Deepak Gupta vs Raghubir Kaur
2015 Latest Caselaw 7474 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+              RC. Rev. No.304/2015 & CM APP. 11293/2015


                                       Decided on: 30th September, 2015

       DEEPAK GUPTA                                      ..... Petitioner
               Through:            Mr. Avadh Kaushik, Advocate with
                                   Ms. Deepika Raghav, Advocate

                          versus

       RAGHUBIR KAUR                                      ..... Respondent
               Through:            Mr. Nirmal Singh, Advocate 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 05.02.2015 by virtue of which the leave to defend of the

petitioner-tenant has been dismissed and an order of eviction has

been passed in respect of a shop measuring 8 x 13.5 ft. forming

part of property No.2235/66, Naiwala, Karol Bagh, New Delhi.

2. The learned counsel for the petitioner-tenant has urged three points.

First point which has been urged by the petitioner-tenant is that the

petitioner was given a notice on 25.04.2011 by the respondent-

landlord for payment of rent which he allegedly was in arrears. It

has been stated that this notice was replied by the petitioner in the

month of June, 2011 itself. It has been further stated that

immediately after expiry of two months or so, instead of filing a

petition for recovery of rent, the present petition for eviction on the

ground of bonafide requirement was filed and therefore, this

petition is not a bonafide petition seeking eviction of the petitioner.

3. The second ground which has been urged is that the respondent-

landlady has an alternative suitable accommodation available to her

on the first floor. It has been contended that the case which has

been filed by the respondent-landlady against the petitioner is that

her daughter-in-law is intending to start a boutique for which she is

duly qualified and she does not have any space in the suit property

where she could open such a shop. Apart from the shop in

question in respect of which eviction is sought there is no other

alternative suitable accommodation available to her. It has been

contended that the suit property has two big halls on the first floor

which were available to the respondent-landlady and which could

have been used for the purpose of opening a boutique but these

halls have been let out to be used as godowns by the respondent

after filing of the present petition and therefore, the eviction of the

petitioner is actuated with malafides.

4. Last but not the least it has been contended that so far as the

daughter-in-law is concerned, she cannot be treated to be

dependent on the respondent Raghubir Kaur, mother-in-law for the

purpose of accommodation and accordingly the present petition

ought not to have been allowed and a leave to defend application of

the petitioner should have been allowed and leave be granted to

contest the eviction petition.

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

counsel for the petitioner, gone through the impugned order as well

as the leave to defend application filed by the petitioner.

6. So far as the issuance of notice by the respondent-landlady

regarding non-payment of rent and the reply thereto having been

given by the present petitioner is concerned, that is not pleaded in

the leave to defend application. It has nowhere been pleaded that

the present petition has been filed after expiry of two months from

the date of receipt of reply to the notice under Section 14 (1) (a).

Moreover, even if this would have been pleaded, the factum of

petitioner being in arrears and notice being issued to him to clear

the arrears it is statutory requirement before eviction of the tenant

is sought on the ground of non-payment of rent. It would hardly be

construed to be an action which would foreclose the right of the

respondent to seek eviction on the ground of bonafide requirement.

I fail to understand as to how giving of a notice under Section 14

(1) (a) of the DRC Act and receiving reply thereto can be made a

basis for casting doubt with regard to the bonafides of the

respondent so far as to eviction of the present petitioner in respect

of shop in question is concerned. Therefore, I feel so far as this

submission made by the petitioner is concerned, it is bereft of any

merit and accordingly does not raise any triable issue.

7. Second ground which has been urged by the learned counsel for the

petitioner is that the respondent-landlady had two big halls

available on the first floor which could have been used as an

alternative suitable accommodation for the purpose of opening of a

boutique and these halls have been let out to be used as godowns

after filing of the present petition. This plea has also not been

averred by the petitioner in his leave to defend application.

8. One of the fundamental principles for grant of leave to defend to

the tenant is that the leave to defend application or the Affidavit

filed thereto by the party must disclose or rather raise triable issue.

The triable issue is a issue which if permitted to be proved by a

party then in all probability it will be decided in favour of the party

who has raised such an issue and it would disentitle the respondent-

landlady to retrieve the possession from the petitioner. Curiously,

in the instant case, no such plea has been taken by the petitioner in

the leave to defend application or in the supporting affidavit filed

in this regard. Therefore, this plea of the petitioner that there was

an alternative accommodation available to the respondent-landlady

is also of no consequence.

9. So far as last point is concerned that the daughter-in-law is not

dependent on the respondent-landlady for the purpose of

accommodation also does not hold good in the instant case.

Though at first blush the point urged by the petitioner may seems

to be very attractive that the daughter-in-law who has come from

outside does not belong to the family, cannot be treated to be as a

dependent on the mother-in-law, but the facts of the present case

are slightly different. The husband of the daughter-in-law, namely,

son of the respondent-landlady is stated to have expired in the

month of February, 2015. Once the husband of the daughter-in-law

who happen to be a son of respondent-landlady has expired

admittedly it is not in dispute that the daughter-in-law along with

her family/children is living with mother-in-law, she cannot be

termed as not dependent on the mother-in-law for the purpose of

accommodation. If that be so, then not only she too has a right to

claim accommodation for herself but she can also file a petition for

her daughter-in-law who along with children is living with her.

Therefore, under these facts, I feel that the daughter-in-law for all

practical purposes has to be treated as dependent on the mother-in-

law, i.e. respondent-landlady for the purpose of accommodation.

10. The next question arises is that as to whether accommodation

which was consisting of two halls could be used for the purpose of

setting up boutique and therefore could be said to be an alternative

suitable accommodation.

11. With regard to the law of bonafide requirement it is no more res

integra that it is not open for the tenant to dictate the terms to the

landlord as to how she has to use the premises which is available at

her disposal. By appreciating the plea of the present petitioner that

the respondent-landlady should use two halls on the first floor for

the purpose of boutique is giving a direction as to how the

respondent-landlady is to conduct her affairs which is not

permissible because of the catena of authorities of the Apex Court.

In addition to this, seeing the proper perspective, the opening of

boutique on the first floor cannot have the same impact which it

will have in case it is open on the ground floor. The ground floor

boutique is found to be more profitable as compared to the

boutique which will be opened on the first floor by the learned

ARC. With no stretch of imagination, it cannot be said that the

accommodation which is available on the first floor is an

alternative suitable accommodation to the nature of business which

is intended to be run by the daughter-in-law of the respondent-

landlady. In addition of this, admittedly, it is not the case of the

petitioner-tenant that the said two halls are available to the

respondent-landlady. On the contrary, it has been prima facie

established that both these rooms have been let out as to be used as

a godown. Under these circumstances, the availability of both

these rooms to the respondent-landlady is also in doubt and

therefore, could not be considered to be an alternative

accommodation. No other point has been raised or urged by the

petitioner.

12. Having regard to the discussion hereinabove and the reasoning

which has been given by the learned ARC, I find that there is no

jurisdictional error in the impugned order and that there is no

illegality or impropriety in rejecting the application of the

petitioner in not granting leave to defend to the petitioner. The

necessary consequence to the same is that the order of eviction has

been correctly passed by the learned ARC.

13. In view of the foregoing discussion, I find that the present revision

petition is without any merit accordingly, the same is dismissed.

14. Pending application also stands disposed off.

V.K. SHALI, J.

SEPTEMBER 30, 2015 vk