Delhi High Court
Dinesh Kumar Gupta vs Sh. Sunil Gupta & Ors. on 2 July, 2014
Author: Najmi Waziri
Bench: Najmi Waziri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 02.07.2014
+ RC.REV.131/2014, CM Nos.5669-70/14, Cav.288/2014
DINESH KUMAR GUPTA ..... Petitioner
Through: Mr. G.L. Rawal, Sr. Adv. with
Mr. Kuljeet Rawal & Mr. Jagjit Singh,
Advs.
versus
SH. SUNIL GUPTA & ORS. ..... Respondents
Through: Mr. Asutosh Lohia, Adv.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI % MR. JUSTICE NAJMI WAZIRI The present petition impugns an order dated 9.12.2013 whereby the petitioner (tenant) has been directed to be evicted from the tenanted premises being property No.2841, Gali Pipal Mahadev, Hauz Khazi, Delhi-
6. The order was passed in the petition filed under Section 14(1)(e) read with Section 25 B of the Delhi Rent Control Act, 1956 wherein the eviction petitioner/landlord had claimed the premises for his bonafide need. He claimed that his family had eleven members and all of them were dependent on the earnings of the firm being run by him; he was desirous of separating RC.REV.131/2014 Page 1 of 8 the business of his three sons and required more commercial space; that on the front side of the property had two shops, one of which was got vacated wherein his eldest son had been installed to open and run a sanitary ware business; now the petitioner needed the tenanted premises to settle his other sons and all his grandsons who lacked commercial space. The application for leave to defend disputed the eviction petitioner as a landlord; denied the alleged bonafide need and contended that there was sufficient commercial space available with the eviction petitioner on the ground floor of the property No.2841, Gali Pipal Mahadev, Hauz Khazi, Delhi-6 of which the petitioner became owner by way of a Will dated 6.1.1990 executed by his mother. The petitioner/tenant claimed that rooms marked as Mark A, B, C & D were being used for commercial space and for storage purposes; that shop shown as Mark E was being used by the eldest son to run his business.
In the application for leave to defend, the present petitioner denied the ownership of the tenanted premises of the eviction petitioner. He further denied the dependency of the eviction petitioner's sons upon him for starting their respective businesses. It was contended that the sons of the eviction petitioners were well-settled running their respective business of sanitary paint and hardware and therefore the requirement was not bonafide. It was RC.REV.131/2014 Page 2 of 8 further contended that the eviction petitioner had required a complete floor at premises No.2841, Gali Pipal Mahadev, Hauz Khazi, Delhi-6 which was being used for commercial purpose and finally it was argued that the eviction was sought only with a view to re-let the premises at exorbitant rate of rent prevailing in the market. In reply however, the eviction petitioner reiterated grounds made in the eviction petition and stated that he had become owner of the ground floor of the property by way of Will dated 6.1.1990 executed by his mother and the rooms shown as Mark A, B, C, D & E had been put to use as already averred in the petition; that the first and the second floor of the property were being used only for residential purposes; that he had sufficient funds to support the businesses of his sons. He further explained that the third son will take over the firm which was being run by him and finally that the property bearing No.2841, Gali Pipal Mahadev, Hauz Khazi, Delhi-6 did not belong to him but to one Smt. Madhu. Mr. G.L. Rawal, learned Senior Advocate for the petitioner argues on behalf of the petitioner that this was a case for requirement of additional space for commercial purpose and the leave to defend ought to have been granted. He submits that not only more than sufficient but excess accommodation was available with the respondent/landlord and in such RC.REV.131/2014 Page 3 of 8 circumstances where additional accommodation is sought, the leave to defend out to have been granted. In support of his arguments, he relied upon Santosh Dev Soni vs. Chand Kiran, 2001 (1) SCC 255; S.M. Mehra vs. D.D. Malik, 2001 (1) SCC 256; Rajpal Singh vs. Gurmeet Kaur, V (2009) SLT 142; Mohd. Jaffer & Others vs. Nasra Begum, 191 (2012) DLT 401 & S.K. Sethi; Sons vs. Vijay Bhalla, 191 (2012) DLT 722 & Gangadas vs. B.N. Singh & Anr. in RC Rev. NO.276/2012.
