Delhi High Court
Om Prakash Gupta vs Nirmal Kanta on 23 August, 2016
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 23.08.2016
+ R.C. REV. 402/2016
OM PRAKASH GUPTA ..... Petitioner
Through Mr.Siddhant Bambha & Mr.Dhruv
Dwivedi, Advocates
versus
NIRMAL KANTA ..... Respondent
Through None.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
CM No. 29899/2016(exemption)
Allowed subject to all just exceptions.
CM No. 29900/2016(delay)
By this application, the petitioner seeks condonation of delay of 22
days in re-fling the accompanying revision petition. For the reasons stated in
the application, the delay of 22 days in re-filing the accompanying revision
petition is condoned and the application is disposed of.
R.C. REV. 402/2016 & CM Nos. 29898/2016 & 29901/2016
1. By the present revision petition, the petitioner seeks to impugn the
order dated 22.01.2016 by which the application for leave to defend filed by
the petitioner was dismissed.
2. The respondent filed an eviction petition under Section 14(1)(e) read
with Section 25B of the Delhi Rent Control Act, 1958 (hereinafter referred
R.C. REV. 402/2016 Page 1
to as the 'DRC Act') regarding a shop on the ground floor of property
bearing No.307/1/116, Old Rohtak Road, Shahzada Bagh, Delhi - 110 035.
It was the contention of the respondent that she is the owner of the property
in question. She is an old lady of 64 years and is having no source of
income. Her family consists of herself, two married daughters and two
married sons. One son namely Raman Sharma, aged about 29 years is also
married. It was urged that Raman Sharma is still unemployed and is having
no commercial premises to carry out his own business. The husband of the
respondent Rajeev Pradhan was a doctor and he expired on 29.11.2008.
While the husband of the respondent was alive, the son Raman Sharma used
to sit with his deceased father. The eldest son Pawan Sharma has also
expired. Hence, it is claimed that the premises is required by the respondent
so that the son of the respondent can start his business on the ground floor.
The son was said to be unemployed.
3. The petitioner filed an application for leave to defend. It was
contended in the leave to defend application that the respondent/landlord is
in possession of other premises including Shop No.111/2-B, Shahzada Bagh
Extension, Old Rohtak Road, Delhi from where Raman Sharma is running a
shop under the name and style of „M/s Jai Mata Motors‟. It was further
stated that Raman Sharma is dealing with money lending and property
business. In the reply, the respondents denied that they have any other
property under their ownership including shop No. 111/2-B, Shahzada Bagh
Extension, Old Rohtak Road, Delhi. It was also denied that neither the
respondent/landlord nor her son Raman Sharma is doing any business under
the name and style of „M/s Jai Mata Motors‟. It was reiterated that son of the
respondent is unemployed and is not doing any business.
R.C. REV. 402/2016 Page 2
4. The trial court by the impugned order noted that the petitioners
themselves admitted that they are tenant of the said property for last 25 years
and paying the rent @ Rs.1900/- per month to the respondent. The
relationship of landlord and tenant stood established.
5. On bonafide requirement, the trial court noted that the respondents
have denied any title to the property being shop No. 111/2-B, Shahzada
Bagh Extension, Old Rohtak Road, Delhi. The reliance of the petitioner on
photographs of the said property was held to be misplaced as merely
showing the photographs does not mean that son of the respondent is
carrying on any business in the said property. The trial court noted that
merely making an allegation cannot lead to any conclusion that the property
was not required bona fide by the respondents.
6. On alternative accommodation, a submission had been made that the
respondents had first and third floor of the property and the same can be
used by the respondents. The respondents had clarified that the said property
was her residence. In any case, the premises of the ground floor would fetch
more customers as compared to a shop situated on first or third floor. Hence,
the trial court concluded that the respondents do not have any other
alternative suitable accommodation. The application by the petitioner for
leave to defend was accordingly dismissed.
7. The learned counsel for the petitioner vehemently argued that he has
placed on record photographs to show that the husband of the respondent
Dr.Rajeev Pradhan was having a flourishing business. It is urged that said
Dr.Rajeev Pradhan was doing his practice from a shop which is still in
possession of the respondent and her son from where her son is carrying his
business. It is urged that the son of the respondent is also a qualified doctor
R.C. REV. 402/2016 Page 3
and it was for the respondent to give the full details of this fact.
