M.C. Goyal vs Sardar Mehar Singh
2015 Latest Caselaw 821 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment pronounced on: 30th January, 2015

+                             RC. REV. NO.575/2012
       M.C. GOYAL                                     ..... Petitioner
                        Through     Mr.Anil Sapra, Sr. Advocate with
                                    Mr. S.K. Gandhi, Adv. and
                                    Mr. Shivanshu Kumar, Advs.

                        versus

       SARDAR MEHAR SINGH                          ..... Respondent
                   Through          Mr. Purushotam Singh, Adv.

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The petitioner by way of the present petition under Section 25B(8) of Delhi Rent Control Act, 1958 (hereinafter referred to as "the DRC Act") read with Sections 115 and 151 CPC has assailed the eviction order dated 5th September, 2012 passed by Additional Rent Controller, North-West, Rohini, Delhi.

2. Brief facts of the case are that the respondent filed an eviction petition against the petitioner in respect of shops No. 1 and 2, ground floor of property bearing No. 1542, Tri Nagar, Delhi (hereinafter referred to as the "tenanted shops"). It was the case of the respondent that the petitioner was inducted as tenant on 18th October, 1978 by late father of the respondent in tenanted shop No.1 and subsequently, the petitioner took tenanted shop No.2 from one Mr. Suresh Kumar who was inducted as a tenant in the tenanted

shop No.2 by the late father of the respondent. It was stated that the father of the respondent accepted the petitioner as his tenant for the tenanted shops, which he merged together. The monthly rent of the tenanted shops at the time of filing of eviction petition was Rs.1350/- per month excluding electricity and water charges. After the death of the father, the respondent being the son became the owner of the tenanted shops.

3. It was stated that the tenanted shops are required by the respondent for his younger son who is residing at the second floor of some other property. The said son of the respondent is practicing as a Reiki Healer whose patients involve old and sick persons. It was averred by the respondent that the patients of his son find it difficult to climb up to the second floor and the tenanted shops being situated at the ground floor are more suitable. It was averred that there is no suitable alternate accommodation available with his younger son which can be used by him as his business place. It was also averred that the respondent has retired from service and he wants to assist his son in the business.

4. In the leave to defend application, the petitioner denied the ownership of the respondent, however admitted that the respondent is the landlord of the tenanted shops and the elder son of the respondent had been collecting rent from him. It was averred that the younger son of the respondent was in possession of the entire tenanted premises. First floor of the premises had been let out to Canara Bank thereby fetching huge rent to the elder son of the

respondent. Thus, there is no bonafide need to evict the petitioner from tenanted premises.

In fact the petitioner disputed the bonafide requirement of the respondent thereby stating that the younger son was 48 years old and not at all dependent upon the respondent. The respondent wanted to increase the rent to which the petitioner did not agree and the eviction petition was so filed to harass the petitioner.

5. In reply to the leave to defend application, respondent denied the contentions of the petitioner and reiterated the averments made by him as stated in the eviction petition.

6. The trial court heard the application for leave to defend and dismissed the same in favour of the respondent by passing the detailed order.

7. With regard to the issue of ownership, the learned Trial Court observed that for the purpose of eviction under the Act, the respondent did not had to prove absolute ownership, except he had to show that he was more than a tenant and used to receive rent from the tenant. Though the petitioner argued that elder son of the respondent had been collecting rent from him and it is the elder son who is the owner of the tenanted shops but no document was placed on record to establish that respondent is the owner or landlord of the tenanted premises. It was further observed that the mere fact that the elder son of the respondent was collecting rent would not make him the landlord, however, in the present case the petitioner himself admitted that the respondent is the landlord. It is for the petitioner to show that if the respondent is not the owner, then who is the owner.

On the other hand, the respondent disclosed how he inherited the tenanted shops from his father. The said contention of the petitioner was rejected.

8. With regard to the issue of bonafide requirement, the learned Trial Court observed that the landlord could seek eviction for bonafide need for himself or for his family members. The respondent being a father, was under an obligation to settle his son. It was observed that the petitioner omitted to furnish details to substantiate his contention regarding the extent of accommodation available with the respondent. Though the respondent stated that his younger son is residing at the second floor of some other property at Rani Bagh and he furnished the address of the said other property by filing a copy of the visiting card along with the petition.

It was observed by the learned Trial Court that bald pleas had been raised by the petitioner that the younger son of the respondent and his wife are residing in House No. 1019, Rani Bagh, Delhi which he owns. The petitioner did not disclose the source of such knowledge. Also, no details were given by the petitioner to the extent of accommodation of the said property. While the petitioner raised vague pleas, the respondent on the other hand filed copy of the electoral rolls for the said property at Rani Bagh which showed that besides the younger son of the respondent and his wife, there were five other people enrolled for the said property showing that the said property is not completely in possession of the younger son of the respondent.

9. Accordingly, in the light of these observations, the learned Trial Court opined that the petitioner had failed to raise any triable issues and so the leave to defend application was dismissed vide the impugned order. Aggrieved thereof, the petitioner has filed the present petition.