He then contended that the eviction petitioner was not the owner of the premises on the basis of a Will as claimed and that indeed the eviction petitioner himself admitted that the property came to him as a share on account of partition deed in suit No.578/66 in the Court of Sh. Kanwar Shamsher Singh, Sub-Judge, First Class, Delhi by virtue of which he got the ground floor of the said property. He submits that as per law any award or decree conferring title of immovable property having value of more than Rs.100/- must be registered. He submits that insofar as the Award was not registered it cannot be taken into cognizance and in any case this itself would be a matter of trial. He relied upon the ratios of Sachindra Mohan Ghosh vs. Ramjash Agarwalla, AIR 1932 Patna 97 and M/s. Bajaj Auto Ltd. vs. Behari Lal Kohli, AIR 1989 SC 1806 in support of these RC.REV.131/2014 Page 4 of 8 contentions.
Having considered the arguments of learned counsel for the parties as well as the impugned order, this Court is of the view that the petitioner is estopped from raising an issue under Section 116 of the Indian Evidence Act to dispute ownership of the landlord especially since he has been paying rent to the petitioner as a landlord. Furthermore, vide order dated 1.5.2013, the eviction petitioner was allowed to place on record the Award dated 19.10.1966 passed in suit no.578/66 to show that the ground floor portion was allotted to him. Hence the Trial Court rightly concluded that "there was nothing on record to doubt the ownership of the petitioner qua the tenanted premises". With respect to the bonafide requirement, the Trial Court had considered the explanation regarding all the shops and premises available to the landlord and concluded that shop which was got vacated was given to the eldest son to run his business therefrom. There was no other commercial space available to the landlord to settle his other sons for their proposed business. The Trial Court found that the tenant had brought nothing on record to substantiate his plea that the other sons of the petitioner were not dependent upon him and/or were duly engaged in their respective businesses or that the said sons were owners of any other property. In the RC.REV.131/2014 Page 5 of 8 circumstances, the Court concluded that all the sons of the eviction petitioner were dependent upon him for commercial space to run their respective businesses. The Trial Court accepted the explanation of the landlord that there were six shops/rooms available out of which five were in his possession, one of which was occupied by the petitioner for his office purpose and three other small rooms were being used for storage of sanitary articles and the fifth one which was got vacated had been put in possession of his eldest sons. The sixth one was the tenanted premises. There was nothing on record which would controvert the said position. In view of the fact that no document had been placed on record to show that the property No.2841, Gali Pipal Mahadev, Hauz Khazi, Delhi-6 was owned by the eviction petitioner/landlord and also the fact that the petitioner had convincingly controverted the plea of ownership of the said premises, the Trial Court rightly rejected the plea of the tenant. The Trial Court also rejected the tenants apprehension that the eviction petitioner was motivated by a desire to re-lease it only for higher rent. This apprehension of course would be taken care of by the provision of Section 19 of the DRC Act whereby the tenant can get possession of the tenanted premises if it is let out or sold by the landlord within three years of the eviction. This Court is of RC.REV.131/2014 Page 6 of 8 the view that insofar as the landlord had shown that he was the owner of the premises or at least as long as the petitioner was paying rent to the respondent/landlord, he would be estopped from raising a plea of ownership apropos the tenanted premises in view of the settled law of estoppel under Section 116 of the Indian Evidence Act. Therefore, there would be no need to refer to the dispute, apropos ownership, as raised by learned counsel for the petitioner. Furthermore, the judgments cited by learned Senior Counsel would be applicable only in cases where a triable issue was raised. In the present case no triable issue is made out.
In view of the circumstances of the case as discussed hereinabove, all the commercial space available with the landlord had been duly accounted in his reply. The property bearing No.2841, Gali Pipal Mahadev, Hauz Khazi, Delhi-6 was a red herring introduced by the tenant, the said property was owned by some other person i.e. Smt. Madhu, and not by the landlord. The bald averments apropos all the sons of the petitioner having been settled in their respective businesses would not tantamount to a triable issue. Something more ought to have been brought on record to substantiate this argument. The Trial Court rightly rejected this and the contentions of the tenant and finally dismissed the application for leave to defend. In view of RC.REV.131/2014 Page 7 of 8 the foregoing discussion, this Court is of the view that the impugned order does not suffer from any infirmity and calls for no interference by this Court. Accordingly, the petition is dismissed.
NAJMI WAZIRI, J JULY 02, 2014 ak RC.REV.131/2014 Page 8 of 8