Delhi High Court
Sh. Dina Nath (Now Deceased) Through His ... vs Sh. Manohar Lal Kapoor on 7 November, 2014
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC.REV.No.300/2012 and C.M. No.11729/2012 (stay)
% 7th November, 2014
SH. DINA NATH (NOW DECEASED) THROUGH HIS LEGAL HEIRS
......Petitioners
Through: Mr. Harish Malhotra, Senior
Advocate with Mr. R.K. Modi,
Advocate.
VERSUS
SH. MANOHAR LAL KAPOOR ...... Respondent
Through: Mr. Ashok Sapra, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Rent Control Revision Petition is filed under Section 25B(8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') impugning the judgment of the Additional Rent Controller dated 29.3.2012 by which the Additional Rent Controller has dismissed the leave to defend application and has decreed the bonafide necessity eviction petition filed RC.REV.No.300/2012 Page 1 of 6 under Section 14(1)(e) of the Act with respect to the tenanted premises being shop no.492, Ground Floor, Ward no.14, Bartan Market, Sadar Bazar, Delhi.
2. The respondent/landlord had filed the bonafide necessity eviction petition claiming the requirement of the suit/tenanted shop for the purpose of carrying on a business by his second son Sh. Sanjay Kapoor and who is presently working in a private company at Gurgaon.
3. A reading of the impugned order as also the pleadings and documents filed in the court below show that undoubtedly since the son of the respondent/landlord Sh. Sanjay Kapoor is working in a private company, in law, he can always open his own business by leaving his private job, and hence the Additional Rent Controller has rightly decreed the bonafide necessity eviction petition.
I may however hasten to clarify that by an unnecessary error, the eviction petition has been decreed both for the need of the respondent/landlord and his son, but the counsel for the respondent/landlord concedes that the bonafide necessity eviction petition filed was only for the need of the son of the respondent/landlord Sh. Sanjay Kapoor for carrying on the business in the suit/tenanted shop.
RC.REV.No.300/2012 Page 2 of 6
4. In a petition for bonafide necessity under Section 14(1)(e) of the Act, three aspects are required to be seen. Firstly, the existence of relationship of landlord and tenant between the parties. Secondly, the bonafide need of the tenanted premises for the landlord and/or his family members. Thirdly, the landlord and his family members must not have an alternative suitable accommodation.
5. On the aspect of relationship of landlord and tenant, learned senior counsel for the petitioners/tenants argued that the tenant in the suit/tenanted shop was a partnership firm of M/s Jamnadas Ramkrishan and that Sh. Dina Nath was not the sole proprietor of this firm as was the case in the eviction petition, however, when the learned senior counsel for the petitioners/tenants was asked to point out as to where is the partnership deed and that who are partners of M/s Jamnadas Ramkrishan, learned senior counsel for the petitioners/tenants had no option but to concede that nowhere in the pleadings who are the partners of the firm is mentioned and nor is the partnership deed filed. Therefore, in my opinion, a self-serving bald assertion cannot create a triable issue. The first argument therefore urged on behalf of the petitioners/tenants that the tenancy is not of the sole proprietor RC.REV.No.300/2012 Page 3 of 6 Sh. Dina Nath of M/s Jamnadas Ramkrishan and is allegedly of a partnership firm is accordingly rejected.
6. The second argument urged on behalf of the petitioners/tenants is that the son Sh. Sanjay Kapoor lives in Gurgaon and therefore he is not a part of the family of the respondent/landlord and consequently the respondent/landlord cannot claim the need for the business purpose of his son Sh. Sanjay Kapoor. This argument urged on behalf of the petitioners/tenants is also misconceived because even if children of a landlord physically live separately from the landlord in a separate residential premises, the same cannot mean that they are not family members of the landlord and for the landlord to claim tenanted premises for the use and occupation/need of business of children. I need not dilate on this aspect too much because now it is settled law in view of a chain of judgments of the Supreme Court that children do not cease to be family members merely because they are financially independent or are living separately from the parents in view of the social conditions which exist in this country. Consequently, the expression 'family' has been liberally interpreted in a series of judgments to include children who are both financially independent RC.REV.No.300/2012 Page 4 of 6 and living separately from the parents. The second argument urged on behalf of the petitioners/tenants is also therefore rejected.
7. The third argument which was urged on behalf of the petitioners/tenants is that the respondent/landlord had alternative suitable accommodation being one shop which was available to the respondent/landlord in the property bearing no.488, Bartan Market, Sadar Bazar, Delhi. This shop was however sold in the year 2006. For the purpose of this argument, reference is made to pleadings in an eviction petition filed by the brother of the respondent/landlord one Sh. Kunj Bihari Lal Kapoor. Even this argument urged on behalf of the petitioners/tenants lacks any substance because reference to this affidavit shows that since there was a dispute between the respondent/landlord and his brother, therefore so as to resolve the dispute the shop in the property no.488, Bartan Market, Sadar Bazar, Delhi was sold. Once it is found that a shop belonging to the respondent/landlord was sold for resolving of the disputes, I do not think action of the respondent/landlord in selling the shop in the year 2006 i.e around two and half years before filing of the eviction petition, the same can be said to be a malafide act for the bonafide necessity eviction petition not to succeed. RC.REV.No.300/2012 Page 5 of 6
8. In view of the above, there is no merit in the petition and the same is therefore dismissed. Respondent/landlord will be entitled to use and occupation charges till the time the petitioners/tenants occupy the suit/tenanted premises, from the date of passing of the eviction order in terms of the judgment of the Supreme Court in the case of Atma Ram Properties (P) Ltd. Vs. Federal Motors Pvt. Ltd. (2005) 1 SCC 705 and for the purpose of which respondent/landlord is given liberty to file execution proceedings in which the amount of user charges will be decided by the executing court.
VALMIKI J. MEHTA, J NOVEMBER 07, 2014 Ne RC.REV.No.300/2012 Page 6 of 6