Dinesh Kumar Gupta vs Sh. Sunil Gupta & Ors.
2014 Latest Caselaw 2884 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of Decision: 02.07.2014

+     RC.REV.131/2014, CM Nos.5669-70/14, Cav.288/2014

      DINESH KUMAR GUPTA                        ..... Petitioner
               Through: Mr. G.L. Rawal, Sr. Adv. with
                        Mr. Kuljeet Rawal & Mr. Jagjit Singh,
                        Advs.

                         versus

      SH. SUNIL GUPTA & ORS.                     ..... Respondents

Through: Mr. Asutosh Lohia, Adv.

CORAM:

      HON'BLE MR. JUSTICE NAJMI WAZIRI

%     MR. JUSTICE NAJMI WAZIRI

The present petition impugns an order dated 9.12.2013 whereby the

petitioner (tenant) has been directed to be evicted from the tenanted

premises being property No.2841, Gali Pipal Mahadev, Hauz Khazi, Delhi-

6. The order was passed in the petition filed under Section 14(1)(e) read

with Section 25 B of the Delhi Rent Control Act, 1956 wherein the eviction

petitioner/landlord had claimed the premises for his bonafide need. He

claimed that his family had eleven members and all of them were dependent

on the earnings of the firm being run by him; he was desirous of separating

the business of his three sons and required more commercial space; that on

the front side of the property had two shops, one of which was got vacated

wherein his eldest son had been installed to open and run a sanitary ware

business; now the petitioner needed the tenanted premises to settle his other

sons and all his grandsons who lacked commercial space. The application

for leave to defend disputed the eviction petitioner as a landlord; denied the

alleged bonafide need and contended that there was sufficient commercial

space available with the eviction petitioner on the ground floor of the

property No.2841, Gali Pipal Mahadev, Hauz Khazi, Delhi-6 of which the

petitioner became owner by way of a Will dated 6.1.1990 executed by his

mother. The petitioner/tenant claimed that rooms marked as Mark A, B, C

& D were being used for commercial space and for storage purposes; that

shop shown as Mark E was being used by the eldest son to run his business.

In the application for leave to defend, the present petitioner denied the

ownership of the tenanted premises of the eviction petitioner. He further

denied the dependency of the eviction petitioner's sons upon him for starting

their respective businesses. It was contended that the sons of the eviction

petitioners were well-settled running their respective business of sanitary

paint and hardware and therefore the requirement was not bonafide. It was

further contended that the eviction petitioner had required a complete floor

at premises No.2841, Gali Pipal Mahadev, Hauz Khazi, Delhi-6 which was

being used for commercial purpose and finally it was argued that the

eviction was sought only with a view to re-let the premises at exorbitant rate

of rent prevailing in the market. In reply however, the eviction petitioner

reiterated grounds made in the eviction petition and stated that he had

become owner of the ground floor of the property by way of Will dated

6.1.1990 executed by his mother and the rooms shown as Mark A, B, C, D

& E had been put to use as already averred in the petition; that the first and

the second floor of the property were being used only for residential

purposes; that he had sufficient funds to support the businesses of his sons.

He further explained that the third son will take over the firm which was

being run by him and finally that the property bearing No.2841, Gali Pipal

Mahadev, Hauz Khazi, Delhi-6 did not belong to him but to one Smt.

Madhu. Mr. G.L. Rawal, learned Senior Advocate for the petitioner argues

on behalf of the petitioner that this was a case for requirement of additional

space for commercial purpose and the leave to defend ought to have been

granted. He submits that not only more than sufficient but excess

accommodation was available with the respondent/landlord and in such

circumstances where additional accommodation is sought, the leave to

defend out to have been granted. In support of his arguments, he relied upon

Santosh Dev Soni vs. Chand Kiran, 2001 (1) SCC 255; S.M. Mehra vs.

D.D. Malik, 2001 (1) SCC 256; Rajpal Singh vs. Gurmeet Kaur, V (2009)

SLT 142; Mohd. Jaffer & Others vs. Nasra Begum, 191 (2012) DLT 401 &

S.K. Sethi; Sons vs. Vijay Bhalla, 191 (2012) DLT 722 & Gangadas vs.

B.N. Singh & Anr. in RC Rev. NO.276/2012.

