Shashi Kant Jain vs Tilak Raj Salooja & Anr
2012 Latest Caselaw 2849 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Date of Judgment:01.05.2012


+     RC.REV. 167/2010


      SHASHI KANT JAIN                                 ..... Petitioner
                    Through           Mr. Sudhir Nandrajog, Sr.
                                      Advocate with Mr.Anupam
                                      Gupta, Adv.
                   Versus


      TILAK RAJ SALOOJA & ANR              ..... Respondents
                    Through  Mr.Shiv Charan Garg, Adv.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR



INDERMEET KAUR, J. (Oral)

1 Impugned judgment is dated 03.04.2010; eviction petition filed by

the landlord Tilak Raj Salooja and another against his tenant Shashi

Kant Jain seeking his eviction under Section 14 (1)(e) of the Delhi Rent

Control Act (DRCA) from the disputed premises i.e. the shop located on

the ground floor of property bearing No. E-175, Kamla Nagar, Delhi-

110007 had been decreed; the application filed by the tenant seeking

leave to defend had been declined.

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

the landlord on the ground of bonafide requirement; premises

comprising of a shop had been let out to the tenant from where he is

running a readymade garment store under the name and style of 'M/s

Sheetal Readymade'; monthly rent was Rs.293/- exclusive of electricity

charges. Contention in the eviction petition is that the premises are

required bonafide by the petitioners for running a business by petitioner

No. 1; petitioner No. 1 has a medical problem and because of blood

pressure and a prostate problem, he is unable to travel; in these

circumstance, he was forced to resign as a director of 'M/s Saluja

Brothers Pvt. Ltd' where he was earlier working as a director. Both the

petitioners wish to open a readymade garment outlet and the aforenoted

disputed shop is accordingly required by them for the aforenoted

purpose; contention being that this shop is located at the main front side

of the property and is a commercially viable venture for running the

aforenoted business. Further contention is that the petitioners are the

owners of this property; they have no other reasonable suitable

accommodation from where they can carry out this business; details of

the other tenants who are occupying the front portion of the ground have

been given in para 5 of the eviction petition. It is contended that this

property comprises of three floors; the mezzanine floor consists of two

rooms one of which has been let out to Salooja Brothers Pvt. Ltd. and

other has been rented out to Dr. Neha Bhargava who is running a dental

clinic. The first floor has also been rented out to a Chartered accountant

and the back portion of the first floor is under the tenancy of 'M/s Study

Overseas India Pvt. Ltd.' i.e. a centre who helps students to be suitably

selected for higher education. The second and third floors are being used

for residential purpose and are presently in occupation of the present

petitioners. Eviction petition has accordingly been filed.

3 Leave to defend has been filed wherein the main bone of

contention which has been raised and urged by the petitioner is that the

petition has been malafide; petitioner No. 1 is 78 years of age and has

himself admitted that he is suffering from blood pressure and a prostate

problem; petitioner No. 2 is also 70 years of age and they both are not in

a medical state to carry out any business; further contention being that

the submission of the petitioner that he has resigned as director from

M/s Salooja Brothers was in June, 2009; this is a company of the

petitioners themselves where petitioner No. 1 takes active part in the

business and this resignation has been effected only as an ulterior

purpose in order that a ground of eviction can be made out for filing the

present petition. Further contention is that petitioner No. 1 is doing

surgical business for the last several years and he has no intention to

start any readymade garment business. Petition has been filed malafide.

4 Corresponding paras of the reply to the application seeking leave

to defend have been perused. There has been a categorical denial; it is

denied that the petitioner has ever carried out the business of surgical

instruments; it was a business of scientific instruments; it was denied

that petitioner No. 1 has deliberately resigned from Salooja Brothers

Pvt. Ltd. in order to create a malafide ground for eviction; averments

made in the application seeking leave to defend have been reiterated.

5 The first argument urged before this Court is that during the

pendency of this petition, certain additional facts have come to the

knowledge of the tenant which are material and if these facts are taken

on record, leave to defend would automatically be granted in favour of

the tenant. This additional information has been incorporated by way of

an application filed by the present petitioner in the proceeding before

this Court under Section 151 of the Code of Civil Procedure (hereinafter

referred to as the 'Code'). Averments made in this application have been

perused. Contention of the petitioner is that on 11.03.2008, the sole

Arbitrator had passed an Award inter-se proceedings between the

landlord and Rakesh Gulati (another tenant on the ground floor)

whereby the two shops which are in occupation of Rakesh Gulati have

been handed back to the landlord; this Award was passed on

11.03.2008; meaning thereby that on the date of filing the eviction

petition i.e. on 29.01.2009, this fact was well known to the landlord but

for reasons best known to him, he has deliberately concealed this

material fact; contention being that a person must come to the Court

with honesty and he has concealed the fact which has a material bearing

on the issue in controversy, such a litigant deservers no sympathy and in

such an eventuality the Court should not mechanically and in a routine

manner grant leave to defend in favour of the tenant.