10. The question before this Court is whether the said findings of Trial Court call for any interference by this Court in revisionary jurisdiction or not in view of the facts and circumstances of the present case.

i) A Full Bench of this Court in Mohan Lal v. Ram Chopra and Anr., 1982 (2) RCJ 161 exhaustively considered the provisions of Section 25B of the Act. On the scope of the proviso to Sub-section (8) of this Section, after examining the judgment of Supreme Court in Hari Shanker and Ors. v. Rao Girdhari Lal Chowdhury, AIR 1963 S.C. 698 and Bell and Co. Ltd. v. Waman Hemraj, AIR 1938 Bom 223 it was laid down as follows:

"In our opinion the jurisdiction of the High Court under proviso to Section 25B(8) has to be interpreted, keeping in view the legislative intent. The revision under Section 25B(8) cannot be regarded as a first appeal and nor can it be as restricted as the revisional jurisdiction under Section 115 CPC. The High Court would have jurisdiction to interfere if it is of the opinion that there has been a gross illegality or material irregularity which has been committed or the Controller has acted in excess of his jurisdiction or has not exercised the jurisdiction vested in him. A finding of fact arrived at by the Controller would not be interfered with by the High Court unless it can be shown that finding has been arrived at by misreading or omitting relevant evidence and this has resulted in gross injustice being caused. If none of the aforesaid circumstances exist

the High Court would not be entitled to interfere with the order of the Controller in exercise of its jurisdiction under proviso to Section 25B(8) of the Act."

ii) In the case titled as Shiv Sarup Gupta vs. Dr.Mahesh Chand Gupta, reported in AIR 1999 Supreme Court 2507, it has been held as under:-

".....The revisional jurisdiction exercisable by the High Court under S.25-B (8) is not so limited as is under S.115, CPC nor so wide as that of an Appellate Court. The High Court cannot enter into appreciation or re-appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a Court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of 'whether it is according to law'. For that limited purpose it may enter into reappraisal of evidence, that is, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached that conclusion on the material available. Ignoring the weight of evidence, proceeding on wrong premise of law or deriving such conclusion for the established facts as betray the lack of reason and/or objectivity would render the finding of the Controller 'not according to law' calling for an interference under proviso to sub-sec. (8) of S.25-B of the Act. A judgment leading to miscarriage of justice is not a judgment according to law."

iii) The Supreme Court in another case tilted as Chaman Prakash Puri vs. Ishwar Dass Rajput and Another, 1995 Supp (4) Supreme Court Cases 445 has examined the scope with regard to High Court's power to interfere in revision against the finding as to bonafide requirement of landlord. It has been held that if the Rent Controller finds that landlord was in bonafide need of premises, the High Court in revision was not entitled to re-appreciate evidence and reverse the finding.

iv) The Supreme Court in Sarla Ahuja vs United India Insurance Company Ltd., reported in AIR (1999) SC 100 held as under:-

"6. .....The above proviso indicates that power of the High Court is supervisory in nature and it is intended to ensure that the Rent Controller conforms to law when he passes the order. The satisfaction of the High Court when perusing the records of the case must be confined to the limited sphere that the order of the Rent Controller is "according to the law". In other words, the High Court shall scrutinize the records to ascertain whether any illegality has been committed by the Rent Controller in passing the order under Section 25-B. It is not permissible for the High Court in that exercise to come to a different fact finding unless the finding arrived at by the Rent Controller on the facts is so unreasonable that no Rent Controller should have reached such a finding on the materials available."

11. The respondent/landlord in the present case is a senior citizen aged about 83 years. By filing of eviction petition, he mentioned that it is a bonafide requirement as in his life, he wishes to establish his younger son. He claims that he is the owner and landlord of the tenanted shops by virtue of inheritance after the death of his father Shri Sudagar Singh who expired on 15th May, 1984. It is alleged by the respondent that the petitioner was a tenant in shop No.2 and took another shop No.1 from the other tenant without permission of the landlord and merged it into one shop. The respondent without going into controversy accepted the petitioner as a tenant of the entire shop at a monthly rent of Rs.1350/-. The petitioner was in arrear of rent with effect from June 2009 which has been paid by the order of the Court dated 23rd October, 2013. The petitioner has taken similar pleas in the leave to defend application filed in the Trial Court which could not raise any triable issue. All the grounds raised by him in the

leave to defend have been dealt with by the Trial Court in the impugned order as per the law laid down by the Courts.

12. Mr. Sapra, learned Senior counsel for the petitioner in his first submission argued that the respondent/landlord has not pleaded in the petition that the younger son of the landlord is dependent on him. The said submission however, has no force as it has been mentioned in the eviction petition by the respondent that the family members are dependent on him.

