. 25-B of DRC Act in favour of the petitioner and against the
respondent in respect of shop and godown in property being No. 1/810, G.T.
Road, Delhi. However, it is made clear that the petitioner shall not be entitled to
get the eviction order executed before expiry of six months running from today.
No order as to costs.
JULY 06, 2012 M.L. MEHTA, J.
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