Delhi High Court
Ramesh Chand Gulati & Anr. vs Lalit Kumar & Ors. on 13 March, 2012
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 13.03.2012
+ RC.REV. 111/2012, CAV No. 255/2012 & CM Nos.4474-75/2012
RAMESH CHAND GULATI & ANR ..... Petitioners
Through Mr. J.P. Sengh, Sr. Adv. with
Mr.Rakesh Mahajan, Mr. Abhay
Mani Tripathi, Mr. Sumeet Batra
and
Ms. Ankita Gupta, Adv.
versus
LALIT KUMAR & ORS ..... Respondents
Through Mr. Sudhir Nandrajog and Mr.
Ravi Gupta, Sr. Adv. with Mr.
Lalit Gupta and Mr. Deepak
Aggarwal, Adv. for R-1.
Mr. P.P. Ahuja, Adv. for R-2.
AND
RC.REV. 112/2012, CAV No. 260/2012 & CM Nos.4499-4502/2012
RAJINDER KUMAR GULATI & ANR ..... Petitioners
Through Mr. J.P. Sengh, Sr. Adv. with
Mr.Rakesh Mahajan, Mr. Abhay
Mani Tripathi, Mr. Sumeet Batra
and
Ms. Ankita Gupta, Adv.
versus
LALIT KUMAR & ORS ..... Respondents
Through Mr. Sudhir Nandrajog and Mr.
Ravi Gupta, Sr. Adv. with Mr.
Lalit Gupta and Mr. Deepak
RCR Nos.111-112/2012 Page 1 of 14
Aggarwal, Adv. for R-1.
Mr. P.P. Ahuja, Adv. for R-2.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 Vide the impugned judgment dated 14.10.2011, the eviction
petition filed by the landlord under Section 14 (1)(a) of the Delhi Rent
Control Act (DRCA) had been decreed. The disputed premises comprise
of a shop on the ground floor measuring 550 square feet, an area of 775
square feet on the first floor and also an area of the same configuration
(775 square feet) on the second floor of a part of property bearing No.
2435-2438, Gali Nos. 10 & 11, Beadon Pura, Karol Bagh, New Delhi.
The application filed by the tenant seeking leave to defend had been
dismissed. The tenant is aggrieved by this finding.
2 Record shows that the present eviction petition has been filed by
the landlord Lalit Kumar on the ground of a bonafide need; the petition
under Section 14 (1)(e) of the DRCA discloses that the premises had
been let out to the respondent by the erstwhile owner; the petitioner
along with his brother Anil Kumar and mother Kamla Devi had
purchased the entire aforenoted built up property from the earlier owner
vide a registered sale deed dated 04.03.1993. The respondent had
attorned in favour of the petitioner. Further contention is that the tenant
is in arrears of rent. Further submission being that the mother of the
petitioner Kamla Devi had died on 18.01.2004 bequeathing her 1/3 rd
share in the aforenoted entire property vide a registered Will dated
19.12.2003 in favour of her two sons i.e. the present petitioner Lalit
Kumar and his brother Anil Kumar in equal shares; suit premises had
been let out for non-residential purpose; they are bonafide required by
the petitioner for carrying on the business for himself as he has no other
place to carry on his business. Further contention in the eviction petition
discloses that the petitioner and his brother along with their mother were
earlier carrying on a business of clothes under a partnership dated
12.08.1996 under the name and style of 'M/s Dalchand Gupta and
Company'; this was from a portion/shop situated on the ground floor of
the same larger property (as depicted in blue colour in the site plan). On
18.01.2004 after the death of his mother, the brothers entered into a
fresh partnership dated 20.01.2004. In August, 2007, the wife of his
brother started interfering in the business and so much so that the matter
had to be reported to the police. Since July, 2009, there have been
contumacious litigations raging between the two brothers in various
forums. To support this submission, the petitioner along with the
eviction petition has placed on record the record of the litigations
pending inter-se between the parties which included a petition filed by
the present petitioner under Section 9 of the Arbitration and Conciliation
Act, 1996 (hereinafter referred to as the 'said Act') which was on
15.07.2009. In the course of these proceedings, the seal of the Karol
Bagh shop was broken by his brother Anil Kumar and a complaint was
lodged with the police against which an appeal was filed. Thereafter a
second petition under Section 9 of the said Act was also filed on
08.05.2010 which litigation also travelled up to the appellate forum.
