Rajinder Kumar & Ors vs Krishna Kumari
2013 Latest Caselaw 1886 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Judgment:26.04.2013
+      RC.REV. 159/2013

       RAJINDER KUMAR & ORS             ..... Petitioners
                   Through  Mr. Harish Malhotra, Sr. Adv.
                            with Mr.Tanuj Khurana, Adv.

                    versus

       KRISHNA KUMARI                             ..... Respondent
                   Through             Nemo

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

CM No. 6623/2013 (Exemption)

1 Exemption allowed subject to all just exceptions.

RC.REV. No. 159/2013 & CM No. 6622/2013 (stay)

2 The petitioners are aggrieved by the finding returned in the

impugned order vide which their application seeking leave to defend in

the pending proceedings under Section 14 (1)(e) of the Delhi Rent

Control Act,1958 (DRCA) filed by the petitioner had been dismissed.

3 Record shows that an eviction petition had been filed by the

respondent against the petitioners under Section 14 (1)(e) read with

Section 25-B of the DRCA. The tenanted premises had been described

as one shop situated on the ground floor of Kucha Chaudhary, Chandi

Chowk, Delhi-110006. The property is stated to be owned by the

respondent. It was earlier owned by Memo Devi who had by Will

bequeathed it to her husband and after his death Kanwar Gopal became

the owner of the property. Shri Kanwar Gopal had executed a deed of

lease/surrender of life interest in favour of the respondent and the

respondent thereafter became the owner of the property. The fact that

the respondent is the owner and landlord of this disputed property is not

in dispute. Learned counsel for the respondednt has in fact conceded that

he is not assailing this finding returned in favour of the respondent.

4 Eviction petition has disclosed that the shop has been required

bonafide by the respondent for running of her business along with her

husband and they having no other reasonably suitable commercial

accommodation for running a business. It has been stated that the

husband of the respondent was earlier doing a business in partnership

with his son but due to differences, the said partnership was dissolved

and the respondent and her husband now having no source of income

require this shop for running their business. The earlier business being

run was of a photo studio.

5 Leave to defend was filed. Triable issues were sought to be raised

by the petitioner. The arguments of the petitioners however did not find

favour with the trial Court. His application seeking leave to defend

having been declined, he has now approached this Court.

6 On behalf of the petitioners, arguments have been addressed at

length. Attention has been drawn to the dissolution deed executed

between the husband of the respondent and their son Sanjeev Gupta.

This document is dated 31.03.2008 and seeks to dissolve a partnership

which was earlier subsisting between the respondent, her husband and

their son. This document shows that the business being run under the

name and style of „Sonu Colour Lab‟ was being run w.e.f. April, 2000.

Counsel for the petitioner points out that this document had been

executed in the year 2008 and in terms of the averments made in the

petition, the dissolution of the partnership was necessitated because of

differences between the father and son but thereafter in a property

purchased by the son in December, 2010, the father Suresh Chand Gupta

was a witness to this document; submission being that the dissolution

deed is in fact a sham document which had been created only to build up

a ground for eviction of the petitioner; there is no real difference

between the father and the son. The second argument of the learned

counsel for the petitioners is also based on the bonafide need alleged to

have been described by the respondent. Submission being that the

husband of the respondent has a slip disc; he has undergone a heart

surgery; he is presently a resident of Noida and it would be almost

impossible for him to do the business from Chandni Chowk (where the

disputed premises are located) which is probably one of the most

crowded parts of Delhi; it is reiterated that this ground has been

artificially created. Further submission being that the respondent merely

seeks eviction of the petitioner in order that she could sell this property

at a higher rate as admittedly she had also earlier at one point of time

sold her shop and this present petition has been filed only for this reason.

7 Record has been perused. The bonafide need has been depicted in

para 18(a) of the eviction petition. The petition has been filed by the

wife of Suresh Chand Gupta who is the owner and landlord of the suit

property. The suit property is a shop in Kucha Chaudhary which is a

commercial and premium business centre of Delhi. Presently, the

petitioner who is the tenant in the suit property is also carrying on the

business of photography and a photo studio lab from the said premises.

