Delhi High Court
Charanjeet Lal Sahni & Anr vs Asha Rani Anand on 1 August, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 1st August, 2017
+ RC.REV. No.86/2017
CHARANJEET LAL SAHNI & ANR. ..... Petitioners
Through: Mr. Amarjit Singh Chandhiok, Sr.
Adv. with Ms. Sweta Kakkad, Ms.
Shruti Sharma & Ms. Deepti
Arya, Advs.
Versus
ASHA RANI ANAND ..... Respondent
Through: Mr. Jagmohan Sabharwal, Sr.
Adv. with Ms. Seema Singh, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Rent Control Revision Petition under Section 25B (8) of
the Delhi Rent Control Act, 1958 impugns the order [30 th
September, 2016 in E-196/2015 (Old No.79346/2016), Unique
ID No.02401C0439662015 of the Court of Additional Rent
Controller (ARC)-01 (Central), Tis Hazari Courts, Delhi] of
dismissal of the application filed by the two petitioners / tenants
for leave to defend the petition for their eviction filed by the
respondent / landlady under Section 14(1)(e) of the Act and the
consequent order of eviction of the petitioners / tenants from a
shop on the ground floor of property bearing No.2344, Tilak
Bazar, Delhi-110006.
2. The counsel for the respondent / landlady appeared on advance
notice and the trial Court record requisitioned. The senior
counsel for the petitioners / tenants and the senior counsel for
RC.REV. No.86/2017 Page 1 of 22
the respondent / landlady have been heard and the record
perused.
3. The respondent / landlady instituted the petition for eviction
from which this petition arises, pleading i) that the shop in
possession of the petitioners / tenants was let out to their father
in the year 1980 at a rent of Rs.171.55 paise per month; ii) that
the property No.2344, Tilak Bazar, Delhi-110006 was
purchased by the respondent / landlady by means of a registered
Power of Attorney dated 9th January, 1980 and the father of the
petitioners / tenants and after his death, the petitioners / tenants
had recognized the respondent / landlady as the owner of the
shop in their tenancy; iii) that the elder son of the respondent /
landlady viz. Chandan Anand was running his chemical
business from a rented shop at C-37/2, Ground Floor, Wazirpur
Industrial Area, New Delhi at a monthly rent of Rs.4,500/- since
2008; iv) that the Tilak Bazar area is a well known wholesale
market of chemicals of Northern India whereas the Wazirpur
Industrial Area is an industrial area and is not a chemical
market; v) that Wazirpur Industrial Area is even otherwise not
suitable for running the chemical business; vi) that younger son
of the respondent / landlady Dinesh Anand was running his
chemical business as a sole proprietary concern from the area
situated in the back of property No.2344, Tilak Bazar, Delhi.
being property No.2343, Tilak Bazar, Delhi; vii) that the said
property No.2343, Tilak Bazar, Delhi was owned by the
husband of the respondent / landlady and the said area is under
RC.REV. No.86/2017 Page 2 of 22
the tenancy of Dinesh Anand; viii) that property No.2343, Tilak
Bazar, Delhi has only a narrow passage 4‟3" wide and a
chabutra of 3‟ from the main road and the rest of the area is at
the back of property No.2344, Tilak Bazar, Delhi; ix) that the
customers of Dinesh Anand find it difficult to approach
property No.2343, Tilak Bazar, Delhi; x) that on the contrary,
shop in the tenancy of the petitioners / tenants is on the main
road on the ground floor, providing proper business
opportunities; xi) that the whole ground floor of property
No.2344, Tilak Bazar, Delhi is in the tenancy of petitioners /
tenants; xii) that the first floor of property No.2344, Tilak
Bazar, Delhi is in the tenancy of M/s Rama Krishna Color Co.
