Rakesh Sud vs Arun Kumar Gupta
2012 Latest Caselaw 1853 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Judgment: 19.3.2012


+            RC.REV. 264/2011 & CM No.13063/2011 (for stay)


      RAKESH SUD                      ..... Petitioner
                           Through:   Mr.Sanjeev Sachdeva, Sr.
                                      Advocate with Mr. Preet Pal
                                      Singh and Ms.Priyam Mehta,
                                      Advocates.
                  versus


      ARUN KUMAR GUPTA                        ..... Respondents

                  Through:            Mr.Rakesh Khanna, Sr. Advocate
                                      with Mr.Devender N. Grover,
                                      Advocate.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J (oral)

1     Order impugned is the order dated 22.02.2011 whereby the

eviction petition filed by the landlord Arun Kumar Gupta seeking

eviction of his tenant under section 14(1)(e) of the Delhi Rent Control

Act (hereinafter referred to as the DRCA) on the ground of bonafide

requirement had been decreed.

2 Record shows that the petitioner was the landlord of shop

No.4997, Ward No.XI on plot No.57, Daya Nand Marg, Darya Ganj;

this property has been let out to the tenant at monthly rent of `50/-.

Contention of the petitioner is that he had a shop in the basement of B-

43, Greaker Kailash-I from where he was carrying on his business of

sale of electronic articles like DVD player/ LCD/TV for the last 15

years; this shop was located in a residential area and under the orders of

the Apex Court had been ordered to be sealed; petitioner is in dire need

of space to run his business; he has no other means of livelihood; this is

the only commercial property available with him which is required for

his bonafide need to carry on his business. Present petition was

accordingly filed. Further contention in the eviction is to the effect that

the tenant had in fact purchased a portion of this property from Rajesh

Luthra who in turn had purchased this portion from the present

petitioner. Further contention is to the effect that an earlier eviction

petition under Section 14(1)(a) of the DRCA had been filed by the

landlord against the father of the respondent in which the tenant had

initially opposed the landlord-tenant relationship but thereafter in the

course of those proceedings he had himself moved an application

admitting the status of Arun Kumar Gupta as landlord/owner.

3 To support this submission attention has been drawn to the order

passed by the Additional Rent Controller (ARC) in proceedings under

Section 15(1) of the DRCA (dated 27.5.1985) wherein the submission of

the father of the tenant (Nanak Chand Sud) that there is no relationship

landlord and tenant had been repelled; as an interim measure Nanak

Chand Sud (in those proceedings) had been directed to pay interim rent.

Attention has also been drawn to the application filed by Nanak Chand

Sud (father of the tenant) wherein he had himself had admitted that he

was satisfied about the title of the petitioner (Arun Kumar Gupta); his

prayer in that application had sought a dismissal of the petition under

Section 14(1)(a) of the DRCA. This submission of the counsel for

Nanak Chand Sud has also been recorded on 09.4.1986 before the ARC

in those proceedings which was to the same effect.

4 All these facts had been noted by the ARC in the correct

perspective. These orders in fact become relevant in view of the

vehement submission made by the learned counsel for the petitioner

before this Court today that the relationship of landlord and tenant does

not exist between the parties. This submission has little force as in view

of the aforenoted orders, the father of the tenant (tenant is deriving his

title only from his father) had himself made a submission in writing that

he had satisfied himself about the title of Arun Kumar Gupta; in fact, in

those proceedings he continued to pay rent to the present landlord. Thus

this submission that Arun Kumar Gupta is not the owner/landlord of

these premises is bereft of all force. The additional submission made

by this tenant on this count that even otherwise in the eviction petition it

has not been specifically pleaded that Arun Kumar Gupta is owner of

the suit property is also without merit. The form in which the present

eviction proceedings have been filed (under Section 14(1)(e) of the

DRCA) have been perused; Column 3 specifies the name and head of

the landlord; the name of Arun Kumar Gupta finds mention; para 18

contains the grounds of eviction; they have specified that the tenant

(Rakesh Sud) had purchased the adjoining central shop from Rajesh

Luthra who in turn had purchased it from Arun Kumar Gupta; this was

vide a registered sale deed; it is implicit from a reading of this document

that Arun Kumar was the owner and that is how vide a registered sale

deed he had sold this central shop to Rajesh Luthra who in turn had sold

it to the present tenant Rakesh Sud. The tenant Rakesh Sud has in fact

admitted that Arun Kumar Gupta was the owner of four shops one of

which has been purchased by his wife from the intervener Rajesh

Luthra.

