Mohd. Burhan vs Shri Triloki Nath Nirmal
2014 Latest Caselaw 3900 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RCR No. 240/2013 & CM 10450/13 (Stay)

%                                            25th August, 2014

MOHD. BURHAN                                              ......Petitioner
                           Through:    Mr. Kirti Uppal, Sr. Adv. with Ms.
                                       Stuti Sood, Advocate.


                           VERSUS

SHRI TRILOKI NATH NIRMAL                                 ...... Respondent

                   Through:            Mr. S.S.Bhatia and Mr. Naveen Arya,
                                       Advocate.

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

To be referred to the Reporter or not? Yes


VALMIKI J. MEHTA, J (ORAL)

1. This eviction petition is filed under Section 25-B(8) of the

Delhi Rent Control Act, 1958 (in short 'the Act') impugning the order of the

Additional Rent Controller dated 18.2.2013 by which the Additional Rent

Controller has dismissed the leave to defend application filed by the

petitioner/tenant and has passed an eviction decree with respect to the

tenanted premises being shop no. E-45/1 on the ground floor of E-45 Main

Market, Hauz Khas, New Delhi 110016 admeasuring 12'.7' ½" x 9'ft plus

the extended verandah as per site plan annexed.

2. The respondent/landlord claimed that he was running the

business of blue line buses in Delhi, however, the blue line buses in Delhi

have stopped on account of various directions passed by the State Transport

Authority and the Supreme Court, and therefore, since this business of

running buses having come to an end, he needs a suit property from which

he intends to start a General Merchant shop. It is stated in the eviction

petition that he has no other alternative suitable commercial/shop premises

and therefore the premises with the petitioner/tenant is required for carrying

on business.

3. On being served with the summons, the petitioner filed the

leave to defend application. The relationship of landlord and tenant is not

disputed. What is disputed is the existence of bonafides of the

respondent/landlord in filing the bonafide necessity eviction petition.

Petitioner-tenant pleads that respondent/landlord is having the business of

blue line buses as also other buses on private routes whereby he is earning a

substantial amount. It is also pleaded that the respondent/landlord is carrying

on a property dealing business under the name and style of Nath Properties

and Developers. It is also pleaded that the respondent/landlord was

negotiating with the petitioner/tenant just about a month before filing of the

eviction petition to increase the rent, but subsequently this petition has been

filed when negotiations for increase of rent failed. The petitioner/tenant also

pleads that respondent/landlord has sufficient alternative suitable

accommodation inasmuch as the property is a three storeyed building and on

the second floor till recently a software company in the name of Maxwell

Computers was carrying on business, and which tenant has vacated the

second floor portion. It is also argued that the bonafide necessity petition is

malafide because respondent/landlord had concealed the facts as regards his

income with respect to his wife who is also having business of blue line

buses as also other private buses. It was hence pleaded that the eviction

petition was liable to be dismissed. Though other pleas had been urged

before the Additional Rent Controller but those other pleas are not urged

before this Court.

4. In my opinion, the Additional Rent Controller has passed a

thorough, exhaustive and perfectly justified order in rejecting the leave to

defend application. There is no merit in the petition which is liable to be

dismissed and the reasons for the same are given hereinafter.

5. So far as the aspect that the respondent/landlord's need is not a

bonafide requirement because it is a mere desire for reasons of there being

negotiations to increase the rent and also because the respondent/landlord

has concealed the factum with respect to his carrying on business of running

other buses is concerned, this argument is wholly misconceived. The

arguments in this regard are misconceived because the Additional Rent

Controller notes that the blue line permits which had been issued for the

respondent/landlord and his wife have been surrendered and the surrender

documents were filed before the Additional Rent Controller. Not only that,

the respondent/landlord filed an RTI query showing that the business of blue

line buses of the respondent/landlord is no longer running. Therefore, in my

opinion, a mere self-serving averment that respondent/landlord is doing the

business of running of blue line buses cannot create a triable issue in the

facts of the present case. The Additional Rent Controller has also rightly

taken judicial note of the fact that the blue line buses are no longer running

in Delhi. So far as the argument that the respondent/landlord is running

private buses is concerned, the same is only a self-serving bald plea and a

self-serving bald plea cannot create a bonafide triable issue inasmuch as

otherwise every tenant will have to simply make an averment as regards

other business being run by the landlord and courts will be forced to grant

leave to defend on self-serving pleas, but, that is not the law.

