Delhi High Court
Mohd. Burhan vs Shri Triloki Nath Nirmal on 25 August, 2014
Author: Valmiki J.Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RCR No. 240/2013 & CM 10450/13 (Stay)
% 25th August, 2014
MOHD. BURHAN ......Petitioner
Through: Mr. Kirti Uppal, Sr. Adv. with Ms.
Stuti Sood, Advocate.
VERSUS
SHRI TRILOKI NATH NIRMAL ...... Respondent
Through: Mr. S.S.Bhatia and Mr. Naveen Arya,
Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. This eviction petition is filed under Section 25-B(8) of the Delhi Rent Control Act, 1958 (in short 'the Act') impugning the order of the Additional Rent Controller dated 18.2.2013 by which the Additional Rent Controller has dismissed the leave to defend application filed by the petitioner/tenant and has passed an eviction decree with respect to the tenanted premises being shop no. E-45/1 on the ground floor of E-45 Main Market, Hauz Khas, New Delhi 110016 admeasuring 12'.7' ½" x 9'ft plus the extended verandah as per site plan annexed.
RCR 240/2013 Page 1 of 8
2. The respondent/landlord claimed that he was running the business of blue line buses in Delhi, however, the blue line buses in Delhi have stopped on account of various directions passed by the State Transport Authority and the Supreme Court, and therefore, since this business of running buses having come to an end, he needs a suit property from which he intends to start a General Merchant shop. It is stated in the eviction petition that he has no other alternative suitable commercial/shop premises and therefore the premises with the petitioner/tenant is required for carrying on business.
3. On being served with the summons, the petitioner filed the leave to defend application. The relationship of landlord and tenant is not disputed. What is disputed is the existence of bonafides of the respondent/landlord in filing the bonafide necessity eviction petition. Petitioner-tenant pleads that respondent/landlord is having the business of blue line buses as also other buses on private routes whereby he is earning a substantial amount. It is also pleaded that the respondent/landlord is carrying on a property dealing business under the name and style of Nath Properties and Developers. It is also pleaded that the respondent/landlord was negotiating with the petitioner/tenant just about a month before filing of the RCR 240/2013 Page 2 of 8 eviction petition to increase the rent, but subsequently this petition has been filed when negotiations for increase of rent failed. The petitioner/tenant also pleads that respondent/landlord has sufficient alternative suitable accommodation inasmuch as the property is a three storeyed building and on the second floor till recently a software company in the name of Maxwell Computers was carrying on business, and which tenant has vacated the second floor portion. It is also argued that the bonafide necessity petition is malafide because respondent/landlord had concealed the facts as regards his income with respect to his wife who is also having business of blue line buses as also other private buses. It was hence pleaded that the eviction petition was liable to be dismissed. Though other pleas had been urged before the Additional Rent Controller but those other pleas are not urged before this Court.
4. In my opinion, the Additional Rent Controller has passed a thorough, exhaustive and perfectly justified order in rejecting the leave to defend application. There is no merit in the petition which is liable to be dismissed and the reasons for the same are given hereinafter.
