Delhi High Court
Narinder Shah vs Mohan Kumar Gandhi on 16 August, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 16th August, 2017.
+ RC.REV. No.368/2017 & CM No.29038/2017 (for stay)
NARINDER SHAH ..... Petitioner
Through: Mr. Raman Kapoor, Sr. Adv. with Mr.
Sanjay Kumar, Adv.
Versus
MOHAN KUMAR GANDHI .... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM No.29039/2017 (for exemption).
1. Allowed, subject to just exceptions.
2. The application stands disposed of.
RC.REV. No.368/2017 & CM No.29038/2017 (for stay).
3. This Rent Control Revision Petition under Section 25B(8) of the Delhi
Rent Control Act, 1958 impugns the order (dated 4th May, 2017 in E-
38/16/13 (New No.78757/16) of the Court of Additional Rent Controller-02,
Central District, Tis Hazari Courts, Delhi) of dismissal of the application
filed by the petitioner for leave to defend the petition for eviction under
Section 14(1)(e) of the Act filed by the respondent and the consequent order
of eviction of the petitioner from Shop No.947/10, First Floor, Kucha Kabil
Attar, Chandni Chowk, Delhi - 110 006.
4. The senior counsel for the petitioner contends that it was the plea of
the petitioner / tenant in the leave to defend application that eleven shops
adjoining to the shop in the tenancy of the petitioner were lying vacant and
were available to satisfy the requirement of the respondent pleaded in the
petition for eviction. It is further stated that the respondent, in the reply to the
RC.REV.368/2017 Page 1 of 5
application for leave to defend, merely pleaded that the said shops were let-
out and gave a list of the said tenants and filed the counterfoils of the rent
receipts, without disclosing that the said tenants are none other than the
family members or firms of the family of the respondent.
5. I have enquired from the senior counsel for the petitioner, to what use
the other shops are being put, inasmuch as if any business activities are being
carried on therefrom, even if by the family members of the respondent /
landlord, the respondent / landlord for the sake of keeping a tenant cannot
force his family members to shut down their business and provide
accommodation for the pleaded requirement.
6. The senior counsel for the petitioner under instructions states that no
business activity is being carried on from the said shops and the same are
lying vacant. However on second thought when instructions are taken from
the petitioner / tenant stated to be present in person, the petitioner / tenant
states that the said shops are being used as "godowns" by the respondent /
landlord.
7. It is deemed appropriate to record the statement of the petitioner /
tenant.
8. The petitioner/tenant has deposed that the respondent/landlord is
carrying on business from two of the shops and in the remaining shops,
goods are stored and though the shutters of the said shops remain open but
none sits over there.
9. The aforesaid does not amount to the other shops lying vacant, as was
earlier contended by the senior counsel for the petitioner / tenant.
RC.REV.368/2017 Page 2 of 5
10. Once it is found that the other shops claimed to be available, as per the
petitioner / tenant himself, are being used by the respondent / landlord for the
business already being carried on by the respondent / landlord from the
premises, it cannot be said that the said shops are available to the respondent
/ landlord for the requirement pleaded in the petition for eviction of the
younger son of the respondent / landlord who has graduated with honours in
Management and Marketing of Textiles and has gained two years experience
in Textile business and is wanting to establish his own independent business
of Textiles at Chandni Chowk.
11. The senior counsel for the petitioner / tenant has next drawn attention
to para 18(a) of the petition for eviction and has contended that the
respondent / landlord therein has pleaded carrying on business only from one
of the shops and use of the second shop as godown of the said business and
has not pleaded the use of the other eight shops and it is further argued that
only in reply to the application for leave to defend it was pleaded that the
said other shops are in the tenancy and use of the other family members but
the rent receipts filed are all in the same handwriting and are without any
Revenue Stamp.
12. Ordinarily, the Revenue Stamp would be on the rent receipt and not on
the counterfoil of the rent receipt which would be in possession of the
respondent as landlord of the said shops. Thus no undue weightage can be
given to the absence of the Revenue Stamp on the counterfoil of the rent
receipt.
13. Supreme Court in Ram Narain Arora Vs. Aska Rani (1999) 1 SCC
141 held that the non-disclosure of accommodation which the Court also
RC.REV.368/2017 Page 3 of 5
agrees cannot be alternate suitable accommodation, cannot be fatal to the
petition for eviction. I have also in judgment dated 12th January, 2009 in RC
(R) No.78-79/2005 titled Mumtaz Begum Vs. Mohd. Khan held that non-
disclosure of other accommodation available is not always fatal. To the
same effect are Surinder Singh Vs. Jasbir Singh (2010) 172 DLT 611,
Sukhbir Singh Vs. Dr. I.P. Singh (2012) 193 DLT 129, Manju Devi Vs.
Pratap Singh (2015) 219 DLT 260 and Hameeda Shahzad Vs. Shahjahan
Khatoon 2017 SCC OnLine Del. 7203. I have recently in Sunil Kumar
Goyal Vs. Harbans Singh 2017 SCC OnLine Del. 9289, referring to earlier
judgments, also held that once the facts have come before the Court and the
Court has, after dealing therewith held in favour of landlord, the petition for
eviction cannot be dismissed on ground of concealment.
14. Here from the pleadings and clarification by the petitioner given
today, it has emerged that the other shops are not lying vacant as was sought
to be contended during the hearing but are being used for storage of goods of
the business admittedly being carried on by the respondent / landlord from
one/two of the shops.
15. The senior counsel for the petitioner / tenant has next argued that use
for storage is no use, without the person who is claimed to be the tenant
sitting in the premises.
16. I am unable to agree. A tenant in the property or a person in use
thereof is not necessarily required to personally present himself in the
premises everyday and merely because the said person does not personally
remain present in the premises everyday cannot be a ground for stating that
he is not in use of the property. The premises are admittedly in the cloth
RC.REV.368/2017 Page 4 of 5
market and the premises therein are used not only for retail of cloth but also
for storage of cloth and storage of cloth is also use of the shop and the
landlord is not expected to, for his requirement, curtail the use of the
premises available for the purpose for which they are already being used, for
the sake of not evicting the tenant.
16. As far as the plea of all these issues being required to be decided at the
stage of trial is concerned, once it is the own case of the petitioner / tenant
that the other shops are being used for storage of goods, the law has to be
applied to the said fact, whether it is at this stage or after trial and no purpose
will be served by trial.
17. No case for interference in exercise of jurisdiction under Section
25B(8) of the Rent Act, scope whereof, in Shiv Sarup Gupta Vs. Dr.
Mahesh Chand Gupta (1999) 6 SCC 222 has been held to be narrower than
that of appeal, is made out.
Dismissed.
No costs.
P.S.: Though the senior counsel for petitioner was asked to make the
petitioner wait to sign his statement and the senior counsel for petitioner
assured so but the petitioner and his counsel after reading the statement
wanted to change the same and which was refused and the senior counsel
inspite of being requested did not appear, the statement recorded of
petitioner remains unsigned.
RAJIV SAHAI ENDLAW, J.
AUGUST 16, 2017
„pp‟