5 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."

6 Question of ownership/status of landlord does not in any manner

raise a triable issue.

7 The second submission made by the learned counsel for the tenant

is to the effect that there are three shops which were owned by the

landlord which have been sold by a registered sale deed in September

2009 and the present eviction petition has been filed malafide; a paucity

of accommodation has in fact been created; if the landlord required the

premises bonafide, the could not have sold the aforenoted three shops.

8 Record shows that in fact 2 shops had been sold by the landlord

on 22.1.2009 to Rajesh and the third shop was sold to Babita Luthra

(wife of Rajesh Luthra) also on 22.01.2009. This sale deed dated

22.01.2009 in favour of Rajesh Luthra is on record; it also makes a

mention of the will executed by Sewti Devi on 26.7.1982 by virtue of

which she had bequeathed the entire ground floor in favour of the

present landlord Arun Kumar Gupta. This is a registered document. In

fact it was from Rajesh Kumar Luthra himself that one such shop had

been purchased by the present tenant; the tenant had recognized the title

of Rajesh Luthra who in turn had derived it from the present landlord

i.e. Arun Kumar Gupta which was on the basis of the will of Sewti Devi

dated 27.6.1983. The submission of the petitioner on this count that the

will of Sewti Devi was a disputed document also has no force.

9 Going back to the submission that the three shops had been sold

by the landlord admittedly on 22.01.2009, it is on record that the present

eviction petition had been on 22.12.2010 which was after a lapse of

about two years. The submission of the landlord on this court is that he

was constrained to sell these shops two years prior to the date of the

filing of the eviction petition because of a financial crisis. In fact in the

entire body of the application for leave to defend malafides have not

been imputed to the landlord on this count; eviction petition having been

filed two years later when admittedly there is no dispute to the specific

averments made by the landlord that because of a financial crisis he was

forced to sell these three shops, there is no reason to disbelieve the

landlord on this score.

10 Courts have time and again noted 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."

11 No triable issue has arisen on this count either.

12 Last submission of the learned counsel for the petitioner is that

the landlord is a rich man who is running a resort in more than 7 acres of

land at Dehradun; he does not wish to carry out any business from the

aforenoted premises. This submission has been vehemently denied. In

the reply filed by the landlord it is stated that a small house has been

purchased by the wife of the petitioner (who hails from Dehradun) out

of her own funds which has been built on an agricultural land where a

"bed and breakfast scheme" which pre-supposes persons using the

premises on a daily rental basis has been set up; it is denied that the

value of this property is 100 crores as has been alleged; it is stated that

this scheme is being run by his wife in which petitioner has no interest;

it is reiterated that the petitioner wishes to carry out his own business

from the aforenoted premises which business he was earlier admittedly

doing from the premises at B-43 Greater Kailash-I which has since been

sealed. There is no dispute to the factum that this shop has been sealed

under the order of the Monitoring Committee of the Supreme Court and

as on date it cannot be used as it lying sealed and being located in a

residential area, it cannot be used for a commercial purpose. The

landlord has been able to prove that he is the owner and has the status of

the landlord in the aforenoted premises; he has no other alternate

accommodation; this shop is the only commercial shop which is

available to him from which he can run his business which earlier he

was carrying out from a shop at Greater Kailash-I which had been since

sealed as it is located in the residential area. Petitioner has no other

reasonably suitable accommodation. Three other shops had been sold

by him two years prior to the filing of the present petition to override a

financial crises. The need of the petitioner two years later is a bonafide

and genuine need to set up his business from this shop. This need stands

prima facie established.

13 No triable issue has arisen on this count. Courts have time and

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

cannot be granted in a routine manner. The very purport and import of

the Section 25-B of the DRCA would otherwise be defeated.

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 back ground the eviction petition having been decreed and

the application seeking leave to defend having been dismissed thus

suffers from no infirmity.

16 Reliance by the learned counsel for the petitioner upon the

judgment reported in (2001)1 SCC 706 Inderjeet Kaur Vs. Nirpal Singh

is misplace. There is no dispute that if a triable issue arises leave to

defend should be granted; the converse is also true; if no triable issue

has arisen leave to defend should not be granted in a routine or in a

mechanical manner.

17 This petition being without any merit; it is dismissed.

INDERMEET KAUR, J MARCH 19, 2012 nandan