since the year 1980; xiii) that the other shops in the property
No.2343, Tilak Bazar, Delhi are let out to other tenants and
there is no vacant place available therein also for Chandan
Anand; the said tenants were inducted by the husband of the
respondent / landlady and after whose demise the respondent /
landlady along with her sons Chandan Anand and Dinesh
Anand are the owners of property No.2343, Tilak Bazar, Delhi;
xiv) that the mother-in-law of the respondent / landlady also
owned property No.9680, Islam Ganj, Near Azad Market,
Delhi-110006 and after her death the said property devolved on
her heirs including the husband of the respondent / landlady and
his siblings; after the demise of the husband of the respondent /
landlady, the share of her husband has now devolved upon her
and her two sons Chandan Anand and Dinesh Anand; that the
RC.REV. No.86/2017 Page 3 of 22
said property is however residential and is being used as
residential; xv) that the younger son of the respondent /
landlady Dinesh Anand had in the year 1995 purchased another
property No.9671, Islamganj, near Azad Market, Delhi-110006
and is in possession of the upper floors thereof; the ground floor
of the said property was sold by Dinesh Anand in the year 2003
to one Naresh Kumar; that the upper floors of the said property
are residential and being used as such; xvi) that the elder son of
the respondent / landlady Chandan Anand is also the owner of
the first, second and top floors of property No.F-6/3, Model
Town-II, New Delhi which is residential; the ground floor of the
said property is owned by one Jitender Singh Bedi; xvii) that an
alternative site, of plot No.41A, Holambi Kalan, New Delhi,
measuring 50 sq. yds. was allotted by MCD to Dinesh Anand;
the said plot at Narela is uninhabited and the area is under
developed and even connecting roads and other basic
infrastructure is not available; and, xviii) that the shop in the
tenancy of the petitioners / tenants is required by the respondent
/ landlady for settling her elder son Chandan Anand in the main
market of chemicals and no alternative accommodation is
available.
4. The petitioners / tenants sought leave to defend pleading, i) that
the petition for eviction had been filed not by the respondent /
landlady but by her sons Chandan Anand and Dinesh Anand, in
her name and on her behalf and by taking her signatures
thereon; ii) that the respondent / landlady till the year 2007 was
RC.REV. No.86/2017 Page 4 of 22
residing at property No.9680, Islam Ganj, Azad Market, Delhi
when she was thrown out from the said property by her husband
and by her sons and the respondent / landlady had then taken
refuge initially in her sister‟s house at Shalimar Bagh, Delhi and
thereafter in a Red Cross Home for Aged situated at Ambala
City; iii) that the relations between the respondent / landlady
and her sons and daughters-in-law are strained and the occasion
for the respondent / landlady to file the petition for eviction for
the requirement of her son Chandan Anand does not arise; iv)
that the daughters-in-law of the respondent / landlady had in the
year 2008 filed criminal complaint against the respondent /
landlady resulting in arrest of the respondent / landlady and
which prosecution is still pending; v) that the respondent /
landlady had herself filed complaint under the Protection of
Women from Domestic Violence Act, 2005 against her husband
and her sons; vi) that the respondent / landlady is not the owner
of the shop in the tenancy of the petitioners / tenants; vii) that
property No.2344, Tilak Bazar, Delhi vested in the custodian
and no right, title or interest therein ever vested in the persons
whom the respondent / landlady claimed had executed
documents in her favour; viii) that the father of the petitioners /
tenants had taken the said shop from Sansar Chand Gohal, one
of the persons who the respondent / landlady claimed had
executed Power of Attorney in her favour and which person was
himself merely in occupation of the property without having
any title thereto; ix) that the respondent / landlady under the
RC.REV. No.86/2017 Page 5 of 22
Power of Attorney executed by Sansar Chand in her favour
could merely claim rent on behalf of Sansar Chand and not on
her own behalf; x) that property No.2343, Tilak Bazar, Delhi
admeasures 450 sq. yds. and the site plan filed by the
respondent / landlady did not show the entire extent of property
No.2343, Tilak Bazar, Delhi; xi) that a large number of
commercial space was available to the respondent / landlady
and her sons in properties No.2343, Tilak Bazar, Delhi and
2344, Tilak Bazar, Delhi; xii) that the respondent / landlady /
her sons have available to them the entire ground floor and half
of first floor of property No.2343, Tilak Bazar, Delhi; xiii) that
upper floors of property No.9680, Islam Ganj, Azad Market,
Delhi are also commercial and in fact are being used by the sons
of the respondent / landlady for commercial purposes; xiv) that
property no.9671, Islam Ganj, Azad Market, Delhi is also a
commercial property and is being used by the sons of the
respondent / landlady for commercial purposes; xv) that
Chandan Anand son of the respondent / landlady is in
occupation of C-37/2, Ground Floor, Wazirpur Industrial Area,
Delhi in his own right and not as a tenant; xvi) that neither the
respondent / landlady nor any of her sons required the premises
in the tenancy of the petitioners / tenants; xvii) that the business
of chemicals is prohibited in the Walled City and specially
Tilak Bazar area and the government had thus allotted alternate
space to the chemical traders at Holambi Kalan, New Delhi; the
requirement of the premises in the tenancy of the petitioners /
RC.REV. No.86/2017 Page 6 of 22
tenants to carry on chemical trade therefrom cannot be allowed
as no chemical trade can be carried on in law from the premises
in the tenancy of the petitioners / tenants.
