Delhi District Court
Ashok Kumar Gupta vs Rajni & Ors on 3 April, 2013
Ashok Kumar Gupta v. Rajni & Ors. E-38/12
IN THE COURT OF SH. MANISH YADUVANSHI, SCJCUMRC (SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
E38/12
IN THE MATTER OF:
ASHOK KUMAR GUPTA .... PETITIONER
VERSUS
RAJNI & ORS. .... RESPONDENTS
ORDER
1. The petitioner filed instant application under Section 14(i)(e) read with Section 25B of the DRC Act, 1958 (hereinafter, called the 'Act') submitting therein that the respondents were given a shop bearing No. F522/2, Khairpur, Gurdwara Road, Kotla Mubarakpur, New Delhi110003 (shown in red in the site plan and hereinafter, referred as 'tenancy premises') at a monthly rent of Rs.300/ per month excluding electricity charges for commercial purposes. The respondents are running a toy shop from the tenancy premises. In fact, Late Ashok Kapoor i.e. the husband of respondent No.1 and father of respondents No.2 and 3 was the initial tenant under the tenancy of Smt. Anita Devi, the earlier owner of the tenancy premises. She sold the same to petitioner's wife Smt. Anita Gupta who in turn, sold the same to the present petitioner vide sale deed dated 03.04.2007 which is duly registered. The initial rate of rent was Result: Dismissed Page 1 of 13 Ashok Kumar Gupta v. Rajni & Ors. E-38/12 Rs.80/ per month excluding electricity charges. The present petitioner also owns a shop bearing No. F522/1, Khairpur, Gurdwara Road, Kotla Mubarakpur, New Delhi110003 which he is running himself. Apart from these two shops he is having one residential floor. He holds no other property then the ones' described above in Delhi or elsewhere. He now requires the tenancy premises as his unemployed son aged 22 years has recently completed BBA Course and wants to start business for his son from the tenancy premises.
2. The respondents filed leave to contest application with their respective affidavits in support thereto which I have perused. From the avernments contained therein, by and large, a contention is raised that petitioners' need is mala fide; that he has suppressed a very vital fact in regard to sufficient commercial space already available to him as well as his son which comprises of a ground floor and a mezzanine floor in the adjoining shop bearing No. F522/1. It is also argued that the area of Kotla Mubarakarpur is different than village Khairpur and therefore, the provision of DRC Act is not applicable. It is also argued that the petitioner has available with him other alternative commercial accommodation jointly with other family members i.e. brothers and uncles. It is stated that the petitioner and his son are running a separate showroom and shop in the adjoining premises No. F522/1 in the name and style of Vishnu Mens Wear. It is alleged that the petitioner has concealed that he jointly owns, possesses, uses and runs other businesses in the name of Vishnu Textile at Shop No. 1467/3, Gurdwara Road, Kotla Mubarakpur, New Delhi110003 with Sh. Dinesh Khandelwal. It is alleged Result: Dismissed Page 2 of 13 Ashok Kumar Gupta v. Rajni & Ors. E-38/12 that the petitioner has suppressed that he is also running shop in the name of Vishnu Engineering at C8, Housing Society, South Extension, PartI, New Delhi110049 with Sh. Vishnu Khandelwal and Sh. Manish Khandelwal. It is also alleged that the petitioner is also jointly running the business in the name of Vishnu Maintenance and Motors from 1860, Dharam Bhawan Market, Kotla Mubarakarpur, New Delhi. It is alleged that the petitioner is also jointly running electronic business with Sh. Manish Khandelwal and Sh. Ashish Khandelwal from 1865, Kotla Mubarakarpur near Dharampur Bhawan, New Delhi. Photographs and business cards are filed on record. It is argued that the petitioner's need of the tenancy premises is whimsical and fanciful. 2.1 It is also submitted that the petitioner has intentionally not supplied the copy of site plan to the respondents as the same is incorrect. The site plan was supplied in the Court only on 04.07.2012 when the counsel for respondents had produced the registered envelope for court inspection. The respondents have filed their own site plan delineating the tenancy premises in red. The shop No. F522/1 is shown in yellow and the mezzanine floor in green colour. On the aspect of ownership, the fact that the petitioner's wife purchased the tenancy premises is not denied. The aspect of registration of sale deed between the petitioner and his wife is also not denied however, it is rated as an act of conspiracy as immediately after expiration of 5 years of the said sale, the petitioner has filed the application for eviction.