13. The second plea of the petitioner is that three years course of Healer Master from Reiki Happy Life Centre is required to run the said Centre by the younger son of the respondent is not of much importance. The said aspect has been dealt with in many cases. The Supreme Court in Ram Babu Agarwal v. Jay Kishan Das VII (2009) SLT 492 has held that no experience or training is required to start any business. It was observed that "a person can start a new business even if he has no experience in the new business that does not mean that his claim for starting new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business and sometimes they are successful in the new business also"

Thus, the second submission is also rejected. Even otherwise, it is settled law that the landlord can file the eviction petition for bonafide requirement in order to set up business for his children for future purposes if he is able to prima facie establish his bona fide. The following decisions passed by the Court are relevant in this regard :

i) Ram Babu Aggarwal v. Jay Kishan Das, 2009 (2) RCR 455, the court recognized the right of the landlord for possession of his property for setting up a business for his son.

ii) Labhu Lal v. Sandhya Gupta, 2011 (1) RCR (Rent) 115 (Delhi) it was held that the children are very much dependent on the landlord for the purpose of setting up their business and such a requirement is a bonafide one.

iii) Surinder Singh v. Jasbir Singh, 172 (2010) DLT 611where the tenant was in occupation of the premises for 52 years, it was held that eviction of premises for extension of business by landlord and for his son who is dependent upon him for purpose of business is genuine and bona fide.

iv) Kharati Ram Khanna & Sons v. Krishna Luthra, 172 (2010) DLT 551, it was observed that the landlord's requirement of two separate shops for running business by her two sons separately and independently is bonafide and genuine requirement.

14. In the present case, the son of the respondent is already working from second floor of another property at Rani Bagh. The ground floor premises are required to run the business more conveniently. Therefore, the eviction was sought by the respondent for his second son. On the face of it, the case of bonafide requirement is made out.

15. It is argued on behalf of the petitioner that there are three shops on the ground floor of the building, out of which two tenanted shops are under the tenancy of the petitioner while the third shop is alleged to have been sold out by the respondent long back. However, it is submitted by the petitioner that no document has been placed on

record to substantiate the averment that the said third shop was sold by the respondent.

With regard to shop No.3, it is explained by the respondent that one Mr. O.K. Batra was tenant in another shop bearing No.3 and the same was sold by the petitioner long back i.e. on 26th June, 1996. It is submitted that the copy of the sale deed is filed in order to prove the same. Therefore, argument of the petitioner in this regard is also rejected.

Even otherwise, it is for the landlord to choose the floor he wants for his business. The said aspect has been dealt with in many decisions passed by the Courts:

i) In Gulab Chand Pukhraj v. R.B. Jinender Raj & Anr., 2009 (4) Civil Court Cases 748 (SC), it was held that once it is not disputed that landlord is in bonafie need of premises, court cannot dictate to landlord which floor he should use for his business. Moreover, it is well settled law that it is the landlord's prerogative as to in which location he prefers to run business and law should not and cannot prevent such preference by a landlord in order to meet his bonafide requirement.

ii) Uday Shankar Upadhyay & Ors. v. Naveen Maheshwari, VIII (2009) SLT 429 it was observed that once it is not disputed that the landlord is in bonafide need of the premises, it is not for the Courts to say that he should shift to the first floor or any higher floor. It is well-known that shops and businesses are usually (though not invariably) conducted on the ground floor, because the customers can reach there easily. The Court cannot dictate to the landlord which floor he should use for his business, that is for the landlord himself to decide. It was therefore held in this

case that the view of the Courts below that the sons of plaintiff no.1, should do business on the first floor in the hall which is being used for residential purpose was, in our opinion, wholly arbitrary, and hence cannot be sustained.

iii) Viran Wali v.Kuldeep Rai Kochhar, 174 (2010) DLT 328, it was observed that any business which is run from the ground floor of the premises will attract more customers than a business being run from the basement. Tenant cannot dictate landlord as to how and in what manner landlord should use his property. It was also observed in this case that concept of alternate accommodation means accommodation which is reasonably suitable for the landlord.

16. In view of the above-mentioned discussions and the principle of law applicable to the present case I find that the impugned order does not suffer from any infirmity. No triable issue is raised by the petitioner. Leave to defend application has been rightly rejected by the learned Trial Court. The petition is therefore dismissed.

17. In the case of Mohd. Ayub Vs. Mukesh Chand, (2012) 2 SCC 155 it was observed that the hardship that appellants would suffer by not occupying their own premises would be far greater than the hardship the respondent would suffer by having to move out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that the respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be the sole determinative factor. That hardship can be mitigated by granting him longer period to move out of the

premises in his occupation so that in the meantime he can make an alternative arrangement.

18. Considering the hardship of the petitioner, coupled with the fact that it is a commercial property which is being used by the petitioner for the last many decades and in the interest of justice, equity and fair play, the petitioner is granted one year's time from today to vacate the tenanted shops, i.e. shops No. 1 and 2, ground floor of property bearing No. 1542, Tri Nagar, Delhi subject to the following terms:

i) During this period, the petitioner shall not sublet or create any third party interest in the tenanted shops.

ii) After the expiry of said period, the petitioner shall hand over the peaceful and vacant possession of the tenanted shops to the respondent and he shall not make any request for extension of time.

19. The present petition is accordingly disposed of with these directions.

20. No costs.

(MANMOHAN SINGH) JUDGE JANUARY 30, 2015