5. The learned ARC, in the impugned order, has found that the
aforesaid facts did not disentitle the respondent / landlady from
an order of eviction under Section 14(1)(e) of the Act and thus
declined leave to defend to the petitioners / tenants, reasoning i)
that in the face of the admissions of the petitioners / tenants, of
their father having taken the shop in their tenancy on rent from
Sansar Chand and of having paid rent to the respondent /
landlady on the basis of Power of Attorney dated 9 th January,
1980 executed by Sansar Chand in her favour, the respondent /
landlady was the owner within the meaning of Section 14(1)(e)
of the Act of the shop in the tenancy of the petitioners / tenants;
ii) reliance was placed on Ramesh Chand Vs. Uganti Devi 157
(2009) DLT 450 laying down that in order to consider the
concept of ownership under the Rent Act, the Controller has to
only see the right of the landlord qua the tenant and if the
landlord was receiving the rent for himself and not on behalf of
someone else, he is to be considered the owner, howsoever
imperfect his title may be; iii) that thus the ingredients of
Section 14(1)(e) of the Act of ownership and existence of
relationship of landlord and tenant were satisfied; iv) that it was
the stand of the respondent / landlady in reply to the application
for leave to defend that though at one time, her relations with
her sons and daughter-in-law were strained and legal
RC.REV. No.86/2017 Page 7 of 22
proceedings were also initiated against each other but
subsequently upon relationship being restored, the said
litigations were withdrawn; v) that merely because the
relationship of the respondent / landlady with her sons at an
earlier stage was strained, did not preclude the respondent /
landlady from, when normalcy in the relationship was restored,
seeking eviction of the tenant on the ground of requirement of
her sons; vi) from the factum of the respondent / landlady
having affirmed the affidavit in support of the petition as well as
the affidavit in support of the reply to leave to defend
application and the statement in court that she had also affixed
her signatures in the register of the Oath Commissioner, it could
not be said that the petition for eviction was being pursued on
her behalf by her sons, without her knowledge; vii) that even
otherwise, the respondent / landlady has appeared in person
before the Rent Controller on 16th February, 2016 along with
her counsel stating that she had filed the petition for eviction
and was fully aware of the same; viii) that the respondent /
landlady had placed before the Controller, the "counterfoil of
the rent receipt" issued by Sanjeev Anand lessor of property No.
C-37/2, Ground Floor, Wazirpur Industrial Area, New Delhi in
favour of Chandan Anand for an amount of Rs.4,520/- per
month and which proved that Chandan Anand was a tenant in
the said property; ix) that the respondent / landlady / her sons
could not be made to pay a higher rent for another property for
the sake of continuing with the old tenants; x) that though the
RC.REV. No.86/2017 Page 8 of 22
petitioners / tenants along with their application for leave to
defend had filed a site plan of property No.2343, Tilak Bazar,
Delhi showing a larger area thereof with the sons of the
respondent than shown in the site plan filed by the respondent /
landlady but perusal of both site plans showed that while the
shop in the tenancy of the petitioners / tenants is situated at the
main road, having great accessibility to customers and giving
boom to the business carried on from the said shop, access to
property No.2343, Tilak Bazar, Delhi was only from a narrow
passage on the main road and the major area of property
No.2343, Tilak Bazar, Delhi was situated at the backside of the
shop in the tenancy of the petitioners / tenants; xi) that the
documents filed by the respondent / landlady along with the
petition for eviction showed that the business of her sons were
separate and not joint business as pleaded by the petitioners /
tenants; xii) that the space, even if any available on the upper
floors of property Nos.2343 and 2344, Tilak Bazar, Delhi could
not be a substitute for a shop facing the main road on the ground
floor of the property and thus could not be termed as alternate
suitable accommodation; xiii) that it was not disputed by the
petitioners / tenants that property No. 9680, Islam Ganj, Near
Azad Market, Delhi-110006 is jointly owned by the respondent
/ landlord and her sons with the other siblings of the husband of
the respondent / landlady, they had also stated that a litigation
with respect thereto was pending; for this reason alone, the
same could also not be alternate suitable accommodation for the
RC.REV. No.86/2017 Page 9 of 22
requirement pleading which the eviction of the petitioners /
tenants sought; xiv) similarly, the upper floors of property
No.9671, Islamganj, near Azad Market, Delhi-110006 could not
be a substitute or alternate for the shop facing the main road on
the ground floor; xv) that no documents in the form of
photographs or of commercial activities being carried on by the
sons of the respondent / landlady from property Nos.9680 and
9671, Islam Ganj, Near Azad Market, Delhi-110006 have been
filed by the petitioners / tenants; xvi) that the petitioners /
tenants had also admitted that the upper floors of property No.
