Raghubar Dayal Om Prakash vs Jai Kishan Rohtagi
2012 Latest Caselaw 3594 Del

$~16
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Date of Judgment:29.5.2012

+            RC.REV. 92/2012 & CM No. 6191&3588/2012


      RAGHUBAR DAYAL OM PRAKASH      ..... Petitioner
                  Through Mr. Anupam Srivastava, Adv.

                  versus

      JAI KISHAN ROHTAGI                         ..... Respondent
                    Through          Mr. R.K. Jain, Adv.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 Impugned judgment is dated 20.12.2011; the eviction petition

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

Act (DRCA) 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. The petitioner

claims himself to be the owner of the disputed premises. This fact is

neither disputed and nor under challenge. Disputed premises have been

described as property bearing No. 5695/81, Regharpura, Karol Bagh,

New Delhi; it has been depicted in red colour in the site plan which is

adjacent the shop from where Vijender Kumar, the elder son of the

petitioner is carrying on the business of chemist shop; by way of this

petition, it has been stated that this chemist shop is small in size and he

wishes to expand his business which he can do so only when the

tenanted shop is joined with the existing shop; further contention is that

the petitioner himself is a contractor by profession; he has no office to

run a business for himself; he is a resident of first and second floor; he

would like to maintain an office on the ground floor; further submission

being that the portion on the first and second floor which is in

occupation of the petitioner and his family is falling short; the family

comprises of the petitioner, his wife and two sons; both his two sons are

married and they also have two children each; the accommodation

available with the family is insufficient. He has no other accommodation

in Delhi; his sons are dependent upon him for their need for

accommodation. Accordingly the present eviction petition has been

filled.

3 The application seeking leave to defend and the averments

contained therein have been perused. On the first count, the vehement

submission of the petitioner is that the need of the petitioner is a

confused need; he himself is not aware whether he requires the disputed

premises are required for a commercial purpose or for a residence;

contention being that the premises are being used for a commercial

purpose and can be put to commercial user only. This submission of the

petitioner is devoid of force. Eviction petition has clearly disclosed the

need of the landlord to expand the chemist shop of his son. Site plan on

record shows that the tenanted portion has been depicted in red colour;

it is a shop measuring 8.9'X 7.6' feet; this shop is adjacent and

contiguous with the tenanted shop; the chemist shop is being run by the

elder son of the petitioner in an area of 8.9'X6.3 which is much smaller

is size; the need of the petitioner is to enable his son (who is dependent

upon him for his need for accommodation) to expand this business of

the chemist shop. Further submission in the eviction petition is that the

petitioner is a contractor by business and living on the first floor; he also

requires an office space from where he can conduct his business on the

ground floor; both the needs are the needs for his son as also for himself;

either of these two needs can be fulfilled if this shop is vacated.

Submission of the learned counsel for the tenant that the need is

confused and the eviction petition has also disclosed the need of the

landlord for a residential purpose is a wrong submission. Eviction

petition has only detailed the residential accommodation available with

the landlord which is an insufficient accommodation for himself and his

family members and is on first and second floor; he has nowhere averred

that he requires this shop for the purpose of his residence; this

submission is thus devoid of any merit.

4 The second additional submission of the learned counsel for the

petitioner in this score is that the premises are required for expanding

the chemist shop but the license/document placed on record shows that

this license of running a chemist is in the name of person other than

Vijender who is the son of the petitioner. A photocopy of this document

placed on record shows that this document was never a part of the trial

court record and did not form a part of the application filed by the tenant

seeking leave to defend. Settled position of law is that triable issues

have to be emanate from the pleadings of the parties which includes the

application seeking leave to defend along with the relevant documents;

this document not being a part of the trial court record cannot thus be

adverted to at this stage.

5 The categorical submission of the landlord in his eviction petition

is that the sons are dependent upon him for their need for

accommodation which factum has again been reiterated by the landlord

in his reply. The viability of the expansion of chemist shop which is

being run from a much smaller shop if permitted to be done, would

definitely be a profitable venture; the landlord's need for setting up an

office on the ground floor is also a genuine need; it is not in dispute that

he is a contractor by profession; it is also not for the tenant or the court

to dictate terms to the landlord as to how and in what manner he has to

meet his needs for an accommodation. The site plan also evidences the

fact that the shop presently in occupation of the elder son of the

petitioner is much smaller than the disputed shop. Landlord has been

able to establish his bonafide need and the additional requirement that

apart from this shop he has no other reasonably suitable

accommodation.

6 No other argument has been urged. Leave to defend should not be

granted in mechanically and in routine manner; if this is permitted the

very purport and import of the summary procedure contained in Section

14 (1)(e) would be defeated.

7 In this background, the impugned judgment decreeing the eviction

petition in favour of the landlord and dismissing the application seeking

leave to defend suffers from no infirmity.

8     Petition is without any merit. Dismissed.




                                             INDERMEET KAUR, J
MAY       29, 2012
A