Yash Pal vs Shri Gopal Singh Nim
2014 Latest Caselaw 3337 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RC.REV. 280/2011

%                                                            25th July, 2014

YASH PAL                                                 ......Petitioner
                          Through:      Mr. Gyan Prakash, Mr. Neeraj,
                                        Advocates


                          VERSUS

SHRI GOPAL SINGH NIM                                     ...... Respondents

                  Through:              Mr. R.K. Arora, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not? Yes.


VALMIKI J. MEHTA, J (ORAL)

1. This rent control revision petition is filed under Section 25-B(8) of the

Delhi Rent Control Act, 1958 impugning the judgment of the Additional

Rent Controller dated 14.2.2011 by which the Additional Rent Controller

has dismissed the application for leave to defend and passed on order of

eviction. It needs to be noted that only a period of six months time is

granted to vacate the suit premises after eviction order is passed, however,

after more than three and half years of passing of the impugned judgment,

petitioner continues to stay in the suit premises in view of the interim order

passed by a learned single Judge of this Court on 1.8.2011.

2. The subject petition for bona fide necessity was filed by the

respondent against the petitioner with respect to one shop having private no.

5(87-A/5) of premises 87-A, Kundan Nagar, Street No. 1, Delhi-110092.

The respondent-landlord claimed the suit premises for the reason that he is

an Advocate and needed the tenanted premises to open his office in the suit

premises which is right below the respondent's residence which is at the first

floor of the property. Earlier, the respondent-landlord was carrying on his

professional work from the garage, but, now respondent is using the garage

for parking his car.

3. The petitioner/tenant contested the petition by filing leave to defend

application and following grounds were urged before this Court for setting

aside of the impugned order :-

(i) Ownership of the respondent-landlord of the suit premises is denied.

(ii) The respondent-landlord is alleged not to be a practicing Advocate

and that he has not filed any Vakalatnama in any case, and therefore, since

the respondent-landlord has no practice, he therefore does not require the

tenanted shop.

(iii) The respondent-landlord has an alternative accommodation because

he has been allotted a chamber in the Karkardooma Courts.

(iv) The respondent-landlord has concealed the fact that he owns property

no. 6602, Gali No. 3 & 4, Block No. 9, Dev Nagar, Karol Bagh, Delhi and

which premises is an alternative suitable accommodation.

(v) Lastly, it is urged that the petitioner-tenant was a co-tenant along with

his father, and the eviction petition was bad for non-joinder of the legal heirs

of the deceased father.

4. So far as the first argument that the respondent-landlord is not an

owner is concerned, the argument is wholly frivolous because it is not

disputed even before this Court that the respondent is the landlord of the suit

premises. Once the respondent is admitted to be the landlord of the suit

premises, then the petitioner-tenant is estopped from challenging the

ownership of respondent-landlord in view of Section 115 of the Indian

Evidence Act, 1872.

5. Even the second argument urged that the respondent is not a

practicing Advocate is totally without any substance for various reasons.

Firstly, the respondent has filed in the Court his membership number of the

Shahdara Bar Association. It is only because of this that the respondent

stands allotted chamber no. E-705 in the Karkardooma Courts. In fact, the

petitioner-tenant is guilty of blowing hot and cold by stating that the

respondent is not a practicing Advocate allegedly although it is

simultaneously stated that he has been allotted a chamber in the

Karkardooma Courts. Also, the petitioner-tenant cannot insist that a person

who wants to practice as an Advocate should not have a office, that too at a

place just below his residence, on the ground that he is not practicing

because if this argument is accepted then a new Advocate who is not

practicing will not be allowed to evict the tenant so that he would have a

practice or for increasing his practice. In my opinion, for being a successful

Advocate or being a practicing Advocate, having many cases is not a pre-

condition for seeking eviction of a tenant from a shop from where the

respondent-landlord as an Advocate wants to commence/carry on his

professional work, and which shop/tenanted premises is situated just below

the premises of the respondent-landlord. The second argument urged on

behalf of the petitioner is also rejected.

