Namdev vs Sanjay Gupta
2012 Latest Caselaw 3552 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment:28.05.2012

+     RCR 271/2011

      NAMDEV                                      ..... Petitioner
                            Through    Mr. Kirti Uppal, Sr. Adv. with
                                       Mr.R.S. Sahni, Adv.

                   versus

      SANJAY GUPTA                               ..... Respondent
                            Through    Mr. Ravi Gupta, Sr. Adv. with
                                       Mr.Lalit Gupta and Mr.Deepak
                                       Agarwal, Adv.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1. Impugned order is dated 19.04.2011 vide which the eviction

petition filed by the landlord under Section 14(1)(e) of the Delhi Rent

Control Act (DRCA) had been decreed; application filed by the tenant

seeking leave to defend had been dismissed.

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

the landlord on the gourd of bonafide requirement. Suit premises had

been let out to the tenant for a non-residential purpose i.e. for running a

business of trading of Aggarbatti and Dhoopbatti; disputed premises are

described as shop No. 6118-19, Gali Batashan, Bazar Khari Baoli,

Delhi-110006. The bona fide need has been disclosed in para 18 of the

eviction petition. Contention of the petitioner is that he is the owner and

landlord of the disputed preemies; this factum is not in dispute. Further

contention is that the petitioner is carrying on business of trading of

various botanical, medicinal herbs and crude drugs, dry fruits; this

business is being run for the last more than 70 years and his forefathers

had started this business; the total sale in the year 2007-08 was 2.70

cores and the closing stocks on the said date were Rs. 1.61 crores. In the

financial year 2008-09 the petitioner had made sales of 3.20 cores till

the closing of January 2009; the trade of the petitioner and his family

has acquired a name in itself; at present, the petitioner is running his

business from shop No. 8, Gopinath building Gali batshan, Kari Baoli,

Delhi which is a shop measuring 13'.10" x 8'; this is a small shop and it

is very difficult for the petitioner to accommodate all kinds of articles

which the landlord is selling i.e. herbs , crude drugs and dry fruits; there

are more than 100 items which are always available and on display at

the shop; the landlord is actually dealing with more than 500 items;

herbs are available in various grades and depending upon their quality

and specifications they are packed in different bags as per retail

requirements; there are hundreds of species of herbs, crude drugs and

dry fruits and the customer of such like goods wants to inspect not only

the quality of the goods but also wish to make a comparison of the

prices which are prevailing in the outlet; samples for the aforenoted

purpose have to be kept at the site; the customers also want to ensure

that the bag which he has inspected is the same bag which is sold to

him; because of paucity of space and accommodation the petitioner is

unable to display all his goods to the customers. Suit premises which are

under use and occupation of the tenant is about 900 sq. ft. (100 sq.

yards); this is on the ground floor and is ideal for the expansion of the

business of the petitioner as presently the petitioner has no outlet from

where he can carry out his retail business. The petitioner is in fact in

need of 1000 sq. feet on the ground floor in order that he can display all

his articles of various ranges which (as noted supra) include not only

herbs, crude drugs but also dry fruits and the aforenoted premises

would be an ideal commercial viable business venture for the petitioner.

Eviction petition was accordingly filed. Leave to defend had been filed.

The main bone of contention which is urged and argued before this court

is that there are other alternate accommodations which are available

with the landlord and on the ground of concealment of material facts

alone the petitioner-tenant is entitled to leave to defend. To support his

submission learned counsel for the petitioner has placed reliance upon

the judgment of Kishan Chand vs. Jagdish Pershad & Ors. reported in

(2003) 9 SCC 151. Contention being that the entire accommodation

available with the landlord in the aforenoted premises had not been

disclosed and the landlord in fact has sufficient place to satisfy his needs

which sufficient space is available on the first, second and third floor of

the premises. The site plan which has been filed by the landlord and is a

part of the court record has been perused; this site plan clearly shows

that at the ground floor the disputed premises is a shop measuring 900

sq. ft. (in red colour) which is in occupation of the petitioner-tenant;

