Full Judgment Text
Neutral Citation Number : 2023:DHC:3199
$~J-1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgement reserved on: 27.09.2022
% Judgment pronounced on: 10.05.2023
+ RC.REV. 167/2019 and CM APPLs. 12491/2019, 33513/2019,
47464/2019, 41935/2022
KAMAL RANA ..... Petitioner
Through: Ms. Anita Sahani, Adv.
versus
ANJU SINGH ..... Respondent
Through: Mr. Shiv Charan Garg and Mr. Rohit
Kumar, Advs.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
JUDGMENT
SACHIN DATTA, J.
1. The present revision petition filed under section 25B (8) of the Delhi
Rent Control Act, 1958 ( the „DRC Act‟) assails the order/judgement dated
17.01.2019 passed by CCJ cum ARC, Pilot Court (Central District) Tis
Hazari Courts, Delhi (the „rent controller‟) in eviction petition No.
930/2018, whereby the rent controller has dismissed the leave to defend
application filed by the petitioner and allowed the eviction petition filed by
the respondent.
Signature Not Verified
Digitally Signed
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Signing Date:10.05.2023
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Neutral Citation Number : 2023:DHC:3199
2. The respondent/landlord filed the instant eviction petition under
Section 14(1)(e) of the DRC Act to recover possession of one shop on the
ground floor in premises bearing no. 29/24, Shakti Nagar, Delhi ( the
„tenanted premises‟), let out to the petitioner/tenant, on the ground of bona
fide requirement of respondent‟s daughter to open a coaching institute for
her livelihood.
3. It was stated in the eviction petition that the building in question
consists of two floors. On the ground floor there are 9 shops, all of which
are let out to different tenants. The tenanted premises is one of such shops. It
was also stated that there are 3 rooms, one kitchen, and a toilet on the
ground floor, however, entry towards those rooms is from the small
lane/street and not from the front portion of the building. It is further stated
that on the first floor there are 3 rooms, kitchen and toilet, and the same are
being used by the respondent for residential purposes. It was stated that the
respondent has no commercial accommodation available for her daughter to
run a coaching institute.
4. A leave to defend application was filed by the petitioner, wherein,
inter-alia, it was stated that no notice of the eviction petition was served
upon the petitioner personally. It was contended that the petitioner had gone
to her village in Meerut U.P. on 05.11.2018 where she fell ill and remained
under medical treatment, and it was only when she returned to Delhi on
31.12.2018, that she became aware of the eviction petition and filed her
application seeking leave to defend. It was stated that in any case,
notice/summons mentioned the next date of hearing as 14.01.2019 and as
such the husband/representative of petitioner who was served with the
summons was under the impression that the petitioner was to enter
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appearance by the said date. It was stated that the leave to defend application
is filed within the statutory period after the petitioner attains the knowledge
of the eviction petition.
5. It was averred in the leave to defend application that the respondent‟s
daughter is financially independent, being already in employment and as
such there is no possibility of her starting any coaching institute. It was
further stated that the need of the daughter can be met from three rooms on
the ground floor of the building, and for which a large door / opening
/entrance can also be taken out from the gali/street side. It was further stated
that the respondent has filed a false site plan. A site plan was filed by the
petitioner contending that the respondent is already in possession of two
shops on the ground floor, which as per the eviction petition are stated to be
in possession of Mr. Afroj and another by Ms. Madhu Malik. Further, it was
stated that in respect of one other shop, an eviction petition was filed by the
respondent against the tenant/ Mr. Avtar Singh and the said eviction petition
has already been allowed and the said tenant has already offered possession
to the respondent, however, the respondent is not taking the possession of
the same. It is contented that alleged bona fide need of the daughter can be
met from the said shops .
6. The leave to defend application was accompanied with an application
under Section 5 of the Limitation Act, 1963 read with Order 37 Rule 4 and
Section 151 CPC seeking that the delay, if any, in filing the leave to defend
application be condoned and the eviction petition be decided on merits. In
the reply filed on behalf of the respondent to the said application, it was
stated that legal position is well settled to the effect that an application for
condonation of delay in filing the application seeking leave to defend
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application is not maintainable and the same is liable to be dismissed. In
rejoinder thereto filed by the petitioner, it was, inter alia, contended that
Rule 22 of the Delhi Rent Control Rules 1959 contemplates that service of
notice should be effected personally and/or through Registered Post, which
was not effected upon the petitioner/tenant by the respondent.
