Raj Kumar Pahwa vs Shri Rajiv Gupta
2014 Latest Caselaw 6225 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+              RC. REV.Nos.474/2013,107/2014, 108/2014 & 110/2014

%                                                     27th November, 2014

1.    RC. REV. No.474/2013

RAJ KUMAR PAHWA                                ..... Petitioner
                          Through:   Mr. G.P. Thareja, Advocate.


                          Versus


SHRI RAJIV GUPTA                                        ..... Respondent

Through: Mr. Shahid Ali, Advocate with Mr. Mohd. Shariq, Advocate and Mr. Rishi Vohra, Advocate.

2.    RC. REV. No.107/2014

SH. LALIT KUMAR ARORA                                ..... Petitioner
                  Through:           Mr. Aly Mirza, Advocate.


                          Versus


SHRI RAJEEV GUPTA                                       ..... Respondent
                          Through:   Mr. Shahid Ali, Advocate with Mr.
                                     Mohd. Shariq, Advocate and Mr.
                                     Rishi Vohra, Advocate.

3.    RC. REV. No.108/2014

SH. AJAY CHOPRA                                      ..... Petitioner
                          Through:   Mr. Aly Mirza, Advocate.




                           Versus


SHRI RAJEEV GUPTA                                           ..... Respondent
                          Through:       Mr. Shahid Ali, Advocate with Mr.
                                         Mohd. Shariq, Advocate and Mr.
                                         Rishi Vohra, Advocate.
4.    RC. REV. No.110/2014

SH. DALIP CHOPRA                                         ..... Petitioner
                          Through:       Mr. Aly Mirza, Advocate.


                          Versus


SHRI RAJEEV GUPTA                                           ..... Respondent
                          Through:       Mr. Shahid Ali, Advocate with Mr.
                                         Mohd. Shariq, Advocate and Mr.
                                         Rishi Vohra, Advocate.


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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

RC. REV Nos. 107/2014, 108/2014 & 110/2014

1. These rent control revision petitions have been filed under

Section 25B(8) of the Delhi Rent Control Act, 1958 (hereinafter referred to

as 'the Act') impugning the judgments of the Additional Rent Controller

dated 21.10.2013 by which the Additional Rent Controller has dismissed the

leave to defend applications filed by the petitioners and has decreed the

bonafide necessity eviction petitions with respect to the tenanted shops

situated in property no.1, Krishna Market, Lajpat Nagar-I, New Delhi-24.

This common judgment will dispose of all the petitions because the landlord

in all the cases is same and though tenants are different, they are tenants of

adjoining shops and the need projected in the bonafide necessity eviction

petitions is for all the shops simultaneously.

2(i) The case of the respondent/landlord in the eviction petitions

was that he used to earlier carry on the business of dry cleaning with his

father in one shop in the very same premises bearing shop no.1, however

subsequently the business was closed. Respondent/landlord stated that he

thereafter started assisting his wife in ladies clothing and tailoring business

which is being carried on at the second floor of the same premises and over

the years he has received experience for doing the business of ladies clothing

and tailoring. It is pleaded that for carrying on the business of ladies

clothing and tailoring i.e a ladies boutique shop which will contain a glass

facade, a lady's trial room, space for peeco machine, space for over locking

machine and three stitching tailors space with sewing machines as also a

wooden counter necessary for fabrication of clothing and dress material are

required. All the aforesaid activities are required for a ladies boutique shop

and which will be satisfied by eviction of the petitioners from the three

shops bearing nos.1/2, 1/4 and 1/5 in the premises.

(ii) Respondent/landlord in the eviction petitions also pleaded that

the finances which were received from rent were not sufficient for his family

which comprises besides himself, his wife and two minor school going

children. Though the eviction petitions, in the opinion of this Court, could

have been drafted better by giving more details, however, in the replies to

leave to defend applications which were filed by the respondent/landlord it

was clarified that the rent which was received from shop no.1 on the ground

floor from where original dry cleaning business was carried out, and which

has been let out to Apollo Pharmacy at a rent of Rs. 53,000/- /Rs.55,000/-

per month, is not enough for his family comprising of himself, his wife and

two minor school going children and for due maintenance of the family and

hence a business has to be carried out of a ladies boutique in the shops in

question. Respondent/landlord also stated that the business is being

presently carried out in the second floor of the property with his wife and

surely therefore the shops on the ground floor, and which are on the main

road, would be much more suitable for carrying on the business of the ladies

boutique.

3. In an eviction petition for bonafide necessity which is filed

under Section 14(1)(e) of the Act, three aspects are required to be seen viz

firstly there is a relationship of landlord and tenant between the parties and

that the landlord is the owner of the property, secondly it has to be seen that

the premises are bonafidely required by the landlord and/or his family

members and finally/thirdly it is required to be seen that landlord has no

other alternative suitable accommodation.

4. Before me, on behalf of the petitioners/tenants the following

aspects are argued:-

(i) The respondent is not the owner-landlord of the premises inasmuch as

the registered Will of the grand-father of the respondent/landlord dated

21.9.2005 has been cancelled by a subsequent registered cancellation deed

dated 9.11.2005. It is argued that hence the respondent is not the owner of

the suit/tenanted shops. Petitioners also denied that the respondent is the

landlord of the premises and they denied that any rent has ever been paid by

them to the respondent/landlord.