6 Reply to this application has been perused. The contention of the

landlord is that the premises which were two shops at the backside of

the disputed property were admittedly in occupation of Rakesh Gulati;

the Award passed by the sole Arbitrator dated 11.03.2008 has not been

disputed; contention is that even as per the submission of the tenant

these premises were handed over to the landlord only in May, 2010 and

this is clear from the averments made in para 6 of the application.

7 This submission of the learned counsel for the petitioner has

force. Para 6 of the application (filed by the tenant) shows that the

vacant physical possession of the two shops were handed over to the

landlord in May, 2010 from which date the said premises are allegedly

lying vacant; admittedly the eviction petition was filed on 29.01.2009;

as such the submission of the landlord that this was a material fact

which was concealed by the petitioner at the time of filing the present

eviction petition has no force as the possession of the aforenoted two

shops was given to the landlord only in May, 2010 and as such rightly

could not form a part of the pleadings in the eviction petition filed in

January, 2009; the submission of the tenant that there has been

concealment of fact by the landlord thus has no force.

8 Learned counsel for the petitioner/tenant has relied upon the

judgment reported in 22 (1982) DLT 1 Mohan Lal Vs. Tirath Ram

Chopra; contention being that the subsequent events which take place

during the pendency of the eviction petition and which have a material

bearing on the facts of the case can be taken on record even in

proceedings under Section 14 (1)(e) of the DRCA. There is no dispute to

this proposition; there is a classification of subsequent events; the events

which have happened prior to filing of the eviction petition and events

which take place during the pendency of the eviction petition. This is an

event which is dated 11.03.2008 (which is the date of passing of the

Award by the sole Arbitrator); this event thus clearly is not an event

which had taken place during the pendency of the eviction petition; it

was an event prior in time. The judgment relied upon by the learned

counsel for the tenant in this factual scenario would not come to his aid

as the ratio of this judgment is that as the so called subsequent events

which have happened during the pendency of the eviction petition may

in the facts of each case be considered. The Award of 11.03.2008 is

admittedly prior in time to the eviction petition and cannot be permitted

to be taken on record.

9 Section 25-B of the DRCA is a summary procedure which has

been engrafted for a special class of landlords which includes landlords

who have filed a petition under Section 14 (1)(e) of the DRCA; it

specifically postulates that after the defendant/tenant has been served, he

has to file his application seeking leave to defend within a span of 15

days; this is a mandatory requirement; in the absence of leave to defend,

the eviction petition is liable to be decreed in favour of the landlord.

10 The alternate submission of the learned counsel for the petitioner

is predicated on the merits of the case; contention being that the

bonafide requirement of the petitioner has not been established. This

submission of the petitioner is also without any force. Petitioner No. 1

has averred that he is 78 years of age; his wife petitioner No. 2 is 70

years of age; they both wish to start a readymade garment store; the

present premises from where a readymade garment store is already

being run is in a highly commercially viable area; it is a front shop in

Kamla Nagar market; the petitioners have admittedly no other

commercial space from where they can carry out the aforenoted

business; the submission of the tenant that petitioner No. 1 is aged 78

years and petitioner No. 2 is aged 70 years and cannot run an active

business is contradicted by his own submission wherein in one part of

his application seeking leave to defend averment is that petitioner No. 1

is an active director and takes active part in the business of the company

'M/s Salooja Brothers Pvt. Ltd'; whereas in the later part of his

application his averment is that both the petitioners being of an old age

and suffering from blood pressure and other related ailments cannot do

an active business.

11 Be that as it may, the submission of the learned counsel for the

petitioners that petitioner No. 1 had resigned from the directorship of

Salooja Brothers Pvt. Ltd. which requires a lot of travel is a factum

which remains undisputed and the mere bald submission of the tenant on

this count would have no weight against the statement made by the

director on affidavit that he is no longer a director of the aforenoted

company. The fact that the petitioners have no other reasonable suitable

accommodation is also not in dispute; this is a front side shop and at the

cost of repetition, the present shop would be a profitable business

proposal to start a retail garment store as is the contention and the

ground made out in the eviction petition.

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

(1996) 5SCC 353 had held 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."

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

another Vs. Prem Devi Niranjan Deva Tayal the Apex Court had noted

that the 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 Unless and until a triable issue has arisen leave to defend cannot

be granted; if this is done the very purpose and import of the Section 25-

B of the DRCA will be given a go by; which was not the intent of the

legislature.

15    No other argument has been urged.

16    Record shows that the trial Court has also answered the argument

propounded before it on the concept of ownership which has not been

disputed before this Court. On no count, does any triable issue arise.

17 In this background impugned order decreeing the petition and

dismissing the leave to defend application filed by the tenant suffers

from no infirmity. Petition is without any merit. Dismissed.

                                            INDERMEET KAUR, J
MAY       01, 2012
A