F-6/3, Model Town-II, New Delhi were residential and that the
sons of the respondent / landlady along with their families were
residing therein; and, xvii) that even if storage of chemicals in
the area of Tilak Bazar was not permitted, the son of the
respondent / landlady could always have his office therein and
sell and purchase therefrom.
6. The senior counsel for the petitioners / tenants at the outset
draws attention to the Power of Attorney dated 9th January,
1980 and contends that the payment of rent by the father of the
petitioners / tenants and after his death by the petitioners /
tenants to the respondent / landlady on the basis thereof could
not be for own self of the respondent / landlady and receiving
rent on the basis of Power of Attorney would necessarily be on
behalf of the persons executing the Power of Attorney and the
learned ARC erred in holding the respondent / landlady to be
satisfying the requirement of ownership within the meaning of
RC.REV. No.86/2017 Page 10 of 22
Section 14(1)(e) of the Rent Act. Attention is also drawn to
Article 48 of the Schedule of the Indian Stamp Act, 1899 as
applicable to Delhi, to contend that the Power of Attorney is
not even for consideration and is only on a stamp paper of
Rs.10/-.
7. A perusal of the Power of Attorney shows that the respondent /
landlady therein is authorized to apply for and get the
permission for sale of the property and to sign all documents in
that regard and to sell the said property at whatever price she
may deem appropriate and to execute the documents of sale and
to present the same for registration and to receive consideration
from the purchasers for sale and to do all other things in that
regard and to let out the said property and to realize rent thereof
etc.
8. The petitioners / tenants, as reasoned by the learned ARC also,
admitted their father having come into possession of the shop as
tenant under the persons who had executed the Power of
Attorney aforesaid in favour of the respondent / landlady and
also admitted having commenced paying rent to the respondent
/ landlady on the basis of the said Power of Attorney. It is not
the plea of the petitioners / tenants that since 9 th January, 1980
the persons who had executed Power of Attorney in favour of
the respondent / landlady or any other person had approached
the petitioners / tenants claiming ownership/landlordship or any
other rights in the shop in the tenancy of the petitioners /
RC.REV. No.86/2017 Page 11 of 22
tenants. Thus, for 35 years prior to the institution of the petition
for eviction, the respondent / landlady, to the exclusion of
anyone else, had been claiming to be the absolute owner of the
property without any claim or interference from any person
whatsoever.
9. In the face of the aforesaid facts, I fail to see as to what purpose,
the grant of leave to defend on the said ground would serve.
Leave to defend under Section 25B of the Rent Act is to be
granted only if the tenant, in the application therefor discloses
facts and which facts if controverted by the landlady and if in
trial proved by the tenant would disentitle the respondent /
landlady from obtaining an order of eviction under Section
14(1)(e) of the Act. I have in judgment dated 24th July, 2017 in
RC.REV. No.112/2016 titled Ram Saroop Vs. Viney Kumar
Mahajan dealt in detail on the said aspect and need to repeat is
not felt. Where the facts disclosed by the tenant in the
application for leave to defend, even if proved, would not
disentitle the landlord from obtaining an order of eviction under
Section 14(1)(e) of the Act, no case for grant of leave to defend
would be made out.
