Nitin Chandra vs Sardar Gurdeep Singh
2015 Latest Caselaw 7129 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+         RC. Rev. No.296/2015 & CM APPL No.11114/2015

                                      Decided on : 18th September, 2015

NITIN CHANDRA                                        ..... Petitioner
             Through:            Mr. Sanjeev Sindhwani, Senior Advocate
                                 with Mr. Abhishek Paruthi, Adv. &
                                 Mr. Gaurav Goyal, Adv. along with
                                 Petitioner in person.

                 versus
SARDAR GURDEEP SINGH                                ..... Respondent
                 Through:               Ms. Advocate
                                        (Appearance not given) along with
                                        Respondent in person.

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 19.03.2015 passed by the learned Additional Rent Controller,

South, Saket Courts, New Delhi dismissing the leave to defend

application of the petitioner-tenant and passing an eviction order.

2. I have heard Mr. Sanjeev Sindhwani, the learned senior counsel for

the petitioner as well as the learned counsel for the respondent.

Before dealing with the submission made by Mr. Sindhwani

regarding bonafide requirement of the respondent-landlord, it may

be pertinent here to give a brief background of the case.

3. The respondent-landlord filed a petition under Section 14 (1) (e) of

the Delhi Rent Control Act against the present petitioner-tenant

seeking his eviction from a shop bearing No.135/7, Gautam Nagar,

Delhi on the ground of bonafide commercial requirement of the

respondent-landlord and his family members.

4. It was the case of the respondent-landlord that the shop in question

was let out to the petitioner-tenant in the month of February-

March, 2005 at a monthly rent of Rs.2200/- without any agreement.

Later on, the elder son of the respondent-landlord entered into a

Partnership Deed with the petitioner-tenant on 21.05.2005 which

ultimately got dissolved pursuant to a Court order dated

01.03.2013. But, the premises continued to be with the petitioner-

tenant in his capacity as an individual tenant under the respondent-

landlord. It was alleged that the shop is needed by the respondent-

landlord for the benefit of his eldest son Daljeet Singh, who wanted

to start a business and also for opening of a Clinic by his grand-

daughter, namely, Manleen Kaur, who was pursuing at the time of

filing of the petition, Bachelors in Homeopathic Course. It was also

alleged that the respondent-landlord does not have any other

suitable premises available to him from which the business could

be run.

5. The present petitioner filed the leave to defend and questioned the

bonafides of the respondent in seeking his eviction. It was alleged

by him that the respondent-landlord wants to re-let the shop at a

higher rate after getting the petitioner evicted from the shop. It was

also alleged by the petitioner that the respondent does not want to

start the business as is claimed by him as he is getting a pension of

Rs.13,000/- per month. His eldest son Daljeet Singh for whose

benefit the shop was required for starting a business was earning

Rs.25,000/- per month as he was employed with some private

company. Similarly, another son Gurvinder Singh was earning

Rs.30,000/- and Daljeet Singh's wife was earning Rs.50,000/- as

Vice Principal in Govt. school.

6. As regards the grand-daughter, it was alleged that she will take two

years to complete her course and thereafter she would like to

undergo Internship before she could start practice and therefore

there was no immediate need to that effect. The petitioner also

alleged that he had paid a sum of Rs.5 lac as a refundable security

for which he did not produce any document in writing and he had

already incurred expenses of Rs.60,000/- for renovating the shop.

7. In reply to the averments made in the leave to defend application,

the respondent-landlord admitted that he was getting pension of

Rs.13,000/-. He also disputed that his elder son Daljeet Singh was

earning Rs.25,000/-. It was, on the contrary stated that Daljeet

Singh was earning Rs.16,000/- per month. The factum of his wife

being employed was not disputed but it was stated that income of

Daljeet Singh was not sufficient to meet their requirement and

therefore they needed to supplement their income. So far as grand-

daughter is concerned, it was stated that she has completed her

BHMS and she is required to undergo Internship. It was also stated

that so far as the younger son is concerned, he also needs his space

to have his store room in the shop in question and thus, the

bonafide requirement by the respondent-landlord was reaffirmed.

8. On the basis of the aforesaid averments made in the leave to defend

application and the reply thereto it was contended by Mr.

Sindhwani, that the respondent-landlord's requirement was not

bonafide as it was actuated by ulterior consideration of re-letting

the property with a view to get more rent. The reason for drawing

this inference, Mr. Sindhwani contended that the respondent-

landlord did not disclose to the Court that his son was already

employed and therefore could not start the business. The only

point in issue was with regard to the amount of salary which he

was getting.

9. As regards the explanation which was sought to be given by the

respondent-landlord it was contended by Mr. Sindhwani that when

the respondent-landlord was caught on the wrong side as his son

was employed, he started giving alibis by contending that the

salary of his son Daljeet Singh was not Rs.25,000/- but was only

Rs.16,000/- and the pension which he was drawing for himself and

his spouse by way of a salary was not sufficient to meet their

requirements, thereby meaning it was a case where the respondent-

landlord's son wanted to increase his income which in itself raises

a triable issue.

