Vijay Kumar Ahluwalia & Ors. vs Sh. Bishan Chand Maheswari & Anr.
2014 Latest Caselaw 3501 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+             RC REV No. 76/2013 & CM No. 3147/2013 (stay)

%                                                   4th August, 2014

VIJAY KUMAR AHLUWALIA & ORS.         .....Petitioners
                Through: Mr. R.S.Kela, Advocate.


                          VERSUS

SH. BISHAN CHAND MAHESWARI & ANR.           ...... Respondents

Through: Mr. Anand Maheshwari and Mr. Navin Gupta, Advocates.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This rent control revision petition is filed under Section 25-B

(8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the 'Act')

against the impugned judgment of the Additional Rent Controller dated

13.8.2012 by which the leave to defend application filed by the

petitioner/tenant has been dismissed and the eviction petition under Section

14(1)(e) of the Act for bonafide necessity has been decreed with respect to

one shop on the ground floor of the property bearing no. 1548/V, Nai Sarak,

Delhi-06 as shown in red colour in the site plan annexed alongwith the

eviction petition.

2. The eviction petition for bonafide necessity was filed by the

respondent no.1/landlord stating that he had retired from Government

service/Northern Railways in the year 2002 and thereafter he has not been

doing any job and wants to do business. It was prayed that the tenanted

premises are required by the respondent no.1 for doing the business of cloth

inasmuch as respondent no.1 wants to open such independent business, but

he has no accommodation available to start his business. So far as the

portion on the first floor above the tenanted premises is concerned, the same

was said to be in occupation of the son of the respondent no.1/landlord Sh.

Vivek Maheshwari, and who is doing the business of cloth from the first

floor in the name of M/s Balaji Fashion. The second floor of the property

was/is being used by both the sons of the petitioner for godown purposes.

On the third floor there is one room and which is used by the customers of

both sons who come for business. Therefore, except the suit tenanted shop

there is no other premises in which business can be carried on by the

respondent no.1/landlord and accordingly a petition for bonafide necessity

was filed. Respondent no.1 is the adopted son of Sh. Miri Mal and Smt.

Ram Piari who owned the entire property no. 1548/V.

3. Petitioners who are the legal heirs of the deceased tenant Sh.

Ram Prakash contested the petition and filed their leave to defend

application. In the leave to defend application various aspects are pleaded,

but, the following aspects only have been urged before this Court to

challenge the impugned order denying leave to defend:-

(i) Respondent no.1 is not the owner or the landlord of the

suit property.

(ii) Premises no. 1547, Nai Sarak, Delhi i.e the adjoining

premises is jointly owned by respondent no.1 and his sons and these

premises are therefore available for carrying on of the business by the

respondent no.1.

(iii) One room on the third floor above the tenanted premises

is not being used by the customers who come for the business with the sons

of respondent no.1, and in this portion respondent no.1/landlord can carry on

his new cloth business.

4. A reading of the leave to defend application shows that there is

no denial ie no challenge is raised to the same, that the son of respondent

no.1 Mr. Vivek Maheshwari is not using the first floor above the tenanted

premises for doing the business of M/s Balaji Fashion. In the leave to

defend application, it is only alleged that the adjoining premises bearing no.

1547 are owned by the respondent no.1 and his sons including Mr. Vivek

Maheshwari which premises are available to the respondent no.1. Also, in

the eviction petition the respondent no. 1 specifically stated, and which

aspect is not challenged in the leave to defend application, that the

respondent no.1 with his adoptive mother Smt. Ram Piari had filed an

eviction petition against another tenant Mr. Meghraj, and which proceedings

were contested on right till the Supreme Court and possession of the shop

with Meghraj was given to the respondent no.1 and on this shop on the

ground floor another son of respondent no.1 is carrying on the business of

sarees under the name and style of M/s Aarti Saree Emporium, meaning

thereby there is no challenge to the fact that the respondent no.1 is the

owner-landlord.

5(i) On the first aspect as to whether there exists relationship of

landlord and tenant between the parties, the fact is that though the petitioner

may want to state that a triable issue arises on this aspect, but, the Additional

Rent Controller has rightly noted that to show the factum of adoption, a

registered adoption deed dated 14.3.1978 has been filed and also there is

filed on the record of the Addl. Rent Controller copies of the passport, ration

card and house tax receipts showing that the respondent no.1 is the adopted

son of Miri Mal and Smt. Ram Piari. Therefore, in my opinion, the

Additional Rent Controller has committed no illegality in holding that

respondent no.1 is the adopted son inasmuch as there is no other person who

is claiming ownership to the suit property, and in such a scenario there is no

locus standi of a tenant to question the title/ownership of a landlord. This

aspect of existence of the relationship of landlord and tenant is further

confirmed by the fact that the respondent no.1 with his adoptive mother had

filed an eviction petition against another tenant Mr. Meghraj and which

proceedings went right till the Supreme Court, and therefore, once the

adoptive mother during her life time admits to the factum of adoption of the

respondent no.1 as her son, petitioner cannot for the sake of argument deny

the aspect of adoption and allege that a triable issue arises. I therefore reject

the argument that respondent no.1 is not the owner/landlord of the premises.

