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[Cites 43, Cited by 0]

Delhi District Court

Rajeev Gupta vs Ajay Chopra on 21 October, 2013

   IN THE COURT OF SH. M.P. SINGH: ADDITIONAL RENT CONTROLLER, 
              (SOUTH EAST), SAKET COURT, NEW DELHI

EV­13/13
Unique case ID No. 02406C0100482013

Rajeev Gupta
s/o Sh. Bharat Bhushan
r/o D­61, 2nd Floor, Lajpat Nagar­I, Delhi - 24                                 ........... Petitioner

                                                                  Vs.

Ajay Chopra
s/o M. M. Chopra
r/o H. No. 665, Sector­30, Faridabad, Haryana

Also at - Shop No. 1/4, Krishna Market
Lajpat Nagar­I, Delhi                                                                              ......... Respondent


                                     Date of institution of case   : 20.04.2013
                                     Arguments heard on            : 11.09.2013
                                     Date of judgment               : 21.10.2013

                                                              ORDER

1. This order shall decide the question whether the respondent be granted leave to contest the instant eviction application under clause (e) of proviso to section 14 (1) of the Delhi Rent Control Act, 1958 (for short 'the Act').

2. Vide an oral agreement, Late Sh. Sita Ram, petitioner's grandfather, let out shop measuring approximately 12x9 sq. feet bearing pvt. no. 1/4 in property shop no. 1, Krishna Market, Lajpat Nagar­I, Delhi­24 (for short 'the shop') to the respondent's father. Thereafter, written vide lease agreement dt. 15.04.2005 Rajeev Gupta vs. Ajay Chopra Page 1/19 respondent was inducted as tenant in the shop by Sh. Sita Ram. This lease was slated to commence on 01.05.2005. Lease was granted for a period of five years. Respondent was required to hand over the vacant and physical possession of the shop on expiry of the lease or on prior termination of lease agreement. Monthly rental was fixed at Rs. 600/­ besides electricity and water charges. Rent is stated to be paid up till 30th June, 2012. It is stated that the despite efflux of time of five years the respondent has not vacated the shop. It is also stated that the respondent had represented that he would vacate the shop as he had purchased another shop.

3. It is averred that Late Sh. Sita Ram, during his life time, bequeathed the shop, besides other shops, to the petitioner by virtue of registered will dt. 21.09.2005. After his grandfather's demise on 08.02.2008, petitioner applied for and got the shop mutated in his name in the records of the concerned authorities. Petitioner thus avers that he has become lawful owner of the shop. He submits after his grandfather's demise, respondent started paying rent to him and at times rent was tendered to his father, who accepted the same for and on his behalf.

4. Petitioner avers that he was assisting his father in dry­cleaning business, being run from shop no. 1, but it was closed down in year 2009 as use of chemicals in dry­cleaning was prohibited in view of pollution control norms under Environment Protection Act. He goes on to aver that due to closure of dry­ cleaning business, he and his father were rendered jobless, making sustenance of life difficult for the total monthly rent from the shops was only Rs. 2,000/­. Petitioner further states that his wife is running a business of ladies tailoring from her residence situated on the second floor, but the same does not yield sufficient money to sustain life as the existing clients are reluctant to climb to the second Rajeev Gupta vs. Ajay Chopra Page 2/19 floor and approaching and inviting new clients is almost difficult. He goes on to state that he started assisting his wife in her ladies tailoring business being run from the second floor residence; but despite his full time assistance the business could not convert itself into profit making entity. He further states that during the course of providing assistance to his wife, he learnt skills of ladies tailoring and also started selling readymade ladies suit from his second floor residence. During this period of extreme frustration, it is stated, petitioner received an offer from Apollo Pharmacy, as they were interested to take shop no. 1 on rent at the prevalent market price and such rent was sufficient to meet day to day needs of life and education of his minor children. Petitioner states that he now realised that he should shift his business on the ground floor if he really wanted to meet his day to day requirements, including education of his two growing children. He therefore felt the need to shift his business to ground floor so that he and his wife can earn sufficient money. It is averred that he approached the tenant of shop no. 1/3 to vacate the same, but he demanded huge money. He then approached the other tenants, but they too demanded huge money for vacating their shops. Petitioner states that if the business is started from ground floor, then the same may yield good business and profits. On these averments, petitioner pleads that he bonafidely requires the shop besides three other shops in property no. 1, Krishna Market, Lajpat Nagar, Delhi.

