Rajan Pal vs Manmohan Singh & Ors
2015 Latest Caselaw 8620 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                RC. Revision No.505/2015 & C.M. No.20186/2015

                                     Decided on : 19th November, 2015

RAJAN PAL                                           ...... Petitioner
                       Through:   Mr. Sunil Malhotra & Mr. Amit Sanduja,
                                  Advocates.

                         Versus

MANMOHAN SINGH & ORS                  ...... Respondents
            Through: Mr. Siddharth Bambha & Mr. Shyam D.
                     Nandan, Advocates.

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

V.K. SHALI, J. (ORAL)

1. The present petition assails the order dated 23.5.2015 passed by the

learned Rent Controller (Central) rejecting the leave to defend application

of the petitioner and passing an order of eviction in respect of a shop

bearing No.2932, Ground Floor, Hamilton Road, Kashmere Gate, Delhi-

110006, more particularly, shown in red in the site plan in annexure C-1.

2. I have heard the learned counsel for the petitioner as well as

learned counsel for the respondents. Mr. Malhotra, the learned counsel

for the petitioner has assailed the impugned order rejecting the leave to

defend application only on two grounds. The first ground on which the

leave to defend application has been rejected is pertaining to the fact that

the respondent/landlord has an alternative accommodation available to

him in the form of a space on the first floor as well as second floor of the

same property wherefrom the requirement of the respondent/landlord can

be met. It has been contended that the eviction of the petitioner from the

shop in question is sought by the respondent/landlord in order to

accommodate his two sons in starting a shop of a spare motor parts on the

ground floor. The shop which is already under the possession of the

respondent is being used as an office of spare parts, for the purpose of

export, which office can be shifted on to the first floor and the second

floor and consequently, the shop so vacated on the ground floor can be

used for the business of selling spare parts in retail by the other two sons

of the respondent/landlord.

3. The second submission which has been made by the learned

counsel for the petitioner is challenging the bona fide of the

respondent/landlord in seeking his eviction. In this regard, it has been

stated that the respondent/landlord has six shops - three shops on the

ground floor, one is in his possession while as the two other shops have

been let out to two private parties, namely, Mahindra Auto Electricals and

Mahindra Tractors on a huge premium and a very low rentals only 3-4

years prior to the date of filing of the leave to defend. It has been

contended that in case the requirement of the respondent/landlord would

have been genuine, then they would not have let out the premises to these

two private parties.

4. These submissions of the learned counsel for the petitioner have

been refuted by the learned counsel for the respondent, who has

contended that the shop in question, which is under the occupation of the

petitioner, is lying closed and he is running his business somewhere at

Kirti Nagar in the form of a service station, while as the present premises

are being held back by him only with a view to extract money from the

respondent/landlord. The fact of the shop not being used for the last three

years is also reflected by the fact that there has been no consumption of

electricity in respect of this shop. It is further stated that this court on the

last date of hearing had passed an order directing the petitioner to file an

affidavit giving the details of the month-wise consumption of the

electricity along with the proof thereof. It has been stated that the said

order has not been complied with. On the contrary, an affidavit has been

filed stating that there was no electricity and therefore, no details in this

regard can be furnished.

5. I have carefully considered the submissions made by the learned

counsel for the parties and have gone through the impugned order. I find

that there is absolutely no merit in the contention raised by Mr. Malhotra

to say that any triable issue is raised by the petitioner in his leave to

defend application. This is on account of the fact that the case of the

respondent/landlord is that the property in question bearing No.2932,

Hamilton Road, Kashmere Gate was the property of late Mangat Ram,

their father and his brother Hari Singh. It is not in dispute that the

property was partitioned between the two brothers in the year 1977 as a

consequence of this partition, three of the shops each had fallen to the

share of each of the brother. Out of the portion which had fallen to the

share of Mangat Ram, who has since died, one is occupied by the

petitioner and the two other shops are let out to Mahindra Auto

Electricals and Mahindra Tractors. This fact is not in dispute and it has

been admitted by the petitioner himself that only one shop is with the

respondent/landlord, which is stated to be used by them for the purpose of

running their business of exporting motor parts. It is also not in dispute

that after the partition, the petitioner, who is in occupation of one of the

shops on the ground floor and which has fallen to the share of the

respondent/landlord, he has been paying rent to the respondent/landlord,

who is the successor-in-interest of late Mangat Ram. Therefore, by virtue

of Section 116 of the Evidence Act, the learned Rent Controller has

rightly observed that the petitioner cannot challenge the title or

relationship between the parties as that of tenant-landlord.

