Ghanshyam vs Vijender
2014 Latest Caselaw 3537 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 RC Rev. No. 286/2013 & C.M.No.12062/2013 (stay)

%                                                           05th August, 2014

GHANSHYAM                                                      ......Petitioner
                           Through:      Mr.S.K.Duggal with Mr.Rajiv
                                         Duggal, Advocates.

                           VERSUS

VIJENDER                                                   ...... Respondent

                           Through:      Mr.Devinder Singh Khatana,
                                         Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This revision petition is filed under Section 25B(8) of the Delhi

Rent Control Act, 1958 (hereinafter referred to as 'the Act') impugning the

judgment of the Additional Rent Controller dated 31.5.2013 by which the

leave to defend application filed by the petitioner/tenant has been dismissed

and the bonafide necessity eviction petition filed under Section 14(1)(e) of

the Act has been decreed with respect to one shop on the ground floor of

property no.A-13, Main Market, Village Garhi, Near Sheetla Mata mandir,

East of Kailash, New Delhi as shown in red colour in the site plan filed

along with the eviction petition.

2. The facts of the case are that the respondent/landlord filed the

eviction petition for bonafide necessity stating that the petitioner/tenant was

inducted as a tenant in the shop by his father Sh.Hari Ram. The

respondent/landlord further pleaded that the father had distributed his

property amongst his two sons by means of a family settlement and the suit

shop fell to the share of the respondent/landlord and the adjacent shop fell to

the share of his brother. The respondent/landlord stated that he wanted to

open an office of tour and travels, and for which business he has no vacant

shop, and therefore the tenanted premises are required, and consequently the

bonafide necessity eviction petition was filed.

3. The petitioner/tenant contested the eviction petition and pleaded

in the leave to defend application that the respondent was neither the owner

nor the landlord of the suit premises. The petitioner/tenant, however,

admitted that the premises were given on rent by the father of the

respondent, Sh.Hari Ram. The petitioner/tenant, however, contested that not

only he was the tenant in the suit premises but also his two brothers, namely,

Choth Ram and Balram were the co-tenants with him. In support of the

arguments that Choth Ram and Balram are the co-tenants, reliance was

placed upon the rent agreement dated 07.3.1989. On the aspect of alternative

suitable premises, it was pleaded by the petitioner/tenant that the adjoining

shop had fallen vacant, and therefore the respondent/landlord can use the

same.

4. The issues which were argued before the Additional Rent

Controller have also been argued before this Court. I do not find that the

impugned order of the Additional Rent Controller is in any manner illegal or

unreasonable, and therefore the leave to defend application was rightly

rejected. The reasons are stated hereinafter

5. So far as the aspect that whether the respondent is the

owner/landlord of the suit premises is concerned, it is noted that the

petitioner/tenant does not dispute that the premises were owned by the father

of the respondent, Sh.Hari Ram. The respondent/landlord has stated that

there was an understanding between the family members whereby the father

distributed the property and gave the suit/tenanted shop to the

respondent/landlord and the adjacent shop to the brother of the

respondent/landlord. In my opinion, merely pleading that the respondent is

not the owner or landlord of the premises does not create any triable issue

because the factum with respect to ownership of the suit shop could only

have been disputed by the father of the respondent/landlord or by the brother

of the respondent/landlord, but none of these two persons are disputing the

ownership of the respondent/landlord qua the suit tenanted shop. Therefore,

I hold that the petitioner/tenant has no locus standi to question the family

settlement, and that is more so because two other interested parties i.e the

father and the brother of the respondent/landlord, are not questioning the

ownership of the suit/tenanted shop as belonging to the respondent/landlord.

This argument of the petitioner is, therefore, rejected.

6. The second argument which was urged on behalf of the

petitioner/tenant was that besides the petitioner/tenant, there were two other

co-tenants and who were his two brothers Choth Ram and Balram. Reliance

in support of this argument by the petitioner/tenant was placed upon a rent

agreement dated 07.3.1989. However, when we see the rent agreement

dated 07.3.1989, it is clear that it is a rent agreement only between the father

of the respondent/landlord, Sh.Hari Ram and brothers of the

petitioner/tenant, Choth Ram and Balram, and that the petitioner Ghanshyam

is not shown as a co-tenant in the shop which was given on tenancy to Choth

Ram and Balram. Also, the shop which was given on rent vide rent

agreement dated 07.3.1989 is not the suit/tenanted shop, but it is the adjacent

shop to the tenanted premises. This adjacent shop has been got vacated by

the brother of the respondent/landlord in the year 1995, and the brother of

the respondent/landlord is doing his business of mobile phones from that

adjacent shop, and which had fallen to his share on partition and not to the

share of the respondent/landlord.

7(i). The case of the petitioner/tenant lacks credibility that the suit

shop and the adjacent shop are allegedly one premises, inasmuch as, the

petitioner/tenant himself has contended that there is an alternative premises

being the adjacent shop, and therefore once the petitioner/tenant admits that

there are two separate shops and allegedly, the second shop is lying vacant

in which the respondent/landlord can carry on his business (actually it is the

adjacent shop of the brother as stated above), it does not lie in the mouth of

the petitioner/tenant to contend that the two shops were in fact one tenanted

premises.

(ii) Also, the Additional Rent Controller has exhaustively dealt

with the aspect that the rent agreement dated 07.3.1989 was with respect to

the shop adjacent to the tenanted premises, and in which shop the brother of

the respondent is carrying on his business of mobile phones, and that shop

fell to the share of the brother by way of settlement amongst the family.

(iii) It is also further required to be stated that there are two separate

shops and the tenanted premises does not comprise of two shops together

because the respondent/landlord along with the eviction petition filed a site

plan showing two separate shops. The petitioner/tenant did not file his own

site plan to contend that the two shops were in fact one tenanted premises.

Therefore, the site plan filed by the respondent/landlord had to be believed

and which shows that the tenanted premises is a shop of a particular

dimension, which is so specifically stated in the eviction petition and shown

in red colour in the site plan, and which tenanted shop has as its adjacent

another shop which has fallen to the share of the brother of the

respondent/landlord. I, therefore, reject the argument that the two brothers

of the petitioner/tenant, Choth Ram and Balram are co-tenants with him

either by virtue of the rent agreement dated 07.3.1989 or even otherwise and

that there was only one tenanted shop and not two shops.

8(i) The last argument which was urged before this Court was with

respect to existence of alternative premises qua and to this aspect I have

already made observations above and which is the adjacent shop of the

brother. The petitioner cannot blow hot and cold by stating that there is a

second shop which was vacated and is available to the respondent/landlord,

and at the same time state that the said shop is not vacant and is part of the

tenanted premises and is in tenancy of the petitioner with his brothers.

(ii) Also, at this stage itself, I state that simultaneously an argument

was urged that the petitioner is not at all a tenant in the suit tenanted shop

but only his two brothers Choth Ram and Balram are the tenants, however,

not only this argument lacks substance, in fact, the argument is liable to be

rejected also because if the petitioner/tenant had nothing to do with the

tenanted premises and his two brothers Choth Ram and Balram are the

tenants and not the petitioner, then there was no reason for the

petitioner/tenant to contest this petition. Therefore, the petitioner/tenant is

resorting to speaking falsehood at his own convenience.

9. In view of the above, I do not find any illegality in the

impugned judgment, and the petition is therefore dismissed, leaving the

parties to bear their own costs.

VALMIKI J. MEHTA, J.

AUGUST 05, 2014 KA