7. The rent controller considered the respective contentions of the parties
and held that the petitioner has failed to file the leave to defend application
within the statutory time period. The relevant portion of the impugned
judgement in the said regard reads as under:
“4. Summons were served upon the respondent on 28.11.2018, who
appeared and filed leave to defend application alongwith another
application under Section 5 of the Limitation Act r/w Order 37 Rule 4 and
Section 151 CPC for condonation of delay in filing the leave to defend
application. Both these applications have been filed on 03.01.2019 i.e. the
application forleave to defend application within the statutory time as
provided under Section 25B of the DRC Act.
5. It is submitted by the respondent that she had gone to her village in
Meerut, UP on or about 05.11.2018 for some treatment and she returned
to Delhi on 31.12.2018. It is also stated that the summons were received
by her representative i.e. her husband who was misled by the date
mentioned on the summons i.e. 14.01.2019 and was under the impression
that this is the date on which the respondent has to appear in the Court. It
is prayed that since the summons were not served personally on the tenant
/ respondent, the delay if any in filing leave to defend application be
condoned and the same be taken on record.
6. Reply to the condonation of delay application has been filed on behalf
of the petitioner wherein the averments made in the application have been
denied. It has further been stated that there is no question of being misled
as it is clearly mentioned on the summons that respondent has to file leave
to defend application within 15 days of the service of the summons.
7. Arguments on the applications were heard. Ld. Counsel for both the
parties relied upon respondent is relying upon the case laws in support of
their arguments. On rejoinder to the reply of the petitioner has also been
filed by the respondent today i.e. when the listed for orders.
Record perused.
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8. Ld. Counsel for respondent is relying upon the judgment Shri Hansraj
v. Lakhiram AIR 2005 Delhi 87, Daula Ram v. Smt. Sajjan Kanwar RLW
2007 (4) Raj 3454, HDFC v. Anil Laul 85(2000) DLT 343, in support of
his arguments. Perusal of these judgments shows that they are related to
provision of Order 37 CPC and are not applicable to the facts of the
present case. Ld. Counsel for respondent also seeks to rely upon the
judgment PushpaSoni v. Sarbati Devi ILR (2001) I Delhi 200 in support of
his arguments but the same is not applicable to the present case. He
further relied upon Om Prakash v. Brijnath Sharma (1980) 18 DLT 313,
Jor Singh v. Sanjeev Sharma RC Rev. 134/2013, Manoharan v. Sivarajan
Civil Appeal No. 10581 of 2013 decided on 25.11.2013. However, in the
present case, the respondent has already filed condonation of delay
application alongwith the application for leave to defend application
which both applications are being considered hereunder on merits.
9. In the present petition perusal of the report of summons dated
28.11.2018 shows that the summons were received on the tenanted
premises by Shri Virender Singh Rana who told that he is the husband 'of
respondent and received the summons on her behalf. The respondent has
duly admitted that Shri Virender Singh Rana is her husband. It is further
noted that the column of next date of hearing in the summons is blank.
When already in the summons it has been specifically mentioned: "you are
hereby summoned to appear before the Controller within 15 days of the
service thereof and to obtain the leave of the Controller to contest the
application for eviction on the ground aforesaid in default whereof the
applicant will be entitled at any time after the expiry of said period of 15
days to obtain an order for your eviction from the said premises". Thus, it
is highly improbable that the husband of the respondent would have been
misled and assumed for himself the date of appearance to be 14.01.2019.
