M/S Neeraj Kirana Store vs Sh. Dinesh Chandra Gupta
2014 Latest Caselaw 4871 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+              RC.Rev. No. 416/2012 & CM Nos. 14285/12 (U/o 6 Rule 17
               CPC) & CM No. 14286/12 (stay)

%                                                    26th September , 2014

M/S NEERAJ KIRANA STORE                                     ......Petitioner
                  Through:               Mr. Kirti Uppal, Sr. Adv. with Mr.
                                         Manu Nayyar, Adv. and Mr. Aman
                                         Bhalla, Advocates.


                           VERSUS

SH. DINESH CHANDRA GUPTA                                  ...... Respondent

                  Through:               Mr. Gyan Prakash, Advocate.

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 25-B(8) of the Delhi Rent Control

Act, 1958 (in short 'the DRC Act') impugns the judgment of the Additional

Rent Controller dated 12.3.2012 by which the Additional Rent Controller

has dismissed the leave to defend application filed by the petitioner/tenant

and has decreed the bonafide necessity eviction petition filed under Section

14(1)(e) of the DRC Act with respect to the tenanted premises being two

shops without partition admeasuring 7' ½ ft. X 9' ft. situated on the ground

floor of the property bearing no. 176/2, South Anarkali, Delhi-51 as shown

in red colour in the site plan annexed alongwith the eviction petition.

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

DRC Act, three aspects are required to be shown. Firstly, that the petitioner

in the eviction petition is the owner/landlord of the suit property. Secondly,

it is required to be shown that the landlord requires the premises for his

bonafide need or for the need of his family members. Thirdly, it is required

to be shown that the landlord has no other alternative suitable premises.

3. A reading of the eviction petition shows that the

respondent/landlord states that he requires the suit/tenanted premises

comprising of two shops for the need of his son Sh. Saurabh Gupta who has

completed his MBA and wants to open his office of consultancy in the field

of business process outsourcing industry and finance.

4. In the leave to defend application, and as noted by the

Additional Rent Controller, it is not denied by the petitioner/tenant that son

of the respondent/landlord Mr. Saurabh Gupta is an MBA. The issue

therefore which only arises is whether there is a bonafide need for the son

Mr. Saurabh Gupta and whether the respondent/landlord has an alternative

suitable premises. Additionally, it is very strenuously urged and argued

before this Court that respondent is not the owner/landlord of the suit

premises.

5(i) I will first take the aspect as to whether respondent is or is not

the owner/landlord of the premises, however, at this stage, let me take note

of an argument urged on behalf of the petitioner that eviction petition is

barred under Section 14(6) of the DRC Act as it has been filed before expiry

of five years of the respondent/landlord having been purchased the property.

This argument I reject in limine in view of the ratio of the judgment of the

Supreme Court in the case of Prithipal Singh Vs. Satpal Singh (dead)

through LRs (2010) 2 SCC 15 which states that only those grounds which

are mentioned within 15 days statutory period specified for filing of the

leave to defend application can be considered and that there cannot be

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

application. In effect what the Supreme Court holds is that no additional

affidavit or document which is filed after the statutory period of 15 days can

be considered by the Court for grant of leave to defend application. Relying

on the judgment 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 there cannot be an amendment made to a

leave to defend application after the expiry of the statutory period of 15 days

because that will defeat the ratio of Prithipal Singh's case (supra) which

states that nothing which is stated after the statutory period of 15 days can be

considered for allowing of the leave to defend application. Therefore, the

argument urged on behalf of the petitioner that the eviction petition is barred

by Section 14(6) of the DRC Act having not been taken in the leave to

defend application is rejected.

(ii) The argument is also liable to be rejected in view of the ratio of

the judgment of the Supreme Court in the case of Martin & Harris Ltd. Vs.

VII Additional District Judge, AIR 1998 SC 492 and which holds that if a

defence as per a provision of law made for the benefit of the tenant is not

taken by him, then, that right is to be taken as waived by the tenant.

(iii) At the time of rejecting this argument, I would also like to note

that in the eviction petition respondent/landlord has specifically stated in

para 14 that the present petitioner is the tenant of the respondent/landlord

since 22.3.1993 and the petitioner /tenant has deposited rent in the landlord's

account till the month of April, 2008. These two specific aspects that the

present petitioner became a tenant of the respondent/landlord since

22.3.1993 and rent has been deposited in the bank account of the landlord till

April 2008 is not specifically disputed in the leave to defend application.

6(i) Now coming on to the issue as to whether respondent/landlord

is the owner/landlord of the suit premises. A reference to the leave to defend

application filed by the petitioner/tenant shows that the petitioner/tenant has

not disputed that the respondent is the owner of the suit/tenanted premises

because there is no purchase document, and it is only pleaded that the

purchase document is a sham document. Learned senior counsel for the

petitioner places reliance upon the judgment of the Supreme Court in the

case of Devi Das Vs. Mohan Lal AIR 1982 SC 1213 to argue that courts if

they do not give finding on the issue of sham transaction, then the judgments

have to be set aside and since the Additional Rent Controller has not

adverted to this issue of sham transaction the impugned judgment has to be

set aside.