5. So far as the aspect that the respondent/landlord's need is not a bonafide requirement because it is a mere desire for reasons of there being RCR 240/2013 Page 3 of 8 negotiations to increase the rent and also because the respondent/landlord has concealed the factum with respect to his carrying on business of running other buses is concerned, this argument is wholly misconceived. The arguments in this regard are misconceived because the Additional Rent Controller notes that the blue line permits which had been issued for the respondent/landlord and his wife have been surrendered and the surrender documents were filed before the Additional Rent Controller. Not only that, the respondent/landlord filed an RTI query showing that the business of blue line buses of the respondent/landlord is no longer running. Therefore, in my opinion, a mere self-serving averment that respondent/landlord is doing the business of running of blue line buses cannot create a triable issue in the facts of the present case. The Additional Rent Controller has also rightly taken judicial note of the fact that the blue line buses are no longer running in Delhi. So far as the argument that the respondent/landlord is running private buses is concerned, the same is only a self-serving bald plea and a self-serving bald plea cannot create a bonafide triable issue inasmuch as otherwise every tenant will have to simply make an averment as regards other business being run by the landlord and courts will be forced to grant leave to defend on self-serving pleas, but, that is not the law. RCR 240/2013 Page 4 of 8
6. On the aspect that there were negotiations going on between the parties for increase of rent, the Additional Rent Controller has rightly rejected this plea by observing that this is a bald plea without any supporting documents, and therefore, this plea cannot be considered. With respect to this aspect it is relevant to refer to the ratio of the Supreme Court in the recent judgment in the case of Prithipal Singh Vs. Satpal Singh (dead) through LRs (2010) 2 SCC 15, and which holds that the period for filing of leave to defend application is only and only 15 days and which cannot be extended even for a single day ie whatever facts have to be stated and documents which have to be filed by the tenant pertaining to aspects which arise/exist before the expiry of 15 days, the same have to be necessarily stated in the application for leave to defend alongwith supporting affidavit, and if this is not done, subsequently, the same cannot be stated either by filing additional evidence or additional documents or by amending the leave to defend application, and all of which acts if permitted would demolish the sacrosanct period of 15 days. It has been held by a learned Single Judge of this Court in the judgment reported as Ms. Madhu Gupta Vs. M/s Gardenia Estates (P) Ltd. 184 (2011) DLT 103 that in view of the ratio of Prithipal Singh's case (supra) no application to amend the leave to defend application can be entertained. I therefore refuse to look into the documents which have RCR 240/2013 Page 5 of 8 been filed for the first time in this Court pertaining to negotiations of increase in rent. I may also note as a matter of abundant caution that there is nothing wrong in a landlord entering into negotiations for increase of rent because after all if rent had been substantially increased, the respondent/landlord would have then had financial means for not carrying out business of General Merchant from the suit/tenanted premises, and therefore, there is nothing illegal in holding negotiations for increase of rent and merely because negotiations for increase of rent fail, it cannot be said that bonafide necessity petition is not maintainable.
7. The next argument which was urged on behalf of the petitioner/tenant was that the present is a case of additional accommodation because the building is a three storeyed building and on the second floor of the building one tenant M/s Maxwell Computers was doing computer business till recently. Additional Rent Controller in this regard has rightly noted that the averment with respect to software business is a bald plea without any basis, and the same cannot create a triable issue once the same is denied by the respondent/landlord. In any case, it is not the case of the petitioner that as per the master plan/zonal plan/area plan, the portions above the ground floor can be used for commercial purposes. Therefore, since residential premises RCR 240/2013 Page 6 of 8 cannot be used for opening of a shop and since first floor and above were only residential portions as per the area plan of the area of Hauz Khas in question, therefore, it cannot be held that the portions of first floor and above amount to alternative suitable accommodation. I may state that the issue of second floor being an alternative suitable accommodation is also misconceived because as per the Will of the mother who owned the property, the respondent/landlord is not the owner of the second floor from which the business of Maxwell Computers was being carried on. Therefore, it cannot be said that the respondent/landlord has alternative suitable accommodation on the second floor.
8. Lastly, it was argued on behalf of the petitioner that the respondent does not have experience for starting of the business and therefore the same created a triable issue. This argument is again totally misconceived, inasmuch as, the Supreme Court has held in a series of judgments that there is no prior experience required for starting of a business from a tenanted premises inasmuch as surely it is only once business is started the landlord will gain experience. The aspect as to whether the business will or will not be successful because of the inexperience of the landlord is not an aspect to be considered while deciding the bonafide RCR 240/2013 Page 7 of 8 necessity petition in view of the entire line of judgments of various Courts, including the Supreme Court so holding.
9. In view of the above, there is no merit in the petition, and the same is therefore dismissed, leaving the parties to bear their own costs.
AUGUST 25, 2014 VALMIKI J. MEHTA, J.
ib
RCR 240/2013 Page 8 of 8