5. Summons of the eviction application was issued vide order dt. 22.04.2013 and the matter was listed for 15.05.2013. On 15.05.2013 it was noticed that report of service by way of registered post had not been received back. However, the court process server reported that he visited the Lajpat Nagar Rajeev Gupta vs. Ajay Chopra Page 3/19 address (Shop No. 1/4, Krishna Market Lajpat Nagar­I) of the respondent on 07.05.2013 and met an employee who refused to accept the process on the premise that he could not accept the same without instructions of his master. Vide order dt. 15.05.2013 respondent was ordered to be served afresh, including by way of affixation and the matter was listed for 10th July, 2013. However, in the meantime summons by way of registered post was received back with report dt. 07.05.2012 of 'refused' (shop address). The process that was issued in terms of the order dt. 15.05.2013 was received back duly served personally on 24.05.2013 upon the respondent at his shop address. Application seeking leave to defend under section 25B (4) of the Act was filed on 07.06.2013.

6. Now to averments in the application seeking leave to defend. At the very outset, respondent asserts that petitioner is not the owner of the shop as the will dt. 21.09.2005, on the basis of which latter is setting up his ownership rights, stands revoked by Late Sh. Sita Ram on 09.11.2011. He thus avers that petitioner is guilty of suppressing and concealing material facts. Respondent states that Sh. Sita Ram left behind three sons and two married daughters and that if eviction is ordered then the same would tantamount to probate of an already revoked will. Respondent further submits that clause (e) of proviso to section 14 (1) of the Act does not apply to the shop was the same has been let out for commercial purpose. It is his submission that petitioner does not require the shop bonafidely inasmuch as if really wanted to run ladies tailoring shop, he could have run the business from the premises (20x13 sq. feet) which he let out to Apollo Pharmacy for a monthly rent of Rs. 53,000/­ per month. Respondent goes on to state that premises let out to Apollo Pharmacy is much bigger in size in comparison to the Rajeev Gupta vs. Ajay Chopra Page 4/19 shop in question and that the aforesaid requirement of the petitioner for ladies tailoring business cannot be fulfilled in such a small space in the shop. He further states that the petitioner has filed four identical eviction petitions by making similar submissions in all of them, thereby creating doubt about his alleged requirement. He alleges that petitioner intends to let out the shop to some other person on higher rent. He denies that he ever paid rent to the petitioner. He submits that rent was rather paid to petitioner's father after demise of Sh. Sita Ram. Respondent goes on to submit that the fact that rent receipt used to be issued by petitioner's father creates doubts about ownership of the shop. He questions petitioner's ownership on the ground that if he had really became owner after demise of Sh. Sita Ram, then how is that his father was issuing the rent receipt and why did he not object then. Vis­a­vis the lease agreement dt. 15.04.2005 it is stated that the same is not legal as it unregistered. It is stated that rent is presently being deposited under section 27 of the Act.