It has been held in the case Shyam Sunder Wadhawan v. Vivek Arya RC
REV No. 294/14 &CM No. 14886/2014 dated 09.09.2014 that merely
because summons were addressed to the tenant but received by somebody
else does not mean that in each and every such case the service is not a
valid service. The fact that summons were served on identifiable property
and person, who is the husband of the respondent/ tenant in this case,
shows that the summons were duly served on the respondent on
28.11.2018 and the leave to defend application has been filed on
03.01.2019 i.e. long after expiry of statutory period of 15 days. In these
facts and circumstances, it cannot be disputed that the respondent was
duly served. In Prithipal Singh v. Satpal Singh (Dead) through hm LR's,
(2010) 2 see 15, it has been held that the statutory time period of 15 days
for filing of leave to defend application is inflexible and whatever has to
be stated in the leave to defend application with respect to the facts and
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events, which have happened prior to 15 days period, must be stated in the
leave to defend application itself and not by way of subsequent affidavit or
documents. In the present case, the respondent has failed to file the leave
to defend application within the statutory time period. Moreover, specific
provision under Section 25B of the DRC Act is to be followed for eviction
petition filed under Section 14(l)(e) of the DRC Act. In Vipin Nanda v.
Kusum Sharma CM (M) 1262/2011 and CM No. 19726-28/2011 dated
30.10.2011, it has been held that the provisions of Rule 23 of the DRC
Rules, 1959 are not applicable in a petition under Section 14 (1) (e) of the
DRC Act.
10. Thus, CPC or the Limitation Act is not applicable till the adjudication
of leave to defend application as provided under Section 25B of the DRC
Act and Section 23 of the DRC Rules. Accordingly, the application under
Section 5 of the Limitation Act r/w Order 37 Rule 4 and Section 151 CPC
moved on behalf of the respondent for condonation of delay in filing the
leave to defend application stands dismissed.”
8. The impugned judgment goes on to consider the matter on merits,
taking into account the contentions raised in the application seeking leave to
defend. As regards the bona fide need of the respondent, the impugned
judgement holds as under:-
“12. Further it is contended that the daughter of the petitioner for whose
bonafide requirement the present petition is filed is already in employment
and working in Noida and Gurgaon. On the other hand the petitioner has
categorically stated that her daughter is divorcee, residing with her and
well qualified. She wants to open a coaching institute for her livelihood. In
support of averments in the petition, petitioner has place on record the
copy of B.Tech certificate. There is nothing stopping the daughter of the
petitioner to start her own independent business/ coaching institute from
the property owned by her mother. Moreover, the respondent has failed to
give any address where the daughter of petitioner is presently working.
Even if as alleged by the respondent, it is presumed that daughter of
petitioner is working in Noida and Gurgaon then also she cannot be
forced to remain in employment and commute from Shakti Nagar where
she is presently residing upto Noida and Gurgaon for employment when
she has ability as well as suitable accommodation in the form of tenanted
premises to start her own business.”
Signature Not Verified
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9. With respect to assertion regarding vacant shops on the ground floor
of the building in question, the impugned judgement holds as under:
“13. Furthermore, the respondent has challenged the site plan filed by the
petitioner stating that she is filing, the correct site plan alongwith affidavit
of leave to defend. Further it is submitted that the petitioner is already in
possession of two shops / portions from where she is carrying on business
of denting and painting in association of Mohd. Afrosh who is alleged to
be a tenant, whereas he is employed on job basis by the petitioner. It is
submitted that there is another shop alleged to be with Ms. Madhu which
is factually incorrect as Ms. Madhu Malik is the sister in law of the
petitioner who has been teacher in school and never done any business
from the alleged shop which is lying vacant and the photographs of the
said shop taken on different dates proved the said fact of the shop lying
locked.
14. Perusal of the record shows that the site plan filed by the respondent is
same as that filed by the petitioner. Therefore, this contention of the
respondent regarding the site plan are found to be false, vague and
without any basis. As regards the another contention of the respondent
regarding the availability of two shops with the petitioner, the petitioner
has already categorically stated that there are nine shops on the ground
floor and has also disclosed the name of the tenants who are occupying
the said shops in the eviction petition itself. Further, the petitioner has
filed the copy of counterfoils of the rent receipt in the name of the tenants
occupying the said shops as Annexure G. Even though the respondent is
relying on certain photographs showing some closed shutters however, it
is not clear whether the said photographs are of the suit premises or not.
Moreover, merely the shutter is closed does not mean that the said shop is
not in the possession of the tenants. Thus, the respondent has failed to
show any vacant shop on the ground floor of the suit property.”
