Delhi High Court
M/S Kali Charan & Sons (Jewellers) vs Rakesh Jindal on 28 August, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC.REV. No. 79/2014
% 28th August , 2014
M/S KALI CHARAN & SONS (JEWELLERS) ......Petitioner
Through: Mr. J.C.Mahendroo, Adv.
VERSUS
RAKESH JINDAL ...... Respondent
Through: Mr. Girish Aggarwal, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This petition is filed under Section 25-B(8) of the Delhi Rent Control
Act, 1958 (hereinafter referred to as 'the Act') impugning the judgment of
the Additional Rent Controller dated 24.8.2013 by which the Additional
Rent Controller has dismissed the leave to defend application filed by the
petitioner/tenant and has decreed the eviction petition with respect to the
tenanted premises comprising of ground floor shop with mezzanine floor in
the property bearing no. 1898-1901A, Chandni Chowk, Delhi-6.
RCR 79/2014 Page 1 of 7
2. The case of the respondent was that the petitioner was inducted as a
tenant in the suit property which was purchased by the father of the
respondent vide sale deed dated 6.7.1963. The father, before he expired on
7.10.2008 executed his Will dated 28.1.2008 whereby he bequeathed his
50% undivided share in the suit property in equal proportions to his two sons
i.e the respondent herein and other son Mr. Ajay Gupta. It was pleaded that
the respondent/landlord was carrying on his business of decorative items,
artificial jewellery items and packaging materials etc used in marriages and
religious functions from a rented shop at 2181, Kinari Bazar, Delhi-6 and
which premises were a small premises of only 7'X 18' besides the fact that
there was no need for the respondent/landlord to carry on business from a
tenanted premises once he owned the suit premises.
3. Petitioner filed the leave to defend application and raised various
grounds which are stated in para 5 of the impugned order but before this
Court only the following arguments are urged for setting aside of the
impugned order:-
(i) Respondent is not the owner/landlord of the suit property and
therefore, the eviction petition did not lie.
RCR 79/2014 Page 2 of 7
(ii) The petition for bonafide necessity was not bonafide because actually
the respondent had recently inducted six new tenants in the suit property and
thus showing that the need was not bonafide.
4. So far as the aspect of relationship of landlord and tenant is
concerned, the petitioner does not dispute that rent was paid by him to the
father of the respondent. In fact, petitioner had deposited rent in
proceedings under Section 31 of the Punjab Relief of Indebtedness Act,
1934, Act wherein the petitioner admitted the father of the respondent to be
the co-owner and landlord of the suit premises. Therefore, once the father of
the respondent/landlord is admitted to be the co-owner and landlord of the
suit premises, and the respondent is admittedly the son, respondent would
become co-owner and landlord of the suit premises. It is not open to the
tenant to question the ownership of the respondent/landlord and which will
only be an issue between the legal heirs of the father ie if the other legal
heirs succeed in their objection for setting aside of the Will of the father
dated 28.1.2008, then the respondent who will receive possession pursuant
to the impugned judgment and decree will hold possession for and on behalf
of all the legal heirs of the father, but, that cannot mean that a tenant can
object to the eviction petition filed for bonafide necessity on the
RCR 79/2014 Page 3 of 7
ground that there does not exist relationship of landlord and tenant between
the parties.
5. Learned counsel for the petitioner sought to argue that one sister of
the respondent/landlord in the year 2008 had given a notice not to pay rent to
the respondent, however, on a query put to the counsel for the petitioner it is
admitted that this ground is not urged in the leave to defend application.
Once a ground is not urged in the leave to defend application, and since all
grounds have to be urged supported by documents in the leave to defend
application within 15 days of service, no further grounds which exist as
regards facts which exist before the expiry of 15 days period for filing of the
leave to defend application, can be looked into by filing of subsequent
affidavits or documents and so on. Supreme Court in the case of Prithipal
Singh Vs. Satpal Singh (dead) through LRs (2010) 2 SCC 15, held that
there cannot be condonation of delay even of one day in filing of the leave to
defend application, and therefore since there cannot be any condonation of
delay beyond 15 days hence no grounds which are pleaded after a statutory
period of 15 days of filing of the leave to defend application can be looked
into by the Additional Rent Controller or by this Court. A learned Single
RCR 79/2014 Page 4 of 7
Judge of this Court in the case of Ms. Madhu Gupta Vs. M/s Gardenia
Estates (P) Ltd. 184 (2011) DLT 103 has held while relying on the judgment
in the case of Prithipal Singh (supra) that there cannot be amendment of a
leave to defend application because allowing of amendment of leave to
defend application will destroy the sanctity of the 15 days leave to defend
period which is an inflexible period in terms of the ratio of the judgment in
the case of Prithipal Singh (supra). In any case, as already stated above, in
case the sister of the respondent/landlord succeeds in the claim to set aside
the Will dated 28.1.2008, and gets rights in the suit property, the
respondent/landlord will be in accordance with law bound to handover the
suit property to the sister, however, for a future uncertain event an eviction
petition for bonafide necessity cannot be dismissed.
6. The second argument which is urged on behalf of the petitioner/tenant
is that respondent/landlord has recently inducted six tenants, and this aspect
is rightly dealt with in para 18 of the impugned judgment and which reads as
under:
"18. The respondent has alleged that the need of the petitioner is not
bona fide. It has been alleged that he has recently inducted 06 new
tenants at the suit property which prima facie falsifies his claim of
bona fide need. It has also specified that tenants namely Bank of
Maharashtra and M/s Muthoot Financt Co. have been inducted
recently.
RCR 79/2014 Page 5 of 7
The petitioner refuted these claims. He has consistently
maintained that the tenants at the suit property namely Bank of
Maharashtra, M/s Muthoot Finance Co., M/s Arun Dev Builders, M/s
Alpha Radios, M/s B.R.Sahni & Co., and M/s S.N.Kohli & Sons are
all old tenants. The Will dated 28.01.2008 of his father refers to all
these tenants which means that all of them including Bank of
Maharashtra and M/s Muthoot Finance Co. have been occupying their
respective portions prior to execution of this Will.
Hence the aforesaid pleas of the respondent fails to hold any
water."
7. I do not find any illegality in the observations and conclusions in para
18 because a self serving statement of the petitioner/tenant could not have
any meaning once all the six tenants referred to by the petitioner/tenant are
found to be old tenants reference to whom have been made in the Will of the
father dated 28.1.2008.
8. I may note that tenanted shop is lying closed for about 15 years as
stated by the respondent/landlord. Respondent/landlord also contends that
the very fact that there is no electricity connection in the tenanted premises
shows that petitioner is unfairly and illegally holding on to the tenanted
premises to get an illegal benefit from the respondent, however, counsel for
the petitioner very vehemently contested this aspect. I however need not
observe one way or the other with respect to the respective contentions in
this petition for bonafide necessity.
RCR 79/2014 Page 6 of 7
9. During the course of hearing, counsel for the respondent offered to the
petitioner who was present in person some reasonable time to vacate the
premises but the petitioner asked for an unduly long period of four years, to
vacate the suit premises and consequently no compromise could be arrived
at for the petitioner to vacate the suit premises by consent.
10. In view of the above, this petition is without any merit, and is
accordingly dismissed, leaving the parties to bear their own costs.
AUGUST 28, 2014 VALMIKI J. MEHTA, J.
ib
