Sh. Dina Nath (Now Deceased) ... vs Sh. Manohar Lal Kapoor
2014 Latest Caselaw 5541 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 RC.REV.No.300/2012 and C.M. No.11729/2012 (stay)

%                                                    7th November, 2014

SH. DINA NATH (NOW DECEASED) THROUGH HIS LEGAL HEIRS
                                                 ......Petitioners
                  Through: Mr. Harish Malhotra, Senior
                           Advocate with Mr. R.K. Modi,
                           Advocate.


                          VERSUS



SH. MANOHAR LAL KAPOOR                                      ...... Respondent

                 Through:                Mr. Ashok Sapra, Advocate.


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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Rent Control Revision 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 29.3.2012

by which the Additional Rent Controller has dismissed the leave to defend

application and has decreed the bonafide necessity eviction petition filed

under Section 14(1)(e) of the Act with respect to the tenanted premises being

shop no.492, Ground Floor, Ward no.14, Bartan Market, Sadar Bazar, Delhi.

2. The respondent/landlord had filed the bonafide necessity eviction petition

claiming the requirement of the suit/tenanted shop for the purpose of

carrying on a business by his second son Sh. Sanjay Kapoor and who is

presently working in a private company at Gurgaon.

3. A reading of the impugned order as also the pleadings and documents

filed in the court below show that undoubtedly since the son of the

respondent/landlord Sh. Sanjay Kapoor is working in a private company, in

law, he can always open his own business by leaving his private job, and

hence the Additional Rent Controller has rightly decreed the bonafide

necessity eviction petition.

I may however hasten to clarify that by an unnecessary error, the eviction

petition has been decreed both for the need of the respondent/landlord and

his son, but the counsel for the respondent/landlord concedes that the

bonafide necessity eviction petition filed was only for the need of the son of

the respondent/landlord Sh. Sanjay Kapoor for carrying on the business in

the suit/tenanted shop.

4. In a petition for bonafide necessity under Section 14(1)(e) of the Act,

three aspects are required to be seen. Firstly, the existence of relationship of

landlord and tenant between the parties. Secondly, the bonafide need of the

tenanted premises for the landlord and/or his family members. Thirdly, the

landlord and his family members must not have an alternative suitable

accommodation.

5. On the aspect of relationship of landlord and tenant, learned senior

counsel for the petitioners/tenants argued that the tenant in the suit/tenanted

shop was a partnership firm of M/s Jamnadas Ramkrishan and that Sh. Dina

Nath was not the sole proprietor of this firm as was the case in the eviction

petition, however, when the learned senior counsel for the

petitioners/tenants was asked to point out as to where is the partnership deed

and that who are partners of M/s Jamnadas Ramkrishan, learned senior

counsel for the petitioners/tenants had no option but to concede that nowhere

in the pleadings who are the partners of the firm is mentioned and nor is the

partnership deed filed. Therefore, in my opinion, a self-serving bald

assertion cannot create a triable issue. The first argument therefore urged on

behalf of the petitioners/tenants that the tenancy is not of the sole proprietor

Sh. Dina Nath of M/s Jamnadas Ramkrishan and is allegedly of a partnership

firm is accordingly rejected.

6. The second argument urged on behalf of the petitioners/tenants is that

the son Sh. Sanjay Kapoor lives in Gurgaon and therefore he is not a part of

the family of the respondent/landlord and consequently the

respondent/landlord cannot claim the need for the business purpose of his

son Sh. Sanjay Kapoor. This argument urged on behalf of the

petitioners/tenants is also misconceived because even if children of a

landlord physically live separately from the landlord in a separate residential

premises, the same cannot mean that they are not family members of the

landlord and for the landlord to claim tenanted premises for the use and

occupation/need of business of children. I need not dilate on this aspect too

much because now it is settled law in view of a chain of judgments of the

Supreme Court that children do not cease to be family members merely

because they are financially independent or are living separately from the

parents in view of the social conditions which exist in this country.

Consequently, the expression 'family' has been liberally interpreted in a

series of judgments to include children who are both financially independent

and living separately from the parents. The second argument urged on

behalf of the petitioners/tenants is also therefore rejected.

7. The third argument which was urged on behalf of the petitioners/tenants

is that the respondent/landlord had alternative suitable accommodation being

one shop which was available to the respondent/landlord in the property

bearing no.488, Bartan Market, Sadar Bazar, Delhi. This shop was however

sold in the year 2006. For the purpose of this argument, reference is made to

pleadings in an eviction petition filed by the brother of the

respondent/landlord one Sh. Kunj Bihari Lal Kapoor. Even this argument

urged on behalf of the petitioners/tenants lacks any substance because

reference to this affidavit shows that since there was a dispute between the

respondent/landlord and his brother, therefore so as to resolve the dispute the

shop in the property no.488, Bartan Market, Sadar Bazar, Delhi was sold.

Once it is found that a shop belonging to the respondent/landlord was sold

for resolving of the disputes, I do not think action of the respondent/landlord

in selling the shop in the year 2006 i.e around two and half years before

filing of the eviction petition, the same can be said to be a malafide act for

the bonafide necessity eviction petition not to succeed.

8. In view of the above, there is no merit in the petition and the same is

therefore dismissed. Respondent/landlord will be entitled to use and

occupation charges till the time the petitioners/tenants occupy the

suit/tenanted premises, from the date of passing of the eviction order in

terms 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 and for

the purpose of which respondent/landlord is given liberty to file execution

proceedings in which the amount of user charges will be decided by the

executing court.

VALMIKI J. MEHTA, J NOVEMBER 07, 2014 Ne