10. With respect to assertion that there are some rooms available on the
ground floor and first floor of the building in question, the impugned
judgement holds as under:
“15. Further, it is contended by the respondent that the petitioner has
concealed and suppressed that there was a tenant Shri Ajay Kumar on the
first floor of the suit property who has vacated and ever since then the said
portion is with the petitioner and her family and they have shifted to the
first floor of the suit property. As such the three rooms which had been in
their possession in the ground floor of the suit property became available.
An opening/ entrance can be taken out from the gali side where the shops
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exist on either side thereof. The said portion can be also used by the
petitioner for the alleged need of the daughter of the petitioner for even
starting a Coaching Institute. The present petition is filed for additional
accommodation.
16. It cannot be denied that business being run on the ground floor is
always much more profitable as the footfall of the customers on the
ground floor is much more as compared any other floor. Reliance may be
placed upon the law laid down in Rajesh Jain v. QuaziSammin Ahmad
2015 (2) RLR 438 wherein it has been held that since eviction was sought
for commercial. purposes, it was rightly held that ground floor of the
property would be more suitable. Similar view has been taken in Surinder
Singh v. Jasbir Singh 172 (2010) DLT 611. It has been held that with
regard to the availability of basement or first floor, it is contended that
these portion are not suitable for business, as tenanted shop is situated on
the main road and that too on the ground floor. No customer would like to
go to the basement or first floor. The premises or the space available at
the basement or at the first floor, can in no way substitute the commercial
space available at the ground floor of a given property.
17. As regards the contention regarding availability of three rooms on the
ground floor the respondent himself has stated that in order to utilize the
said rooms the petitioner is supposed to make certain improvements /
renovations/ repairs in the form that an opening/ entrance has to be taken
out from the gali side where the shops exist on either side thereof. The
petitioner being landlord cannot be forced to make an opening on the side
road in order to accommodate the respondent tenant on the main road.
Any business run in a shop on the main road would be more profitable as
compare to the business being run in room after making an opening on the
side road.”
11. In the present revision petition, the petitioner has again sought to
justify the delay in filing the leave to defend application on the same
contentions as raised before the rent controller. It is submitted that service of
summons on the husband of the petitioner when the petitioner was not in
Delhi cannot be said to be a valid service. It is further submitted that
summons were neither addressed to any agent empowered to accept service
on behalf of the petitioner, nor were they received by any agent empowered
to accept service. It is further submitted that rent controller erred in not
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appreciating that Rule 22 of Delhi Rent Control Rules, 1959 contemplates
that service of notice should be effected personally upon the tenant. It was
thus contended that the rent controller erred in holding that the petitioner
was duly served with the summons and consequently finding that there was
a delay in filing the leave to defend application. In support of the said
contentions, the petitioner has placed reliance on the following judgements:
1 2
Subhash Anand vs Krishan Lal ; Jor Singh vs Sanjeev Sharma ;
3 4
KantaThapar VS Brij Nandan ; Sh. Hansraj vs Sh. Lekhi Ram ; and
5
Director directorate of education &Anr. vs Mohd. Shamim &Ors.
12. On merits, it is further contended that the respondent has sufficient
commercial space available to meet the alleged need of the daughter. It is
contended that three shops on the ground floor of the building in question
are in possession of the petitioner. It is submitted that Mohd. Afroz, alleged
to be a tenant, in possession of one shop, is actually the employee of the
respondent in respondent‟s “denting painting” business. It is submitted that
another shop stated to be under tenancy of Ms. Madhu Malik is vacant and
in possession of the respondent. It is submitted that another shop admittedly
is in possession of the respondent being vacated by the tenant/ Mr. Avtar
Singh upon the orders passed by a rent controller for the bona fide need of
the respondent. It is further contended that three rooms, kitchen and
bathroom on the ground floor and three rooms, kitchen and bathroom on the
first floor are also available with the respondent. It is further contended that
it is not possible to run any coaching centre from the tenanted premises
1
(1985) 27 DLT 269
2
(2013) 205 DLT 117
3
MANU/DE/3810/2011
4
AIR 2005 Delhi 87
5
(2020) 266 DLT 1
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being a small shop. It is thus contended that triable issues are raised. In this
regard, reliance has been placed on the following judgments: R.S. Bakshi v.
