Delhi High Court
Krishan Kumar Dua vs Girdhar Gopal Gupta on 5 September, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 5th September, 2017
+ RC.REV. 417/2017
KRISHAN KUMAR DUA ..... Petitioner
Through: Mr. Vineet Chadha, Adv.
Versus
GIRDHAR GOPAL GUPTA ..... Respondent
Through: Mr. P.P. Ahuja and Mr. J.S. Kohli,
Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CM No.32254/2017 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
RC.REV.417/2017 & CM No.32253/2017 (for stay)
3. This Rent Control Revision Petition under Section 25B(8) of the Delhi
Rent Control Act, 1958 impugns the order [dated 27 th February, 2017 in E
No.903/14/12 of the Court of Additional Rent Controller (ARC) (Central),
Tis Hazari Courts, Delhi] of eviction, after full trial, of the petitioner from
shop No.4748 at Ground Floor, Main Road, Pahari Dhiraj, Delhi-110006.
4. The counsel for the respondent appears on advance notice/seeing the
matter in the Cause List.
5. The counsel for the petitioner has been heard.
RC.REV.417/2017 Page 1 of 7
6. The respondent instituted the petition for eviction from which this
petition arises inter-alia pleading (i) that the petitioner is an old tenant in the
shop, then paying rent of Rs.200/- per month; (ii) that the family of the
respondent consisted of, besides himself, his two married sons and their
respective families; (iii) that the respondent was doing business of paper and
cardboard from shop No.4753, Ahata Kidara, Pahari Dhiraj, Delhi-110006 in
the name and style of M/s S.B. Marketing Co.; (iv) that the respondent was
earlier carrying on the said business from shop No.4752, Ahata Kidara,
Pahari Dhiraj, Delhi but since the same was a residential premises,
Municipal Corporation of Delhi (MCD) sealed the same due to its misuser;
(v) that the son Amit Gupta of the respondent was compelled to do his
business from the same shop No.4753, Ahata Kidara, Pahari Dhiraj, Delhi as
proprietor of Gopal Sales Corporation; (vi) that the second son of the
respondent Sachin Gupta was also carrying on business of paper and
cardboard in the name and style of S.B. Board House earlier from shop
No.4753, Ahata Kidara, Pahari Dhiraj, Delhi only but under compelling
circumstances had taken on rent a small office premises at 947-949,
Chippiwara, Chawri Bazar, Delhi-06 at a rent of Rs.500/- per month.
7. The contention of the counsel for the petitioner/tenant is (a) that the
petitioner/tenant, in the application for leave to defend, pleaded that the
respondent was the owner of property No.947-949, Chippiwara, Chawri
Bazar, Delhi and had falsely claimed that his son was a tenant therein; (b)
that the respondent, in reply to the application for leave to defend, reiterated
that his son was a tenant in the said premises; (c) that however when the
petitioner/tenant in the written statement filed post grant of leave to defend
again pleaded that the respondent was the owner of property No.947-949,
RC.REV.417/2017 Page 2 of 7
Chippiwara, Chawri Bazar, Delhi, the respondent in the replication, at one
place pleaded that the said premises at property No.947-949, Chippiwara,
Chawri Bazar, Delhi earlier in the tenancy of Sachin Gupta earlier belonged
to Deepak Aggarwal who was owner landlord thereof and at another place
pleaded that the said property was now owned by Sachin Gupta and at yet
another place that Sachin Gupta was no longer the tenant in property
No.947-949, Chippiwara, Chawri Bazar, Delhi and that the same had been
purchased by Amit Gupta; (d) that the respondent/landlord in his cross-
examination however refused to produce the documents of purchase of
property No.947-949, Chippiwara, Chawri Bazar, Delhi stating that since his
son was the exclusive owner of the said property and was carrying on his
own business therefrom, he could not produce the documents therefor.
8. On the aforesaid, it is contended that the requirement of the
respondent, pleading which eviction of the petitioner is sought, is not bona
fide and that the respondent has been indulging in falsehood. It is argued
that at the stage of leave to defend, the respondent maintained that his son
Sachin Gupta was tenant in property No.947-949, Chippiwara, Chawri
Bazar, Delhi; thereafter, in replication at two different places inconsistent
stands were taken, at one place of ownership of Sachin Gupta and at another
place of ownership of Amit Gupta was pleaded; in the cross-examination, the
respondent refused to produce the documents to show when was the
ownership of property No.947-949, Chippiwara, Chawri Bazar, Delhi
acquired.
9. It is argued that the aforesaid inconsistency and suppression of
documents of ownership not only shows lack of bona fide but also falsifies
RC.REV.417/2017 Page 3 of 7
the claim of the sons of the respondent being dependent upon the respondent
for commercial accommodation. It is argued that while on the one hand it is
claimed that the sons of the respondent are dependent upon the respondent
and the respondent in his old age is dependent upon his sons but on the other
hand the inability of the respondent to even produce the documents of title of
the property owned by the son on the ground of independence of the son
shows that the respondent cannot seek eviction of the petitioner for the
requirement of his son.
10. Having found in the record that property No.947-949, Chippiwara,
Chawri Bazar, Delhi is not in main Chawri Bazar but "in a Gali off Chawri
Bazar" and on the first floor, I have enquired so from the counsel for the
petitioner/tenant.
