Delhi High Court
Rajender Kumar Jain vs Sh. Shiv Kumar And Ors. on 3 December, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC.REV.No.275/2012
% 3rd December, 2014
RAJENDER KUMAR JAIN ......Petitioner
Through: Mr. Subhash Chandra, Advocate.
VERSUS
SH. SHIV KUMAR AND ORS. ...... Respondents
Through: Mr. Jitendra Kumar, Advocate with
Mr. Keshav Yadav, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This rent control revision petition under Section 25B(8) of the
Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') is filed by
the petitioner/tenant impugning the judgment of the Additional Rent
Controller dated 8.5.2012 by which the Additional Rent Controller has
dismissed the leave to defend application filed by the petitioner/tenant and
has decreed the bonafide necessity eviction petition filed under Section
14(1)(e) of the Act with respect to the tenanted premises being one shop on
the ground floor of the property no.X/2809, Gali No.5, Raghubar Pura-II,
Gandhi Nagar, Delhi-110031 as shown in red colour in the site plan annexed
with the eviction petition.
2. The case of the respondents/landlords was that the suit shop
was required for the benefit of petitioner no.2 in the eviction petition, and
who is the respondent no.2 herein, because respondent no.2 herein is
unemployed and wants to open a business in the tenanted shop.
3. In a bonafide necessity eviction petition under Section 14(1)(e)
of the Act, three aspects are required to be seen by the court for decreeing
the bonafide necessity eviction petition. First is that there is a relationship of
landlord and tenant between the parties and that the landlord is the owner of
the tenanted premises. Second aspect which is required is that the
suit/tenanted premises are required for the bonafide need of the landlord
and/or his family members and third aspect which is required to be seen is
whether the landlord has any other alternative suitable accommodation.
4. At the outset, I must state that the impugned judgment has
already been executed and the petitioner has already been evicted in
execution of the impugned judgment and decree. The petition is in a way
infructuous, however, since there is a right of revision to the
petitioner/tenant, this case is argued and I am accordingly deciding the same.
5. Before this Court, two arguments were urged on behalf of the
petitioner/tenant to seek leave to defend and also seek restitution by putting
the petitioner/tenant back in possession of the tenanted premises and
possession of which has been lost in execution of the impugned judgment.
The first argument which is raised is that in the very same premises there is
one additional shutter and therefore this shutter constitutes an alternative
suitable accommodation for the petitioner no.2 to carry on his business. The
second aspect which is argued is that the respondents/landlords owned the
property no.X-2627, Gali No.6, Raghubar Pura-II, Gandhi Nagar, Delhi and
which is therefore an alternative suitable accommodation.
6(i) So far as the first aspect is concerned, counsel for the petitioner
places reliance upon para 16 of the leave to defend application and which
para 16 reads as under:-
"16. That the site plan filed alongwith the petition does not show
the measurements of the suit property. The petitioners have
intentionally not disclosed the measurement in the site plan. In fact
the petitioners have filed a site plan for 80 sq. yds. only whereas
they have adjoining shop built-on 60 sq. yds., which is being run in
the name of Sareen General Stores, there is one shutter on the said
60 sq. yds. plot and three shutters on 80 sq. yds. plot. The 60 sq.
yds. is also owned by the petitioners. The petitioners have
intentionally concealed the said fact."
(ii) On the basis of the aforesaid para, it is argued that since the
respondents/landlords have alternative suitable accommodation being the
additional shutter, leave to defend had to be granted and the eviction petition
was in fact not maintainable.
(iii) The argument urged on behalf of the petitioner is misconceived
because just stating that a shutter exists does not mean that there is an
alternative suitable accommodation being a shop from where the respondent
no.2 would be able to carry on business. In para 16 of the leave to defend
application quoted above, it is not the case of the petitioner/tenant that there
is a shop of a particular size which exists behind the so called shutter, and
consequently this shop will be an alternative suitable accommodation.
Existence of a shutter is like existence of a gate and existence of a gate
cannot create an alternative suitable accommodation unless there are
sufficient pleadings that there is a specific shop of a particular size which is
available behind the shutter for use of the respondents/landlords and which
is not the case as set up in para 16 of the leave to defend application quoted
above.
(iv) The first argument urged on behalf of the petitioner/tenant is
therefore rejected.
7. The second argument urged on behalf of the petitioner is also
equally misconceived because the respondents/landlords have denied that
they have anything to do with the property no. X-2627, Gali No.6, Raghubar
Pura-II, Gandhi Nagar, Delhi and therefore a self-serving bald averment of
ownership of a particular property by the respondents/landlords, and which
is denied by the landlords, cannot create any triable issue.
8. In view of the above, there is no merit in the petition, which is
therefore dismissed. No costs. Whatever amount has been deposited by the
petitioner/tenant in this Court be released to the respondents/landlords
alongwith accrued interest, if any, and which amount will be taken as
interim user charges by the respondents/landlords in view of the ratio of the
judgment of the Supreme Court in the case of Atma Ram Properties (P) Ltd.
Vs. Federal Motors Pvt. Ltd. (2005) 1 SCC 705.
VALMIKI J. MEHTA, J
DECEMBER 03, 2014
Ne
