Indian Kanoon - Search engine for Indian Law

Delhi High Court - Orders

Lal Chand Bansiwal vs Ranajana Narang on 25 October, 2021

Author: Najmi Waziri

Bench: Najmi Waziri

                              $~2(1)
                              *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                              +     RC.REV. 42/2021, CM APPL. 6497/2021 & CM APPL. 6498/2021
                                    LAL CHAND BANSIWAL                                          ..... Petitioner
                                                         Through:     Mr. Anil Kumar Hajelay, Advocate.

                                                         versus

                                    RANAJANA NARANG                                        ..... Respondent
                                                Through:              Mr. Nikhil Malhotra, Advocate.

                                    CORAM:
                                    HON'BLE MR. JUSTICE NAJMI WAZIRI
                                                 ORDER

% 25.10.2021 The hearing has been conducted through hybrid mode (physical and virtual hearing).

1. On the previous date, time was sought on behalf of the petitioner to obtain instructions as to when the petitioner would like to vacate the premises. However, now the petitioner impugns the order of eviction dated 24.06.2020 directing the petitioner to vacate the tenanted premises i.e. H.No. WZ-187A, Plot No. A-30-31, School Road, Uttam Nagar, New Delhi. The said premises was sought by the landlady for the bona fide requirement of her son. The son left his job on 11.03.2019; the eviction petition was filed on 18.07.2019, i.e., four months thereafter. The eviction petitioner has two shops which were let out by her for a period of five years in February 2019, and for nine years on 24.01.2018, respectively. The landlady also owns the residential property on the first floor above the tenanted shop.

Therefore, said premises are not suitable for the son to run a shop/ commercial enterprise from. Another property was mentioned by the tenant in its application for leave to defend i.e. property bearing no. A-403, Daffodil Apartments, Plot No. 36, Sector-6, Dwarka, New Delhi. However, it is being used as residence by the landlady. Therefore, it was not available for the son.

2. The learned counsel for the tenant also contends that at the time of the paying of rent, the landlady had received a sum of Rs.2 lacs in cash as a security deposit which is to be returned. The tenant claims the said amount. The tenant further contended that the landlady agreed to sell the property for Rs.30 lacs. However, the landlady has refuted the said contentions. The tenant has filed a suit for specific performance which is pending. The impugned order has held that the same cannot come in the way of maintenance of eviction petition, especially in view of the fact that the tenant's claims have not yet been proven. Therefore, there is no dispute with respect to the landlord-tenant relationship between the parties. Furthermore, apropos the recovery of the security amount as may be, reliance was made upon Anil Jain v. Bhagwan Khanna (2015) DLT (CN) 23 as well as on PI Perumal v. Kamlesh Bansal 2013 SCC Online Delhi 4145, which hold that efficacious remedy is available, by way of a civil suit for recovery of the claimed amount.

3. Furthermore, relying upon the judgments of the Supreme Court in S.M. Asif v. Virender Kumar Bajaj dated 12.08.2015 as well in Sanjiv Pathak v. Som Nath & Ors. (2013) 204 DLT 667, the impugned order held that the tenant himself admits that the landlady has not agreed to Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:27.10.2021 13:33:03 execute the Sale Deed in terms of the sale letter. His suit for specific performance is still pending. Effectively, the transfer of ownership, if any, is still to be adjudicated.

4. The impugned order also held that a shop on the first floor is always less attractive and less preferred by customers, than a ground floor shop. Therefore, the first floor residential property cannot be considered as desirable, prudent or suitable for making available to the dependent son for his proposed commercial enterprise. Reliance was made to the decision of the Supreme Court in Dhannalal Vs. Kalawatibai (2002) 6 SCC 16 and Uday Shanker Upadhyay Vs. Naveen Maheshwari (2010) 1 SCC 503 as well as the dicta of this court in Viran Wali Vs. Keldeep Rai Kochar 174 (2010) DLT 328, which have held that any business which is being run from the ground floor will attract more customers than the business being run from the basement and the tenant cannot dictate the landlord as to how and in what manner the landlord should use his own property.

5. The order also relied upon the decision in M/s A.K. Woolen Industries & Ors. Vs. Shri Narayan Gupta in RC. Rev No. 495/2017 dated 31.10.2017 which held that availability of upper floor above the ground floor tenanted premised cannot be said to be alternate suitable property to the landlord/landlady.

6. The son wishes to open a shop on the ground floor and the shop occupied by the tenant was the only property owned by the landlady to make available to the son. No further ground for leave to defend was raised by the respondent in the application. The impugned order has duly dealt with all issues.

7. No triable issue is raised.

8. The court finds no reason to interfere with the impugned order.

9. The petition is without merit and is, accordingly dismissed, along with the pending applications.

NAJMI WAZIRI, J OCTOBER 25, 2021 RW Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:27.10.2021 13:33:03