on first floor eastern portion is an office space of the landlord and rest of

the portion is tenanted out; so also is the position on the second floor;

one room is with the landlord which is used as storage place and other

area is with the tenant; two rooms available on the third floor are also

being for the purpose of storage. That apart, the accommodation as

noted above on the first second and third floor is not an accommodation

which is a reasonably suitable alternate accommodation for the landlord

keeping in view the nature of his need; the need of the landlord as noted

(supra) is to display the various varieties of herbs, crude drugs, dry fruits

and spices which he is selling; such like customers cannot be expected

to visit the first or the second floor to examine the goods; in fact a wary

and watchful customer would definitely not compromise on his stand to

visit the first, second and third floor; he would rather go to another shop

where he can purchase the same goods at the ground floor level. Thus

the accommodations available on the first, second and third floor can in

no manner be said to be reasonably suitable alternate accommodation.

3. The second submission of the learned counsel for the petitioner

on this count is that another 900 sq. ft. godown is available with the

landlord which is located at Katra Peran bearing No. 284, Tilak bazaar.

This has been disclosed by the tenant in his application for leave to

defend; corresponding para of the reply filed by the landlord has been

perused. It has been stated that this property is not owned by the

landlord; he is a tenant in this godown; a site plan of this godown placed

on record and which is not in dispute shows that the area of the godown

is only 300 sq. ft.; it is being used as a godown and is admittedly not

owned by the landlord. This accommodation also does not fall in the

category of a reasonably suitable alternate accommodation. Vehement

argument of the petitioner is that this fact has been elucidated only in the

reply filed by the landlord and had not been disclosed by him in his

eviction petition and this amounts to a concealment. What is

concealment, has not been defined in the Delhi Rent Control Act but

concealment of a fact would be a fact which is vital and bearing to the

matter in issue; this eviction petition has been filed under Section

14(1)(e) of the DRCA; necessary ingredients for contesting a petition

under Section 4(1) (e) of the DRCA is as under:-

(a) The applicant has to be a landlord;

(b) He has also to be an owner;

(c) The premises in question should have been let out for residential or commercial purpose or both;

(d) The said premises are required bon fade by the landlord for occupation as a residence for himself or his family dependent upon him and;

(e) That the landlord or such person dependent upon him has no other reasonably suitable residential accommodation."

4. The accommodations as aforenoted do not in any manner fall in

the category of a reasonably suitable accommodation which cannot be

treated as an alternate accommodation. The second accommodation at

Katra Peran, Tilak Bazar, Delhi is not even owned by the landlord; it is a

tenanted property; the first accommodation (as depicted in the site plan)

is an accommodation on the first, second and third floor; there is one

room on the first floor and stores on second floor and third floor; need

of the landlord as depicted and averred in the eviction petition is the

need to display 500 varieties of articles which he is selling which

include various varieties of herbs, different crude drugs, dry fruits and

spices; further submission being that these delicate items have to be

packed in individual packets and depending upon their quality their

packing has to be different. Such like customers examine not only the

quality but also the price range for which they make a comparative study

in the open market; that is why the goods of the petitioner have to be

openly displayed in order to enable the customer to satisfy his

requirement before he makes the final purchase. The further submission

of the landlord on this count is that depending upon the quality of the

product the packaging is customized and the proposed customer in most

cases insists on taking the same package which he has earlier approved

after inspecting and assessing its quality; for such purposes there has to

be wide range of display. In this background, the non-disclosure of the

accommodation available on the first and second floor (of the same

premises) is not a concealment on the part of the landlord; the judgment

of Kishan Chand (Supra) relied upon by the learned counsel for the

petitioner is not applicable.

5. The eviction petition thus having been decreed and application

seeking leave to defend having been dismissed suffers from no

infirmity. Petition is without any merit; it is dismissed.

INDERMEET KAUR, J MAY 28, 2012 rb