7. Petitioner filed his reply to the leave to defend application with counter affidavit, which is essentially a reiteration of the contents of the petition. In addition thereto, it is stated that the respondent's application seeking leave to contest (filed on 07.06.2013) is time barred as he was served on 07.05.2013 by way of refusal through registered post. It is stated that the tenant cannot, under the law, deny ownership of the landlord. He has vehemently refuted respondent's averments to the effect that his requirement is not bonafide. Petitioner states that the document whereby his will was cancelled is fabricated and a procured document. It is denied that his grandfather ever cancelled the will in question. It is stated that the property already stands mutated on the basis of the will. He Rajeev Gupta vs. Ajay Chopra Page 5/19 submits that other legal heirs of his late grandfather have not raised any question on this issue in any forum. It is pointed out that respondent himself avers that he was paying the rent to his father and his father having passed away, landlordship would devolve upon him. It is stated that the tenant cannot direct him to run his business from a particular shop. Petitioner states that since the respondent himself states that in such a small shop, his requirement cannot be met, he was therefore justified in suing for eviction of all shops.

8. Petitioner filed his rejoinder. He states that he was served on 24th May, 2013 and that prior thereto he did not receive any summons. He points out that vide order dt. 15.05.2013 court had directed issuance of summons afresh. On the aspect of ownership of the shop and bonafide requirement, respondent reiterates his averments made in the application seeking leave to defend.

9. Petitioner relied upon the following judgments: (A) Savitri Devi vs. Nathu Ram 1982 RLR 463 - If summons sent by regd. Post/AD card is not received back or is not on the file then the court may presume, under section 27 of General Clauses Act read with section 114 Evidence Act, due service of the summons. (B) Subhash Malhotra vs. M. L. Kapoor & Anr. 1982 (1) AIRCJ 326 ­ Tenant to file both application for leave to defend and his own affidavit within prescribed period. (C) Satya Pal Jain vs. Kailash Wati Goel 154 (2008) DLT 117 ­ There is no presumption that postal department and the process server would give a false report. (D) Prithi Pal Singh vs. Satpal Singh 2010 (2) SCC 15 - Rent Controller cannot condone the delay in filing application for leave to contest. (E) Jasola Vihar Residents Welfare Association vs. UOI & Anr. Rajeev Gupta vs. Ajay Chopra Page 6/19 166 (2005) DLT 286 ­ This judgment is on some other aspect not connected with the Act. (F) Aster Publishing vs. Niwas Aggarwal & Ors. 177 (2011) DLT 747

- Leave to defend filed beyond the statutory period of 15 days, rightly dismissed. (G) Ram Kishan & Sons vs. Mohd. Haroon Japanwala & Ors. 188 (2012) DLT 364 - service of summons upon employee of tenant valid service and application seeking leave to contest filed beyond 15 days not maintainable. (H) Ramesh Tuli vs. Sharda Kapoor 153 (2008) DLT 302 ­ Rent Controller cannot condone the delay in filing application for leave to contest (I) Mohan Lal vs. Thirath Ram Chopra & Ors. 1982 (2) AIRCJ 162 - on bonafide requirement. (J) Ranjit Kumar Chopra vs. Virinder Khosla 155(2008) DLT 658 - Tenant cannot impose his own standards and cannot compel landlord to keep living in the same premises. (K) A. K. Nayar vs. Mahesh Prasad 2008 (106) DRJ 796 - Ownership under the Act is not absolute ownership. (L) Vinod Kumar Verma vs. Manmohan Verma & Anr. 148(2008) DLT 580 ­ Ownership under the Act is not absolute ownership. (M) Amarjit Singh vs. Mrs. Khatoon Quamarain 23(1983) DLT 362 ­ On bonafide requirement (N) Shantaram vs. Shyam Sunder & Anr. 1972 AIRCJ 741 - Even if one landlord, out of many landlords, establishes bonafide requirement, eviction should follow. (O) Freddy Fernandes vs. P. L. Mehra 1973 RCR 53 - It is for the landlord himself to judge his own needs and his desire to seek economic gain is legitimate. (P) Royal Nepal Airlines Corporation vs. Shrishti Properties Pvt. Ltd. 184 (2011) DLT 362 - In the absence of tenant disclosing prima facie case, eviction should follow. (Q) Rajeev Gupta vs. Ajay Chopra Page 7/19 Smt. Prativa Devi vs. T. V. Krishnan JT 1987 (1) SC 764 - Court has to consider whether the alternative accommodation is available and also whether he has a legal right to such accommodation. (R) Pushkar Singh vs. Ansuiya (2006)6 SCC 799 - Alternative accommodation not suitable, eviction ordered. (S) Viran Wali vs. Kuldeep Rai Kochhar 174 (2010) DLT 328 - Tenant cannot dictate to the landlord as to how and in what manner he should use his own property. (T) Corona Ltd. vs. M/s Parvathy Sawaminathan & Sons 2007(2) RLR 481 - Basic rule is that rights of parties should be determined on the basis of date of institution of suit. (U) Budh Singh & Sons & Ors. vs. Sangeeta Kedia 185(2011) DLT 580 - On bonafide requirement (V) Labhu Lal vs. Sandhya Gupta 173 (2010) DLT 318 - On bonafide requirement (W) Ram Babu Agarwal vs. Jay Kishan Das VII (2009) SLT 492 - Tenant can be evicted if landlord wants to start his own business, even if it is in field in which he has no experience. (X) C. Natarajan & Anr. G. N. Shanmugam & Ors. 2007 (1) RCR 252 - On bonafide requirement.