3. The petitioner also filed reply along with his counter affidavit. It is Result: Dismissed Page 3 of 13 Ashok Kumar Gupta v. Rajni & Ors. E-38/12 primarily a reassertion of the correctness of the pleadings earlier made. Additionally, the petitioner denies any mala fide or suppression of facts. It is submitted that the mezzanine floor is not a separate floor in the showroom situate in F522/1 but is constructed inside the showroom only for better utilization of space. It is denied that the space available with the petitioner is sufficient as alleged. Photographs are also filed. The petitioner also denies that he and his son are running their separate showrooms on the ground and mezzanine floor of premises No. F522/1. It is submitted that the shop aforestated has a single entry and exit and the entire shop is one unit only. The petitioner further submits that he is not doing joint business in the name of Vishnu Textiles, Vishnu Engineering, Vishnu Maintenance, Vishnu Agencies etc. In regard to the same, the petitioner filed the adhoc registration certificate, registration orders, adhoc application form of registration of shop, record pertaining to the registration certificate under the Delhi Sales Act Rules, 1975 and documents pertaining to registration certificate under the Delhi Shops & Establishments Act, 1954 in regard to all abovenamed businesses in order to show that he has no concern whatsoever in the abovenamed businesses.
4. Sh. M.K. Sharma, Advocate has argued for the petitioner while Sh. R.K. Bindal, Advocate has argued on behalf of the respondents.
5. Thus, the contest to the eviction application is broadly on following grounds viz.:
a) That the tenancy premises is not governed under the Act, Result: Dismissed Page 4 of 13 Ashok Kumar Gupta v. Rajni & Ors. E-38/12
b) That the petitioner has mala fide claim which is riddled with suppression of material facts in the form of availability of alternative accommodation.
6. a) That the tenancy premises is not governed under the Act.
As per Section 1 (2) of the Act, it extends to the areas included within the limits of the NDMC and Delhi Cantonment Board and to such urban areas within the limits of the MCD as are specified in the first Schedule. In support of this contention, the respondents have relied upon the information dated 11.01.2013 sought by their counsel under the Right to Information Act to the effect as to whether the provisions of the Act are applicable to the tenancy premises. The area within Kotla Mubarakpur is a revenue estate whereas Khairpur Village is not notified as a revenue estate. It is stressed upon by the respondents that Khairpur Village is different from Kotla Mubarakpur. The description of the tenancy premises is F522/2, Khairpur, Gurdwara Road, Kotla Mubarakpur, New Delhi110003. The petitioner has therefore, shown that Village Khairpur is within the area of Kotla Mubarakpur. In para 4 of the leave to contest application the respondents have merely stated that, "the tenanted premises is the part of Khasra No. 287 situated in Village - Kherpur and the same is different from the Kotla Mubarakpur, New Delhi. The same is not covered under Delhi Rent Control Act being part of the rural village. Therefore, the jurisdiction of this Hon'ble Court is very much under dispute.". Perusal of the aforestated would reveal that no definitive or specific pleadings are made by the respondents in this regard. On the contrary, the RTI response aforestated clearly provides that Kotla Mubarakpur is a revenue estate. The petitioner has Result: Dismissed Page 5 of 13 Ashok Kumar Gupta v. Rajni & Ors. E-38/12 filed a site map showing the four corners of Kotla Mubarakpur area. According to him the Village Khairpur is situated along side Gurdwara Rao Road. This area is within the area of Kotla Mubarakar and according to the RTI response, the provisions of the Act are applicable to the said area also. It is not respondents' case that Village Khairpur is not situated within the area of Kotla Mubarakar. As per the RTI response, provisions of the Act are applicable to Kotla Mubarakpur. Thus, no evidence is required as the issue aforestated is not triable.