(ii) No doubt, courts have to consider the aspect which is urged,

and it is also correct for the petitioner to argue that the Additional Rent

Controller has not considered this aspect, however, in my opinion, I can

consider this aspect by using the spirit of provision of Order XLI Rule 24

CPC. As per Order XLI Rule 24 CPC appellate court on basis of the

existing record, can always decide an issue without remanding the matter if

the record is sufficient for the court to decide the issue. Therefore, let us

examine the issue as to whether the ground urged by the petitioner/tenant

that the document of purchase of the property by the respondent/landlord is a

sham document raises or does not raise a triable issue.

7. In my opinion, this issue of a sham transaction does not raise a

triable issue for two reasons. Firstly, as already stated above, landlord made

a categorical averment in the eviction petition that since 1993 the petitioner

herein has accepted the respondent herein as a landlord and rent has been

deposited in the landlord's account till April, 2008. Since this aspect is not

challenged by disputing the same in the leave to defend application, this

aspect stands admitted and consequently, the respondent herein is the

landlord of the suit premises. Secondly, on the issue as to whether the

respondent is the owner of the suit premises, and whether the document of

purchase is a sham document, this argument in the facts of the present case

does not raise a triable issue because a catena of judgments of Supreme

Court hold that who is the tenant to raise the issue of a sham transaction

when the person who has sold the property in nowhere is shown (on the

record of this Court or of the Additional Rent Controller) to have disputed

the title of the respondent/landlord. If the person who sells the property to

the respondent/landlord does not dispute this particular fact, and no rights

are claimed in the suit property by the earlier alleged owner, then merely

taking up a bald plea that the purchase document is a sham document and

ownership rights have not been flown to the respondent/landlord cannot in

my opinion create a triable issue. A tenant has no locus to challenge title

when between the original owner and the present owner being the landlord

in this case, there are no disputes as to the sale/transfer of the suit property.

Hence, this argument on behalf of the petitioner/tenant that the respondent is

not the owner of the suit property, in the facts of the present case, has no

merit and is rejected.

8. Now let us examine as to whether the respondent/landlord has

shown bonafide need to exist for eviction of the petitioner. I have already

stated above the fact that the son of the respondent Sh. Saurabh Gupta is an

MBA and that is not disputed and as so noted in the impugned order. On

behalf of the petitioner, it is very strenuously canvassed that petitioner has

contested the stand of the respondent/landlord by pleading that

respondent/landlord is well settled in U.P, and therefore, this raises a triable

issue, however in my opinion this argument urged on behalf of the petitioner

does not raise a triable issue because the issue is not whether the

respondent/landlord is settled in U.P and does not want to shift in Delhi but

the issue is that whether the son of the respondent/landlord wants to carry on

business from the suit/tenanted premises. In the entire leave to defend

application, it is no where stated that the son of the respondent/landlord does

not intend to carry out any business from the tenanted premises and that Sh.

Saurabh Gupta wants to continue to stay in U.P. No doubt, it is pleaded on

behalf of the petitioner that the son Sh. Saurabh Gupta is well employed and

is earning handsomely but merely because a person is employed cannot

mean that such a person should not leave his job and start his own business

in a premises which is owned by his own father. Therefore, in my opinion,

the respondent/landlord has established a bonafide need with respect to the

tenanted premises for carrying on business by his son Sh. Saurabh Gupta.

9. The third aspect as to the existence of an alternative suitable

premises is not an issue in the present case because it is not the case of the

petitioner/tenant that any alternative premises in Delhi is available to the son

of the respondent/landlord Sh. Saurabh Gupta from which Sh. Saurabh

Gupta can carry on any business.

10. I must also at this stage note one other argument urged on

behalf of the petitioner by placing reliance upon a judgment of the Supreme

Court in the case of A.Shanmugam Vs. Ariya Kshatriay Rajakula

Vamsathu Madalaya Nandhavana Paripalanai Sangam AIR 2012 SC

2010 and it is accordingly argued that a person who does not come to the

court with clean hands is not entitled to any relief. I have really failed to

understand as to why this judgment is even cited because the judgment

which is cited in the case of A.Shanmugam (supra) deals with the issue that

while granting a discretionary relief of injunction courts have to see the

conduct of the party and a person who does not come to the court with clean

hands may not be held to the discretionary relief of injunction. In the present

case, there is no issue of clean hands or injunction or discretionary relief or

otherwise and what has to be seen is whether the need of the

respondent/landlord is bonafide as per the facts of the present case, and

which facts have been examined above, and these facts show that the

respondent has bonafide need of the suit/tenanted premises for the purpose

of carrying on of business by his son who is an MBA.

11. 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. No

costs.

SEPTEMBER 26, 2014                            VALMIKI J. MEHTA, J.
ib