Delhi High Court
Shyam Sunder vs Inder Pal Chauhan on 21 July, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC REV No.68/2013 and C.M. No.2713/2013 (stay)
% 21st July, 2014
SHYAM SUNDER ......Petitioner
Through: Ms. Beenashaw N. Soni, Advocate.
VERSUS
INDER PAL CHAUHAN ...... Respondent
Through: Mr. Manu Sishodia, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Section 25B(8) of the Delhi Rent Control
Act, 1958 (hereinafter referred to as 'the Act') is filed against the impugned
judgment of the Additional Rent Controller dated 10.9.2012 by which the
Additional Rent Controller has dismissed the leave to defend application
which was filed by the petitioner herein, respondent before the Additional
Rent Controller.
2. The eviction petition for bonafide necessity had been filed with
respect to the tenanted shop in question which is part of property no.8795,
RC REV No.68/2013 Page 1 of 7
Shidipura, Karol Bagh, New Delhi. The respondent/landlord claims that he
needs this shop for carrying on of business by his 24 year old son who is just
10th class pass and hence due to his less education, he is not able to get any
job/service. The case of the respondent/landlord is that by a registered sale
deed dated 13.6.2001 the properties bearing Municipal nos.8791 to 8795,
Shidipura, Karol Bagh, New Delhi were purchased by the
respondent/landlord and his brothers. There was an oral partition whereby
property no.8795 fell to the share of the respondent/landlord and the
properties nos.8791 to 8794 have fallen to the share of the brothers of the
respondent/landlord. The respondent/landlord also pleaded that he had no
other alternative suitable accommodation for carrying on the business/shop
for his son, and therefore eviction was prayed of the present petitioner from
the suit premises.
3. To the extent, that there is a relationship of landlord and tenant
between the parties, the same is not disputed before me, however, it is very
strenuously urged that respondent's son is already carrying on various
businesses at different places and therefore he does not need the shop
premises for carrying on his business.
4. Let us examine each of the businesses which the son of the
respondent/landlord is said to be carrying on so as to determine whether
RC REV No.68/2013 Page 2 of 7
there are any bonafides in these pleas of the petitioner/tenant.
5. The first business which is said to be owned by the son of the
respondent/landlord is the business in the name of M/s. Super Enterprises
and which is said to be carried out in the building bearing no.M-107, Sector-
5, Bawana Industrial Area, Delhi. In this regard, the respondent/landlord has
pleaded that the business was not of the son but was of his wife, and which
business has been closed way back in the year 2004. In this regard, the
Additional Rent Controller has rightly noted that if for the sake of argument
the property belonged to the wife of the respondent/landlord, however, the
business cannot be said to belong to the son of the respondent/landlord. I
may note that the respondent/landlord was personally present in the Court at
the time of hearing and I informed him that if the business is open and of his
son and not his wife, this Court will prosecute him for perjury and other
offences, and to which the respondent/landlord categorically once again
reiterates the fact that the business was in the name of his wife and was
closed long back, and the closing of the business has been informed to the
sales tax department and is so appearing in the record of the sales tax
department. I would also like to state that the Additional Rent Controller
has rightly noted that in an industrial premises, a shop cannot be carried on,
and for which shop premises the area in Karol Bagh (which is one of the
RC REV No.68/2013 Page 3 of 7
commercial hubs of Delhi) would definitely be the proper premises for
running a shop. Surely, a shop cannot be opened and business of a shop
cannot be carried on in an industrial area. The first argument on behalf of
the petitioner of the alternative premises at Bawana Industrial Area and the
business of M/s. Super Enterprises being of the son of the landlord is
therefore rejected.
6. The second argument which was urged with respect to
alternative premises/alternative business available to the son of the
respondent/landlord is one business of M/s. Shri Manglam Rashi Ratan
Kendra being run in property no.8793, Shidi Pura, Karol Bagh, New Delhi.
The third business whose name is not mentioned in the leave to defend
application is said to be run in the premises nos.8791 to 8794.
7. Before proceeding further, at this stage, it is necessary to refer
to the judgment of the Supreme Court in the case of Prithipal Singh Vs.
Satpal Singh (dead) through LRs (2010) 2 SCC 15, and which holds that
the period of 15 days provided under Section 25B of the Act for filing leave
to defend application is sacrosanct and there cannot be delay of even one day
in filing of the leave to defend application. Supreme Court has made it clear
that the provisions of Limitation Act, 1963 or the provisions of CPC do not
apply to the self-contained exhaustive procedure of leave to defend specified
RC REV No.68/2013 Page 4 of 7
under Section 25B of the Act. The sequitur of this ratio is that the grounds
which have to be taken in the leave to defend application have necessarily to
be taken only in the leave to defend application with the necessary details
within 15 days and it is not permissible for the tenant after the statutory
period of 15 days to keep on filing grounds in the form of additional
affidavits or the documents etc etc to urge additional grounds or additional
facts other than those as stated in the leave to defend application. Courts do
not permit additional ground beyond 15 days because it would amount to
destroying the sanctity of the 15 days period as per the ratio of the judgment
of the Supreme Court in the case of Prithipal Singh (supra). The ratio in
the case of Prithipal Singh(supra) is specifically noted above, because,
learned counsel for the petitioner tried to argue on the basis of various facts
and documents of which there is no reference at all in the leave to defend
application and therefore I have not allowed the counsel for the petitioner to
raise any of the grounds which are not found existing in the application for
leave to defend and the affidavit in support of the application for leave to
defend.
8. So far as the aspect that the second business is being run in four
shops bearing nos.8791 to 8794 by the son of the respondent/landlord is
concerned, the argument is absolutely meritless because the petitioner/tenant
RC REV No.68/2013 Page 5 of 7
does not dispute in the leave to defend application and the affidavit filed in
support thereof that there is partition between the respondent/landlord and
his brothers whereby the properties bearing no.8791 to 8794 have not fallen
to the share of the respondent but have fallen to the share of his brothers.
Once that is so, any alleged business being run by the son of the
respondent/landlord in a property which admittedly is not owned by the
respondent/landlord is not only without any factual basis but cannot be said
to be alternative premises in law of the respondent/landlord. This argument
is therefore without any substance, either for the Additional Rent Controller
to have considered or for this Court to consider, and the same does not raise
any triable issues. Once the division and the partition of property is clear,
neither the respondent/landlord nor his son can carry on any business in any
of the properties bearing nos.8791 to 8794 as a matter of right and only in
such case of the business being carried out as a matter of right, the said
premises will amount to alternative suitable accommodation.
9. Learned counsel for the petitioner sought to argue that the
petition is not bonafide because what business the son of the
respondent/landlord will carry out is not stated in the petition, however, this
ground is misconceived inasmuch as it has been held by the learned Single
Judge of this Court in the case of Om Prakash Arora Vs. Ratan Mala Jain
RC REV No.68/2013 Page 6 of 7
2013 (134) DRJ 720 that what business is to be set up in the shop is not
required to be disclosed by the landlord and once the need is bonafide the
landlord can take his decision in time depending upon the finance that may
be available with the family.
10. 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.
JULY 21, 2014 VALMIKI J. MEHTA, J.
Ne