6. The third argument which is urged on behalf of the petitioner is that

the respondent-landlord has a chamber in Karkardooma Courts which should

be taken as an alternative accommodation, however, the argument is

misplaced because chambers in courts are only very small areas. Also,

merely because an Advocate has a chamber in court cannot mean that he is

not entitled to have an office which is just below his residence to carry out

his professional work and which premises would also be used when the

landlord is not in the court or in late hours or early hours; as also on

holidays. Therefore, in my opinion, the third argument is also misconceived

and merely because the respondent-landlord has a chamber in Karkardooma

Courts, the same would not amount of having an alternative accommodation

for dismissing the eviction petition.

7. So far as the ground that the respondent-landlord owns a house in Dev

Nagar is concerned, the respondent-landlord in reply to the leave to defend

application had stated that the said property is an ancestral property which is

not in his possession but in the possession of the other co-owners.

Therefore, the Dev Nagar, Karol Bagh property is not available to the

respondent-landlord. In any case, the Dev Nagar, Karol Bagh premises is

about 20 kilometers from the residence of the respondent/landlord above the

tenanted shop, and therefore, no tenant can plead that the landlord must go

20 kilometers from his residence for having an office premises. This

argument urged is also without merit and rejected.

8. (i) The last argument which was urged was that the petitioner was not a

sole tenant but he was a co-tenant with his father and in the absence of the

legal heirs of the deceased father, the eviction petition cannot be decreed.

This argument is liable to be rejected for various reasons. Firstly, this

defence is not taken in the leave to defend application and the Supreme

Court has now held in the case of Prithipal Singh Vs. Satpal Singh (dead)

through LRs (2010) 2 SCC 15 that whatever has to be stated for grant of

leave to defend application has necessarily to be stated only within 15 days

statutory period provided for filing of the leave to defend application and

that there cannot be condonation of even one day's delay in filing of the

leave to defend application. Supreme Court has held the statutory period of

15 days for filing of the leave to defend application as inflexible and

sacrosanct which cannot be extended by resort to either the provisions of

Section 5 of the Limitation Act, 1963 or the provisions of CPC, 1908. Once,

only 15 days period is provided for filing of a leave to defend application,

and everything has necessarily to be stated within 15 days in the leave to

defend application, then, the tenant cannot on his convenience keep on filing

additional affidavits or additional grounds or additional documents after the

period of 15 days because if that is permitted the same will destroy the

sanctity of 15 days which is mandatory and inflexible as held by the

Supreme Court in the case of Prithipal Singh (supra).

(ii) Even for the sake of argument this aspect is considered on merits, this

argument does not have any basis because Supreme Court has held in the

case of Pushpa Rani Vs. Bhagwanti Devi & Anr. 1994 Supp(3) SCC 76

that on the death of the original tenant if certain legal heirs do not exercise

their tenancy rights, they would have impliedly surrendered their tenancy

rights. For exercising the tenancy rights, the tenant would have to perform

the reciprocal obligation of paying rent in whole or part. In the present case,

once the other legal heirs have not paid any rent to the respondent-landlord

and also are not in any manner found to be connected with or showing

interest in the tenanted shop, they no-longer remained as co-tenants and they

would have been deemed to have impliedly surrendered their tenancy;

implied surrender being one method of cessation of tenancy in view of

Section 111(f) of the Transfer of Property Act, 1882.

9. In view of the above, it is clear that the petitioner/tenant is obdurately

and maliciously continuing to stay in the tenanted premises although

respondent-landlord has a bona fide need of premises for his office purposes

as an Advocate. As already stated above, petitioner ought to have vacated

within six months of passing of the impugned judgment on 14.2.2011 but he

has not vacated the suit premises. In view 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 that after passing of the eviction order, the tenant is

liable to pay mesne profits and not the earlier contractual rent, therefore, this

petition is dismissed with costs of Rs. 1 lakh and which amount be appropriately

adjusted by the respondent-landlord towards his claim of mesne profits for

the illegal stay of the petitioner in the suit premises beyond six months of

passing of the impugned judgment dated 14.2.2011.

JULY 25, 2014                                   VALMIKI J. MEHTA, J
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