Vishwa Nath Kakkar & Anr. vs Sarla Sharma Decd Thr Lrs & Ors
2012 Latest Caselaw 1638 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                   Date: 07.3.2012


+            RC.REV. 320/2011 and CM No. 15415/2011


      VISHWA NATH KAKKAR & ANR           ..... Petitioners
                   Through: Mr.Som Dutt Sharma, Advocate.

                    versus


      SARLA SHARMA DECD THR LRS & ORS ..... Respondents

Through: Mr.Praveen Suri, Advocate.

INDERMEET KAUR, J (Oral)

1. The impugned judgment dated 18.5.2011 had dismissed the

application seeking leave to defend filed by the tenant; eviction petition

had been decreed.

2. Record shows that the present eviction petition has been filed by

10 petitioners under Section 14(1)(e) of the Delhi Rent Control Act

(hereinafter referred to as the DRCA). The premises in dispute is a shop

bearing No.VI/4942, Allahabad Bank Building, Chandni Chowk, Delhi

(as depicted in the red colour in the site plan). Rate of rent was

Rs.805.25 per month exclusive of electricity and water charges;

contention was that the petitioners are the owner and the landlord of the

said premises; the respondent is an old tenant carrying on business of a

retail shop; the said shop is now required by the petitioners for bonafide

use for starting their own business. The family of the petitioners earlier

had a shop in Chandni Chowk and have experience in the field of

watches and other electronic goods but on account of the demise of two

of the co-owners the business was discontinued. Petitioners have no

other alternate accommodation for conducting the said business; they

want to re-start their business which they could not do on account of

non-availability of accommodation. Present eviction petition was

accordingly filed.

3. Leave to defend was filed by the tenant. Contention was that out

of the 10 petitioners, the petitioners no.1,4,7 and 8 are all senior citizens

aged more than 70 years and are leading a retired life. Petitioner no.2 is

a resident a resident of Mumbai; petitioners no.5 and 6 are settled in the

USA and are well placed in their jobs; petitioner no.3 is having his own

business and he is not connected with the watch company; petitioners

no.9 and 10 are employed in a multi-national company and do not

require the premises for any business purpose.

4. This is the whole thrust of the application filed by the tenant

seeking leave to defend; contention being that the premises are not

required bonafide for the use of any of the petitioners/landlords.

Another arguments has been propelled which is the to the effect that on

the back side of the aforenoted disputed premises there are six other

shops; this argument has, however not been pressed any further as apart

from the fact that this objection does not find mention in the application

seeking leave to defend, even otherwise the landlord has pointed out that

there are no such shops at the back portion and this has been clearly

conceded by the learned counsel for the tenant; contentions being that

the same shop which is opening on the front side is longitudinal and is

in continuation at the back portion.

5. Record shows that the ownership/landlord status of the petitioner

has not been disputed. Record further shows that in the application for

leave to defend the tenant has admitted that petitioner no.3 is not

connected with the watch business of the family; meaning thereby that

the tenant has himself admitted the position that earlier the family of the

landlords was carrying on a watch business. Thus in this background

the submission of the petitioners that they want to re-start the business

which they had discontinued because of the demise of two of the

co-owners and they have no other commercial place has been amply

established by them. Even presuming that two of the petitioners are

residents of USA and one petitioner is a resident of Mumabi; there are

admittedly four other petitioners who are senior citizens and are

unemployed; merely because they are senior citizen; which would

qualify them as person above 62 years would not deprive them from

pursuing a business activity in which they already have experience as

they admittedly were carrying out the same business at an earlier point

of time. Petitioners no.1,4,7, and 8 (are even as per the statement of the

tenant) living a retired life and merely because they are senior citizens

would not preclude their right of starting their own business; landlord

has also vehemently denied that petitioners no.9 and 10 are employed;

no detail of the employment of petitioner no.9 and 10 has even

otherwise been given; it is a mere bald assertion; landlord has denied

this averment. Thus on this count the submission of the tenant that the

need of the landlord is not bonafide but malafide is an objection clearly

without any merit. Thus the requirement of petitioners no.1,4,7,8, 9 and

10 to start the watch business has prima facie been established.

6. In this context time and again the courts have held that it is for the

landlord to show his need; he is the best judge of his requirements; it is

not for the tenant or the Court to dictate terms to him.

The Supreme in Prativa Devi (Smt.) Vs. T.V. Krishnan (1996)

5SCC 353 had in this context inter alia noted as:-

"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."

In Sait Nagjee Purushotham and Co. Ltd. v. Vimalabai Prabhulal and Ors. reported in 2005 8 SCC 252; the Apex Court had 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

judgments of Apex Court reported in (1983) 1 SCC 301 Charan Dass

duggal Vs. Brahma Nand ; 143(2007) DLT 1 Tulsi Ram Vs. Ram

Kishan Dass & Ors. is misplaced. There is no dispute to the

proposition that if a triable issue arises leave to defend should be

granted; the converse is also true is also true; if there is no triable issue

leave to defend should not be granted in a routine or in a mechanical

manner.

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

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

"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."

8. In this background the eviction petition having been decreed and

the application seeking leave to defend having been dismissed as no

triable issue has arisen, suffers from no infirmity. Petition is without

any merit. Dismissed.

INDERMEET KAUR, J MARCH 07, 2012 nandan