Babu Lal vs Mukesh Kumar
2015 Latest Caselaw 6809 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                           RC REV No.154/2015

                                        Decided on : 10th September, 2015

BABU LAL                                       ...... Petitioner
                       Through:    Mr. Sushil Kumar, Advocate

                              Versus

MUKESH KUMAR                                        ...... Respondents
           Through:                Mr. Sunil Kumar, 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 31.1.2015 by virtue of which leave to defend of the respondent was

allowed on the ground that the respondent/tenant has been able to raise

triable issues.

2. Briefly stating the facts of the case are that the petitioner herein is the

owner of property bearing no. RZ-16A/15D, Gali No. 3, Main Sagarpur

New Delhi (suit property). The respondent herein was inducted as a tenant

in a shop on the ground floor of the suit property (tenanted premise) in 1987

initially at a monthly rental of Rs. 400/- which was later increased to Rs.

550/-.

3. The petitioner/landlord in 2014 filed an eviction petition against the

respondent seeking possession and occupation of the tenanted premise for

the bonafide requirement of the daughter in law who is financially

dependent on him. Further it was stated that he has no other suitable

accommodation available to him. It was the case of the petitioner in the

eviction petition that the respondent has not been paying rent for last almost

three years and since he has a bonafide requirement of the tenanted premise

to settle his daughter in law therefore the possession of the same be

transferred to him.

4. The petition for eviction was contested by the respondent/tenant who

took the plea that the petitioner/landlord has other suitable accommodation

available to him in the form of a multistory building consisting of three

floors which are in the possession of the petitioner/landlord. It was further

contested that the daughter in law cannot be said to be dependent on the

petitioner/landlord.

5. The petitioner in reply to the aforesaid contentions had averred that

the multistory premise is purely residential and cannot be used for any

commercial activity. Further the petitioner pleaded that the family of the

petitioner consists of his wife, two unmarried daughters, his son, daughter in

law and two minor granddaughters. It is stated that his son is facing some

criminal charge and is presently unemployed and therefore all the family

members are dependent on him.

6. The learned counsel for the petitioner has placed reliance on the

judgment of this court in Abdul Malik & Anr. Vs Shashi Bhalla 186 (2012)

DLT 669 wherein it was held that the landlord is the best judge of his needs

and it is not open for the court or tenant to dictate him the terms. Further it

was held that unless and until triable issues are raised, the leave to defend

cannot be granted in a routine manner. In furtherance of the aforesaid the

learned counsel for the petitioner has further relied on the judgment of this

court in Bantam enterprises Pvt. Ltd. vs Jaspal Singh Kapoor 189 (2012)

DLT 59 wherein the aforesaid view was re-echoed.

7. With respect to the availability of the alternate accommodation the

learned counsel for the petitioner has relied on the judgment of this court in

the case titled Viran Wali vs Kuldeep Rai Kochhar 174 (2010) DLT 328,

wherein it was held that the ground floor is more convenient then the shop

situated in the basement. It was further observed that the landlord has all

right and choice to start his business in the premises which is more suitable

and convenient to him and the tenant cannot dictate the landlord as to how

and in what manner he should use his property.

8. On the basis of the pleadings of the parties, the short point that arose

for consideration before the learned ARC was with respect to the bonafide

of the petitioner/landlord herein in seeking the eviction of the present

respondent/tenant. Vide order dated 31.5.2015 the leave to defend was

granted by the learned ARC on the grounds that the respondent/tenant has

been able to raise triable issues with respect to the availability of other

suitable accommodation to the petitioner/landlord and in the absence of

material information by the petitioner/landlord the eviction petition cannot

be decided in a summary manner without giving due opportunity to the

respondent/tenant to lead evidence. Aggrieved from the aforesaid the

petitioner/landlord has filed the present revision petition.

9. I have heard the learned counsel for the petitioner. I have also gone

through the record. During the course of arguments the only aspect which

was raised by the learned counsel for the petitioner/landlord was with regard

to the bona fide requirement of the tenanted premises by the

respondent/landlord. I have considered the submissions. However, I do not

agree with the contentions of the learned counsel for the petitioner that the

petitioner has been able to give satisfactory answers for all the issues raised

by the petitioner. As has already been recorded in the impugned order the

petitioner failed to provide material information with respect to the

unemployment of his son or the financial dependency of his daughter in law

on him so as to establish a clear bonafide requirement.

10. The judgment relied upon by the petitioner are of no help to him on

account of the peculiar factual matrix of the present case. It is indeed trite

principle that the landlord cannot be guided by the dictates of the tenant with

respect to the use of his property but at the same time the landlord cannot

remove the tenant in a whimsical manner. He must establish a genuine

bonafide need and mere design or desire is not sufficient to order relocation

of the tenant.

11. The tenant has been able to raise triable issues with respect to

availability of other suitable accommodation. It is pertinent to note that

keeping in mind the size of the petitioners' family and the accommodation

available to him of the three floors of a multistory building, seems to be

more than sufficient. So far as the opening of the tailoring shop is concerned

the petitioner can very well operate the same in the multistory residential

premise under his possession as the same has been notified as one of the

twenty two small businesses that may be run from residential premise by the

Honorable Apex court in the case titled M.C. Mehta vs Union Of India &

Ors. 2006 (9) SCALE 634 as well as in the Master Plan 2021. Therefore the

residential nature of the multistory premise under the possession and

occupation of the petitioner cannot be a hindrance in his desire for opening a

tailoring shop, for the settlement of his daughter in law.

12. The questions relating to absence of suitable accommodation or

financial dependency of the daughter in law cannot be decided in a summary

manner especially when prima facie the respondent/tenant has been able to

raise triable issues. Final adjudication of the matter can only take place once

all the facts and evidence are judiciously analyzed. Therefore, I am of the

view that the Ld. ARC was right in granting the leave to defend to the

petitioner.

13. In exercise of its revisionary power the court does not sit in appeal

and can only interfere where it is shown that the impugned order suffers

from patent illegality or material infirmity or jurisdictional error. The view

taken by the petitioner is not only a possible but also a plausible view and

the same cannot be set aside merely because this court is a superior court.

14. I have carefully considered the submissions and I feel satisfied that

the judgment granting the leave to defend is correct as the respondent was

able to raise triable issue in the matter.

15. For the aforesaid reasons, the revision petition is dismissed.

V.K. SHALI, J.

SEPTEMBER 10, 2015 AD