Further contention of the petitioner is that the pursuant to these
litigations, the petitioner has been denied access to this shop where the
brothers were carrying on business and which is now in exclusive
control of his brother Anil Kumar. Further contention is that the brothers
had also been carrying on a trade business under the name and style of
'M/s Dalchand Gupta and Sons' from a neighbouring shop which is a
shop bearing No. 2774/1, Gali Nos. 20 & 21, Beadon Pura, Karol Bagh
which premises were taken on tenancy from one Smt. Saroj Gaur; the
fact that these premises are tenanted premises is not disputed. The
submission of the petitioner is that because of the acrimony between the
brothers, the petitioner was denied access to these premises also and
litigation qua these premises i.e. shop No. 2774/1 is also pending. A suit
for injunction filed by the petitioner against his brother seeking a prayer
injuncting his brother from parting with possession of the aforenoted
premises (shop No. 2774/1 admittedly a tenanted premises) is also
pending between the parties; record of that suit is also a part of the trial
court record. Further submission of the petitioner is that the wife of the
petitioner namely Reeta and their elder son Pulkit are carrying on a
separate business of ladies suits and sarees from the ground floor, City
Square Marg, Rajouri Garden; this is under the name of 'M/s DCG Fabs
Pvt. Ltd.'; the petitioner has no right or interest in this business which is
being conducted exclusively by his wife and his elder son. These
premises is owned by his wife and his son; documents of title of this
property as also the Memorandum and Articles of Association of the
company 'M/s DCG Fabs Pvt. Ltd' is also a part of the trial Court record
to substantiate the submission that the present petitioner Lalit Kumar has
no right or interest in this business. Further submission of the petitioner
(as borne out from the eviction petition) is that two other premises have
also been taken on rent by his wife Reeta and his elder son Pulkit which
are premises bearing No. J-109, main market, Rajouri Garden and
property bearing No. 18, Kapil Vihar, Pitam Pura which had been taken
at a monthly rent of Rs.2,80,000/- and Rs.2,25,000/-; from these
aforenoted tenanted premises, the business of 'M/s DCG Fabs Pvt.'
(business of his wife and son) is also being run. Contention of the
petitioner is that he alone does not have any business place from where
he can carry out his business; the aforenoted business houses are of his
wife and his son who are independent individuals. The business which
the petitioner was running along with his brother from the portion
(depicted in blue colour in the site plant) and property bearing No.
2774/1, Beadon Pura are no longer accessible to him; the petitioner to
support the submission has placed on record the list of the aforenoted
litigations pending inter-se between the two brothers as also the fact that
even qua the tenanted premises at 2774/1, Beadon Pura (tenanted
property), litigation is pending between the two brothers. In fact the
whole crux of the eviction petition and the arguments urged by the
learned counsel for the landlord being to the effect that the brothers
being in inter-se litigations, there is no business place from where the
petitioner can run his business. The aforenoted premises which are on
the ground, first and second floors are accordingly required by the
petitioner for running his business.
3 It is not in dispute that in the course of proceedings before the
trial Court, an application under Order 1 Rule 10 of Civil Procedure
(hereinafter referred to as the 'Code') had been filed by the brother Anil
Kumar seeking impleadment in the aforenoted proceedings; this
application was allowed; contention of the brother of the petitioner was
to the effect that he is also a co-owner in the suit property and as such be
permitted to be impleaded as a necessary/property party.
4 Leave to defend had been filed. The averments made in the said
application have been perused. The landlord-tenant relationship has not
been disputed; the only dispute raised by the tenant is that the petitioner
has a joint business house with his brother which he is running it under
the name and style of 'M/s Dalchand Gupta and Company'; further
submission being that the particulars of litigations pending inter-se
between the two brothers has not been placed on record; the
supplementary submission is also to the effect that these litigations
between the two brother appears to be collusive. In this application for
leave to defend, it had also been stated that another partnership business
in the name of 'M/s Dalchand Gupta & Sons' is being run by the two
brother from the adjoining shop bearing No. 2774/1, Beadon Pura; the
present premises are thus not required by the petitioner. The submission
that 'M/s DCG Fabs Pvt. Ltd.' is carrying on business from two places
at Rajouri Garden as also from another premises at Kapil Vihar, Pitam
Pura has also been contended; contention being that the petitioner is the
husband of Reeta and father of Pulkit and cannot make a disclaimer qua
this business; he is actively involved in this business. Premises are thus
not required by the petitioner for any purpose.
5 Relevant would it be to state that all these submissions which
have been made in the application seeking leave to defend were in fact
the facts which have been disclosed by the landlord in his eviction
petition himself. In fact along with the eviction petition, the record of
the litigations pending inter-se between the two brothers has been filed;
this list of the battle raging between the two brothers substantiating the
submission of the petitioner that access to the business house where the
brothers were carrying on the business under the name and style of 'M/s
Dalchand Gupta and Co.' and M/s Dal Chand and Sons' is no longer
available to him; this is evident from the fact that a petition under
Section 9 of the said Act had been filed by the present petitioner as way
back as on 15.07.2009 seeking reliefs in terms of the arbitration clause
contained in their partnership agreement; this was followed by a second
petition under Section 9 of the said Act which was filed in May, 2010.