10. Respondent relied upon the following judgments: (A) Durga Devi vs. S. Kumar 46(1992) DLT 356 - ARC has also to see whether in a particular case, when service is not effected personally either on the tenant or his duly authorised agent, and there is report of refusal, he should direct service by publication. (B) Sudarshana Rani vs. Kamla Bhutani 45(1991) DLT 678 - Summons served on tenant's attorney not proper service under the given facts. (C) Mohd. Jafar & Ors. vs. Nasra Begum 191 (2012) DLT 401 ­ Leave to defend should normally be granted in case of need of additional accommodation by landlord. (D) Vijay Rajeev Gupta vs. Ajay Chopra Page 8/19 Nayyar vs. Om Prakash Malik 2011(126) DRJ 323 - Tenant claimed leave to defend on the plea that landlord had two other shops, leave to defend granted. (E) Kishore & Anr. vs. Prabodh Kumar & Ors. 2012(132) DRJ 562 Mere wish or desire of landlord to have tenanted shop for expansion of business or for additional accommodation or even for setting up business for his son may not be taken in every case to be bonafide requirement. (E) S. K. Seth & Sons vs. Vijay Bhalla 191(2012) DLT 722 - It is a triable issue whether the shop available with landlord is sufficient to meet his requirement or not. (F) Mohd. Illyas vs. Nooruddin & Ors. 184(2011) DLT 590 ­ Submission of tenant that landlord has not approached the court with clean hands by not disclosing availability of another property ought not be brushed aside. (G) Vinod Ahuja vs. Anil Bajaj & Anr. 194(2012) DLT 203 ­ Landlord who seeks eviction on basis of his projected requirement based on his subjective decision is required to be tested by court. (H) Sukh Dev Sharma vs. Kuljeet Singh Jass 2012(132) DRJ 632, Jawahar Lal vs. Ravinder Kumar Khanna & Anr. 195(2012) DLT 239 and Rakesh Kumar vs. Pawan Khanna - 195(2012) DLT 341 ­ Wherever tenant is able to make out a prima facie triable issue, he is required to be protected. (I) Hindustan Zinc Ltd. Lt. Col. Satya Pal Wadhwa & Anr. 194 (2012) DLT 244 - If a tenant discloses grounds and pleads a cause which prima facie is not baseless, unreal and unfounded, he ought to be granted leave to contest.

11. I have heard arguments at Bar and perused records of the case.

12. Ever since the decision of Apex Court in Satyawati Sharma vs. Union of India & Anr., 148 (2008) DLT 705 (SC), it is no longer res integra that clause Rajeev Gupta vs. Ajay Chopra Page 9/19

(e) of proviso to section 14 (1) of the Act is also applicable to the premises let out for a purpose other than residential. And as such, respondent's contention that clause (e) of proviso to section 14 (1) of the Act has no application to the case at hand as the premises were let out for commercial purpose merits rejection.

