Tej Prakash vs Idris & Ors.
2012 Latest Caselaw 6777 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                           R.C.REV. 566/2012

                                           Date of Decision: 27.11.2012


TEJ PRAKASH                                           ...... Petitioner
                            Through:    Mr.Puneet Bajaj, Advocate.

                                  Versus

IDRIS & ORS.                                            ..... Respondent
                            Through:

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This revision petition under Section 25-B(8) of the Delhi Rent Control Act (for short the 'Act') impugns the order dated 6.6.2012 of the learned Addl. Rent Controller whereby the leave to defend application filed by the petitioner in the eviction petition filed against them by the respondents, was dismissed.

2. The petitioner is a tenant under the respondents in respect of one shop on the ground floor of the premises being D-715, Jahangir Puri, which is shown red in the site plan that was filed by the respondents along with the eviction petition. The eviction of the petitioner from the suit shop was sought by the respondents on the ground that the suit

shop is required by the respondent No. 4 namely Danish, who was stated to be unemployed and not having any source of income and dependent upon respondent Nos. 1 & 2. It was their case that they do not have any other alternative suitable commercial space available to settle the respondent No. 4 Danish.

3. The leave to defend application was filed by the petitioner, which came to be dismissed by the learned ARC vide impugned order dated 6.6.2012. The petitioner has assailed the impugned order alleging that various triable issues were raised, which have been overlooked by the learned ARC. The said order has been assailed on the grounds firstly that the Delhi Rent Control Act was not applicable inasmuch as the rent of the suit premises was more than Rs. 3500/- per month. In this regard, it was alleged that the petitioner had filed a suit for permanent injunction against Smt. Hafizan, the predecessor of the respondents, in the year 2005 and in the written statement that was filed by her, the rent of the suit premises was shown as Rs. 3700/- p.m., but the same has been shown by the petitioner @ Rs. 3300/- per month in the instant petition. Based on this, it was submitted that according to the respondents' own case, the rent was Rs. 3700/- p.m. in the year 2005 and thus, the petition is not maintainable. In response, the plea of the respondents in this regard is that rather, the petitioner himself has been taking contradictory stands as regard to the rate of rent, and that, controversy in this regard was not settled so far. On being asked, it was fairly conceded by the learned counsel for the petitioner that at no

point of time, the petitioner ever paid rent @ Rs. 3500/- per month or more to Smt. Hafizan or the respondents. There being nothing on record to substantiate the plea of the petitioner that the rent was Rs. 3500/- per month or more, much less Rs. 3700/-, the plea that the petition is not maintainable, is apparently devoid of any merit. This is further substantiated from the fact that in the D.R. petition under Section 27, the petitioner has claimed the rent to be Rs. 600/- per month.

4. It was the plea of the petitioner that there was no relationship of landlord and tenant between the parties. This issue has been dealt with by the ARC recording that the petitioner admittedly tendered the rent to Smt. Hafizan and on her refusal, directly tendered the same in the court, and also thereafter, sought to deposit rent under Section 27 of the D.R.Act. It was also the case of the petitioner that respondent No. 1 had come to the shop and demanded the rent claiming himself to be the son of the deceased Hafizan. In the petition under Section 27, the petitioner sought to deposit rent @ Rs. 600/- per month from 10.10.2011 to 9.2.2012. Since he admitted to tender the rent to respondent No. 1 and thereafter, filed petition under Section 27 of the Act, therefore, he seems to have admitted the relationship of landlord and tenant between him and the respondents. It is not the case of the petitioner that anyone other than the respondents ever claimed rent from him, at any point of time in respect of the suit premises. The learned ARC observed, and rightly so, that the petitioner is now

stopped from disputing the relation of landlord and tenant in respect of the suit premises between the parties.

5. The next plea that was taken by the petitioner is that the respondent No. 4 Danish is gainfully employed and earning Rs. 15,000/- per month and does not require the suit shop. This has been specifically denied by the respondents. The plea regarding employment or earning of the respondent No. 4 Danish is bald and vague and there is nothing on record to dislodge the plea of the respondents that the respondent No. 4 is unemployed and wants to set up his business of general store. The learned ARC rightly observed that even if it is assumed that the respondent No. 4 is employed, even then, the petitioner has no right to object to his opening a shop since it was the prerogative of the landlord either to remain employed or do his own business.

6. The next plea taken by the petitioner was that the respondent Nos. 2 to 4 have let out one room on the first floor to one Mohd. Abdul @ Rs. 2000/- per month, and that on the second floor to Mohd. Hafiz @ Rs. 5000/- per month. These have been categorically denied by the respondents. The learned ARC observed that admittedly, the first and the second floors being not vacant, but with the tenants, cannot be said to be available with the respondents. In any case, the requirement that was set up by the respondents was of opening a general store in the suit shop on the ground floor and the availability of any accommodation on

the first and second floor could not be said to be suitable for the bona fide requirement of such purpose. The suitability of alternative accommodation has to be examined from the view point of the landlord and as compared to the premises sought to be evicted. By any means, the accommodation on the first and second floor, cannot be said to be equally suitable as that of the suit shop on the ground floor.

7. It was submitted by the learned counsel for the petitioner that there is nothing on record to substantiate the plea of the respondents that respondent No. 4 Danish has any experience in general store or has made any preparations for setting up such a business. It is settled law and which has been reiterated by this court on various occasions that no prior experience or prior arrangements are required for setting up a business by the landlord. A person can start a new business even if he has no experience as held in Ram Babu Agarwal Vs. Jay Kishan Das, (2010) 1 SCC 164. The tenant has no right to dictate the terms on the landlord once it was demonstrated that there was a bona fide requirement of the suit premises and that the landlord was not in possession of any alternative suitable premises.

8. In view of my above discussion, I do not see the petitioner having raised any substantial triable issue, which would disentitle the respondents to seek his eviction from the suit premises, even if the petition is put on trial. That being so, I do not see any infirmity or

illegality in the impugned order declining leave to defend to the petitioner. The petition has no merit and is hereby dismissed in limine.

M.L. MEHTA, J.

NOVEMBER 27, 2012 akb