(ii) Also, I would like to reject at this stage one argument urged on

behalf of the petitioner/tenant that the ration card, passport, house tax

receipts are fabricated after the death of the adopted mother Smt. Ram Piari

to show respondent no.1 as the adopted son, however, when the counsel for

the petitioner was asked to show any such averment made in the leave to

defend application that these documents are forged and fabricated after the

death of Smt. Ram Piari, no such averment so made in the leave to defend

application could be pointed out. I may note that respondent no.1 alongwith

the eviction petition had filed copies of all these documents being the ration

card, passport and house tax receipts, and therefore, it was necessary for the

petitioners/tenants to have challenged these documents in the leave to defend

application, but as stated above, no such averment with respect to these

documents being forged and fabricated after the death of the adoptive

mother Smt. Ram Piari are made in the leave to defend application.

6. On the aspect of alternative suitable accommodation, the main

stress laid on behalf of the petitioner was that the property no. 1547 is owned

by respondent no.1 also in addition to the ownership of his sons. In this

regard, a learned Single Judge of this Court on 18.11.2013 in order to get

clarification for the ownership of property no. 1547 passed the following

order:-

"Lower court record has been added.

Learned counsel for the petitioner states that in para 3 of the application for leave to defend the petitioner has made a specific statement that the respondent has not disclosed that the respondent and his sons own property No. 1547, Nai Sarak, Delhi, which is a three storey built up building having commercial space on all the three floors. Learned counsel for the respondent states that the said property is purchased by his son. The sale deed is also registered in the name of his son. Let him disclose the exact position of the said property by filing the additional affidavit along with the copy of the site plan of complete building of property No. 1547, Nai Sarak, Delhi within two weeks. Both the parties are also allowed to file short written submissions within four weeks.

List on 30th January, 2014.

Interim order to continue, in the meanwhile."

7. Pursuant to the aforesaid order the respondent no.1 has filed his

additional affidavit alongwith the title deed of the property bearing no. 1547

and which title deed shows that the property bearing no.1547 is not owned in

whole or part by the respondent no.1, but the same is only owned by his son

Sh. Vivek Maheshwari. In this additional affidavit filed by respondent no.1,

respondent no.1 has stated that property no. 1547 is occupied by his son

Vivek Maheshwari who is carrying on business from there and which is not

disputed by filing a reply to the said affidavit. Therefore, the argument

urged by the petitioner stating that the property no. 1547 belongs to or is

available to respondent no. 1 is an argument lacking any substance, and

therefore it is held that the property no. 1547 is not owned by the respondent

no.1 and nor is it lying vacant for the respondent no.1 to carry on his

business from the same.

8. The last argument which is urged on behalf of the petitioner is

that one room is available on the third floor of the property, and that room

should be taken as an alternative suitable accommodation for carrying on

business by respondent no.1. This argument is misconceived for various

reasons. Firstly, surely the ground floor of a property is not only more

convenient but far a better proposition for carrying on a business in a

commercial area. A room on the third floor cannot be said to be an

alternative suitable accommodation as compared to a shop on the ground

floor and I can take judicial notice of the fact that businesses are carried out

much more successfully in a ground floor of the property rather than on the

third floor. A tenant cannot dictate to a landlord from where to carry on

business once the ground floor is more suitable vide Anil Bajaj & Anr. Vs.

Vinod Ahuja 2014 (210) DLT 58 (SC). Also, the respondent no.1 in the

eviction petition has specifically averred that one room on the third floor is

being used by customers of the sons of the respondent no.1, and who come

for doing business, and therefore I do not find that such user is an illegal

user or an absurd user or a contrived user so that it can be argued by the

petitioners/tenants that the room on the third floor should not be used by the

customers who come for doing business with the sons of the respondent

no.1. The room in the third floor is hence not an alternative suitable

accommodation . I therefore hold that even so far as this one room on the

third floor is concerned, the same is not an alternative suitable

accommodation than as compared to the ground floor tenanted shop with the

petitioners/tenants.

9. In view of the above, there is no merit in the petition, and

therefore the same is dismissed, leaving the parties to bear their own costs.

AUGUST 04, 2014                                   VALMIKI J. MEHTA, J.
ib