Delhi High Court
Nathu Ram vs Raj Bhushan Gupta on 4 November, 2015
* HIGH COURT OF DELHI AT NEW DELHI
+ RC. Revision No.592/2015 & C.M. No.25872/2015
Decided on : 4th November, 2015
NATHU RAM ...... Petitioner
Through: Mr. Mukul Kumar, Mr. Dhanrmendra
Sharma & Mr. P.D. Sharma, Advocates.
Versus
RAJ BHUSHAN GUPTA ...... Respondent
Through: Mr. J.P. Gupta, Advocate.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a revision petition filed by the petitioner against the order
dated 18.8.2015 passed by the learned Senior Civil Judge-cum-Rent
Controller, Shahdara District, Delhi, rejecting the leave to defend
application of the petitioner and passing of an eviction order against him.
2. I have heard the learned counsel for the petitioner as well as the
learned counsel for the respondent. The learned counsel for the petitioner
has contended that the learned Additional Rent Controller has
erroneously considered the submission made by the petitioner and arrived
at a wrong conclusion by denying him the leave to defend. It was
contended that the eviction of the present petitioner was claimed by the
respondent/landlord from the shop in question bearing No.8/92, Chhota
Bazar, Shahdara, Delhi on the ground that the same is required by the
respondent/landlord for establishing of a separate business of jewellery to
be run by his son Aman Gupta. It was also contended by him that Aman
Gupta was actually doing the business along with his father under the
business name of Nav Bhushan Jewellers at shop No.8/86, Gali Jain
Mandir, Shahdara, Delhi and therefore, he could not be said to be
unemployed and in any case, even if it was assumed that the shop which
is under the occupation of the petitioner was required for the purpose of
setting up a separate business in the same line, the requirement of the
respondent/landlord was to be considered as a requirement for additional
accommodation for which he had to not only to prove the requirement but
also permit the present petitioner to adduce evidence that there was no
such requirement.
3. The learned counsel for the petitioner/tenant also contended that
non-denial of existence of 13 shops in his possession or ownership could
not have been considered as a ground for eviction and that it was
observed by the learned Rent Controller that this was a mala fide reason
for the petitioner/tenant to retain the shop in question.
4. The learned counsel for the respondent/landlord has justified the
impugned order and has stated that the leave to defend application of the
petitioner has been rightly rejected for the reasons that no triable issue
was made out from the said leave and further that the petitioner could not
be permitted to take advantage of withholding the premises when there
was comparative lesser hardship to the petitioner from dislocation as he
was admittedly having 13 other shops in his possession which fact has not
been denied by him.
5. I have carefully considered the respective submissions and have
gone through the impugned order which is a short order. However, I feel
that the learned Rent Controller has fallen into a serious error by denying
the leave to defend to the petitioner. The reason for this is essentially
two-fold. Firstly, the availability of shops or the ownership of shops by
the petitioner/tenant is not a consideration or a requirement to be satisfied
under Section 14 (1) (e) by the respondent/landlord meaning thereby the
mere fact that the tenant has certain alternative shops available to him
which if the tenant is dislocated can be his savior, cannot be a ground of
denying him the leave to defend. This may be a factor which can be
taken in a given situation into consideration when the parties have
adduced their evidence and a question with regard to comparative
hardship arises with regard to the eviction of the petitioner/tenant or when
the time is sought to be given to him to vacate the premises. But certainly
it is not one of the ingredients to be established by the
respondent/landlord nor can this be a factor taken into consideration by
the Rent Controller. In my considered view, this is the first mistake
which has been done by the learned Additional Rent Controller.
6. Secondly, the retrieval of premises by the respondent/landlord is
sought on the ground that his son, namely, Aman Gupta, who is aged
about 22 years and is stated to be unemployed and the
respondent/landlord wants a business to be started independently by his
son. It may be pertinent here to mention that the respondent/landlord has
two other sons, namely, Tarun Bansal and Arun Gupta, who are doing
business in partnership, therefore, it appears that he wants to settle all the
three sons in the jewellery business.
7. The petitioner/tenant had taken a specific plea that his son Aman
Gupta is also doing the business with his father and other brothers in shop
No.8/86 under the name and style of Nav Bhushan Jewellery shop. The
petitioner has placed on record the photographs of the said shop before
the learned Additional Rent Controller which show that Aman Gupta is
attending to some clients. In these photographs, there is no other brother
of Aman Gupta or not even the father or a servant available. It only
shows the presence of Aman Gupta in the said shop. The learned
Additional Rent Controller has discarded these photographs by observing
that nothing prevented Aman Gupta from assisting his brothers or even
for that matter his father and therefore, he has not attached any
importance to this. No doubt this observation of the learned Additional
Rent Controller may be justified that if a photograph of a person is taken
doing the business which is stated to be run by his brothers or for that
matter by his father or by a partnership firm, his presence at the shop
could not be treated as a ground for assuming that he may not be
unemployed but certainly this fact whether he is unemployed or not,
whether he is doing business independently or not or whether he is
assisting his brothers or not will be required to be tested at the time of
trial. The only thing before the learned Additional Rent Controller at the
time of granting leave to defend would be the two rival affidavits, one
having been filed by the landlord and the other having been filed by the
present petitioner/tenant and there is no way of accepting one to be
correct and the other being discarded as being false. This dramatic
opposite stand taken by learned Additional Rent Controller in the
impugned order in itself is a ground of permitting the petitioner to be
granted a limited leave with regard to the bona fide requirement and the
availability of alternative accommodation for the purpose of running the
business by Aman Gupta.
8. For the above-mentioned reasons, I feel that the learned Additional
Rent Controller has fallen into serious error by denying an opportunity to
the petitioner to establish this fact which, if proved that Aman Gupta is
doing the business along with his brothers, becomes a case of additional
accommodation which in any case has to be proved by the
respondent/landlord or if he is doing a business as a routine then he
cannot be treated to be unemployed and this may disentitle the
respondent/landlord from retrieving the premises. This at this stage
requires further adjudication by permitting the parties to produce
evidence and hence it becomes a triable issue.
9. I, accordingly, set aside the order passed by the learned Additional
Rent Controller and grant leave to defend to the petitioner limited to the
extent of prove of bona fides of the respondent and the availability of
alternative accommodation only.
10. Let the petitioner/tenant filed the written statement within 30 days
from today with an advance copy to the respondent, who may file
response thereto within three weeks thereafter.
11. The parties to appear before the learned Additional Rent Controller
on 3rd December, 2015.
12. A copy of the order be sent to the learned Additional Rent
Controller.
V.K. SHALI, J.
NOVEMBER 04, 2015
'AA'