10. Supreme Court in Shanti Sharma Vs. Ved Prabha (1987) 4
SCC 193 has held that the requirement in Section 14(1)(e) of
the Act of ownership is not of absolute ownership within the
meaning of Transfer of Property Act, 1882 but of "something
more than a tenant". This Court in Milk Food Ltd. Vs. Kiran
RC.REV. No.86/2017 Page 12 of 22
Khanna (1993) 51 DLT 141 has held that ownership within the
meaning of Section 14(1)(e) of the Act can also be by adverse
possession just like in the present case. In that case also Kiran
Khanna had no document of title in her favour but had been
claiming herself to be the owner of the premises in the tenancy
of Milk Food Ltd., for more than 12 years, without any claim or
interference from any other person. It was held that she was the
owner within the meaning of Section 14(1)(e) of the Act.
11. As far as the plea, of receipt of rent by the respondent / landlady
under the Power of Attorney being on behalf of the executant
thereof, is concerned, a perusal of the Power of Attorney to
which attention was drawn by the senior counsel for the
petitioners / tenants himself, shows that the powers given
thereunder are absolute and not as given with an intent to retain
control over the property. There is no averment in the
application for leave to defend of the respondent / landlady
remitting the rent received from the petitioners / tenants to the
executants of the Power of Attorney or giving account of the
rent to the executants of the Power of Attorney or the executants
of the Power of Attorney having at any time approached the
petitioners / tenants asserting any rights adversely to the
respondent / landlady, in 35 years prior to the institution of the
petition for eviction from which this petition arises.
12. There is absolutely nothing to show that the respondent /
landlady for 35 years prior to the institution of petition for
RC.REV. No.86/2017 Page 13 of 22
eviction has dealt with the petitioners / tenants as attorney of
somebody else.
13. In the same vein, the senior counsel for the petitioners / tenants
also argued that in fact even the institution of petition for
eviction by the respondent / landlady in her own name was bad
as the petition for eviction could have been filed only as an
attorney of the executants of the Power of Attorney.
14. What has been held above, equally applies to this argument as
well.
15. The senior counsel for the petitioners / tenants next contends
that in the petition for eviction, the respondent / landlady was
shown as resident of property No.F-6/3, Model Town-II, New
Delhi but in the reply to the application for leave to defend it
was admitted that she was sometimes residing with her sister in
Shalimar Bagh and sometimes at Ambala but her permanent
address was of F-6/3, Model Town-II, New Delhi.
16. I fail to see as to what impact the aforesaid can have on the
grant / non-grant of leave to defend. For seeking the eviction of
the petitioners / tenant from the said shop, it matters not where
the respondent / landlady is residing.
17. The focus of the senior counsel for the petitioners / tenants next
shifted to alternate accommodations available to the respondent
/ landlady and her sons.
RC.REV. No.86/2017 Page 14 of 22
18. Firstly, it is contended that tenancy of Chandan Anand of
Wazirpur Industrial Area property is not proved. It is argued
that only counterfoil of a rent receipt was filed and which rather
itself shows that the said Chandan Anand is not a tenant but the
owner of the said property. It is stated that only an owner
would be in possession of a counterfoil of the rent receipt and
the tenant would be in possession of the rent receipt.
19. Per contra, the senior counsel for the respondent / landlady has
stated that the learned ARC in the impugned order has wrongly
described the document filed as a counterfoil when it is in fact a
rent receipt.
20. The aforesaid contention is not controverted.
21. A mere vague averment in the application for leave to defend,
of the landlord being owners of other properties, without any
particulars or the documents to show the same or the basis of
the said plea, if were to be allowed to constitute a ground for
leave to defend then every tenant with the acumen of skilful
drafting of his advocate would be able to take pleas in leave to
defend entitling grant of leave to defend, defeating the
legislative intent of introduction of the summary procedure in
Section 25B of the Rent Act for petitions for eviction of tenants
on the ground of self-requirement of the tenancy premises for
the landlords. I have in Ram Saroop supra dealt with the said
aspect also.
RC.REV. No.86/2017 Page 15 of 22
22. Thus the plea of the petitioners / tenants, of Chandan Anand son
of the respondent / landlady being the owner of the Wazirpur
Industrial Area property in which he claims to be a tenant does
not entitle the petitioners / tenants to leave to defend.