10. It was also contended by Mr. Sindhwani that so far as the bonafide

requirement case of the respondent-landlord is concerned, the

landlord himself was not clear for what purpose he required the

shop and that is the reason he wanted to retrieve the possession of

the shop by making all claims rolled in one. He states that he

required the premises for his own business, his son to conduct the

business, his grand-daughter to run a Clinic and lastly, set ups a

new case in the reply by contending that his younger son who

admittedly has an adjacent shop in possession needs space for store

room, thereby indicating that by all hook and crook, the

respondent-landlord wanted the eviction of the present petitioner-

tenant.

11. This was refuted in general terms by the learned counsel for the

respondent. However, the counsel was unable to refute specifically

the reasons as to why he did not disclose in the first instance that

Daljeet Singh was employed with a private company. He was not

able to justify the bonafide requirement of the respondent-landlord

or his two sons and a grand-daughter.

12. I have carefully considered the submissions made by the respective

sides and also gone through the impugned judgment and I am of

the view that though the judgment which has been relied upon by

the learned ARC are absolutely correct, however, he has fallen into

grave error in not appreciating the submissions made by the learned

counsel for the petitioner-tenant with regard to bonafide

requirement. Thus, the order of the learned ARC suffers from not

only jurisdictional error but is not sustainable in the eyes of law in

as much as, no reasonable person could have passed an order

rejecting the leave to defend application on the ground of bonafide

requirement as alleged by the petitioner it raises a number of triable

issues.

13. These triable issues are that the petitioner in his petition has

claimed the possession of the shop not only for his elder son

Daljeet Singh to start his own business but also for the purpose of

running a Clinic by his grand-daughter knowing fully well that at

the time when the petition was filed she had two years to go before

she could complete her BHMS Course and even if she would have

completed her BHMS course, she could not be expected to start an

independent business of consultation without undergoing

Internship or getting associated with some senior Homepathic

doctor so as to gain some experience. Therefore, her requirement

could not have been made as a basis for seeking eviction of the

petitioner from the shop in question though she had completed her

degree by the time the order was passed.

14. As regards the eldest son of the respondent-landlord, the

respondent was expected to disclose the fact that his son Daljeet

Singh was employed and was earning a salary of whatever amount

and then should have stated that Daljeet Singh wants to start his

own independent business from the shop in question as the income

which he might have been getting may not have been sufficient, but

the very fact that the respondent-landlord did not reveal the factum

of his sons employment or rather concealed this information from

the Court and then only on the disclosure of the petitioner-tenant

that Daljeet Singh was employed and getting a salary of

Rs.25,000/- came out with an excuse that he was employed and

earning only Rs.16,000/- which was not sufficient to meet his

requirement clearly shows that the bonafide requirement of Daljeet

Singh is suspect.

15. Moreover, the plea which is sought to be taken after the disclosure

of employment of Daljeet Singh is insufficiency of income, to meet

the requirement of Daljeet Singh. This fact also cannot be taken

cognizance of as it was done belatedly only after the petitioner-

tenant had taken the plea in this regard. So far as employment of

wife of Daljeet Singh as a teacher or Vice Principal is concerned,

though per se they may not be very important so as to decide the

question of bonafide requirement but it becomes relevant on

account of the fact that her income is also the income of Daljeet

Singh and therefore, if both the incomes are clubbed together then

25,000/-+50,000/- it comes to Rs.75,000/- per month. Respondent-

landlord was expected to state truthfully as to how much, according

to him is sufficient to meet the financial requirement of Daljeet

Singh. Since this has not been done, all these aspects fall within the

domain of a triable issue because they have an impact on the

question of bonafide requirement of the respondent.

16. The respondent-landlord has also not revealed the fact that he was

getting a pension of Rs.13,000/- per month when he specifically

stated that he also wants to run business from the shop in question.

In a case of bonafide requirement it is not mere wish or the desire

of the respondent-landlord which is important in getting the

premises retrieve from the tenant but it is also the fact that this

desire or wish by the landlord must be positively assessed by the

Court in order to see that it is not actuated by malafides and there is

a good faith in seeking the eviction of the tenant in real betterment

or comfort of the respondent-landlord or to increase the income of

the person for whose benefit the shop is sought.

17. In view of the aforesaid facts and circumstances of the case, I feel

that all these aspects essentially are raising a triable issue and in

case the petitioner-tenant is permitted to prove these facts after the

grant of leave to defend they may as well end up rejecting the case

of the respondent-landlord for bonafide requirement. I, therefore,

feel that the learned ARC, South has fallen into the serious error. I

accordingly, set aside the order passed by the learned ARC and

grant leave to defend to the petitioner-tenant.

18. The petitioner-tenant is permitted to file written statement within a

period of 30 days from today with an advance copy to the

respondent-landlord who may file his rejoinder within one week

thereafter.

19. Parties to appear before the learned ARC, South, Saket Courts,

New Delhi on 02.11.2015.

20. A copy of this order be given Dasti to the counsel for the parties

and a copy of the order be sent to the learned ARC concerned for

information.

21. With these observations, the revision petition is disposed of.

22. Pending application also stands disposed off.

V.K. SHALI, J.

SEPTEMBER 18, 2015 vk