7. b) That the petitioner has mala fide claim which is riddled with suppression of material facts in the form of availability of alternative accommodation.
The first contention of the respondent in regard to attribution of mala fide on the part of the petitioner is that he has concealed regarding availability of sufficient commercial space comprising of ground floor and a mezzanine floor in shop No. F522/1. It is alleged that in this regard the petitioner deliberately avoided supplying copy of the site plan. Perusal of the site plan reveals that the tenancy premises is shown in red colour. At the same time the adjoining premises are also depicted in the site plan as "SHOP". In juxtaposition to the same. The respondents also produced a site plan which shows the same outline of the property indicated therein. The tenancy premises is towards the north and shown in red colour in the site plan. The adjoining shop/showroom in property No. F522/1 is shown in yellow and the mezzanine floor is shown in green colour. The mezzanine floor is stated to be property No. F522 whereas Result: Dismissed Page 6 of 13 Ashok Kumar Gupta v. Rajni & Ors. E-38/12 the property No. F522 is shown to be others property in site plan of the petitioner. There is no pleading by respondents that the area shown in green colour is bearing property No. F522 only. The photographs produced by the petitioners indicate that what is projected as a mezzanine floor is actually an elevated portion in the showroom which stands to divide the earlier existing open space from roof to floor into two portions. It is not a separate floor but is more of a partition between the roof and the existing floor for effective utilization of the space available within the shop/showroom. To this extent there is no concealment found.
7.1 The next contention is to the effect that the petitioner has suppressed the fact that he has alternative commercial space available to him where he runs different business jointly with his relatives. The details in this regard have been set out in para 2 of this order. In regard to the businesses from different premises i.e. Vishnu Mens Wear; Vishnu Textiles; Vishnu Engineering; Vishnu Maintenance and Motors and Electronic Business from premises No. 1865, Kotla Mubarakpur, New Delhi, the petitioner has filed various documents as earlier described in para 3 above. Perusal of the documents would reveal that none of the business aforenamed are being run jointly by the present petitioner. The property No. 1467/4, Gurdwara Road, Kotla Mubarakpur, New Delhi is on lease with one Sh. Raj Kumar where shop in the name of Vishnu Readymade is being run by Sh. Raj Kumar. The shop namely Vishnu Textile is being run by one Sh. Dinesh Kumar. The shop namely M/s Vishnu Traders is run by its proprietor Sh. Naresh Kumar. The shop namely Vishnu Maintenance is run by one Sh. Kedar Nath Gupta. The shop Result: Dismissed Page 7 of 13 Ashok Kumar Gupta v. Rajni & Ors. E-38/12 namely Vishnu Agencies is run by Sh. Manish and Sh. Ashish Khandelwal. The shop by the name of Vishnu Engineering is run by one Sh. Vishnu Swaroop.
In this regard the Ld. Counsel for the petitioner has relied upon Rajender Kumar Sharma & Ors. V. Leelawati & Ors., 2008 (106) DRJ 471, wherein it is observed that if a tenant in its leave to defend pleads that landlord was owner of another premises then, mere filing of affidavit is not sufficient as the tenant has to place before the ARC such documents which show that the landlord was owner of that premises. No such documents are produced by the respondents with their leave to defend application. On the contrary, it is the petitioner who has produced documents to the effect that he has nothing to do with the properties described in para 3 above. It cannot be therefore, said that the petitioner indeed has alternate commercial accommodation available with him.
