Bhim Singh Saini vs Preeti Gupta
2015 Latest Caselaw 7209 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                           RC REV No. 303/2015

                                      Decided on: 22nd September, 2015

BHIM SINGH SAINI
                                                    ...... Petitioner
                       Through:   Mr. S.D. Dixit, Advocate


                         Versus

PREETI GUPTA
                                                  ...... Respondent
                       Through:   Mr. Rajiv Kanwar, Advocate with
                                  Mr. R.K. Gupta, Advocate and
                                  Mr. J.P. Malviya, Advocate


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

V.K. SHALI, J. (ORAL)

1. By virtue of the present revision petition the petitioner has challenged

the order dated 21.03.2015 passed by the learned Additional Rent

Controller (ARC) vide which the leave to defend to the respondent-

tenant was granted by the learned ARC.

2. I have heard the learned counsel for the petitioner-landlord. I have

also gone through the impugned order. The facts of the case are not in

dispute and need not be reproduced herein. The same can be taken

from the order passed by the learned ARC.

3. It would be suffice to mention here that the present petitioner is the

owner of property No.1536, Tota Ram Bazar, Ganesh Pura, Tri Nagar,

Delhi. The ownership of the suit property by the petitioner is not in

dispute. It is not in dispute that there are six shops which are marked

as A to F on the ground floor in the site plan. Out of these six shops

one shop which is marked as C, i.e. the third shop is in possession of

the respondent-tenant Preeti Gupta. All other shops except shops No.5

and 6, that is, marked E and F happen to be in possession of different

tenants. So far as shop No. E to F are concerned, they are stated to be

in possession of the petitioner-landlord Bhim Singh Saini where he is

running the business of cosmetics, ladies lingerie, etc under the name

and style of M/s. B.S. Traders. The petitioner has two children, a son

and a daughter. The son of the petitioner is stated to have completed

SCC & Graduation as well as Diploma in garment fabrication

technology while the daughter is stated to be married way back in

1999.

4. The case which was set up by the petitioner in the petition was that the

married daughter of the petitioner who has completed her Graduation

from University of Delhi in 2001 and one year certificate course from

NTT and had working as a Teacher in a School is presently

unemployed. It has been stated that her husband one Kapil Bharti was

running a optical shop in Shastri Nagar from a tenanted premise and

he was not doing will in his business and, therefore, the family was in

financial hardship. It was stated that the daughter of the petitioner was

having two children, aged around 13 and 7 years and because of the

paucity of funds, they are finding it difficult to manage their affairs

and the daughter of the petitioner in order to supplement the income of

the family was intending to start a Gifts and Novelties shop but due to

non availability of any commercial accommodation was not able to do

so. It was further stated that since that tenanted premise was only

about 2 kms away from the daughter's matrimonial home, therefore

the same was best suited for the settlement of the daughter. In light of

the aforesaid, the present petitioner has sought the eviction of the

respondent-tenant from shop marked C shown in the site plan attached

to the eviction petition.

5. Respondent had filed the leave to defend application and contested the

matter. The learned ARC after hearing the arguments granted leave to

defend to the respondent-tenant on the ground that the present

petitioner having married his daughter, who was not ordinarily living

with him, could not be said to be entitled to retrieve the shop in

question from the respondent-tenant for the benefit of his married

daughter. The reasoning which was given by the Court was that after

marriage the daughter was firstly dependent for the purpose of her

accommodation, especially, for commercial purposes on her husband

if need be, then upon her father. It was the responsibility of her

husband to provide accommodation to the lady who happened to be

the daughter of the petitioner in case she wanted to start a new

business and for this purpose the daughter could not be considered to

be a member of the petitioner's family depending on him for the

purpose of accommodation.

6. The judgment which were cited by the learned counsel for the

petitioner in order to support his contention that even if the daughter

was married but for the purpose of accommodation would be treated

as dependent on her father, were considered by the Court to be

distinguished on the ground that the factual matrix in those reported

cases were different than the facts of the case in hand and the reasons

are given in detail in the impugned judgment which need not be

reproduced herein. These judgments are Krishan Kumar Gupta v.

Swadesh Bhushan Gupta, 152 (2008) DLT 556 and Rajender Prasad

Gupta v. Rajiv Gagerna, 2014 Legal Eagle (Delhi) 481.

7. I have heard the learned counsel for the petitioner. The learned

counsel for the petitioner has once again raised the same pleas which

have been raised before the learned ARC that although the daughter

may have got married but still for the purpose of accommodation she

is dependent on the father and as she is in financial crisis because of

her husband business not doing well therefore, the petitioner was

entitled to retrieve the shop under the occupation of the respondent-

tenant so the daughter of the petitioner could run her commercial

activities. The learned counsel for the petitioner has also relied on

Prakash Kaur v. Asha Chopra and Ors., 2014 (1) Rajdhani Law

Reporter 615 and M/s. Chadha Pan Corner v. Shanti Devi @ Shanti

Chhabra, RC. Rev. 96/2015, decided on 26.03.2015.

8. I have gone through the aforesaid judgments. In my considered

opinion, none of these judgments are of any help to the petitioner.

The reason for this is the same which has been given by the learned

ARC that before an accommodation can be retrieved by a petitioner-

landlord, he must state that he requires the premises for his own

benefit or for the benefit of any of his family member dependent upon

him.

9. In the instant case, admittedly, the daughter of the petitioner after

having got married, even though continues to be a member of the

family but she ceases to be directly dependent on him once she moves

to her matrimonial home. Although she may have, as rightly observed

by the learned ARC, a right of succession under the statute but that is

on different aspect. We are not concerned with the succession of the

property, we are only concerned as to whether she could be treated as

a member of the family dependent on the petitioner for the purpose of

eviction of a tenant and the answer to this is certainly in negative. The

judgments which have been relied upon by the learned counsel for the

petitioner are the judgments where despite the daughter having got

married in one of the cases, she was living with her father and

therefore, for all practical purposes, she was treated as a member of

his family while as in the instant case, there is no such averment or

factual position that the daughter is living with the father. Therefore,

these judgments which have been relied upon by the petitioner are

distinguishable

10. The second question which arises is that even if she is a member of the

family of the petitioner, the next question would arises whether she

could be treated as a dependent on the petitioner for the purpose of her

accommodation. Certainly, to this question also the answer prima

facie should be in negative. The reason being that once the daughter

of the petitioner has got married for purposes of any accommodation,

she would be dependent on her husband rather on her father.

11. For the aforesaid reasons, I feel that the learned ARC has rightly given

the leave to defend to the respondent-tenant as these are triable issues

and in case they are permitted to be proved by the respondent than

they will knock out the case of the petitioner from the bottom only.

12. For the abovementioned reasons, I feel that the present revision

petition is totally misconceived and there is no illegality, impropriety

or jurisdictional error in the order of eviction passed on 21.03.2015.

13. I accordingly, dismiss the revision petition.

14. File be consigned to the record room.

V.K. SHALI, J.

SEPTEMBER 22, 2015 vk AD