M/S. Hindustan Zinc Ltd. vs Lt. Col. Satya Pal Wadhwa & Anr.
2012 Latest Caselaw 5650 Del

*           THE HIGH COURT OF DELHI AT NEW DELHI

+                         R.C. REV. 402/2012

                                         Date of Decision: 19.09.2012


M/S. HINDUSTAN ZINC LTD.                            ...... Petitioner
                  Through:            Mr. Amit S. Chadha, Sr.Adv.
                                      with Mr.Dheeraj Nair, Mr.Mohit
                                      Bakshi, Advocates.


                                Versus



LT. COL. SATYA PAL WADHWA & ANR.         ...... Respondent
                   Through: Mr.J.K.Seth,   Sr.Adv.    with
                            Ms.Shalini Kapoor, Ms. Promil
                            Seth, Ms.K.Arora, Advocates.


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') seeks assailing the order dated 27.4.2012 of Sr.Civil Judge-cum-Rent Controller (South), Saket Courts, whereby the leave to defend application filed by the petitioner, was dismissed.

2. The petitioner is a tenant under the respondents in respect of the office space bearing No. 206, IInd Floor of Building Dohil Chambers, 46, Nehru Place, New Delhi (hereinafter referred to as suit premises). The petitioner's eviction was sought from the suit premises on the ground of bona fide requirement thereof by the respondent No. 2 Manju Taluja for the purpose of opening office for her business and to which, the respondent No. 1, who is her father, has no objection. The respondent No. 2 is the partner with her husband in the firm M/s. Powerdeals International. The said firm is stated to be carrying business of exports of giftware, handicrafts etc. The respondents' case is that the aforesaid firm has taken shop No. 3, B Block, Shankar Market, New Friends Colony on rent from Mr. N.K.Taluja, husband of the respondent No. 2 at the monthly rent of Rs. 4000/- per month, and that the space in the said shop is insufficient for running the business. Due to paucity of space, the firm has also taken property No. 35/222, 36/222, Khizrabadh, Near New Friends Colony on monthly rent of Rs. 36,000/- per month. It is also averred that the firm was earlier doing business from the basement of B-472, New Friends Colony, and after vacating the same and shifting to Shankar Market, the business of the firm has come down. It is because of all these reasons that the respondent No. 2 Manju Taluja is stated to be requiring the suit premises for office and business of the firm.

3. The petitioner filed leave to defend application on various grounds, which came to be dismissed by the learned Rent Controller

vide the impugned order. This order is under challenge in the instant petition.

4. I have heard learned senior counsels for the parties and perused the record.

5. Being mindful of the scope and extent of revisional power of this court under Section 25-B (8) of the Act, which is not that of the appellate power, I have examined the impugned order in the light of the averments taken by the petitioner in the leave to defend application and the submissions made before me. The learned senior counsel for the petitioner has assailed the impugned order stating that the petitioner has raised various triable issues, which have been erroneously negated by the learned Rent Controller.

6. The main contention of the learned senior counsel for the respondents is that the suit premises is required for the office and business purpose of the respondent No. 2 Manju Taluja, who is a partner in the firm, and that the present accommodation with the firm at Shankar Market, is not only insufficient, but she is also paying the rent. It is submitted that since the business of the firm has come down in the said shop, Ms. Manju Taluja, instead of spending on the rent, intends to shift the office and business of the firm in her own premises, and to which, her father, who is a co-owner thereof has no objection. The learned senior counsel for the respondents also submits that the

landlord is the best judge of his decisions as regard to his affairs of business as also choices as to how and in what manner, he should do the business and utilize his premises, and that the tenant cannot dictate his terms to the landlord.

7. There is no dispute with regard to the above proposition that the landlord is the best judge of his affairs and that neither the tenant nor this court can dictate as to how and in what manner, he should conduct the affairs of his business or utilize his premises; but, at the same time, it is also undisputed that the projected requirement of the tenanted premises by the landlord can be examined, evaluated and adjudicated by the court and an assessment can be made as regard to the bona fide requirement of the suit premises in an objective manner. It is not a thumb rule in every case that whatever the landlord wishes or desires or even intends has to be taken as a gospel truth, just on the ground that he is the best Judge of his affairs. If that was so, then in every case on the filing of eviction petitions, the tenants would lose statutory protection. That could not be the intention of the legislation.