7.2 The third contention of the respondents in this regard is to the effect that the petitioner's need is not bona fide and he has merely shown a need for additional accommodation. It is contended that the petitioner already has sufficient accommodation available to him in the ground floor and the mezzanine floor of shop No. F522/1. This fact is denied by the petitioner. He is already running a shop/showroom in the adjoining premise No. F522/1. His present need is in regard to setting up an independent business for his unemployed son aged 22 years who has just completed his BBA Course. It is not the case of the petitioner that he is requiring the tenancy premises for expansion of his business which he is already running from the adjoining premises. It is also stated that Result: Dismissed Page 8 of 13 Ashok Kumar Gupta v. Rajni & Ors. E-38/12 the landlord is the best judge of his need and to supplement this, the petitioner reliance on Silvertoe Mfg. Co. of India & Anr. v. Smt. Usha Soi, 55 (1994) DLT 563. 7.3 To controvert this argument, the Ld. Counsel for the respondents submits that a landlord may be the best judge of his need however, a plea that the petitioner/landlord already has sufficient accommodation available with him raises a triable issue. To supplement this argument, the respondents' counsel relies on S.K. Seth & Sons v. Vijay Bhalla, 191 (2012) DLT 722. The facts of the instant case are different and are clearly distinguishable. In S.K. Seth & Sons (supra), the landlord was finding it difficult to accommodate their ever growing customers in the tenanted shop and hence they required the basement also which was under tenancy of the tenant. In the case before me there is no pleading that the tenancy premises are required for expansion of existing business by the petitioner. Thus, it is not an issue at all as to whether the petitioner already has sufficient accommodation available to him or not. 7.4 The respondents also relied on several other judgments i.e. Aggarwal Papers v. Mukesh Kumar, 194 (2012) DLT 605; Hindustan Zinc Ltd. v. Lt. Col. S.P. Wadhwa & Anr., 194 (2012) DLT 244; Vinod Ahuja v. Anil Bajaj & Anr., 194 (2012) DLT 203 and Mohd. Jafar & Ors. v. Nasra Begum, 191 (2012) DLT 401. All the judgments are on the issue of presence of triable issues in leave to contest application and none of them have any factual bearing to the facts in hand.
Result: Dismissed Page 9 of 13
Ashok Kumar Gupta v. Rajni & Ors. E-38/12
8. In fact, in case title Precision Steel and Engineering Works Vs. Prem Deva Niranjan Deva Tayal AIR 1982 (3) SCC 270, the following principles of law to be borne in mind while deciding an application for leave to contest filed by the tenant on the ground of personal bona fide need :
"it would be open to the landlord to contest the application of the tenant seeking leave to contest and for that purpose he can file an affidavit in reply but production and admission and evaluation of documents at that stage has no place. The controller has to confine himself to the affidavit filed by the tenant under sub section 4 and the reply, if any. On perusing the affidavit filed by the tenant and the reply if any filed, controller has to pause to himself the only question : does the affidavit disclosed, not prove, facts as would dis entitled the landlord from obtaining an order for recovery of possession on the ground specified in clause (e) of the proviso to section 14 (1). The controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against others set of affidavits. That is not the jurisdiction conferred on the controller by sub section 5 because the controller while examining the question whether there is a proper case for granting leave to contest the application has to confine himself to the bona fide affidavit filed by the tenant disclosing such facts as would prima facie and not on contest disentitle the landlord from obtaining an order for recovery of possession. At this stage, when affidavit is filed under sub section 4 by the tenant and the same is being examined for the purposes of sub section 5, the controller has to confine himself only to the averments in the affidavit and the reply, if any, and that becomes manifestly clear from the language of sub section 5 that the controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would dis Result: Dismissed Page 10 of 13 Ashok Kumar Gupta v. Rajni & Ors. E-38/12 entitle the landlord from recovery, possession etc. The jurisdiction to grant leave to contest or to refuse, the same is to be exercised on the basis of affidavit filed by the tenant. That alone at that stage is relevant document and one must confine to the averments in the affidavit. If the averments in the affidavit disclosed such facts which, if ultimately proved to the satisfaction of the court, would disentitle the landlord from recovering possession, that by itself makes it obligatory upon the controller to grant leave. It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. It is distinctly possible that a tenant may fail to make good the defence raised by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot being in the concept of proof at this stage when plausibility has to be shown."