13. Now comes the issue of ownership. It was the respondent's contention that the petitioner is not the owner of the shop and therefore, he is not entitled to maintain the present action for eviction of the shop. It was his stand that petitioner's grandfather revoked the will dt. 21.09.2005 on 09.11.2011. On the other hand, petitioner's contention is that it is he who is the owner and entitled to maintain the present action for eviction.

14. A person after having already left for his heavenly abode cannot possibly cancel or revoke his will. Petitioner's grandfather having passed away on 08th February, 2008 (death certificate on record), could not have revoked his will on 09.11.2011 much after his demise. It appears that on this score the respondent has made a typographical error in his application seeking leave to defend. The document vide which the will is stated to have been revoked is placed on record and the same is dated 09.11.2005 and not 09.11.2011.

15. The word 'owner' has not been defined in the Act. It is neither defined in Transfer of Property Act. There are enough judicial rulings to hold that 'ownership', in the context of the Act, does not mean absolute ownership. The only requirement is that the landlord must have better title than the tenant and must have rights in the premises that are more than that of a tenant. Delhi High Court, interpreting the word 'owner' in clause (e) of proviso to section 14 (1) of the Act in T. C. Rekhi vs. Usha Gujral 1971 RCJ 322, observed asunder: Rajeev Gupta vs. Ajay Chopra Page 10/19

The word 'owner' as used in this clause has to be construed in the background of the purpose and object enacting it. The use of the word 'owner' in this clause seems to me to have been inspired by definition of the word 'landlord' as contained in section 2 (e) of the Act which is wide enough to include a person receiving or entitle to receive the rent of any premises on account of or on behalf of or for the benefit of any other person......."

16. This interpretation of the word 'owner' was approved of by Apex Court in Smt. Shanti Sharma & Ors. vs. Smt. Ved Prabha & Ors. (1987)4 SCC 193. Further, in the matter of Tahira Begum vs. Sumitra Kaur & Anr. 166 (2010) DLT 443, relying on Shanti Sharma (supra), it was observed, "For the purpose of section 14 (1) (e) of the Act, ownership is not to be understood as absolute ownership, but only as a little better than the tenant. So what has to be seen is whether on the basis of aforesaid facts it can be said that the petitioner has any title to the property, the title better than the respondents"

17. Moreover, under the extant law if a tenant sets up a plea of denial of ownership, then he must disclose as to who is the owner. A mere bald denial in this context would not suffice. Mere denial of ownership would not mean that the matter requires trial. {Zahid Hussain vs. Aenul Haq Qureshi through LRs, 2005(1) RCR, 323 (DHC) and Meenakshi vs. Ramesh Khanna & Anr. 60 (1995) DLT 525}. Furthermore, under the law, it is also settled that a co­owner can very well maintain an action for eviction and recovery of possession of a property and it is not necessary for him to show before initiating the eviction proceedings that he has taken the consent or option of other co­owners. However, where a co­owner objects, the same may be a relevant factor. Decision reported Rajeev Gupta vs. Ajay Chopra Page 11/19 as Mohinder Prasad Jain vs. Manohar Lal Jain AIR 2006 SC 1471 can be referred to in this context.

18. Decision reported as M/s Nopany Investments (P) Ltd. vs. Santokh Singh (HUF) AIR 2008 SC 673, which is also a relevant one in the given facts and circumstances, may also be taken note of. This too, like the present one, was a case where the tenant had challenged the locus standi of the person who has sued to institute the suit for possession against him. The facts were: The tenant had entered into a lease with Dr. Santokh Singh HUF for a period of 4 years. One Sh. Jasraj Singh, a junior member of the family, filed suit for possession against the tenant. The tenant, predictably enough, questioned the maintainability of the suit filed at the instance of Sh. Jasraj Singh. When the matter was before the Delhi High Court in second appeal, it was observed:

There was no protest by any member of the joint family to the filing of the suit by Jasraj Singh claiming himself to be the Karta of the HUF. There was also no whisper of protest by Dhuman Raj Singh against the acting of Sh. Jasraj Singh as the karta of the HUF.

