Surjeet Singh vs Urmila Devi
2012 Latest Caselaw 1732 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 14.03.2012

+                  RCR No. 235/2011


SURJEET SINGH                                     ..... Petitioner
                            Through    Mr. B.L. Chawla, Adv.

                   versus


URMILA DEVI                                       ..... Respondent
                            Through    Mr. K.L. Bhendwal, Adv.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 Order impugned is the order dated 16.12.2010; the application

filed by the tenant seeking leave to defend had been dismissed; the

eviction petition filed by the landlord had been decreed.

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

the landlady Urmila Devi seeking eviction of her tenant Surjeet Singh

from a shop in part of property No. 24/52-B Tilak Nagar, New Delhi;

the tenant was paying a monthly rent of `140/- excluding electricity and

water charges; contention of the petitioner is that she is the owner of the

aforenoted suit premises having purchased them in the year 1966;

premises had been let out for non-residential purpose; the tenant is

carrying on his business under the name and style of 'M/s Lovely

Tracer' from the said premises; the petitioner has no other reasonably

suitable accommodation; her contention is that her late husband Krishan

Lal had started the work of picture framing on a very small scale to earn

income to support his family; the said work was started under the

canopy on the ground floor; income from the framing work was not

sufficient; as such the aforenoted shop was given on rent to the present

petitioner; the second shop was also given on rent to other tenant Mian

Khan; this was only to supplement the income of the petitioner and her

husband. With the passage of time, the work of the husband of the

petitioner improved; her son Bhupesh also joined the business; the

husband of the petitioner died in 1990; her son Bhupesh was married in

1990; his wife was well-versed with boutique work and she started a

boutique on the ground floor; the business of Bhupesh which was of

photo framing, selling, cutting, grinding, etching and painting over glass

increased over a period of time; more and more workers were required

and added by Bhupesh; the boutique work of her daughter in law had

also increased; she was doing tailoring work with a number of sewing

machines; 16-18 workers were engaged in the boutique and glass work;

the only portion available to the petitioner is four rooms as depicted 'A',

'B', 'C' & 'D' in the site plan marked 'X'; contention is that room 'A' is

being used for grinding and etching work; rooms 'B' & 'C' are being

used for boutique work and room 'D' is being used to keep a generator

as there are frequent electricity faults and a generator is thus required;

further contention being that there is no proper office/showroom or

reception to attend to and to deal with the customers which is

embarrassing both to the customers as also the persons dealing with

them; at present the customers are being attended to at the canopy which

is clumsy and in bad shape; present shop is thus required by the

petitioner to enable her son Bhupesh as also her daughter in law to carry

out their business works from an accommodation which clearly falls

short; eviction petition was accordingly filed.

3 Leave to defend has been filed; contention of the tenant before

this Court is that the site plan which has been filed by the landlady is not

correct; he has filed a counter site plan; the site plan filed by the tenant

has also been perused. They are appears to be no difference in the site

plan filed by the tenant or by the landlord except for the fact that the site

plan filed by the tenant also includes the premises as depicted the first

and second floors which are admittedly being used by the landlady and

her family for a residential purpose; it is also not the case of the tenant

that this is a commercial establishment or the said first floor or second

floor are being used for a commercial purpose.

4 Further submission of the tenant is that there are seven rooms

which are available to the landlady on the ground floor; however this

submission does not find mention anywhere in the application for leave

to defend; contention of the tenant being that the site plan filed by him

in fact shows this position; this submission is also misdirected as the site

plan shows only four rooms which are marked 'A', 'B', 'C' & 'D' and

the purpose for which they are being used have been aforenoted and

explained by the landlady in her eviction petition. There is also no

dispute to this factual submission made by the landlady. The contention

of the tenant that there are seven rooms available on the ground floor

with the landlady is not borne out from the site plan; apart from the

rooms marked 'A', 'B', 'C' & 'D' there appears to be an open area in

front which is covered with a canopy; there is no pucca structure or a

room apart from the rooms marked 'A', 'B', 'C' & 'D' and the two

shops which have been tenanted out to two different tenants namely the

present petitioner and one Mian Khan.

