Kishan Chand vs Meera
2015 Latest Caselaw 9389 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                   RC. REV. 70/2015 & C.M. No.2551/2015

                                         Decided on: 17th December, 2015

KISHAN CHAND                                           ...... Petitioner
                     Through:        Mr. Rakesh K. Sharma, Advocate with
                                     Mr. Satya Prakash, Advocate &
                                     Mr. Deepak Chauhan, Advocate.

                            versus

MEERA                                                  ..... Respondent
                     Through:        Mr. K.B. Rohatgi, Advocate with
                                     Mr. Mahesh Kasana, Advocate.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. By virtue of the present revision petition, a challenge has laid to the

order dated 30.09.2014 passed by the learned Additional Rent

Controller-1, (Central), Tis Hazari Courts, Delhi in Eviction

Petition No.E-109/12, titled Meera v. Kishan Chand by virtue of

which the leave to defend application of the petitioner was rejected

and an order of eviction was passed.

2. It has been contended by the learned counsel for the petitioner that

the order of rejection of leave to defend is being assailed

essentially on two grounds. Firstly, that during the pendency of the

present petition, the respondent-landlady has been able to obtain

eviction order in respect of the front portion of shop No.93,

situated in Old Rajinder Nagar, New Delhi on the ground of second

default on account of non-payment of rent. Though the appeal

against the said eviction order has already been dismissed, it has

been stated that the respondent-landlady has still not filed

execution petition for retrieval of possession of the front portion

but still the said accommodation can be considered to be an

alternative suitable accommodation available to the respondent-

landlady and consequently, the present order of eviction is bad in

law as it has not taken into consideration the availability of an

alternative suitable accommodation to the respondent-landlady to

carry on her business.

3. It has also been stated by the learned counsel that for this very front

portion of shop, the respondent-landlady had also filed an eviction

petition on the ground of bona fide requirement which has also

been allowed, therefore, the respondent-landlady is at a very

advantageous position in seeking eviction of the tenant who is in

front portion of the shop in question which is almost the same in

measurement.

4. The second objection which has been raised by the learned counsel

for the petitioner is to the effect that the respondent-landlady has

certain accommodation available to her on the first floor of the suit

property wherefrom a boutique can be run by her and it has to be

considered as a suitable alternative accommodation available to the

respondent-landlady and consequently, the eviction order against

the present petitioner could not have been passed.

5. I have carefully considered the submission made by the counsels

and have also gone through the impugned order.

6. I do not find that there is any illegality, impropriety or

jurisdictional error in the order of eviction passed against the

present petitioner after rejection of his leave to defend application.

This is on account of the fact that so far as the eviction of the

present petitioner from the shop in question is concerned, it forms

part of the larger shop situated on the ground floor of the suit

property. The respondent-landlady has stated in the eviction

petition that she requires the premises in question for the purpose

of setting up a boutique along with her daughter with the help of a

relative, namely, Mrs. Kamal Bhatnagar. It has also been admitted

by her that she has no personal knowledge about the running of a

boutique and therefore, she would be dependent on the expertise of

said Mrs. Kamal Bhatnagar.

7. It has also been stated that the respondent-landlady has only one

daughter, namely, Shama, who is married and having an infant son.

It has been admitted by the respondent-landlady that during the

period when her daughter goes to office she leaves her son with the

respondent-landlady. The respondent-landlady has also stated in

the eviction petition that her daughter would be also assisting her in

the running of the business of boutique.

8. The petitioner has raised objection to this and stated that both the

daughter of the respondent-landlady as well as her husband are

employed and therefore, their need cannot be considered to be the

need of the respondent-landlady.

9. I do not agree with the submission that the need of the daughter

cannot be considered as the need of the mother who owns the

property. This is because of the fact that admittedly it is not in

dispute that the respondent-landlady has only one daughter and no

son and therefore, she wants to do some business where she can

actively assist her mother also. In any case, the daughter of the

respondent-landlady is leaving her son with the respondent-

landlady in the morning, if that be so, it would be more beneficial

and convenient for her to leave the job and do the business as she

will be able to attend to her children also. Therefore, this plea of

the learned counsel for the petitioner is bereft of any logic.

10. Last but not the least is the fact that the petitioner has alleged that

there is some accommodation available to the respondent-landlady

on the first floor but this accommodation on the first floor cannot

be considered to be conducive for the purpose of running the kind

of business which she intends to do. No boutique which run from

the first floor in the residential areas will ever attain success

because the customers are reluctant to climb up the stairs and go to

an isolated showroom of boutique, therefore, I feel that the

boutique ought to be run on the ground floor and the entire shop is

appearing as one property as is evident not only from the property

details but also from the fact that there is no pacca wall inside the

shops. Both the shops being equal in measurement, I feel even if

the respondent-landlady is able to retrieve possession of the first

half of the portion of the shops even then she would require

additional back portion because for a boutique, the area of 13 ft. x

20 ft. would not be sufficient enough to meet her requirements.

11. I feel that the requirement of the respondent-landlady is genuine

and bona fide and it cannot be doubted.

12. I accordingly feel that the present petition filed by the petitioner is

totally misconceived and accordingly, the same is dismissed and

the impugned order dated 30.09.2014 rejecting the leave to defend

and passing of the eviction order is upheld.

13. The period of six months has already expired long back. The

petitioner is given time till 31.01.2016 to vacate the premises in

question, failing which the respondent can seek execution of the

order of eviction.

14. With these observations, the petition is dismissed.

15. Pending application also stands disposed of.

V.K. SHALI, J.

DECEMBER 17, 2015 vk