6 7
H.K. Malhari ; Mohd. Jafar v. Nasra Begum ; and Liaq Ahmed v.
8
Habeeb-Ur-Rehman.
Analysis & Conclusion
13. At the outset, it would be apposite to refer to the judgment of the
9
Supreme Court in the case of Abidul Islam vs. Inder Sen Dua , delineating
the scope of interference in revisional proceedings under Section 25B(8) of
the DRC Act. In this regard, it has been held as under:
“23. The proviso to Section 25-B(8) gives the High Court exclusive power
of revision against an order of the learned Rent Controller, being in the
nature of superintendence over an inferior court on the decision-making
process, inclusive of procedural compliance. Thus, the High Court is not
expected to substitute and supplant its views with that of the trial court by
exercising the appellate jurisdiction. Its role is to satisfy itself on the
process adopted. The scope of interference by the High Court is very
restrictive and except in cases where there is an error apparent on the
face of the record, which would only mean that in the absence of any
adjudication per se, the High Court should not venture to disturb such a
decision. There is no need for holding a roving inquiry in such matters
which would otherwise amount to converting the power of
superintendence into that of a regular first appeal, an act, totally
forbidden by the legislature.”
[emphasis supplied]
14. The contentions raised by the petitioner are required to be tested on
the touchstone of the parameters laid down by the Supreme Court in the
aforesaid judgment.
15. As regards the contention of the learned counsel for the petitioner
with regard to the non service of summons on the petitioner, the impugned
6
2003 SCC OnLine Del 140
7
2012 SCC OnLine Del 3520
8
(2000) 5 SCC 708
9
(2022) 6 SCC 30
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judgment has taken note of the factual circumstances, in particular the fact
that the summons were admittedly received by the husband of the petitioner
on 28.11.2018, and the fact that on the face of the said summons, there was
no confusion as to the scope and import thereof, inasmuch as, it was clearly
mentioned therein that the petitioner was required to file leave to defend
within a period of 15 days of the service thereof. The impugned judgment
also takes note of the judgment of this Court in Shyam Sunder Wadhawan
10
v. Vivek Arya , wherein it has been held that “if the summons is addressed
to the tenant, and if the same is received by a person other than the tenant,
but with consent/or knowledge or direction of the tenant, then the service is
as effective as the service on the tenant.” Taking note of the same, the
impugned judgment concludes that the application seeking leave to defend
was filed beyond the stipulated time and that the delay in this regard could
not be condoned in view of the decision of the Supreme Court in Prithipal
11
Singh v. Satpal Singh .
16. The findings rendered in the impugned judgment being based on the
appreciation of the relevant factual circumstances, there appears no
justification to interfere with the same in exercise of revisional jurisdiction.
Notwithstanding, however in any event, the impugned judgment itself
proceeds to consider the petitioner‟s application seeking leave to defend on
merits, and deal with each and every contention raised by the petitioner. As
such, the issue as to whether the petitioner was duly served or not has
become moot in the present case.
10
(2014) 214 DLT 616
11
(2010) 2 SCC 15
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17. The findings rendered by the rent controller on the merits of the
eviction petition also do not warrant any interference in exercise of
revisional jurisdiction.
18. The plea of the petitioner that the tenanted premises is a small shop of
dimensions 9”X 6” and as such it is not possible to run any coaching centre
from the said tenanted premises is liable to be rejected in view of the settled
position in law that the landlord is the best judge of his requirement and the
tenant cannot dictate to the landlord as to how he should accommodate itself
or dictate to the landlord his choice of accommodation. It is not for the
tenant to dictate to the landlord as to how much space is adequate for
landlord‟s proposed business. This position has been reiterated in numerous
judgments of the Supreme Court. In Sarla Ahuja v. United India Insurance
12
Co. Ltd , it has been held as under:
“…it is not for the tenant to dictate terms to the landlord as to how else he
can adjust himself without getting possession of the tenanted premises.
While deciding the question of bona fides of the requirement of the
landlord it is quite unnecessary to make an endeavour as to how else the
landlord could have adjusted himself.”