19. When the matter finally reached the Apex Court, this pivotal question was once again raised by the tenant. Endorsing the view taken by the High Court in second appeal, the Apex Court observed:

Furthermore, there has been no protest either by Dhuman Raj Singh or by any member of the HUF to the filing of the suit by Jasraj Singh. That apart, in our view, it would not be open to the tenant to raise the question of maintainability of the suit at the instance of Sh. Jasraj Singh as we find from the record that Sh. Jasraj Singh has all along been realising the rent from the tenant and for this reason, the tenant is Rajeev Gupta vs. Ajay Chopra Page 12/19 now estopped from raising such question.

20. Applying the entire gamut of law, as taken note of hereinabove, on the aspect of 'ownership' in the context of the Act, I find that the plea set up by the respondent cannot be accepted for the following multiple reasons. Sh. Sita Ram was survived by three sons, including petitioner's father (Sh. Bharat Bhushan) and two daughters. Petitioner is the male descendant of Sh. Bharat Bhushan. Even if the will in question stood revoked, petitioner would not cease to be a legal heir of Sh. Sita Ram. Being his legal heir, he, of course, stands in a better position than the tenant vis­a­vis title to the shop. He may or may not be the absolute and exclusive owner, but his rights, interests and claim to ownership in the shop stand on a much higher footing than the tenant. Secondly, a mere bald denial of ownership by the respondent would not suffice. Respondent was obliged, on his setting up a plea of denial of ownership, to disclose as to who was the owner. Respondent has not done so. Thirdly, under the law {Mohinder Prasad Jain (supra)} petitioner, being the co­owner, can certainly maintain the present action for eviction of the shop without consent and option of other co­owners. Fourthly, as per respondent's own case after Sh. Sita Ram's demise, petitioner's father was accepting the rent and issuing the rent receipts. In other words, respondent had accepted Sh. Bharat Bhushan, petitioner's father, as his landlord. Sh. Bharat Bhushan, too, as per petitioner's reply to application seeking leave to defend, has left for his heavenly abode in January, 2013. Now, when a landlord leaves this world, it is natural enough that the landlord's descendant would step into shoes of landlord. And lastly, what is most striking in the instant case is that there has not been even a whisper of protest by the other legal heirs of Sh. Sita Ram to the Rajeev Gupta vs. Ajay Chopra Page 13/19 institution of the present case by Rajeev Gupta. The other legal heirs at no point of time came to the court agitating that they had any clash of interests with Rajeev Gupta so far as eviction of tenant is concerned. They have not set up any protest worth the name. They are not raising any banner of revolt against the petitioner for having instituted the present case in his name alone. It is worth mentioning that the respondent Ajay Chopra had filed an application for deposit of rent under section 27 of the Act before this court in July, 2013 (DR no. 146/13 Ajay Chopra vs. Anil Kumar Gupta & Ors.). Petitioner was one of the respondents, apart from seven other respondents. Respondents Anil Kumar Gupta, Ramesh Gupta, Prabha Gupta, Rajeev Gupta and Sonia Arora filed their objections therein stating that Rajeev Gupta was alone entitled to receive the rent of the shop being its owner. Now, when the co­owners are not raising any objection qua the petitioner Rajeev Gupta receiving the rent and filing the case for eviction, then it is not within the domain of the tenant to raise such objections.