He then contended that the eviction petitioner was not the owner of

the premises on the basis of a Will as claimed and that indeed the eviction

petitioner himself admitted that the property came to him as a share on

account of partition deed in suit No.578/66 in the Court of Sh. Kanwar

Shamsher Singh, Sub-Judge, First Class, Delhi by virtue of which he got the

ground floor of the said property. He submits that as per law any award or

decree conferring title of immovable property having value of more than

Rs.100/- must be registered. He submits that insofar as the Award was not

registered it cannot be taken into cognizance and in any case this itself

would be a matter of trial. He relied upon the ratios of Sachindra Mohan

Ghosh vs. Ramjash Agarwalla, AIR 1932 Patna 97 and M/s. Bajaj Auto

Ltd. vs. Behari Lal Kohli, AIR 1989 SC 1806 in support of these

contentions.

Having considered the arguments of learned counsel for the parties as

well as the impugned order, this Court is of the view that the petitioner is

estopped from raising an issue under Section 116 of the Indian Evidence Act

to dispute ownership of the landlord especially since he has been paying rent

to the petitioner as a landlord. Furthermore, vide order dated 1.5.2013, the

eviction petitioner was allowed to place on record the Award dated

19.10.1966 passed in suit no.578/66 to show that the ground floor portion

was allotted to him. Hence the Trial Court rightly concluded that "there was

nothing on record to doubt the ownership of the petitioner qua the tenanted

premises". With respect to the bonafide requirement, the Trial Court had

considered the explanation regarding all the shops and premises available to

the landlord and concluded that shop which was got vacated was given to

the eldest son to run his business therefrom. There was no other commercial

space available to the landlord to settle his other sons for their proposed

business. The Trial Court found that the tenant had brought nothing on

record to substantiate his plea that the other sons of the petitioner were not

dependent upon him and/or were duly engaged in their respective businesses

or that the said sons were owners of any other property. In the

circumstances, the Court concluded that all the sons of the eviction

petitioner were dependent upon him for commercial space to run their

respective businesses. The Trial Court accepted the explanation of the

landlord that there were six shops/rooms available out of which five were in

his possession, one of which was occupied by the petitioner for his office

purpose and three other small rooms were being used for storage of sanitary

articles and the fifth one which was got vacated had been put in possession

of his eldest sons. The sixth one was the tenanted premises. There was

nothing on record which would controvert the said position. In view of the

fact that no document had been placed on record to show that the property

No.2841, Gali Pipal Mahadev, Hauz Khazi, Delhi-6 was owned by the

eviction petitioner/landlord and also the fact that the petitioner had

convincingly controverted the plea of ownership of the said premises, the

Trial Court rightly rejected the plea of the tenant. The Trial Court also

rejected the tenants apprehension that the eviction petitioner was motivated

by a desire to re-lease it only for higher rent. This apprehension of course

would be taken care of by the provision of Section 19 of the DRC Act

whereby the tenant can get possession of the tenanted premises if it is let out

or sold by the landlord within three years of the eviction. This Court is of

the view that insofar as the landlord had shown that he was the owner of the

premises or at least as long as the petitioner was paying rent to the

respondent/landlord, he would be estopped from raising a plea of ownership

apropos the tenanted premises in view of the settled law of estoppel under

Section 116 of the Indian Evidence Act. Therefore, there would be no need

to refer to the dispute, apropos ownership, as raised by learned counsel for

the petitioner. Furthermore, the judgments cited by learned Senior Counsel

would be applicable only in cases where a triable issue was raised. In the

present case no triable issue is made out.

In view of the circumstances of the case as discussed hereinabove, all

the commercial space available with the landlord had been duly accounted in

his reply. The property bearing No.2841, Gali Pipal Mahadev, Hauz Khazi,

Delhi-6 was a red herring introduced by the tenant, the said property was

owned by some other person i.e. Smt. Madhu, and not by the landlord. The

bald averments apropos all the sons of the petitioner having been settled in

their respective businesses would not tantamount to a triable issue.

Something more ought to have been brought on record to substantiate this

argument. The Trial Court rightly rejected this and the contentions of the

tenant and finally dismissed the application for leave to defend. In view of

the foregoing discussion, this Court is of the view that the impugned order

does not suffer from any infirmity and calls for no interference by this

Court. Accordingly, the petition is dismissed.

NAJMI WAZIRI, J JULY 02, 2014 ak