13
18.1 In Prativa Devi (Smt.) v. T.V. Krishnan , it has been held as under:
“ The landlord is the best judge of his requirement. He has a complete
freedom in the matter. It is no concern of the courts to dictate to the
landlord how, and in what manner, he should live or to prescribe for him
a standard of their own.”
14
18.2 In Anil Bajaj v. Vinod Ahuja , it has been held as under:
“It would hardly require any reiteration of the settled principle of law that
it is not for the tenant to dictate to the landlord as to how the property
12
AIR 1999 SC 100
13
(1996) 5 SCC 353
14
(2014) 15 SCC 610,
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belonging to the landlord should be utilized by him for the purpose of his
business.”
15
18.3 In Balwant Singh v. Sudarshan Kumar , it has been held as under:
“It is not for the tenant to dictate how much space is adequate for the
proposed business venture or to suggest that the available space with the
landlord will be adequate.”
16
18.4 In Shiv Sarup Gupta v. Mahesh Chand Gupta ( Dr) , it has been
held as under:
“Once the court is satisfied of the bona fides of the need of the landlord
for the premises or additional premises by applying objective standards
then in the matter of choosing out of more than one accommodation
available to the landlord his subjective choice shall be respected by the
court."
19. The plea of the petitioner that suitable alternative accommodations are
available with respondent to meet the need of the daughter has been duly
considered by the rent controller in para 12 to 17 of the impugned
judgement (supra). It is notable that the eviction petition itself mentions the
names of various tenants occupying the shops on the ground floor of the
building in question. The respondent has also annexed the rent receipts
issued to various tenants to show the factum of tenancy. The contention of
the petitioner that one of the tenants/ Mohd. Afroz is actually the employee
of the respondent in respondent‟s own business is a bald averment not
supported with any cogent material. The contention of the petitioner that one
of the shops in possession of tenant/ Ms. Madhu Malik, stated to be sister-
in-law of the respondent, is vacant and in possession of the respondent, is
also a bald averment. The photographs on the basis of which it is alleged
15
2021 SCC OnLine SC 114
16
(1999) 6 SCC 222
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that the said shop is vacant, shows „all‟ the shops with shutter closed. The
photographs do not even provide any information about the specific date and
time when they were captured. The impugned judgement rightly notes that
“merely the shutter is closed does not mean that the said shop is not in the
possession of the tenants.” It cannot be said that the petitioner has given
facts or particulars which are required to be established by way of evidence.
20. It is settled law that leave to defend application cannot be granted on
mere asking otherwise the very object of special provisions contained in
Section 25B of the DRC Act will stand defeated. Bald averments made by a
tenant in respect of landlord's ownership of other buildings are not to be
considered sufficient for grant of leave to defend. In Rajender Kumar
17
Sharma v. Smt. Leela Wati&Ors . , it has been held by this court as under:
"....Only those averments in the affidavit are to be considered by the rent
Controller which have same substance in it and are supported by some
material. Mere assertions made by a tenant in respect of landlord's
ownership of other buildings and in respect alternate accommodation are
not to be considered sufficient for grant of leave to defend. If this is
allowed the whole purpose of Section 25-B shall stand defeated and any
tenant can file a false affidavit and drag a case for years together in
evidence defeating the very purpose of the statute.”
21. The petitioner has also contended that another shop, which has since
been vacated by the tenant/Mr. Avtar Singh, is in possession of the
respondent . The said shop has been vacated by Mr. Avtar Singh pursuant to
a judgement/order dated 06.09.2018 passed by a rent controller in eviction
petition no. 439/14/12. It is notable that said eviction petition was filed by
the respondent on ground of bona fide need of starting a business for
maintaining herself and members of her family dependent upon her while
17
155 (2008) DLT 383
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Neutral Citation Number : 2023:DHC:3199
the present eviction petition (in which impugned judgement is passed) is
filed for the bona fide need of the respondent‟s daughter to run a coaching
centre. The need pleaded in both the eviction petitions is thus different. It is
not the case of the petitioner that the respondent and/or respondent‟s
daughter does not intend to occupy the said tenanted premises/shops on
recovering their possession. The DRC Act in any case under Section 19 of
the Act provides a remedy to the tenant, in case the landlord does not
occupy the premises or let out the premises to a third person after having
recovered possession of the premises from the tenant in pursuance of an
order made under Section 14(1)(e) of the Act. The alleged availability of the
shop, vacated by Mr. Avtar Singh, with the respondent thus cannot satisfy
the bona fide need of the respondent‟s daughter to open a coaching centre.
