Usha Devi & Ors. vs Shri Ranjeet Singh
2014 Latest Caselaw 5145 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+           RC.REV.No.440/2012 & C.M.No.15123/2012 (Stay)

%                                                    14th October, 2014

USHA DEVI & ORS.                                            ......Petitioners
                          Through:       Mr.G.P.Thareja, Advocate.

                          VERSUS

SHRI RANJEET SINGH                                         ...... Respondent

                          Through:       Mr.K.V.Mavi with Mr.B.P.Mishra,
                                         Advocates.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This petition under Section 25B(8) of the Delhi Rent Control Act,

1958 (hereinafter referred to as 'the Act') impugns the judgment of the

Additional Rent Control dated 09.4.2012 by which the leave to defend

application filed by the petitioners/tenants has been dismissed and eviction

has been ordered with respect to the suit/tenanted premises being one shop

on the ground floor of the property bearing no. H-6, Vijay Chowk, Laxmi

Nagar, Delhi - 92.

2. In a petition for bonafide necessity filed under Section 14(1)(e) of the

Act, three aspects have to be shown for the landlord to succeed. Firstly there

exists a relationship of landlord and tenant between the parties. Secondly it

has to be seen that the landlord requires the premises bonafidely for his need

and/or for his family members. Thirdly, landlord must not have an

alternative suitable accommodation.

3. In the present case, it is the second and third aspects which are argued

before this Court as to the petition for eviction not being bonafide and the

respondent/landlord having alternative suitable accommodations.

4. The subject eviction petition for bonafide necessity was filed by the

respondent/landlord by stating that his sons have grown up and are aged 21

years and 15 years (when the eviction petition was filed in 2011), and the

wife of the respondent/landlord therefore has sufficient time to devote to the

business, she comes from a business family, and therefore she needs the

suit/tenanted premises for opening of business of cosmetics and ladies

jewellery.

5. In the leave to defend application, the petitioners/tenants allege that

the respondent/landlord has various properties, and which are alternative

suitable accommodations i.e; (i) H-65, Laxmi Nagar, Delhi - 92; (ii) A-145,

Shakarpur, Delhi; (iii) Shop No. 252, Kamla Market, New Delhi; (iv) Shop

No.255, Kamla Market, New Delhi, and; (v) G-75, Vijay Chowk, Laxmi

Nagar, Delhi. The respondent/landlord has in response categorically denied

that he owns any of the properties or the businesses as alleged to be carried

out in the aforesaid properties.

6. I do not find any error in this conclusion of the Additional Rent

Controller, rejecting the stand of the petitioners/tenants as regards the

alternative suitable accommodation inasmuch as bald averments made in the

leave to defend application of the respondent/landlord owning properties

cannot create triable issues, otherwise, in every case all that the tenants will

have to do is to set up an imaginary ownership of a property said to belong

to the respondent/landlord, and the courts then will be forced to grant leave

to defend, because the tenants will contend that a bonafide triable issue

arises on account of the landlord owning various properties. That is

however not the law because there is a difference between a triable issue and

a bonafide triable issue. A bonafide triable issue means that the issue must

be reasonably raised and there must be some prima facie merit in the issue

for the same to become a bonafide triable issue. It is settled law that bald

averments cannot create triable issues. Counsel for the respondent before

this Court again reiterates that the respondent/landlord has nothing to do

with any of the five properties as aforesaid and which are not owned either

by the respondent/landlord or any of his family members.

7 (i) Two other properties which are stated to be alternative suitable

accommodations is one shop in the possession of the respondent/landlord in

the very same property in which the suit/tenanted premises are situated and

portions on the first floor and second floor of the same property which are

said to be used as a hostel by the landlord as per the case of the

petitioners/tenants. It is argued that since the respondent/landlord is carrying

on business in these portions of the property bearing no.H-6, Vijay Chowk,

Laxmi Nagar, Delhi, the respondent/landlord has alternative suitable

accommodation, and hence the eviction petition filed is not bonafide.

(ii) This argument urged on behalf of the petitioners/tenants totally lacks

substance because a property to be an alternative suitable accommodation

must be a vacant property. It is not the case of the petitioners/tenants that

the other portions of the property no.H-6 are vacant because admittedly the

case of the petitioners/tenants is that the respondent/landlord is carrying on a

business from the other portions. Once the portions which are alleged to be

alternative suitable accommodations are not vacant, the said portions cannot

be said alternative suitable accommodations because it is not the law that the

landlord must stop his own business being run by him and must surrender

the possession of that portion for his wife for carrying on of a business by

her.

(iii) Therefore in my opinion, there is no other alternative suitable

accommodation available to the respondent/landlord where his wife can start

the business of cosmetic and ladies jewellery.

8. Counsel for the petitioners/tenants argues that the wife of the

respondent/landlord has no experience, and therefore the need is not

bonafide, however, I need not dilate on this aspect because the Supreme

Court has now in a catena of judgments held that no prior experience is

required when a petition is filed for bonafide necessity because experience is

gained only after the business is started and not having prior work

experience is not a disqualification for starting of a new business and

seeking eviction of a tenant on the ground of a bonafide need.

9 (i) The last argument which was urged on behalf of the

petitioners/tenants was by placing reliance on the judgment of the Supreme

Court in the case of Santosh Devi Soni Vs. Chand Kiran (2001) 1 SCC 255,

and on the basis of this judgment it is contended that once the need is for

additional accommodation, leave to defend should be granted.

(ii) This argument urged on behalf of the petitioners/tenants by placing

reliance on the judgment of Santosh Devi's case (supra) is misplaced for

various reasons. Firstly, the judgment in the case of Santosh Devi (supra) is

actually only a short order which essentially contains just two paragraphs.

No facts of the case are stated in the cited order, and therefore it is not

possible to decipher as to what was the extent of existing accommodation

already available and because of which the leave to defend was granted.

Surely, the Supreme Court was not laying down the law in Santosh Devi's

case (supra) that even when the accommodation with the landlord was

grossly insufficient, and even one or more rooms are clearly found to be

required by the landlord and his family members, then merely because the

landlord already has an accommodation then leave to defend must be

granted in all cases. For example admittedly additional accommodation may

be required because landlord has five family members and has only one bed

room, and such a case will be a case of additional accommodation, but in

such cases it cannot be argued that the leave to defend is bound to be granted

because additional accommodation is sought. As held by the Supreme Court

in the Constitution Bench judgment in the case of Padma Sundara Rao &

Ors. Vs. State of Tamil Nadu & Ors, (2002) 3 SCC 533 that ratio of a case

is facts specific and even a single fact can make a difference to the ratio of

two cases. The relevant para of the judgment in the case of Padma Sundara

Rao (supra) observing so reads as under:-

"9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v.British Railways Board (1972) 2 WLR 537. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases."

(iii) Another reason why the decision of Santosh Devi's case (supra) does

not apply to the present case is that the present is not a case of bonafide

necessity for an additional accommodation for the respondent/landlord, but,

the requirement is for a premises for starting of a new business by the wife

of the respondent/landlord. It is not that the wife is already carrying on

business and she needs the additional accommodation to expand her

business and, therefore really the cited order in the case of Santosh Devi

(supra) has absolutely no application to the facts of the present case.

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

therefore dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J OCTOBER 14, 2014 KA