8. In this backdrop, it is seen that the suit premises is not required by the respondent No. 2 Ms. Taluja for her personal office or business purpose, but for the firm, in which she is a partner with none-else but her husband. The learned senior counsel for the petitioner has drawn my attention to the partnership deed to demonstrate that in fact the firm

is of her husband, who is having not only 80% shares therein, but, is also drawing various other personal benefits. A look at the partnership deed, prima facie, substantiates the submission of the learned senior counsel for the petitioner that the respondent No. 2 Manju Taluja, who is having 20% shares in the partnership, is like a sleeping partner therein. It may be that, what is observed by the Rent Controller that the requirement of the firm for any premises to run its business is in a sense the requirement of its partners, but, that would depend upon the facts and circumstances of each case, and cannot be said to be a general proposition in every case. The requirement of the partner would be required to be tested objectively by the Controller depending upon the facts and circumstances of each case. Here is a case in which such an observation could not be made at the threshold, based on the affidavits only.

9. The firm is in possession of a shop at Shankar Market, which is owned by none-else, but the husband of the respondent No. 2 Manju Taluja and the firm is paying rent to none-else but the major shareholder partner of the firm. If the firm is paying rent to its major partner, i.e., the husband of the respondent No. 2, then it looks improbable that the firm would not pay the rent of the tenanted premises to the respondent No. 2 and her father. It is not the case of the respondent No. 2 that she or her father will not charge the rent of the tenanted premises from the firm. In any case, all this would be required to be tested.

10. The firm was earlier conducting its business at B-472, New Friends Colony, which is again owned by none-else, but the husband of the respondent No. 2 Manju. It was averred that the firm stopped conducting business from the basement of this property as the same was not permissible as per the Master Plan. The case of the petitioner is that this entire property is owned by the husband of the respondent No. 2 Manju. This aspect, as also as to under which circumstances, the office activities came to be stopped from this premises and shifted to Shankar Market, requires to be examined, analyzed and evaluated by the Trial Court.

11. Undisputedly, the firm is also in possession of accommodation at 35/222, 36/222, Khizrabadh, Near New Friends Colony. The respondents' case is that this premises was taken by the firm on rent, and cannot be said to be alternative accommodation. This aspect would also require to be examined inasmuch as it is not that the rent could not be paid by the firm for the tenanted premises. This aspect as to whether the accommodation at these premises is sufficient or not and as to whether, the respondents really and sincerely intended to shift the business of the firm in the tenanted premises, would be required to be examined and assessed. Further, this is also because the tenanted premises is situated at IInd floor, and this would require to be examined as to whether the same is usable by the firm for its business activities where they can attend their customers and clients. The Rent Controller seems to have accepted whatsoever is stated by the

respondents so much so, he of his own, has recorded that for running a business of giftware and handicrafts, the respondents require the space for display and exhibition of articles. He seems to have overlooked that the tenanted premises is an office space located on the IInd floor. Similarly, he straight recorded that the tenanted premises will also be conducive for the expansion of the business of the respondents.

12. It is trite that if the tenant discloses the grounds and pleads a cause which prima facie is not baseless, unreal and unfounded, the Controller is obliged to grant him leave to defend his case against the eviction sought by the landlord. In this regard, the reliance can be placed on case Liaq Ahmed & Ors. Vs. Shri Habeeb-Ur-Rehman, AIR 2000 SC 2470.

13. In view of my above discussion, I am of the view that the petitioner has been able to make out prima facie triable issues, which do not entitle the respondents straight eviction order at the threshold, without affording an opportunity to the petitioner to test the projected requirement of the tenanted premises by the respondents. Consequently, the petition is allowed. The leave to defend is granted to the petitioner. Petitioner to file written statement within a month from the date of this order. Having regard to the age of the respondent No. 2, the Rent Controller is expected to expedite the disposal of the petition. Parties may appear before the Rent Controller on 11.10.2012.

14. Petition stands disposed of.

M.L. MEHTA, J.

SEPTEMBER 19, 2012/akb