6. So far as the non-availability of shop on the ground floor for the

purpose of running a retail business by two of the sons of the

respondent/landlord is concerned, the learned Rent Controller has rightly

observed that Kashmere Gate is an area which is a hub of the largest retail

motor part shops in India and for that matter in Asia. The retail business

can be considered viable only if it is run from the ground floor because all

the customers would be loath to climb on to the first floor to check the

rates and purchase the motor parts when most of the shops are located on

the ground floor itself. In a competitive market where most of the shops

of selling motor parts are on the ground floor, to have a retail out let on

the first floor is practically as good as not running the business at all.

Therefore, the learned Rent Controller has rightly concluded that the

submission of the learned counsel for the petitioner that the availability of

accommodation on the first floor with the respondent/landlord for the

purpose of accommodating his two sons for running the retail business

cannot be consider to be an alternative accommodation.

7. So far as the suggestion which has been given by the learned

counsel for the petitioner that the shop wherefrom the office of the

respondent/landlord is being run, should be re-located and can be shifted

to the first floor and the second floor and the shop so vacated can be used

for retail business will tantamount to giving a lever to the tenant to decide

for the respondent/landlord as to how he is to conduct his affairs or do

business which is totally against the settled legal position laid down by

the Supreme Court in catena of authorities that it is not for the tenant to

decide as to how the landlord has to manage his business or his bona fide

requirement. Reliance in this regard can be placed on the judgments of

the Apex Court in Anil Bajaj and Anr. vs Vinod Ahuja; AIR 2014 SC

2294, Sarla Ahuja Vs. United India Insurance Company Limited; AIR

1999 SC 100, Prativa Devi vs. T.V. Krishnan; (1996) 5 SCC 353, Mohd.

Ayub and Anr. vs. Mukesh Chand; AIR 2012 SC 881 and Maganlal son of

Kishanlal Godha vs. Nanasaheb son of Udhaorao Gadewar; AIR 2009

SC 278.

8. Therefore, this first submission of the learned counsel for the

petitioner regarding availability of alternative accommodation has

absolutely no merit.

9. As regards bona fides of the respondent/landlord in seeking

eviction of the petitioner is concerned, that also cannot be found fault

with because admittedly the petitioner is claiming that the other two

shops on the ground floor have been let out to Mahindra Auto Electricals

and Mahindra Tractors only 3-4 years prior to the date of fling of the

leave to defend. The leave to defend has been filed sometime in May,

2011 and 3-4 years prior would take us to the month of May, 2008 while

as the eviction petition has been filed in the year 2011. So, a gap of 3-4

years cannot be considered to be such a small gap that a

respondent/landlord must anticipate in future as to how he will require his

premises nor can it be said to be a case as is sought to be met out by Mr.

Malhotra for additional accommodation.

10. This is a case of pure and simple fresh accommodation for the

purpose of starting an ancillary business of retail by a landlord, who is

admittedly dealing in export of spare parts. I, therefore, feel that this plea

of petitioner that the bona fides of the respondent/landlord are suspect is

also without any basis.

11. On the contrary, I find some merit in the contention of the learned

counsel for the respondent/landlord that the petitioner was directed

specifically on the last date of hearing to file his affidavit indicating the

amount of electricity consumption done month-wise. Though this

affidavit has been filed but now it has been stated in the affidavit that the

electricity was disconnected not by the respondent/landlord but by the

service provider long back and the premises in question is being used as

godown. The electricity is stated to be provided from a generator as the

godown does not require much of the electricity. This clearly is not only

scuttling the main issue and the submission which was made by the

learned counsel for the petitioner on the last date of hearing that

electricity was disconnected by the respondent/landlord but also trying to

create a defence that as if electricity is not being consumed by them

genuinely. The submissions which have been made today in this regard

do not reflect the contemporaneous conduct of the petitioner which is in

line with the defence which was taken by them. On the contrary, I feel

that there is some degree of merit in the submission made by the learned

counsel for the respondent to the effect that the premises is being

deliberately held back to bargain with him.

12. For the reasons mentioned above, I am of the considered opinion

that there is absolutely no merit in the contention of the learned counsel

for the petitioner that any triable issue is raised from the leave to defend

application or that the impugned order dated 23.5.2015 rejecting the leave

to defend application and consequently, passing an order of eviction

against the respondent/landlord suffers from any illegality or

jurisdictional error so as to warrant any interference with the same.

13. I, accordingly, dismiss the present revision petition of the petitioner

with costs of Rs.10,000/- to be deposited with the Delhi High Court Legal

Services Committee.

V.K. SHALI, J.

NOVEMBER 19, 2015 'AA'