Delhi High Court
Sh. Sohan Lal Gupta vs Sh. Nand Kishore on 28 July, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC REV No. 33/2012
% 28th July, 2014
SH. SOHAN LAL GUPTA ......Petitioner
Through: Mr. Ankit Jain, Advocate.
VERSUS
SH. NAND KISHORE ...... Respondent
Through: Mr. Tamay Nagar, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
+ RC. REV. No.33/2012, C.M. Nos. 1263/2012 (for stay) & 1264/2012
(for additional documents)
1. This petition is filed under Section 25B(8) of the Delhi Rent
Control Act, 1958 (hereinafter referred to as 'the Act') impugning the
judgment of the Additional Rent Controller dated 3.11.2011 which has
dismissed the leave to defend application filed by the petitioner/tenant and
has directed eviction from the tenanted premises being one shop no.2
forming part of property bearing Municipal no.1464 (new) (743/E old no.),
RC REV No.33/2012 Page 1 of 5
Gurudwara Road, Kotla Mubarakpur, New Delhi-110003.
2. The case of the respondent/landlord was that he needed the suit
shop/tenanted premises for opening of a business with respect to selling of
paints, enamels, hardware and sanitary items by his son Sh. Gaurav Verma.
It was stated that the suit property is situated in a busy market and which is
very suitable for running of the business by the son of the
respondent/landlord.
3. Before the court below, though there were disputes raised with
respect to relationship of landlord and tenant and also with respect to the
tenanted premises being not of the respondent, these aspects have not been
urged before me. Only two aspects are urged before this Court and which
are that firstly the premises in which the respondent/landlord is living
namely 1898/1, Uday Chand Marg, Kotla Mubarakpur, New Delhi, there is
one shop which is vacated and such shop is an alternative suitable premises,
and the second aspect is that the respondent has recently sold one shop
which is adjacent to the tenanted premises to one Sh. Sattu of M/s. Balaji
Kiryana Store and which is a shop if it would have not been sold would be
an alternative premises.
4. Both the arguments urged on behalf of the petitioner are
misconceived and liable to be rejected. The reasons are given hereinafter.
RC REV No.33/2012 Page 2 of 5
5. So far as the shop existing in the residence of the respondent is
concerned, it could not be disputed before this Court that it is not the case of
the petitioner/tenant before the Additional Rent Controller that the
residential premises where the alleged shop is available to the
respondent/landlord is situated in a busy market like the tenanted shop. I
may also note that the respondent/landlord has disputed the aspect that at all
there is any shop which is available in his residence from where the son of
the respondent/landlord can carry on business. In any case, taking the case
of the petitioner at best that would mean that there is one shop at a premises
which is not in the main market and in law it is not open to a tenant to
dictate to the landlord which premises are more suitable for carrying on the
business and in the present case undoubtedly the tenanted premises in the
market is more suitable than another premises which is away from the
market and not in the middle of the market. This has been held by the
Supreme Court in the case of Anil Bajaj and Anr. Vs. Vinod Ahuja in Civil
Appeal No.5513/2014 decided on 8.5.2014 : 2014 (210) DLT 58 (SC).
Therefore, though the so called shop in the tenanted premises is actually not
existing, but even if it is existing, the same is not an alternative suitable
premises.
6. The second aspect urged was that there was a shop to the
RC REV No.33/2012 Page 3 of 5
adjoining tenanted premises which has been sold by the respondent. On the
first blush this argument seemed to have merit, however, the Additional Rent
Controller notes that the petitioner did not file any document and this was
only a bald plea. The petitioner has thereafter filed a document in this Court
to show that the adjacent shop was sold about six years prior to filing of the
eviction petition, and though I cannot look this document in view of the
judgment of the Supreme Court in the case of Prithipal Singh Vs. Satpal
Singh (dead) through LRs (2010) 2 SCC 15 which requires that all grounds,
all facts and all documents have to be stated and filed within the inflexible
statutory period of 15 days for filing of the leave to defend application, and
beyond which period there cannot be condonation of delay particularly even
one day, yet if the document is looked into it is clear that the transfer of the
shop by means of the general power of attorney is around more than six
years prior to filing of the eviction petition and therefore it cannot be stated
that the shop which was sold six years prior to filing of the eviction petition
would amount to an alternative premises because Courts cannot dictate as to
how the landlord wants to utilize his property including by selling of the
same and getting moneys from the same because moneys would be required
by any person for myriad reasons. And even which has happened more than
six years prior to filing of the eviction petition, in my opinion, cannot raise a
RC REV No.33/2012 Page 4 of 5
bonafide triable issue.
7. 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.
At the time of dismissing of this petition, it is made clear that interim
order dated 23.1.2012 passed by learned Single Judge of this Court directing
interim user charges at the rate of Rs.20,000/- per month 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 is confirmed.
JULY 28, 2014 VALMIKI J. MEHTA, J.
Ne