The acrimony brewing between the two brothers is also borne out from
the fact that pursuant to the appointment of a Local Commissioner in the
aforenoted proceedings, the brother Anil Kumar had also broken the seal
of shop at Karol Bagh on 03.10.2009 against which an appeal being
RCA No.79/2009 was filed. This is the litigation qua the premises who
are housed in the aforenoted building i.e. property bearing No. 2435-
2438. Qua the other property (shop No. 2774/1, Beadon Pura) again a
litigation is pending between the two brothers; this is admittedly a
tenanted premises and a suit for injunction has been filed by the
petitioner seeking a restraint upon his brother (Anil Kumar) from
alienating the aforenoted premises. This is also a part of the record.
6 The company 'M/s DCG Fabs Pvt. Ltd.' is admittedly a company
run by the wife of the petitioner namely Reeta and her elder son Pulkit;
the Memorandum and Articles of Association of the said company have
been filed on record to substantiate the submission of the petitioner that
he is in no manner connected with the said business which is being run
by the aforenoted two individuals in their capacity as directors of the
said company. Moreover it is also an admitted fact that his company was
incorporated in October, 2006 which was much prior in time to the
filing of this eviction petition which was in July 2011.
7 In this background, the assertions made by the respondent in the
application seeking leave to defend do not in any manner raise any
triable issue. In fact as noted supra, all the averments which have been
asserted in the application seeking leave to defend were in fact the
details which had been disclosed by the landlord himself in his eviction
petition. It has also come on record that the petitioner who was
originally carrying on the business along with his brother Anil Kumar
from the disputed premises (portion shown in blue colour in the site
plan) is a premises no longer accessible to him as inter-se litigations qua
this partnership (which are petitions filed under Section 9 of the said Act
had been filed); in the course of these proceedings, the seal of this shop
had also been broken for which a police complaint had been filed and
pursuant thereto, an appeal had been filed against the said order. This is
a long drawn history of litigations pending between the two brothers; the
access of the petitioner to this business premises has thus been curtailed.
The second business house of the petitioner at property bearing No.
2774/1, Beadon Pura is admittedly a tenanted property; this is also under
litigation; the petitioner had been constrained to file a suit for injunction
against his brother restraining him from parting with the possession of
the suit premises; this also discloses nothing but the writ-large fact that
the brothers are at daggers end with one another. This has been prima-
facie established by the documentary evidence filed by the petitioner in
the trial Court.
8 The premises of 'M/s DCG Fabs Pvt. Ltd.' which is running three
business houses, two from its tenanted premises and one from the
owned premises is being run by a company which is wholly owned by
the wife and son of the petitioner. There is no dispute to the fact that
they are both individuals and doing the business in their said capacity.
This company (M/s DCG Fabs Pvt. Ltd.) has in fact been incorporated
in October, 2006; the documentary evidence filed on record relating to
the said company clearly shows that the petitioner has no concern with
the business of this company. Although admittedly this business house
is the business house of the wife and son of the petitioner yet the
admitted fact is that the interest in this business house is not the interest
of the petitioner. In fact the record shows that the family of the
petitioner is in the business of wholesale cloth merchants; 'M/s DCG
Fabs Pvt. Ltd'. is carrying on the business of readymade suits and sarees
whereas the two brothers were carrying on the business of dress
material; under the name and style of 'M/s Dalchand Gupta Ltd' and
M/s Dalchand & Sons'; the former is a business of readymade garments
and the latter appears to be a business of retail of dress material. Every
individual has a fundamental right of trade and merely because the
parties are closely related, the business interest of one cannot be imputed
to the business interest of the other.
9 The petitioner has clearly been able to establish that he has no
other alternate suitable accommodation from where he can run his
business; his bonafide need has been established.
10 The Apex Court in a judgment reported in 2003 AIR (SC) 532
Akhileshwar Kumar Vs. Mustaqim had held as follows:
"Once it has been proved by a landlord that the suit accommodation is required bona
fide by him for his own purpose and such satisfaction withstands the test of objective
assessment by the Court of facts then choosing of the accommodation which would
be reasonable to satisfy such requirement has to be left to the subject choice of the
needy. The Court cannot thrust upon its own choice on the needy. Of course, the
choice has to be exercised reasonably and not whimsically. The alternative
accommodation which have prevailed with the High Court are either not available
to the plaintiff No.1 or not suitable in all respects as the suit accommodation is. The
approach of the High Court that an accommodation got vacated to satisfy the need
of plaintiff No.2, who too is an educated unemployed, should be diverted or can be
considered as relevant alternative accommodation to satisfy the requirement of
plaintiff No.1 another educated unemployed brother, cannot be countenanced."
11 No triable issue appears to have arisen. The Court cannot thus
grant leave to defend in a routine or in a mechanical manner.
12 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."
13 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."
13 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 13, 2012
A
