Kanta Khosla vs Shri Subhash Chander Kumar
2012 Latest Caselaw 1819 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 16.03.2012


+RC.Rev. No.119/2012 & CM Nos.4828-29/2012 & Caveat
No.268/2012


KANTA KHOSLA                                     ..... Petitioner
                            Through:     Mr.Ashok Sapra, Advocate.

                   versus


SHRI SUBHASH CHANDER KUMAR                        ... Respondent
                 Through: None.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1. Impugned judgment is dated 08.9.2011; eviction petition filed by

the landlord had been decreed; the application seeking leave to defend

filed by the tenant had been declined.

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

the landlord Subhash Chander Kumar seeking eviction of his tenant

from shop bearing No.3 forming a part of property No.A-12, Rajouri

Garden, New Delhi; premises had been let out for a commercial

purpose; rate of rent was `175/- per month exclusive of electricity

charges; contention of the landlord was that he was the owner/landlord

of the aforenoted premises; the respondent was a habitual defaulter; she

had last paid rent only on 01.3.2006; petitioner has a small family

comprising of himself; his wife and one daughter; petitioner has been

doing business from shop nos.1 & 2, under the name and style of

'Kumar Hardware' located in the same property. Shop No.3 is the

tenanted premises. Daughter of the petitioner Dr. Nidhi Kumar aged 28

years is a qualified physiotherapist from the 'Institute of Rehabilitation

Medicine and Allied Sciences' affiliated with the Guru Gobind Singh

Indraprastha University', Delhi. She had obtained a degree in 2005 in

first division. She had got married in the year 2005 but because of

differences with her husband she underwent a divorce which was a

divorce by mutual consent on 02.12.2010. Since 24.5.2009 she is living

with the petitioner; his daughter wishes to start a new chapter in her life.

The shop is required for her need as she wants to open a clinic of

physiotherapy. The shop is in a suitable and viable area and the clinic

can be run from the aforenoted premises. Documents of the medical

degree obtained by the daughter of the petitioner as also the divorce

petition substantiating the submission that his daughter is now living

with her parents have also been filed on record. This is the bonafide

need which has been pleaded by the landlord.

3. Application seeking leave to defend had been filed. Contention

was that the petitioner is not the owner of the premises; further

contention being that the petitioner himself is running a business of

hardware under the name and style of 'Kumar Hardware and Sanitary

Stores.' He is living in the first floor of the property; he has concealed

the fact that he had earlier filed an eviction petition under Section

14(1)(a) of the DRCA; the shop in occupation with him would be suffice

for the need of his daughter as well. Contention is that this eviction

petition has been filed only for the purpose of blackmailing the

petitioner. These are the triable issues which have been sought to be

raised by the tenant.

4. Reply and the corresponding paras of the reply relevant to these

averments have been perused. It is reiterated that the petitioner is the

owner of the suit premises; it is also not in dispute that his divorced

daughter is living with him. Decree of divorce has substantiated this

submission; the fact that his daughter is a qualified physiotherapist and

has a decree of bachelors as a qualified physiotherapist is also not

disputed as the document substantiating this submission has also been

placed on record.

5. An oral submission has been made by the learned counsel for the

petitioner which is to the effect that the decree of divorce shows that a

sum of `22 lacs has been paid by her husband as alimony to the wife and

as such this would sufficient for her lifetime need; this argument is

wholly bereft of merit. Apart from the fact that this divorce decree

states `22 lacs has been paid to the wife as permanent alimony and for

maintenance of the child; even otherwise the argument that a sum of `22

lacs would be sufficient for a lifetime for two persons is ridiculous; the

daughter is not prevented from pursuing a profession in which she is

dully qualified, such an argument can in no manner be sustained.

6. In the instant case, it is clear that the tenant has been paying rent

to the petitioner; he has not seriously disputed the ownership of the

petitioner; it is also not his case that someone else is the owner and he is

not paying the rent to the landlord; this submission is also wholly bereft

of any force.

7. The Apex Court in the case of (1987) 4 SCC 193 Smt.Shanti

Sharma & Others Vs. Smt. Ved Prabha & Others had an occasion to

examine the concept of 'owner' as envisaged under Section 14 (1)(e) of

the DRCA. The Apex Court has noted that the word 'owner' has not

been defined anywhere in the DRCA; the following extract of the

judgment of the Apex Court is relevant:-

"The word „owner‟ is not used in Section 14 (1) proviso (e) of Delhi Rent Control Act in the sense of absolute owner; where the person builds up his property and lets out to the tenant and subsequently needs it for his own use, he should be entitled to an order or decree for eviction, the only thing necessary for him to prove being bona fide requirement and he is the owner thereof. In this context the meaning of „owner‟ is vis-à-vis the tenant i.e. the owner should be something more than the tenant. In most of the modern townships in India the properties stand on plots of land leased out either by the Government or the Development Authorities and therefore it was not contemplated that for all such properties the landlord or the owner of all such properties the landlord or the owner of the property used in common parlance will not be entitled to eviction on the ground of bonafide requirement and it is in this context that we have to examine this contention. It could not be doubted that the term „owner‟ has to be understood in the modern context and background of the scheme of the Act."

8. The need of the landlord is to set up an independent establishment

for his divorced daughter who also has a child to support; not only is a

financial settlement necessary for his daughter also but an emotional

stability has to be given to her in order that she can engrain herself in

society once again and re-start a new chapter of her life.

9. The need of the landlord is clearly bonafide. He himself is living

with his wife in the first floor and doing the business of hardware from

the neighbouring shop which is in the same premises as the disputed

premises. The need of the daughter to run her physiotherapy clinic from

the shop which is in close vicinity for which she has a necessary

qualification clearly establishes his genuine requirement. The landlord

is also the best judgment of his own requirement; it is form him to

decide as to how and in what manner he and his family should live and

earn their livelihood.

10. In Prativa Devi (Smt.) Vs. T.V. Krishnan reported in

(1996)5SCC353 it was held as under:-

"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."

11. These are the issues which have been raised. They do not in any

manner amount fall in the category of triable issues. The Courts time

and again have held that unless and until a triable issue arises leave to

defend should not be granted 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

as follows:

"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."

14. Reliance by the learned counsel for the petitioner upon the

judgments reported in AIR 1971 J & K 67 Aziz Wani Vs. Director

Consolidation is misplaced; this is a summary proceeding which has

been followed by the court. This judgment has no application in this

background.

15. In this back ground the eviction petition having been decreed and

leave to defend application having been dismissed suffers from no

infirmity. Petition is dismissed being without any merit.

INDERMEET KAUR, J MARCH 16, 2012 nandan