(ii) The need of the respondent/landlord is not bonafide because just in

the previous year prior to the filing of the eviction petition, the

respondent/landlord has let out the shop no.1 to Apollo Pharmacy and is

earning rent of Rs. 53,000/- /Rs.55,000/- per month and if the

respondent/landlord really had bonafide need for commercial purposes, he

should not have let out the shop no.1 to Apollo Pharmacy.

(iii) The respondent/landlord has various other properties and these

properties can satisfy the bonafide need of the respondent/landlord.

5. The first argument which is urged on behalf of the petitioners

does not have any merit because admittedly the respondent is one of the co-

owners of the property. The suit property was owned by the grand-father of

the respondent/Sh. Rajeev Gupta and Sh. Bharat Bhushan, the father of the

respondent/landlord/Sh. Rajeev Gupta has already expired. Therefore, the

respondent/landlord is one of the co-owners of the suit property and it is

settled law by a catena of judgments of the Supreme Court that one of the

co-owners can always file the bonafide necessity eviction petition unless it is

established on record that other co-owners are objecting to the same. In the

present case, no objections of any other co-owners have been filed on record

to show that the other co-owners are objecting to the bonafide necessity

eviction petition. I may also state that the Additional Rent Controller has

noted in the impugned judgments that the petitioners/tenants themselves had

filed petitions for deposit of rent under Section 27 of the Act and in which

petitions the respondent is shown to be one of the co-owners and landlord

of the property. The first argument urged on behalf of the petitioners is

therefore rejected.

6. The second argument which is urged on behalf of the

petitioners is also without any merit inasmuch as surely in today's date and

age to live in a city of Delhi it cannot be said that a sum of Rs. 53,000/-

/Rs.55,000/- per month received from the tenant Apollo Pharmacy is good

enough for the landlord and his family members. No tenant can deny the

right of the landlord and his family to progress and live a better life by

starting the business in a more convenient location viz on the ground floor

tenanted shops. The respondent/landlord alongwith his wife from the second

floor of the property is already doing ladies clothing work and therefore the

respondent/landlord is entitled to open a boutique once he has received the

necessary experience with respect to ladies clothing. Of course, I must

hasten to add that the Supreme Court has held in a catena of judgments that

the landlord need not have even a single day of prior experience in case he

wants to carry on business because experience is derived after the business is

carried out. Therefore, even the second argument urged on behalf of the

petitioners is rejected.

7. The third argument which is urged on behalf of the petitioners

is that the respondent/landlord has many properties, but, this argument is a

most vague argument and is only a bald assertion inasmuch as in the leave to

defend application no details have been given of any of the alleged

properties which were owned by the respondent/landlord. Also, it has been

held by the Supreme Court in the judgment 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 has to be necessarily stated within 15

days prescribed statutory period for filing of the leave to defend application

and there cannot be extension of even one day i.e there cannot be

condonation of even one day's delay in filing of the leave to defend

application. Therefore, effectively the Supreme Court has stated that after

the statutory period of 15 days, no ground or facts in the form of an

additional affidavit etc. can be stated for seeking leave to defend and

whatever has to be stated for grant of leave to defend, and which arise before

the expiry of 15 days statutory period, has to be necessarily stated in the

leave to defend application. Relying upon the judgment of the Supreme

Court in the case of Prithipal Singh (supra) a learned Single Judge of this

Court in the case of Madhu Gupta Vs. Gardenia Estates (P) Ltd. 184

(2011) DLT 103 has held that after the 15 days statutory period of filing the

leave to defend application, amendment cannot be granted to leave to defend

application for adding additional facts or grounds for seeking leave to

defend. Therefore, once no details of the properties have been mentioned in

the leave to defend applications, subsequently thereafter the

petitioners/tenants cannot now add allegations of any properties to claim that

the respondent/landlord has alternative suitable properties and therefore

leave to defend should be granted.

8. In view of the above, there are no merits in the petitions which

are therefore dismissed. No costs.

RC. REV. No.474/2013

9. All the facts as stated while dismissing the aforesaid eviction

petitions will apply so far as the present petition is concerned with the

variation that the respondent/landlord had not stated in the eviction petition

in this case that there was still a financial constraint even after letting out of

the shop to Apollo Pharmacy at Rs. 53,000/-/Rs.55,000/- per month. The

issue is whether lack of such an averment is sufficient for grant of leave to

defend. In the peculiar facts of this case, and which is connected with other

cases, and since in all the cases the respondent/landlord has taken up a

specific case of requiring on the ground floor shops, sufficient space for a

lady's trial room, space for peeco machine, space for over locking machine

and three stitching tailors space with sewing machines as also a wooden

counter necessary for fabrication of clothing and dress material etc etc

actually therefore the need of the respondent/landlord will be for all the

shops together on the ground floor including the shop in this case. I may

state that though the eviction petition could have been drafted better,

however, in my opinion, whatever lacuna has been left out in the same is in a

way made up by filing reply to the leave to defend application by the

respondent/landlord wherein it is specifically mentioned that there is

financial constraint in spite of a sum of Rs. 53,000/-/ Rs.55,000/- per month

being received from the tenant. Considering therefore the peculiar facts of

this case and which is connected with other petitions which have been

dismissed, the present petition is also therefore dismissed. No costs.

VALMIKI J. MEHTA, J NOVEMBER 27, 2014 Ne