23. The senior counsel for the petitioners / tenants next contended
that the property No.2343, Tilak Bazar, Delhi is available for
the requirement of the son of the respondent / landlady pleading
which the eviction of the petitioners / tenants is sought.
Attention is drawn to the site plan thereof filed by the
respondent / landlady and that filed by the petitioners / tenants.
It is contended that the said fact alone entitled the petitioners /
tenants to leave to defend.
24. I may in this regard notice that what has prevailed with the
ARC for not granting leave to defend on the said ground is the
factum of property No.2343, Tilak Bazar, Delhi being situated
at rear of the shop with respect to which eviction order has been
passed and having a narrow access from the front and therefore
being not alternate suitable accommodation. It is thus not as if
the ARC has preferred the site plan filed by the respondent /
landlady over the site plan filed by the petitioners/tenants and
which cannot be permitted at the stage of leave to defend.
Certainly, if the question had been the extent of accommodation
available in property No.2343, the difference in site plan would
have been relevant. What has to be considered is, whether the
RC.REV. No.86/2017 Page 16 of 22
reasoning given by the learned ARC requires any interference
under Section 25B (8) of the Act.
25. Before proceeding to decide the same, the contention of the
senior counsel for the respondent / landlady may also be noted.
He has with reference to the site plan filed by the petitioners /
tenants also contended that the same does not controvert the
factum of the property No.2343, Tilak Bazar, Delhi being at the
rear and having a narrow access thereto.
26. I do not find any error in the reasoning of the ARC. The
requirement pleaded by the respondent / landlady of the shop in
the tenancy of the petitioners / tenants is for commercial use by
her son Chandan Anand who has no other accommodation. The
accommodation available to Chandan Anand, according to the
petitioners / tenants also is behind the shop in the tenancy /
possession of the petitioners / tenants.
27. The reasoning of the ARC, of a shop on the main road and
having a larger access thereto being more commercially viable
for carrying on business is prudent and in consonance with the
settled principles of law. A landlord, even when he has
requirement for the premises let out long back, cannot for the
sake of continuing with the tenant paying a nominal rent, carry
on business from another premises not suitable therefor and to
his own prejudice. Supreme Court, in Chandrika Prasad Vs.
Umesh Kumar Verma (2002) 1 SCC 531, set aside the
judgment of the High Court for not taking into consideration
RC.REV. No.86/2017 Page 17 of 22
that the premises from which eviction of tenant was sought
were situated on the main road and thus better suitable for the
requirement of the landlord to set up clinic. In Uday Shankar
Upadhyay Vs. Naveen Maheshwari (2010) 1SCC 503, it was
held that it is well known that shops and businesses are
generally conducted on the ground floor because the customers
can reach there easily and the Court cannot dictate to the
landlord which floor he should use for his business. In Dinesh
Kumar Vs. Yusuf Ali (2010) 12 SCC 740 it was held that the
landlord cannot be forced to continue carrying on his business
from a Gumti made on a platform on a nalla. In Anil Bajaj Vs.
Vinod Ahuja (2014) 15 SCC 610, Supreme Court held that the
fact that the landlord is carrying on business from several other
premises, cannot foreclose his right to seek eviction from
tenanted premises so long as he intends to use the said tenanted
premises for his own business.
28. Thus no ground for interference with the reasoning given by the
ARC is made out on the said ground either and the senior
counsel for the petitioners / tenants has been unable to satisfy
that any trial is required therefor. Again, on admitted facts, the
respondent / landlady would not be disentitled from an order of
eviction on the said ground.
29. The only other argument of the senior counsel for the
petitioners / tenants with respect to properties No.2343, Tilak
Bazar, Delhi and 2344, Tilak Bazar, Delhi is that while
RC.REV. No.86/2017 Page 18 of 22
according to the respondent / landlord they are residential in
nature, according to the petitioners / tenants they are
commercial and leave to defend should have been granted to
determine the said ground.
