Ramesh Chand Jain vs Suresh Kumar Kohli
2012 Latest Caselaw 3034 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Date of Judgment:08.5.2012


+ RC.REV. 212/2012, CM No.8452/2012 & CAVEAT No.478/2012


      RAMESH CHAND JAIN                      ..... Petitioner
                  Through:           Mr.S.K.Chaudhary, Adv.

                  versus


      SURESH KUMAR KOHLI                    ..... Respondent
                  Through:           Mr.S.N.Kumar, Adv.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 Impugned judgment is dated 30.11.2011; vide which the eviction

petition filed by the landlord Suresh Kumar Kohli seeking eviction of

his tenant Ramesh Chand Jain from the disputed premises i.e. a shop

bearing municipal No.2656, Ajmal Khan Road, Karol Bagh, Delhi had

been decreed and application seeking leave to defend had been declined.

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

the landlord on the ground of bonafide requirement; the grounds for

eviction are contained in para 18; petitioner alleged that he is the owner

of the suit property; his father Bhagat Raj Kohli and his father-in-law

Sardar Chand Narang were the joint owners of the property bearing

No.2656; they had let out the shop to the aforenoted tenant vide a lease

deed dated 15.11.1975; the original tenant was Ishwar Chand Jain and

after his death the respondent namely Ramesh Chand Jain had become

the tenant by survivorship. Father-in-law of the petitioner had filed a

suit for partition of the aforenoted property and pursuant thereto on a

joint application a consent decree of partition was passed inter se

between the parties on 27.3.2001; pursuant to which the aforenoted suit

shop has fallen to the share of the petitioner; since then rent was earlier

being paid to Bhagat Raj Kohli, (the father of the petitioner) and after

his death the petitioner has become the owner of the suit premises.

Rent is also being paid by the tenant to the petitioner. This position qua

the ownership of the present petitioner is not in dispute. A bald

submission has been made by the learned counsel for the tenant that the

compromised arrangement between the father of the petitioner namely

Bhagat Raj Kohli and his father-in-law is a document which has not

been proved in accordance with law and to that extent only a

preliminary question had been raised about the title of the landlord;

however, this contention is no longer disputed. Record shows that the

consent decree passed on 27.3.2001 in Suit No.2969/2001 between

Bhagat Raj Kohli (father of the petitioner) and his father-in-law Sardar

Chand Narang had been acted upon and thereafter the suit property

having fallen to the share of Bhagat Raj Kohli and the tenant started

recognizing Bhagat Raj Kohli as his landlord; after Bhagat Raj Kohli the

present petitioner is his landlord; there is no quarrel on this proposition

of ownership.

3 Time and again the Apex Court has had an opportunity to discuss

the concept of ownership in pending proceedings under Section 14(1)(e)

of the DRCA. In (1987) 4 SCC 193 Smt. Shanti Sharma & Ors. Vs.

Ved Prabha & Ors the Apex Court had held as follows:

"The word 'owner' has not been defined in this Act and the word 'owner' has also not been defined in the Transfer of Property Act. The contention of the learned Counsel for the appellant appears to be is that ownership means absolute ownership in the land as well as of the structure standing thereupon. Ordinarily, the concept of ownership may be what is contended by the counsel for the appellant but in the modern context where it is more or less admitted that all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Govt. or the authorities constituted by the State and in this view of

the matter it could not be thought of that the Legislature when it used the term 'owner' in the provision of Section 14(1)(e) it thought of ownership as absolute ownership. It must be presumed that the concept of ownership only will be as it is understood at present. It could not be doubted that the term 'owner' has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act."

4 Further contention of the petitioner is by and large to the effect

that need of the landlord is not bonafide and he has other reasonably

suitable accommodation. The grounds of eviction as noted in the

eviction petition is the need of the landlord for this shop to enable his

elder son Sahil Kohli as also his younger son Sidhant Kohli (who are

dependent upon him for their accommodation) to carry on the business

of gemology as they have no other reasonably suitable accommodation

where the two sons can settle or run their independent business.

5 Leave to defend was filed; contention is that the landlord Suresh

Kumar Kolhi is himself running flourishing jewellery business and he

has a huge showroom; his sons Sahil Kohli and Sidhant Kohli are in fact

engaged in this business with their father; the need of the petitioner is

not bonafide. This contention raised by the tenant in the leave to defend

application finds mention in para 6 of the application.

6 This submission has been vehemently denied in the corresponding

para of the reply to the leave to defend. The landlord has specifically

stated that the premise are required to enable his two sons Sahil Kohli

and Sidhant Kohli to carry on their business of gold and diamond

jewellery; it has not been disputed that the father namely Suresh Kumar

Kohli has a business which he is running from shop No.2656, Bank

Street, Karol Bagh, New Delhi which is a tenanted premises for which

he is paying Rs.21,000/- as rent; the present premises are required for

the need of his sons.

7 There is no dispute to the factum that Suresh Kumar Kohli has

two sons who are capable of doing business; the elder son Sahil Kohli

has qualified with a diploma of gemology; the petitioner himself is

carrying on the business of jewellery in premises No.2656, Bank Street,

Karol Bagh; thus it is evident that the family of the petitioner is engaged

into this business of jewellery trading of both diamonds and gold. The

fact that Sahil Kohli needs the premises to carry on his own business

cannot be disputed; even assuming that he is assisting his father in the

jewellery business run by the father; it does not take away the right of

the son to start his separate business in view of the fact that he is a duly

qualified in gemologist and this fact has not been disputed by the tenant.

8 Today a submission has been made that the lease of the first floor

of property No.2656, Bank Street, Karol Bagh from where Suresh

Kumar Kohli is carrying on his business is a false document and has

been created during the pendency of the eviction petition; this

submission does not hold merit and cannot be gone into as his

submission is admittedly not a part of pleadings in the trial court below;

it does not find mention in the application for leave to defend.

9 Settled position at law is that triable issues have to be emanate

from the pleadings of the parties; unless and until a triable issue is

pleaded, the court cannot in the absence of such a plea examine the

same.

10 It is also a settled position at law that leave to defend cannot be

granted in a routine or a mechanical manner. If this was permitted the

whole intent and purpose of the provisions of Section 25-B of the Delhi

Rent Control Act which contains a summary procedure would be given

a go-by and this was not the intent of the legislature.

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

another Vs. Prem Devi Niranjan Deva Tayal the Apex Court has held

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.

12 In this background impugned judgment having decreed the

eviction petition and having dismissed the leave to defend application

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

INDERMEET KAUR, J MAY 08, 2012 nandan