Sh Hanif Solanki vs Sh. Babu Lal
2014 Latest Caselaw 2818 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                          Date of Decision: 30.05.2014

+      C.R.P.No.149/2013

       SH HANIF SOLANKI                            ..... Petitioner
                    Through:           Mr. Piyush Prabhakar, Adv.

                          Versus

       SH. BABU LAL                                ..... Respondent

                          Through:     Mr. J.C. Mahindroo with
                                       Mr. Ankur Mahindroo, Advs.

       CORAM:
       HON'BLE MR. JUSTICE NAJMI WAZIRI

%      MR. JUSTICE NAJMI WAZIRI

1. The present petition impugns an order dated 30.4.2013 which

directs eviction of the petitioner from a shop bearing No. 968

Gurudwara Road, Kotla Mubarkpur admeasuring 3'x6'. The

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

Rent Control Act was allowed while denying the petitioner's/tenant's

leave to defend application. Counsel for the petitioner argues that the

Trial Court fell into error in not considering certain triable issues

raised in the leave to defend, such as the petitioner had not come to the

Court with clean hands and had suppressed the material facts that the

two shops in the same building were being run by his two sons who

were under the supervision of the landlord and the owner of the

property No.969, Gurdwara Road, Kotla Mubarakpur and property

No. C-74, Shiv Gali, Nanak Chand Basti, Kotla Mubarakpur from

where he is receiving a huge rent and another shop lying vacant

adjoining to the shop of the tenant; that the eviction petitioner had

merged another shop admeasuring 5'x8' into the shop run by Sh. Raj

Kumar, his son; that the tenant would be put into severe hardship if he

is evicted from the premises since he has no other premises from

where he could run his business. He also disputed the site plan filed

by the landlord. In reply, all rights, title and interest in property No.

969 Gurdwara Road, Kotla Mubarakpur were categorically denied by

the landlord. It was admitted that C-74, Shiv Gali, Nanak Chand

Basti, Kotla Mubarakpur comprising about 40 sq.yds. was in

possession of the tenants, therefore the same could not be taken into

consideration as alternate accommodation. Another shop having an

area of 2.6'x2.6' was considered too small and unsuitable for the

commercial activities proposed. It was further denied that one shop

was merged into the shop of Raj Kumar. The landlord further stated

that in total there are five shops on the ground floor of the property out

of which one shop was in the possession of Santosh Jindal and another

in possession of the Anil Kumar. The third shop measuring 4.10'x4'

had been sold long ago to one Sh.Trilok Chand due to paucity of funds

as well as lack of space the bonafide need could not be fulfilled. It

was submitted that the suit shop and the fourth shop were tenanted

premises and fifth one was so called adjoining shop admeasuring

2.6'x2.6'. The petition was filed on the ground that the petitioner was

73 years of age and that he has five sons one of whom aged 45 years

old suffered from 80% permanent physical disability while the two

other sons aged 40 years and 37 years respectively suffered from

mental disability of autism. Hence they were totally dependent upon

their father and the meagre income from rent of the two shops was

woefully insufficient for their maintenance. The petitioner had

contended that his two other sons had separated themselves from the

petitioner leaving the latter to fend for himself and also to take care of

his three disabled sons. That the tenanted premises were required to

run/start small scale business of mobile repairing as which would not

require much investment. The petitioner did not conceal the dismissal

of an earlier civil suit seeking possession of the premises hence the

eviction petition was filed on bonafide ground. After perusing the

records with respect to the physical disability and considering the age

of the petitioner being over 73 years, the Court came to the conclusion

that the need of the petitioner was genuine and the age cannot be a bar

to deny the persons need or doubt his ability to work. It rejected the

arguments of the tenant that a person of 73 years of age cannot work.

Neither could non-experience of a business be considered a

disqualification for venturing into that field. The Court reasoned that

the need for tenanted premises has to be weighed in the light of the

proposed business which he intends to do and that it is neither for the

Court nor the tenant to dictate the landlord in the context of his age as

to which type of business the landlord should engage himself in. The

Court also relied upon the fact that landlord is the best judge of his

requirement and has complete freedom of choice in the matter who

can know the suitability of the premises for making out the case for a

bonafide need. The Court relied upon the ratio of judgment in

Ragavendra Kumar vs. Firm Prem Machinary & Co., AIR 2000 SC

534, accordingly found no triable issue with respect to the bonafide

need being in doubt considering the advanced age of the petitioner and

his lack of experience in the intended field of business with respect to

the alternate suitable accommodation, the Court found that property is

already in the occupation of the tenants which could not be considered

as being available to the landlord and such property would not be

considered to be an alternate accommodation. It relied upon Rajender

Kumar Sharma vs. Leela wati, 155 (2008) DLT 383 which held that

mere assertions by a tenant apropos landlord's ownership of other

buildings and in respect of alternate accommodation cannot be

considered an exceptional ground to grant leave to defend. The Court

must prima facie some substance in such contentions supported by

some material. In the absence of which, it would not be considered as

a triable issue. The Court rightly considered that space of 2.6'x2.6'by

any stretch of imagination cannot be considered as sufficient space for

carrying on any business and that the petitioner merged another shop

measuring 5'x8' with the shop run by Raj Kumar it could not be said

that the said space was available with the petitioner. This Court is of

the view that apart from a bald averment to the effect in the absence of

any site plan to show which area was available in the first instance and

with which shop it was merged. It could not be concluded that such

additional space of 5'x8'was available to the landlord. The Trial

Court rightly concluded that there was no triable issue made on this

ground.

2. Learned counsel for the petitioner traversed virtually the same

arguments as were raised before the Trial Court and contended that the

need which could neither bonafide and that alternate accommodations

were available to the landlord, however which are thus alternate

accommodations has not been substantiated before this Court to show

as to where the Trial Court has erred in coming to the conclusion

arrived at. The grounds seeking setting aside by modification of the

impugned order do not specify the alternate property which could be

deemed to be available to the respondent/landlord. Special emphasis

was laid upon the advanced age i.e. 73 years of the landlord therefore

it was argued that it could not be considered. It was specially

emphasised that since the landlord was 73 years old, there was no

special reason for starting new business all of a sudden. This ground

is vague and untenable. The Court finds that age cannot be a limiting

factor or detriment in the endeavour of the human beings. There are

instances of people being healthy at that age and with the

advancement and availability of medical care has provided longevity

to human beings. People are known who are carrying on business to

manage their affairs by themselves or with the assistance of persons

who could be engaged to run their business. Therefore the said

ground is not tenable. Furthermore, the landlord clearly made out a

ground that his three sons who were physically and mentally

incapacitated were entirely dependent on him and he urgently and

bonafidely required the premises to start business which would

augment his income. Mr. J.C. Mahindroo, learned counsel for the

respondent submits that the Trial Court had considered the medical

records to conclude that sons of the landlord were disabled.

3. In the circumstances, the need for the tenanted premises was

rightly held to be bonafide. No grounds have been made out to

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

dismissed.

NAJMI WAZIRI (JUDGE) May 30, 2014/ak