He is in fact a cousin of the respondent. In a large part of his application

seeking leave to defend, it has been stated that the suit property is not

owned by the respondent but in terms of a partition deed/family

settlement, the property had fallen to his share. The trial Court has

noted that there is no such partition deed on record. However before this

Court this argument as noted supra has not been taken up and it has been

stated by learned senior counsel for the petitioners that he is not

disputing the status of the respondent as a landlord/owner.

8 Record also shows that the parties i.e. husband of respondent and

their son Sanjeev since 2002 were running a photo studio lab under the

name and style of „Sonu Colour Lab‟. This partnership stood dissolved

in the year 2008. This document is a part of the record. Eviction petition

has been filed in the year 2011 i.e. three years later. It is not as if the

document i.e. dissolution deed is alleged to be a forged document. It has

recorded the reasons for the dissolution which is the differences between

the parties. Parties are still living in the same household. They are

sharing separate kitchens and separate floors but they are living in the

same building. The differences and divide which happens at one point of

time in a family can well be ironed out at a later stage. Keeping in view

the relationship of the parties, merely because a property has been

purchased two years later after the dissolution of the partnership

between the parties i.e. in December, 2010 which document was

witnessed by his father would not necessitate the impression that the

dissolution deed is itself a forged document and especially so when this

is not even the plea in the application seeking leave to defend.

9 It is an admitted case of the parties that the respondent and her

husband along with their son were carrying on this business of a photo

studio in Chandni Chowk. It is the case of the petitioner himself

(averments made in the application seeking leave to defend) that in

1998, the husband of the respondent closed down this business in

Chandni Chowk and bought a shop in Sector-27, Noida from where he

and his son were carrying on their business of "Novelty Studio"; the

parties were living at the upper floors of the said building.

10 Corresponding para of the reply where the allegations are that the

husband of the petitioner is suffering from a serious ailment have also

been perused. It has been denied that the husband of the petitioner is a

chronic patient of a heart ailment and is suffering from ill-health; merely

because at one stage he was suffering from a heart ailment and a slip

disc does not take away his right from carrying out an independent

business, also considering the fact that he is only 66-67 years of age.

11 It is also an admitted position that except the shop in dispute, the

other portions of the property (shop No.35 at Chandni Chowk and its

upper floors which were being used as a residence by the petitioner and

her family) had been sold in the year 2003. The respondent and her

family are presently residents of Sector-12, Noida. Their son is also

carrying on their business from Noida, in a shop at Sector 27. Both

father and son were earlier also carrying on the same business. The

father is more experienced in his business acumen and keeping in view

the fact that he is no longer in the partnership business, his need to carry

on an independent business has been clearly established; it stands

substantiated.

12 The averments made in the application seeking leave to defend

appear to be largely whimsical. In fact the petitioner is the cousin

brother of the respondent himself. The running of photo studio appears

to be the family business of the parties as the petitioner is also carrying

on the same business from the disputed shop.

13 In Ragavendra Kumar Vs. Firm Prem Machinery and Co.

reported in [2000]1SCR77 the Supreme Court has held that it is the

choice of the landlord to choose the place for his business which

according to him is most suitable for him. He has complete freedom in

the matter. In Prativa Devi (Smt.) Vs. T.V. Krishnan reported in

(1996)5SCC353 it was held that the landlord is the best Judge of his

requirement and Courts have no concern to dictate to the landlord as to

how and in what manner he should live. The bona fide personal need is

a question of fact and should not normally be interfered with.

14 The defence raised by the tenant is only moonshine, sham and not

being a triable issue, the application for leave to defend was rightly

dismissed. Impugned order in these circumstances decreeing the

petition in favour of the landlord calls no interference. Petition is

without any merit. Dismissed.

INDERMEET KAUR, J.

APRIL 26, 2013 A