5     No triable issue has arisen on this count.

6     The other submission made by learned counsel for the tenant is

that there is another alternate accommodation which is available with

the landlady which is a shop bearing No. 1, Old Market, Tilak Nagar

which is lying locked since the last ten years and this can be used by the

landlady. In reply to this submission it has been stated that this is a

tenanted shop and even otherwise it is away from the business place of

the petitioner; it is unused and is lying locked for the aforenoted reason;

further contention being that this is not suitable for the purpose for

which the present shop is required which is absolutely adjacent to the

place from where the business is being carried out by the son and

daughter in law of the petitioner. This factual submission is clearly

borne out from the record.

7 The next submission made by learned counsel for the tenant is

that there is another alternate accommodation of 200 square yards at

Vikas Nagar, Uttam Nagar, New Delhi available with the petitioner and

the present premises is not required bonafide by the landlady. In reply to

this submission, it has been stated that the Uttam Nagar shop has been

allotted in the name of the son of the landlady; allotment letter of the

Uttam Nagar shop which has been allotted in the name of the son of the

landlady has been placed on record which shows that this is only an area

measuring 21.69 square meters; the submission of the landlady that this

is only a plot and is lying undeveloped and is also more than five

kilometers away from the business place from where the petitioner's

family is carrying a business has also not been disputed.

8 It is in this background that the submission of the tenant that

alternate accommodation is available with the landlady has to be

considered.

9 A Bench of this Court in Adarth Electricals through its partner

Sh. S.K. Aggarwal and Others Vs. Sh. Diensh Dayal S/o late Sh.

Jagdishwar Dayal Karta Dinesh Dayal HUF 173 (2012) DLT 518 has

held as under:-

The concept of alternate accommodation means that accommodation which is "reasonable suitable" for the landlord, which in this case is not, as that

particular accommodation is a support of income to the family of the respondent. As to alternative accommodation disentitling the landlord to the relief of possession, it has been held time and again that it must be reasonably equivalent as regards suitability in respect to the accommodation he was claiming. The court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. It is to be observed that it would be incorrect to suggest that the question of accommodation, actually in possession of the landlord, being 'reasonably suitable' is to be judged solely in the context of physical sufficiency of the accommodation and that the Court may hold that accommodation is insufficient having regard to various circumstances, such as, the social status of the family or traditions and customs observed by it. As long as the landlord is able to establish that he in good faith and genuinely wishes to occupy the premises in possession of the tenant and that good faith or genuineness is of a reasonable man, it would not be open to the Controller to weigh the claim of the landlord in a fine scale and that the viability of the other accommodation will have also to be considered from the stand-point of a reasonable landlord. It is further to be observed that the law does not require the landlord to sacrifice his own comforts and requirements merely on the ground that the premises is with a tenant and for deciding whether or not the alternative accommodation available to the landlord is suitable or not, the social customs, conventions and habits, usage and practices of the society cannot be completely ruled out and termed as irrelevant. The problem had to be approached from the point of view of a reasonable man and not that of a whimsical landlord.

10 Accommodation at Uttam Nagar is only a plot which is

undeveloped and which is admittedly more than five kilometers away

from the business place where the son and daughter in law are doing

business. Further contention being that this plot even as per the tenant is

lying locked; this cannot be substituted for the accommodation required

by the son and daughter in law to carry out the business which they are

already carrying on from a smaller portion of the disputed premises. The

site plan shows that the disputed premises is a shop which is absolutely

adjacent to the place from where the son Bhupesh is carrying out his

glass work of etching and painting and also adjacent to the boutique

work being carried out by the wife of Bhupesh; it is also an admitted

case that both the son and daughter in law of the petitioner are

dependent upon the petitioner for their need for accommodation. They

are a joint family who is living on the first floor of the said premises.

The site plan marked 'Y' has also been placed on record to show that if

this shop is vacated by the present petitioner the wall operating in

between the working place of Bhupesh and his wife can be broken and it

can be converted into a single hall where both the employees of

Bhupesh and his wife can sit together to work for their respective

purposes i.e. business of Bhupesh which is of framing, cutting, grinding,

etching and painting over glass and business of his wife which is of a

boutique. The bonafide need of the landlady has clearly been

established.

11     No triable issue appears to have arisen.

12     The Court cannot thus grant leave to defend in a routine or in a

mechanical manner.

13     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."

14 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."

15 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