Sh. Kuldeep Sharma vs Sh. Mool Chand
2013 Latest Caselaw 3463 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Order delivered on: August 06, 2013

+                        RC.REV. 283/2013

      SH. KULDEEP SHARMA                                    ..... Petitioner
                    Through             Mr.Santosh Pratap, Adv.

                         versus

      SH. MOOL CHAND                                       ..... Respondent
                   Through              Mr. R.K. Shukla, Adv.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)

Caveat No.672/2013 Since the counsel for the caveator has appeared, the caveat stands discharged. The caveat is discharged.

RC.REV. 283/2013 & C.M. No.12053/2013

1. By way of the present petition under Section 25 B (8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act'), the petitioner challenges the orders dated 19th May, 2012 and 27th May, 2013.

2. The respondent had filed an eviction petition under Section 14 (1)(e) of the Act against the petitioner for recovery of possession of the tenanted shop i.e. a shop forming part of the property bearing municipal No. 229 situated at Karkardooma, Delhi which was let out in July 1993, on the ground that the same is required bonafidely for himself as well as for his three married sons being unemployed and having no other shop anywhere else in Delhi for their business activity. It was stated by the

respondent that the shop adjacent to the tenanted shop was in the exclusive possession of his second son who has been running a Dhaba there for the last about 7 years.

3. Leave to defend application was allowed in the matter. The petitioner in his written statement contended that there was no bonafide requirement as alleged by the respondent and in fact the respondent has sufficient source of income for maintaining himself and his wife; all the sons of the respondent are residing at separate floors in the four storey building and have earnings of their own for maintaining their wives and children apart from that of the respondent's. it was contended that there are three shops in the remaining portion of the ground floor of the property in question out of which only one is under the tenancy of the petitioner and the other adjacent shop is being run by the respondent himself as 'Dhaba', the sons of the respondent sometimes help and support the respondent in the said Dhaba; that the third shop in the said property was earlier given on rent to the Congress party for office but the same had been taken back and was now under the locks and key of the respondent and certain renovations had been carried out therein to convert it into a room. It was also contended that the property bearing No. 234 Karkardooma, Delhi was earlier in the name of the respondent but he transferred the same in the name of his wife and that the ground floor, first and the second floor of this property bearing No. 234 have been let out to different tenants and the wife of the respondent is earning a good sum as rent from these let out premises at property No. 234.

4. The contentions of the petitioner were denied by the respondent vide their replication and the stand of the respondent was reiterated.

5. After the examination of witnesses, it was observed by the learned trial court that in the light of cross-examination of the petitioner, there is no material on record to prove that there is a third shop as alleged by the petitioner, also he had failed to produce any material to prove that the same was converted into a room after getting it vacated from Congress Party.

6. The petitioner had admittedly failed to prove that the respondent is doing money lending business. The contention of the petitioner that the said Dhaba is being run by the respondent and not by his son made no difference for the requirement of the tenanted shop was that for his three sons is also failed.

7. The family of the respondent consisted of himself, his wife and four married sons, it was opined that the respondent had a bonafide need as claimed by him. With regard to property No. 234, it was proved that the petitioner had neither stated that the property was suitable for the respondent and his sons for doing business nor that any portion of the said property was lying vacant.

8. The contention of the petitioner that the respondent or his wife are getting good income from the property No. 234 was also rightly rejected by the trial court that it had no bearing on the bonafide requirement of the respondent and his family members dependent upon him. In view of the same an eviction order dated 19th May, 2012 was passed against the petitioner.

9. Assailing the eviction order and the review order, the present petition has been filed on the grounds apart from other contentions, that the tenanted shop is a Government property which had been acquired by

the Government in 1970 and so as per Section 3 (a) of the Act, the Act is not applicable to the tenanted property.

10. The petitioner has admitted during the evidence that he was inducted as tenant in the month of October, 1992 and since then he is paying rent to the respondent. He did not question the title of the petitioner in his affidavit filed for his evidence and thus he cannot agitate by way of present petition that the court has not dealt the evidence properly and further that the respondent has failed to prove his ownership as it is well settled law that if a party does not dispute a fact the same amounts admission. During the submissions on the present petition it is submitted by the counsel for the petitioner that the tenanted premises have been acquired by the government. It is clear from the facts of the case that the possession of the premises has not been acquired by the government as the same is still with the petitioner Kuldeep Sharma. In the events the plea of the petitioner is that he is not the owner of the premises is also not tenable. In eviction petition on the ground of bonafide requirement the respondent is not required to prove himself the absolute owner of the premises which were given by him to the petitioner but he is only required to show that he is more than tenant.

11. To prove his bonafide requirement, it is stated by PW-1 Mool Chand in his affidavit deposing that shop under the tenancy of the petitioner is required bona fide for himself as well as for his three married sons namely Chiranji Lal @ Vijender, Bal Kishan and Suresh being unemployed and having no shop anywhere else in Delhi for their business activity. It is further stated by PW-1 that the only other shop adjacent to the premises is in exclusive possession of his fourth son Hira Singh @ Sonu who is running his Dhaba there for the last about 7 years.

It is further stated by PW-1 that he got the site plan of the suit premises prepared from the Draftsman Bhoop Singh Sharma who visited the site in his presence and prepared the site plan as per spot. It is further stated by PW-1 that shop adjacent to the premises is in occupation of his son Hira Singh @ Sonu and is meant for his Dhaba business under the trading name of M/s Gautam Dhaba is shown in green colour in the site plan which is Ex.PW-1/3. It is further stated by PW-1 that there is no other shop in the said property inasmuch as the remaining part of it is meant for the residence of himself and his wife.

12. The respondent has admittedly taken the possession of the suit premises from the petitioner with due process of law on 20 th July, 2013. This fact has not been denied by the counsel appearing on behalf of the petitioner.

13. After having considered the overall facts and circumstances of the matter, this court in the present revision petition is not inclined to interfere with the impugned final order after trial as it is felt that the case of the respondent comes within the four corners of the provisions of Section 14(1)(e) of the Act.

14. The petition is dismissed. Pending application also stands disposed of.

(MANMOHAN SINGH) JUDGE AUGUST 06, 2013