30. The reasoning given by the learned ARC with respect to the
said properties is that they are not on the ground floor and
cannot be alternate suitable accommodation to the shop on the
main road on the ground floor. The said reasoning is not
contrary to law as aforesaid and cannot be challenged and is
good for holding that irrespective of whether nature of the upper
floors is residential or commercial, they are not alternate,
suitable accommodation for the need pleading which the
petition for eviction was filed.
31. The senior counsel for the petitioners / tenants has also urged
that though the ARC has in the impugned order recorded that
the respondent / landlady had appeared before her but relying
only on the order dated 16th February, 2016 where only the
presence of the respondent / landlady with her counsel is
recorded and no question are recorded to have been asked from
the respondent / landlady.
32. The senior counsel for the respondent / landlady has also drawn
attention to the order dated 22nd July, 2016 of the ARC, also
noting the presence of the respondent / landlady.
33. The senior counsel for the petitioners / tenants in rejoinder
argued i) that the Electoral Rolls of 2016 of the colony of
RC.REV. No.86/2017 Page 19 of 22
Model Town-II, New Delhi do not show the name of the
respondent / landlady at the address of F-6/3, Model Town-II,
New Delhi; ii) that in the replies to the legal notices sent by the
landlady, it was stated that no documents of ownership had been
handed over; and, iii) that the first floor of one of the properties
fell vacant recently and has been let out again and which also
shows that the respondent / landlady or her sons have no
requirement.
34. I have already dealt with the aforesaid contentions and need to
add anything is not felt.
35. The senior counsel for the respondent / landlady drew attention
to the legal notices dated 27th March, 2012 and 8th April, 2014
(at pages 142 & 148 of the Trial Court Record) got issued by
the respondent / landlady where the respondent / landlady had
claimed herself to be the owner / landlady of the shop in the
tenancy of the petitioners / tenants and to the replies dated 30 th
April, 2012 & 12th May, 2015 (at pages 144 & 158 of the Trial
Court Record) wherein the petitioners / tenants had not disputed
the ownership of the respondent / landlady of the shop in their
tenancy or the relationship of landlord-tenant with her and has
contended that the plea in this regard in the application for leave
to defend as well as before this Court is by way of an
afterthought and cannot be entertained.
36. The senior counsel for the petitioners / tenants also argued that
though the petitioners / tenants wanted to place on record the
RC.REV. No.86/2017 Page 20 of 22
documents to show that the property No.2344, Tilak Bazar,
Delhi-110006 is of the custodian of evacuee properties but the
said documents were not taken on record.
37. I have enquired from the senior counsel for the petitioners /
tenants, whether the custodian of evacuee property, at any time
before the petitioners / tenants came in possession of the shop as
tenant or thereafter, asserted any rights in the property.
38. No answer is forthcoming.
39. Merely taking the plea, of the property being of the Custodian,
without the Custodian of evacuee properties initiating any
action, would not entitle the petitioners / tenants to leave to
defend or entitle this Court to commence a roving and fishing
enquiry in this Court.
40. Whether custodian of evacuee properties has any rights in the
property, is not subject matter of this petition.
41. Once the need of the respondent / landlady and her dependent
sons for the purpose of accommodation is of a shop, they cannot
be directed to, for the sake of continuing with the petitioners /
tenants, carry on their business from the first floor. In trade and
commerce, the location of the premises is of vital importance
and it is for this reason only that even in modern commercial
projects coming up certain portions having vintage portions
fetch much higher price than the other portions.
RC.REV. No.86/2017 Page 21 of 22
42. In view of the aforesaid facts of the present case, the reliance by
the senior counsel for the petitioners / tenants on Kasthuri
Radhakrishnan Vs. M. Chinniyan (2016) 3 SCC 296 is of no
avail. The Supreme Court in that case held that leave to defend
should have been granted, finding that the tenant had never paid
rent to the person who had filed the petition for eviction.
Though that was also a case of person who had filed the petition
for eviction being an attorney but in the facts of that case he was
found to be acting on behalf of somebody else and which is not
the case here. Reference therein to Suraj Lamp & Industries
(P) Ltd. Vs. State of Haryana (2012) 1 SCC 656 is also without
reference to Shanti Sharma supra qua the concept of ownership
under Section 14(1)(e) of the Act.
43. There is thus no merit in the petition.
Dismissed
No costs.
RAJIV SAHAI ENDLAW, J.
AUGUST 01, 2017 „gsr‟..
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