21. Now the issue of bonafide requirement. Petitioner states that there is bonafide requirement inasmuch as he wants to shift his ladies tailoring business from his second floor residence to the ground floor. To begin with, in terms of Apex Court decision in Ram Babu Agarwal (supra) court cannot question the wisdom of landlord to start a business, even if it be in a new venture in which he has no experience. In this case at hand, it is not that the petitioner has absolutely no experience in ladies tailoring business. He very much states that he learnt the skills of ladies tailoring during the course of rendering assistance to his spouse. In other words, the case set up by the petitioner Rajeev stands on a better footing than that of a landlord who has no experience. Secondly, residence is hardly the Rajeev Gupta vs. Ajay Chopra Page 14/19 place to do and continue business and commerce. Place where a person resides, to my mind, is hardly the place for carrying out business activity, and that too ladies tailoring business. Carrying out such a business from residence is certainly not conducive for growth and education for minor school going children. It is also not conducive for peaceful living of a family. A family is certainly not expected to live amidst cacophony and the din of business and commercial activities. It is always desirable that the business activity is carried out from a place little away from place where one resides. Thirdly, it cannot be gainsaid that a shop on the ground floor is commercially more viable than that situated on second floor. Landlord has a right to locate his business to the ground floor in view of the fact that customers are generally reluctant to climb to the second floor. Reliance by petitioner upon decisions of Ranjit Kumar Chopra (supra) and Viran Wali (supra) is not out of context. In Viran Wali (supra) while affirming the decision to decline leave to contest, it was observed, "It is well known fact that any shop situated on the ground floor is more convenient than a shop situated in the basement of the premises." The case at hand stands on a better footing inasmuch as ground floor shop, in any case, would be commercially more viable than shop on second floor.

22. It was the respondent's stand that need of the petitioner is not bonafide as he could have run the business from the premises (20x13 sq. feet) which he let out to Apollo Pharmacy for a monthly rent of Rs. 53,000/­. I am not inclined to accept this contention. Petitioner states that after closure of dry­cleaning business and the commercially unviable ladies tailoring business being run from second floor residence, he faced financial constraints and to overcome financial Rajeev Gupta vs. Ajay Chopra Page 15/19 stringency, he let out shop no. 1 to Apollo Pharmacy as and when he got the offer. It certainly cannot be expected that the bonafide need would arise only when the landlord continues to remain financially stringent. This cannot be the standard. Desire to seek economic gain on the part of landlord is certainly not illegitimate. A landlord can certainly expect to have decent income from which he can meet day to day expenses of his family and education of his children. He has to at least have decent assured income for expenditures of his family and children. As and when shop no. 1 was available for fetching appropriate rent at market rate, the same was duly let out. This was necessary from the point of view of meeting the ever increasing day to day living expenses. Moreover, to relate the present bonafide need with that of income constraints would be a improper analysis of the facts pleaded in the respective affidavits. It is settled law that a landlord has every right to the premises best suitable for his business and his status of pre­existing wealth cannot be a factor worth consideration in ascertaining the bonafides of his requirement.

23. It was respondent's argument that ascertainment of area required for establishment of such business, as projected, is a triable issue. Bonafide need of petitioner is to start business from a commercial space on ground floor to make it more viable. Petitioner categorically states the extent of accommodation required by him for purpose of setting up a proper boutique. Respondent's space is a small one for starting a ladies tailoring business. And it is therefore that he has also set up a need for vacation of three other shops. Ladies tailoring business would require setting up many machines, ladies try room and a space for a counter. Presently, the petitioner is doing his business from his residential premises. It Rajeev Gupta vs. Ajay Chopra Page 16/19 bears repetition to state that residence is hardly the place to carry out business. Petitioner now justifiably requires commercial premises on ground floor.