11. The counsel for the petitioner/tenant confirms that property No.947-
949, Chippiwara, Chawri Bazar, Delhi is in a "Gali off Chawri Bazar" and
on the first floor.
12. Once that is so, the same cannot be said to be alternate suitable
accommodation to the shop in the tenancy of the petitioner which is on the
ground floor. A shop on the ground floor is always more commercially
viable than a shop on the upper floors of the property and it is for this reason
only that not only the purchase value but the rental value of shops on the
ground floor is more. The premises here are not situated in a Shopping Mall,
for it to be said that the floor on which the property is situated is irrelevant.
Supreme Court, in Uday Shankar Upadhyay Vs. Naveen Maheshwari
(2010) 1 SCC 503 held that it is well known that shops and businesses are
usually, though not invariably, conducted on the ground floor because the
RC.REV.417/2017 Page 4 of 7
customers can reach there easily and that the Court cannot dictate the
landlord which floor he should use for his business; that is for landlord
himself to decide. The view of the Courts below that the sons of plaintiff
No.1 in that case should do business in the first floor was held to be wholly
arbitrary and unsustainable.
13. Though the respondent is indeed found to have not produced the
documents of purchase of property No.947-949, Chippiwara, Chawri Bazar,
Delhi and adverse inference can be drawn against the respondent therefor
and it can be presumed that the statement in the petition for eviction and in
the reply to the leave to defend application, of Sachin Gupta being a tenant in
the said shop was only a half truth, inasmuch as his tenancy could also be
under his brother Amit Gupta on that date but what has to be remembered is
that in a landlord tenant proceeding, particularly in petitions for eviction of
tenants in occupation of properties for five or maybe six decades, there is
always a cat and mouse game which is at play and it also cannot be lost sight
of that the pleadings are drafted by the advocates and the mistakes as pointed
out of, in the same pleading, at one place claiming Amit Gupta to be the
owner and at another place claiming Sachin Gupta to be the owner are
mistakes in drafting and cannot be attributed to the parties. It is for this
reason only that the principle of british times of Moffusil Pleadings
continues to be applied to Courts in Delhi till date.
14. In my opinion, what has to be seen at the end of the day is the
requirement of the landlord and the alternate suitable premises if any
available. For the falsehood, if any practised by the respondent, the
respondent has already suffered by being unable to have the order of eviction
RC.REV.417/2017 Page 5 of 7
under the summary procedure and having had to wait, now for about last five
years. In my opinion, the landlord cannot be penalised more than that by
denying to him even at this stage the order of eviction, if otherwise found
entitled to. It is applying the said logic only that I have recently in Nalini
Kant Gupta Vs. Lajja Gupta 2017 SCC OnLine Del 10247 relying on a host
of earlier judgments held that once the tenant has had full opportunity and
the parties have gone to trial on all facts, the petition for eviction for self-
requirement cannot be dismissed on the ground of suppression.
15. When we see the matter in the aforesaid light, it cannot be said that the
respondent does not require the premises in the tenancy of the petitioner. It
is not in dispute that all three i.e. respondent and his two sons are carrying on
business from property No.4753, Ahata Kidara, Pahari Dhiraj, Delhi and the
first floor of property No.947-949, Chippiwara, Chawri Bazar, Delhi and
which I have already held cannot be a substitute for a shop on the ground
floor.
16. It is not the case of the petitioner/tenant that the area of property
No.4753, Ahata Kidara, Pahari Dhiraj, Delhi is large enough to allow all
three, respondent and two sons, to carry on business therefrom. It is also not
disputed that the respondent and his two sons are carrying on, though
business in the same goods, but separately. Once that is so, the requirement
of the respondent and his family members is writ large.
17. The Courts, in J.L Mehta Vs. Hira Devi 1970 6 DLT 484,
Mahantgovind Dass Vs. Shri Kuldip Singh (1970) 6 DLT 507, Joginder
Pal Vs. Naval Kishore Behal (2002) 5 SCC 397, M/s. Jhalani Tools (India)
Pvt. Ltd. Vs. B.K. Soni AIR 1994 Delhi 167, Anil Kumar Gupta Vs.
RC.REV.417/2017 Page 6 of 7
Deepika Verma 224 (2015) DLT 473, Sushila Devi Vs. Raghunandan
Pershad (1996) 61 DLT 426 and judgment dated 17th July, 2017 in RC.REV
No.315/2017 titled Asha Sawhney Vs. Kamini Gupta have held that
dependence of members of family under Section 14(1)(e) of the Act is not
financial dependence but in the Indian family context. It is not disputed that
the respondent and his two married sons along with their respective families
are staying in one house only. Once it is so, notwithstanding the respondent
having refused to produce the sale deed of property No.947-949,
Chippiwara, Chawri Bazar, Delhi in the name of his son, the sons would
remain dependent upon the respondent and the respondent would be entitled
to evict a tenant to accommodate his sons.
18. It cannot thus be said that the order of eviction impugned is not in
accordance with law within the meaning of Section 25B(8) of the Rent Act.
19. There is thus no merit in the petition.
20. Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 05, 2017 „bs‟ RC.REV.417/2017 Page 7 of 7