As noticed above, the law is well settled that it is not for the tenant to dictate
to the landlord as to how the landlord should accommodate himself or as to
how the landlord should adjust himself in some other premises.
22. The plea of the petitioner that three rooms on the ground floor of the
building in question are available to the respondent is again liable to be
rejected. In the leave to defend application, it was stated “coaching institute
which in any case can be started from the other portions on the ground floor
of the property for which a large door can also be taken out from the other
side gali of the property.” The impugned judgement in para 17 thereof
(supra) righty notes that as per the petitioner himself, certain
improvements/renovations/repairs are required to be made in order to utilise
the said rooms. Moreover, the said rooms on the ground floor were earlier
used by the respondent for her residential accommodation and as such, it
cannot be said that said rooms are suitable for commercial accommodation.
Signature Not Verified
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Therefore, the said rooms on the ground floor cannot be said to be suitable
alternative commercial accommodation.
23. The plea of the petitioner that three rooms on the first floor of the
building in question are available to the respondent, on being vacated by
previous tenant/ Mr. Ajay Kumar, is again liable to be rejected. In the
eviction petition, it was disclosed that rooms on the first floor are being used
by the respondent for the residential purposes. Even in the leave to defend
application, contention of the petitioner was that since the respondent and
her family have shifted to the first floor of the building in question, the three
rooms which had been in their possession on the ground floor of the
building have become available. Thus, in the application seeking leave to
defend application, it was never contended that three rooms on the first floor
serve as suitable alternative accommodation. Even otherwise, the impugned
judgement in para 16 thereof (supra) rightly notes that space available at the
first floor, cannot be considered to be a substitute for the commercial space
available at the ground floor of a given property. In this regard reference
may also made to the judgement of this court in Mohd Saleem Vs Zaheer
18
Ahmad wherein it has been held as under:
“19. …It has been reiterated in number of cases that for the purpose of
opening a shop or carrying out a business, premises on the ground floor
are more suitable. In this regard, reference is made to judgment of the
Supreme Court in Uday Shankar Upadhyay v. Naveen
Maheshwari, (2010) 1 SCC 503 , wherein it has been held as under:
“once it is not disputed that the landlord is in bona fide need of the
premises, it is not for the courts to say that he should shift to the first floor
or any higher floor. It is well known that shops and businesses are usually
(though not invariably) conducted on the ground floor, because the
customers can reach there easily. The court cannot dictate to the landlord
18
2023 SCC OnLine Del 1469 : 2023/DHC/001762
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which floor he should use for his business; that is for the landlord himself
to decide.”
20. Likewise, in Dhannalal v. Kalawatibai , (2002) 6 SCC 16 it has been
held as under:
“a shop on the first floor cannot attract the same number of
customers and earn the same business as a shop situated on the ground
floor would do.”
21. In ViranWali v. Kuldeep Rai Kochhar , (2010) 174 DLT 328 it has
been held as under:
“any business which is being run from the ground floor of the
premises, will obviously attract more customers than the business being
run from the basement. It is the settled law, that a tenant cannot dictate
the landlord as to how and in what manner the landlord should use his
own property.”
24. Therefore, it cannot be said that the alleged alternate
accommodation/s referred to by the petitioner, are reasonably suitable, in
comparison with the tenanted premises wherefrom the respondent is seeking
eviction.
25. The impugned judgement rightly reaches the conclusion that the
petitioner herein has failed to raise any triable issue, which requires
evidence to be adduced. As such, no infirmity is found in the impugned
judgement dated 17.01.2019. The same does not call for interference in
exercise of revisional jurisdiction under Section 25B (8) of the DRC Act.
26. In the circumstances, the present petition, along with pending
applications, is dismissed, however with no orders as to costs.
SACHIN DATTA, J
SEPTEMBER 27, 2022/ cl/hg
Signature Not Verified
Digitally Signed
By:RADHA BISHT
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