Smt. Saraswti Devi vs Smt. Santosh Kumari.
2014 Latest Caselaw 2886 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Date of Decision: 02.07.2014

+      RC.REV. 59/2014

       SMT. SARASWTI DEVI                          ..... Petitioner
                    Through:          Mr. Ashutosh Bhattacharjee &
                                      Mr. J.P. Tripathi, Advs.

                         Versus

       SMT. SANTOSH KUMARI.                        ..... Respondent

                    Through:          None.


       CORAM:
       HON'BLE MR. JUSTICE NAJMI WAZIRI

%      MR. JUSTICE NAJMI WAZIRI

1. This petition impugns an order dated 24.8.2013 whereby the

respondent-landlady's petition under Sections 14(1)(e) and 25 B of the

Delhi Rent Control Act, 1958 was allowed. The petitioner's

application seeking leave to defend was dismissed and an eviction

order has been passed against her with respect to the shop situated at

the ground floor of property No.643 B-43, Jood Bagh, Tri Nagar,

Delhi. The eviction was sought on the ground that the landlady had a

bonafide need for it i.e. her husband who was otherwise carrying on a

business with his son in manufacturing readymade garments required

the premises, since due to old age he could not cope-up with the hectic

schedule of manufacturing activities. He needed tenanted premises to

start selling of readymade garments; for which he possessed sufficient

experience so as to add to the profitability, along with the

manufacturing facility of readymade garments being run by his son.

The landlady contended that she had no alternate accommodation to

fulfil the bonafide need. A leave to defend was sought by the present

petitioner (tenant) on the ground that the husband was already engaged

and settled in the business of manufacturing readymade garments with

his son, hence he did not need the tenanted premises; that earlier

attempts by the landlady to evict the tenant were unsuccessful; that on

7.8.1993, the husband of the petitioner in Suit No.445/1993 had stated

that he would not want to evict the petitioner and that the Court needs

to differentiate between need and desire of the landlord. The Trial

Court however found that no triable issues were raised by the tenant.

The Court reasoned that additional information sought to be brought

through a rejoinder to the reply to leave to defend could not be taken

into consideration since in proceedings under Section 25 B the

application for leave to defend itself ought to contend all the grounds

which would prima facie make out a case for disentitlement of the

eviction petitioner through an order of eviction of the tenanted

premises. The Court held that the "rejoinder is filed only for the

purpose of replying to the averments made in the reply and any

averment made beyond that is treated as a new stand". The pleadings

would be limited to the averments in the application for leave to

defend and oral arguments are for the assistance of the Court, but

arguments beyond the pleadings could not be taken into consideration.

The Trial Court also reasoned that none of the new facts, sought to be

brought on record, could be considered since it was not the case of the

tenant that the said information was not in her knowledge or did not

exist at the time of filing of the application for leave to defend. This

Court is of the view that the said reasoning cannot be faulted. The

Trial Court also reasoned that in her rejoinder the tenant had admitted

that after the demise of her husband she was running the business from

the tenanted premises. The landlady had placed on record photocopy

of rent receipts and copy of the challans of the rent deposited in the

Court which would show that they were issued in the name of the

tenant/present petitioner. Thus it was concluded that the present

petitioner/tenant was continuing the business in suit shop and hence

this was not a triable issue. The contention that alternate

accommodation was available with the landlady was found to be bald

and vague since it was not supported by any particulars of such

alternate accommodation. This too was found to be a non-triable

issue. The Court relied upon the principle laid down in Shiv Sarup

Gupta vs. Dr. Mahesh Chand Gupta, 80 (1999) DLT 731 as well as

Tagore Education Society Regd. vs. Kamla Tandon, 2009 (161) DLT

232 to conclude that bald and baseless averments and pleas by a tenant

would not be sufficient to make out a triable issue or to doubt the need

as not genuine or bonafide. The Court further relied upon the

principle laid down in Sarla Ahuja vs. United India Insurance Co.

Ltd., AIR 1999 SC 100 which held that "when a landlord asserts that

he requires his building for his own occupation the Rent Controller

shall not proceed on the presumption that the requirement is not

bonafide. When other conditions of the Clause are satisfied and when

the landlord shows a prima facie case it is open to the Rent Controller

to draw a presumption that the requirement of landlord is bonafide."

The Court further held that "it is not for the tenant to dictate terms to

the landlord as to how else he can adjust himself without getting

possession of the tenanted premises." The Trial Court found reason in

the landlady's ground that due to old age and ailments her husband

could not cope-up with the hectic schedule of manufacturing

readymade garments. The less exhausting and physically less

demanding business of retail of readymade garments was deemed to

be more suitable. Medical documents regarding the husband were

also taken into consideration by the Court in finding the need to be

bonafide.

2. The learned counsel for the petitioner has reiterated the same

arguments as before the Trial Court. In particular he contends that the

need was not bonafide as the landlady's husband was already engaged

in a settled business with the son and the eviction proceeding was only

a sham to evict the tenant from the premises in any way. This Court

is not persuaded by the arguments of the learned counsel because the

need for accommodation changes according to changed circumstances.

In the present case, due to advanced age and deterioration of the health

of the husband of the landlady, the tenanted premises were found to be

more suitable for the husband starting a business of his own so as to

augment his earnings. It cannot be a case that simply because he was

engaged in a business with his son, he could not start his own

business; and surely a landlady cannot be compelled to subject her

husband to hardship at a sufferance of a tenant simply to further

accommodate the tenant. The Trial Court was to see whether the need

was bonafide. In the present case, the bonafide were established.

Therefore, the tenant was rightly directed to be evicted. This Court is

of the view that for the reasons mentioned in the impugned order, no

fault can be found with the conclusion arrived at. There is no reason

to interfere with the impugned order. The petition is without merit

and is accordingly dismissed.

NAJMI WAZIRI (JUDGE) JULY 02, 2014/ak