6. On the aspect that there were negotiations going on between the

parties for increase of rent, the Additional Rent Controller has rightly

rejected this plea by observing that this is a bald plea without any supporting

documents, and therefore, this plea cannot be considered. With respect to

this aspect it is relevant to refer to the ratio of the Supreme Court in the

recent judgment in the case of Prithipal Singh Vs. Satpal Singh (dead)

through LRs (2010) 2 SCC 15, and which holds that the period for filing of

leave to defend application is only and only 15 days and which cannot be

extended even for a single day ie whatever facts have to be stated and

documents which have to be filed by the tenant pertaining to aspects which

arise/exist before the expiry of 15 days, the same have to be necessarily

stated in the application for leave to defend alongwith supporting affidavit,

and if this is not done, subsequently, the same cannot be stated either by

filing additional evidence or additional documents or by amending the leave

to defend application, and all of which acts if permitted would demolish the

sacrosanct period of 15 days. It has been held by a learned Single Judge of

this Court in the judgment reported as Ms. Madhu Gupta Vs. M/s Gardenia

Estates (P) Ltd. 184 (2011) DLT 103 that in view of the ratio of Prithipal

Singh's case (supra) no application to amend the leave to defend application

can be entertained. I therefore refuse to look into the documents which have

been filed for the first time in this Court pertaining to negotiations of

increase in rent. I may also note as a matter of abundant caution that there is

nothing wrong in a landlord entering into negotiations for increase of rent

because after all if rent had been substantially increased, the

respondent/landlord would have then had financial means for not carrying

out business of General Merchant from the suit/tenanted premises, and

therefore, there is nothing illegal in holding negotiations for increase of rent

and merely because negotiations for increase of rent fail, it cannot be said

that bonafide necessity petition is not maintainable.

7. The next argument which was urged on behalf of the

petitioner/tenant was that the present is a case of additional accommodation

because the building is a three storeyed building and on the second floor of

the building one tenant M/s Maxwell Computers was doing computer

business till recently. Additional Rent Controller in this regard has rightly

noted that the averment with respect to software business is a bald plea without

any basis, and the same cannot create a triable issue once the same is denied by

the respondent/landlord. In any case, it is not the case of the petitioner that as

per the master plan/zonal plan/area plan, the portions above the ground floor

can be used for commercial purposes. Therefore, since residential premises

cannot be used for opening of a shop and since first floor and above were

only residential portions as per the area plan of the area of Hauz Khas in

question, therefore, it cannot be held that the portions of first floor and above

amount to alternative suitable accommodation. I may state that the issue of

second floor being an alternative suitable accommodation is also

misconceived because as per the Will of the mother who owned the

property, the respondent/landlord is not the owner of the second floor from

which the business of Maxwell Computers was being carried on. Therefore,

it cannot be said that the respondent/landlord has alternative suitable

accommodation on the second floor.

8. Lastly, it was argued on behalf of the petitioner that the

respondent does not have experience for starting of the business and

therefore the same created a triable issue. This argument is again totally

misconceived, inasmuch as, the Supreme Court has held in a series of

judgments that there is no prior experience required for starting of a business

from a tenanted premises inasmuch as surely it is only once business is

started the landlord will gain experience. The aspect as to whether the

business will or will not be successful because of the inexperience of the

landlord is not an aspect to be considered while deciding the bonafide

necessity petition in view of the entire line of judgments of various Courts,

including the Supreme Court so holding.

9. 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 25, 2014                               VALMIKI J. MEHTA, J.
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