8. I may first see the scope of the present petition. The Supreme Court in
Shiv Sarup Gupta vs. Dr.Mahesh Chand Gupta, (1999) 6 SCC 222
described the revisional powers of this court as follows:-
"11....... The phraseology of the provision as reproduced
hereinbefore provides an interesting reading placed in
juxtaposition with the phraseology employed by the Legislature
in drafting Section 115 of the CPC. Under the latter provision
the exercise of revisional jurisdiction of the High Court is
circumscribed by the subordinate court having committed one
of the three errors, namely (i) having exercised jurisdiction not
vested in it by law, or (ii) having failed to exercise a jurisdiction
so vested, or (iii) having exercised its jurisdiction with illegality
or material irregularity. Under the proviso to Sub-section (8) of
Section 25B, the expression governing the exercise of
revisional jurisdiction by the High Court is 'for the purpose of
satisfying if an order made by the Controller is according to
law'. The revisional jurisdiction exercisable by the High Court
under Section 25B(8) is not so limited as is under
Section 115 C.P.C. nor so wide as that of an Appellate Court.
The High Court cannot enter into appreciation or re-
appreciation of evidence merely because it is inclined to take a
different view of the facts as if it were a court of facts.
However, the High Court is obliged to test the order of the Rent
Controller on the touchstone of "whether it is according to law'.
For that limited purpose it may enter into re-appraisal of
evidence, that is, for the purpose of ascertaining whether the
conclusion arrived at by the Rent Controller is wholly
unreasonable or is one that no reasonable person acting with
objectivity could have reached that conclusion on the material
available..."
9. The essential ingredient which a landlord/respondent was required to
show for the purpose of getting an eviction order for bona fide needs are (i)
the respondent is the owner/landlord of the suit premises (ii) the suit
R.C. REV. 402/2016 Page 4
premises are required bona fide by the landlord for himself and any of his
family members dependent upon him. (iii) the landlord or such other family
members has no other reasonable suitable accommodation.
10. As rightly noted by the ARC in the present case there is no
controversy about ownership, rate of rent and the purpose of letting.
11. On bona fide requirement, the ARC noted the contention of the
respondent that she requires the said premises bona fide for herself and for
her son to start his business since the son of the respondent is unemployed.
The respondent is a widow. Her elder son has expired. The only argument
raised by the petitioner before the ARC was that property No.111/2-B,
Shahzada Bagh Extension, Old Rohtak Road, Delhi was available to the son
of the respondent from where he is running a business under the name and
style of „M/s Jai Mata Motors‟. The respondents have denied the ownership
of the shop or the business. The contention made by the petitioner is
completely moonshine. The petitioner has failed to place on record anything
to show any remote connection of the respondent with the said business or
the premises. Merely filing a photograph of a shop does not per se show
anything. The view expressed by the ARC cannot be faulted.
12. Coming to the availability of alternative accommodation, the
submission of the respondent was noted that she does not have any
alternative suitable accommodation in her possession. The petitioner stated
that first and third floor of the property in question can be used by the
respondent for her bona fide requirement. The ARC noted the submission of
the respondent that the said area is used as a residential accommodation of
the respondent and her son, hence the question of converting that
R.C. REV. 402/2016 Page 5
accommodation to commercial use does not arise. Even otherwise, the
premises on the ground floor is better suited for opening a shop.
13. Before this court the petitioner has placed on record photographs
showing hoarding of Dr.Rajeev Pradhan. It is urged that these photographs
show that the late husband of the respondent was doing commercial work
and those premises in question would obviously be available with the
respondent.
14. It may be noted that this contention was never raised before the ARC
and is being raised here before this court for the first time. In view of the
judgment of the Supreme Court in the case of Prithipal Singh v. Satpal
Singh, 2010 (2) SCC 15, at this stage, the petitioner cannot start raising
additional grounds. Even otherwise the argument is utterly vague. It does not
any manner show that any alternative accommodation is available to the
respondent. As noted above merely filing photographs which contains
hoarding of the deceased husband who died on 29.11.2008 does not show
any facts which should entitle the petitioner to leave to defend.
15. The learned counsel for the petitioner has confirmed that the
respondents have already executed the impugned order and taken over the
possession of the suit property on 18.08.2016.
16. There is no merit in the present and the same is dismissed.
JAYANT NATH, J.
AUGUST 23, 2016/v
R.C. REV. 402/2016 Page 6
