Delhi High Court
Sh. Bhim Sain Shastri (Now ... vs Sh. Sharat Chand & Ors. on 4 August, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC REV No. 257/2014
% 4th August, 2014
SH. BHIM SAIN SHASTRI (NOW DECEASED) THROUGH HIS LEGAL
HEIRS ......Petitioners
Through: Mr. P.L. Sharma, Advocate.
VERSUS
SH. SHARAT CHAND & ORS. ...... Respondents
Through: Mr. Ajay Bahl, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
Caveat No.640/2014
1. Counsel appears for the caveators and thus the caveat stands
discharged.
+ RC. REV. No.257/2014 and C.M. No.12334/2014 (stay)
2. This petition under Section 25B(8) of the Delhi Rent Control
Act, 1958 (hereinafter referred to as 'the Act') is filed impugning the
judgment of the Additional Rent Controller dated 28.4.2014 by which the
RC REV No.257/2014 Page 1 of 5
Additional Rent Controller has dismissed the leave to defend application and
has passed an eviction order in the petition for bonafide necessity with
respect to the tenanted premises being shop bearing private no.2, property
no.230, Main Road, Gandhi Nagar, Delhi as shown in red colour in the site
plan Ex.PX.
3. In a petition for bonafide necessity, three aspects have to be
shown for seeking eviction; (i) there is a relationship of landlord and tenant
between the parties, (ii) the landlord and/or his family members bonafidely
need the premises, and (iii) there is no other alternative suitable premises. In
the present case, the respondents/landlords pleaded that the tenanted shop
was required by the respondent no.1 for carrying on his business of repairing
of gas stove, cooker, chullah etc and which work for the present was being
carried out in a passage in the same property.
4. The petitioners/tenants contested the eviction petition by filing
the leave to defend application. They have argued before this Court that the
leave to defend ought to be granted inasmuch as the respondent no.1 is no
longer carrying on the business of repairing of gas stoves, cooker, chullah
etc but is only selling pan, biri, cigarette etc and therefore there is no
requirement of the tenanted shop for the purpose of carrying on the business
of repairing of the gas stove, cooker, chullah etc. It is also argued that the
RC REV No.257/2014 Page 2 of 5
respondents are wrongly contending that they are doing business in a
passage whereas what is in their possession is a shop and not a passage.
5. The Additional Rent Controller has by a detailed judgment
decreed the petition by holding that there is a relationship of landlord and
tenant between the parties and there is a need of the tenanted shop for the
purpose of carrying on the business by the respondent no.1/landlord and the
respondent no.1/landlord has no other alternative premises.
6. Before this Court, essentially what is only argued is the aspect
of existence of alternative premises and because of which the need of the
respondent no.1 is not said to be bonafide.
7. So far as the aspect which is urged before this Court that the
respondent no.1 is not carrying on the business of repairing of gas stove,
cooker, chullah but is selling pan, biri, cigarette etc is concerned, firstly it is
to be noted that in the reply to the application for leave to defend the
respondents/landlords have categorically stated that the respondent no.1 is
not carrying on the business of selling of pan, biri, cigarette etc but that the
business is carried out on the road by one Sh. Jameel in front of the suit
premises. Therefore, merely because the petitioners would like to contend
that the respondent no.1 is not doing the business of repairing of gas stoves
etc and only selling of pan, biri, cigarette etc, the same will not make the
RC REV No.257/2014 Page 3 of 5
business of selling of pan, biri, cigarette of Sh. Jameel on the road as the
business of the respondent no.1. Even assuming that the respondent no.1 is
not doing the business of repairing of gas stoves, cooker, chullah etc but is
doing the business of selling of pan, biri, cigarette etc, yet even for this
business the tenanted premises are required inasmuch as presently the
business is being carried out in a passage. I do not find that the need for a
shop can be said to be lacking bonafides because surely a landlord can ask
that he should be allowed to carry on his business whichever it be, in a shop
and not on the passage.
8. So far as the second argument urged by the counsel for the
petitioners by referring to page 133 of the paper book is concerned, and
which was a plan filed in an earlier eviction petition in relation to the
tenanted premises, and on which basis it is sought to be argued that the area
in which the business is being conducted by the respondent no.1 is a shop
and not a passage, however, a reference to this plan filed in the earlier
petition shows that the area from where the business is being carried out is
specifically stated to be a shop/passage i.e use of the passage as a shop and
the site plan makes it clear that the said portion where the respondent no.1 is
carrying on the business is an access to the remaining residential portion of
the property at the back. Therefore, no capital can be made out of the fact
RC REV No.257/2014 Page 4 of 5
that in the pleadings of the earlier petition as also in the site plan the portion
with the respondent no.1 is referred to as a shop inasmuch as actually the so
called shop is only a passage from where respondent no.1 is carrying on the
business.
9. In view of the above, I do not find any merit in the petition, and
the same is therefore dismissed, leaving the parties to bear their own costs.
AUGUST 04, 2014 VALMIKI J. MEHTA, J.
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