9. Thus, the plausibility of the defence raised and the proof of the same are materially different. In a similar case before the Hon'ble Delhi High Court i.e case title S. Harbans Singh Sahni & Ors. v. Smt. Vinod Sikari, the Hon'ble High Court while rendering its judgment on 25.04.2012 in the RC Revision No. 27/2010 dealt with contention of the petitioner No.2 to the effect that the tenancy premises was required by one Sh. Harjot i.e. son of the petitioner No.1 aged 30 years to carry on a detailed business. The contention was met with a counter to the effect that the petitioners did not disclose that they were engaged in business of bed and breakfast scheme. The Hon'ble Court rejected the contention saying that the landlord is the best judge of his requirement and has complete freedom in the matter.
9.1 Furthermore, no tenant can dictate terms to the landlord. The law in this
Result: Dismissed Page 11 of 13
Ashok Kumar Gupta v. Rajni & Ors. E-38/12
regard is set out hereunder:
1. It is a settled law that the tenant cannot dictate the terms to the landlord to file an eviction petition against a particular tenant. It has been held in Manohar Lal Vs. Mool Chand, 1976 RCR 236 that, "Accommodation occupied by different tenants
- it is the choice of the landlord to evict the tenant from accommodation which is more convenient to him."
2. It has been held by the Hon'ble Karnataka High Court in Habib Vs. Smt. Jayamma & Ors., 2005 (1) RCR Rent 235 that "The landlord is entitled to evict the tenant from shop which is suitable to him. Tenant cannot dictate landlord to occupy other shop which had fallen vacant but was not suitable."
3. It has been held by the Hon'ble Punab & Haryana High Court in M/s Bajaj Associates & Ors. Vs. Vinod Kumar & Ors, 2008 (4) CCC 442 that, "It is not for the tenant to dictate to landlord as to how he has to run or adjust his business."
4. It has been held in " Balwant Singh Chaudhary and anothers Vs. Hindustan Petroleum Corporation Limited" 2004 (1) RCR 487 that it is not necessary for the landlord to plead and prove the specific business he wants to set up if the landlord wanted premises for business purpose. Similarly it has been held in Sait Nagjee Purushotham and Company Ltd. Vs. Vimalabai Prabhulal and others, 2005 8 SCC 252 by the Hon'ble Apex Court that it is always the prerogative of the landlord that if he requires the premises in question for his bonafide use for expansion of business this is no ground to say that the landlords are already having their business Result: Dismissed Page 12 of 13 Ashok Kumar Gupta v. Rajni & Ors. E-38/12 at Chennai and Hyderabad therefore, it is not genuine need. It is not tenant who can dictate terms to landlord and advice him what he should do and what he should notIt is always the privilege of landlord to choose the nature and place of business.
10. Having regard to the evaluation of law and facts has made above, I am of the considered view that the respondents do not disclose any prima facie case. In Precision Steel and Engineering Works (supra) it has been observed that, "Prayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclose a prima facie case i.e. such facts as to what disentitles the landlord from obtaining an order of eviction, the court should not mechanically and in routine manner grant leave to defend.".
11. In this background, the application of the respondents under Section 25B (4) of the Act is dismissed. Consequently an eviction order is hereby passed in respect of the premises in question i.e. shop at F522/2, Khairpur, Gurdwara Road, Kotla Mubarakpur, New Delhi110003 as shown in red colour in the site plan of the petitioner. However, the eviction order passed under Section 14(i)(e) of the Act shall not be executable for a period of six months from the date of this order.
12. File be consigned to record room.
Announced in the open Court (MANISH YADUVANSHI)
on 03.04.2013 SCJCUMRC (SOUTH)
SAKET COURTS, NEW DELHI
Result: Dismissed Page 13 of 13