24. During the course of arguments, Ld. Counsel for respondent placed on record copies of lease deed to show that petitioner's wife co­owns a property in Moti Nagar. On this basis, it was contended that the need of the petitioner is not bonafide. It appears that in the said property in Moti Nagar, petitioner's wife is the co­owner along with her sisters. Now, the petitioner cannot be asked to locate his business to Moti Nagar when he is residing in Lajpat Nagar. He cannot be asked to take his business to a place far away from the place where he resides. Secondly, the petitioner's wife could have located her business to Moti Nagar only when the other co­owners would have given up their needs and requirements in the property in her favour. That is to say, it only when the other co­owners state that they do not want the premises for their usage that the petitioner can set up her business therein in exclusion to the other co­owners.

25. In the case at hand, it also cannot be said that this is a case of seeking additional accommodation. The petitioner would naturally give up all commercial activities from his residence if he could have the enjoyment of ground floor commercial space.

26. On the aspect of bonafide requirement, I find that petitioner requires the shop for his own business use and has no other reasonably suitable alternative accommodation available with him.

27. Now comes the issue of suppression and concealment of material facts. It was contended that by not disclosing the rate of rent being derived from Apollo Pharmacy and the factum of cancellation of will, petitioner resorted to Rajeev Gupta vs. Ajay Chopra Page 17/19 concealment of material facts. Petitioner had very much stated that he had let out shop no. 1 to Apollo Pharmacy. It was only that he did not disclose the rate of monthly rent derived from Apollo Pharmacy in his eviction application. Whether or not will has been cancelled is not of much significance as petitioner continues to have ownership rights as already discussed hereinabove in detail. To my mind this is not concealment of material facts. There can certainly be no denial from the settled principle of law that suppression of material fact by a litigant disqualifies him from obtaining any relief. The rule has been evolved out of need of the courts to deter a litigant from abusing the process of court by deceiving it. But what is essential is that the suppressed fact must be a material fact. It must be material fact in the sense that had it not been suppressed it would have had an effect on the merits of the case. Decisions reported as Mayar (H. K.) Ltd. & Ors. Vs. Owners and Parties, Vessel M. V. Fortune Express & Ors. AIR 2006 SC 1828; M/s S. J. S. Business Enterprises (P) Ltd. vs. State of Bihar & Ors. AIR 2004 SC 2421 and Virender Nath Gautam vs. Satpal Singh & Ors. AIR 2007 SC 581 can be referred to in this context. Bonafide requirement can have no nexus with the present income of the landlord. I find that there is no concealment of material facts by petitioner.

28. And lastly comes the issue of limitation in fling the application seeking leave to contest. Summons of the eviction application was issued vide order dt. 22.04.2013 and the matter was listed for 15.05.2013. This court vide order dt. 15.05.2013 had directed fresh issuance of summons even when the court process server had stated that the employee of the tenant did not accept the summons. Therefore, in the face of the fact that the court had directed issuance of fresh Rajeev Gupta vs. Ajay Chopra Page 18/19 summons then it would be apposite that the service reports pertaining to previous dates be not stressed upon. It is my view that when the court directs issuance of fresh summons in the face of report of process server about refusal on the part of tenant's employee, then a similar report of refusal by a postal employee pertaining to an earlier date should not give an avenue to contend that the tenant stands served on an earlier date even when the court has directed issuance of fresh summons.

29. CONCLUSION ­ No triable issue has been raised in the affidavit as well as in the leave to defend application under section 25B (4) of the Act. Respondent's application seeking leave to contest the present matter is dismissed. Accordingly, an eviction order is hereby passed in favour of the petitioner and against the respondent in respect of shop at ground floor measuring approximately 12x9 sq. feet bearing pvt. no. 1/4 in property shop no. 1, Krishna Market, Lajpat Nagar­I, Delhi as shown in red colour in the site plan. File be consigned to record room. 

Announced in the open court on 21.10.2013                                                                       (M. P. Singh)
                                                                                                     ACJ/CCJ/ARC­(SE)
                                                                                               Saket Court, New Delhi




      Rajeev Gupta vs. Ajay Chopra                                                                                  Page 19/19