Delhi High Court
Smt. Soma Devi Jain vs Smt. Anita Pawar & Ors. on 11 August, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC REV No. 369/2013
% 11th August, 2014
SMT. SOMA DEVI JAIN ......Petitioner
Through: Mr. Manish Vashisht, Advocate.
VERSUS
SMT. ANITA PAWAR & ORS. ...... Respondents
Through: Mr. Ravi Gupta, Senior Advocate
with Mr. Rakesh Mukhija, 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') by the
petitioner/landlord impugning the judgment dated 31.8.2013 by which the
Additional Rent Controller has granted leave to defend. The
petitioner/landlord seeks eviction of the respondents/tenants from a shop in
the ground floor of property bearing no.G-14, Ground Floor, South
Extension, Part-I, New Delhi as shown in yellow colour in the site plan as
annexed alongwith the eviction petition. The tenanted premises are in an
area of approximately 927 sq feet.
RC REV No.369 /2013 Page 1 of 5
2. Admittedly, the whole premises are situated in the South
Extension market i.e the entire area is a commercial area.
Petitioner/landlord claims that she needs the tenanted premises for carrying
on the business by her son Sh. Arun Jain who is already carrying on the
business in the part of the first floor of the property. It is stated that the first
floor portion is not only insufficient for the business because the business
needs to be expanded, also the first floor is inconvenient because the entry is
from the rear side of the property which is a small road behind the main
market. Accordingly, the bonafide necessity petition was filed.
3. Respondents appeared and filed their leave to defend
application. In the leave to defend application, basically three grounds were
averred as defences to the eviction petition and for seeking leave to defend.
Firstly, it was stated that one half part of the first floor premises is lying
vacant, and if the business has to be expanded the same can be expanded in
the balance portion of the first floor which is in possession of the
petitioner/landlord. The second aspect which was averred was that the
subject petition was barred by res judicata inasmuch as an earlier eviction
petition for bonafide necessity was filed more or less with the same facts,
and that petition though was prayed to be withdrawn but that prayer for
withdrawal was not granted and actually the earlier petition was dismissed
RC REV No.369 /2013 Page 2 of 5
and which would operate as res judicata. Thirdly, the issue with respect to
the claim for expansion of the business of the son of the petitioner Sh. Arun
Jain has also been disputed.
4. Before I proceed to decide this revision petition, I must state
that during the hearing of petition, learned senior counsel for the
respondents/tenants on instructions came up with a very fair offer that since
the entire property in part of which the tenanted premises are located, is in a
commercial market where besides on the ground floor, both on the first floor
and the second floor commercial shops and showrooms exist, and all of
which have glass fascade, the respondents/tenants are ready to give to the
petitioner/landlord a five feet width frontage from the tenanted shop in
which portion a staircase can be constructed so as to reach the first floor of
the premises, and resultantly the alleged disadvantage of an entry from rear
portion will no longer be there. Once that alleged disadvantage is not there,
the petitioner's son can expand his business in the adjacent vacant portion in
the first floor. To this offer, counsel for the petitioner took time to take
instructions, but after a pass over, it is stated that the petitioner/landlord is
not interested in taking the frontage offer for constructing a staircase to
reach the first floor portion. The offer of the respondents/tenants was
RC REV No.369 /2013 Page 3 of 5
refused because the case of the petitioner/landlord is that there is no portion
available vacant on the first floor in which the business can be expanded.
5. Therefore, the issue now really boils down to the aspect that
whether there is available a balance portion on the first floor of the property
and which portion is above the premises which is on tenancy with another
tenant who is carrying on the jewellery business in the ground floor of the
property. The case of the petitioner is that the first floor portion above the
jewellery shop is in occupation of the another son of the petitioner/landlord
for doing business, however, a reference to the reply to the leave to defend
application with its supporting affidavit shows that there are no details given
as to what business actually is being carried on by the other son, no
documents have been filed for carrying on of the business in a particular
name or of existence of a municipal licence or a certificate under the Delhi
Shops and Establishments Act, 1954 for carrying on business by the other
son, including any bills or invoices showing carrying on of the alleged
business etc etc, and which documents were necessary not only to determine
the carrying on of the business but also of the size of the business so that it
can be held that no such space is available adjacent to the portion on the first
floor in occupation of the son of the petitioner/landlord Sh. Arun Jain so as
to expand the business. With respect to grant of leave to defend a triable
RC REV No.369 /2013 Page 4 of 5
issue arises from reading of the pleadings in the leave to defend application
and the documents filed therewith, and mere self-serving statements cannot
show that the son of the petitioner/landlord Sh. Rajeev Jain is carrying on
the business from the portion adjacent to the portion where Sh. Arun Jain is
carrying on the business on the first floor. Hence this issue in the facts of
the present case surely raises a triable issue for grant of leave to defend. In
fact, in my opinion, respondents have been more than fair in offering a
frontage for going on to the first floor, but the petitioner/landlord for some
reasons, which this Court fails to comprehend, is not ready to take up the
offer.
6. So far as the aspect of the present petition being barred by res
judicata is concerned, I need not observe one way or the other finally
because this will be an issue in the main eviction petition and the same will
be decided in due course, I need not observe anything because I am granting
leave to defend on the grounds as stated above.
7. In view of the above, there is no merit in the petition, and the
same is therefore dismissed, leaving the parties to bear their own costs.
AUGUST 11, 2014 VALMIKI J. MEHTA, J.
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