Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Reserved on: 06 December, 2018
th
Pronounced on: 12 December, 2018
+ RC.REV. 140/2018 & CM APPL Nos.13899-900, 31065/2018
NAVEEN PRAKASH GUPTA ..... Petitioner
Through : Mr.R.P.Lao with Ms.Poonam Lau,
Advocates
versus
DEEPAK AGGARWAL ..... Respondent
Through : Ms.Tanvi Sapra and Mr.Manish
K.Bishnoi, Advocates.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
1. This revision petition challenges the impugned judgment dated
09.01.2018 passed by the learned ACJ/CCJ/ARC (West), Tis Hazari
Courts, Delhi dismissing an application for grant of leave to defend filed
by the petitioner herein and passing of an eviction order. The judgment is
being challenged on ground of illegality and it is urged the learned ARC
has erred in determining the bonafides of the petitioner.
2. The eviction was sought by the respondent /landlord/owner of
industrial shed bearing No.55, category III, DSIIDC Industrial Area,
Rohtak Road, New Delhi-110041 under the tenancy of the petitioner. The
grounds upon which the eviction of the tenant was sought are as under:
“a) Landlord Deepak Agarwal is the owner of shed No. 35
mentioned above. It was purchased by Deepak Agarwal
landlord by virtue of irrevocable power of attorney,
agreement to sell, receipt of consideration, deed of will etc.
on 21.05.1997 from Shri Ashok Kumar Garg son of Shri
Ratan Lai R/o C-397, Saraswati Vihar, New Delhi for
RC.REV. 140/2018 Page 1 of 8
valuable consideration. Copies of aforesaid documents are
also being filed. The will executed by Ashok Kumar Garg
was a registered will and it was last will of Ashok Kumar
Garg who has later on died. The will was voluntarily
executed according to law and was attested by two
witnesses according to Law.
ii) Respondent Naveen Prakash Gupta @ Naveen Gupta is
the tenant of petitioner Deepak Agarwal. This Tenant is
already doing business in the industrial shed No.11, 33, 34
also. This tenant is also using the shed No. 35 which is in
his tenancy as Godown/ Store. The said shed No.35 is
bonafidely required by the landlord Deepak Agarwal and
his family members. There is no other suitable industrial
accommodation/ premises in the ownership and possession
of the landlord and his family members suitable for the
manufacture of ladies hand bags business/industry,
iii) Smt.Roopali Agarwal is the wife of the petitioner. She
wants to do business and has decided to do business of
manufacturing of Ladies Handbag. She is financially
dependent upon the petitioner. Kumari Damini Aggarwal is
the eldest daughter of the petitioner. She has also decided
to do business. She is also financially dependent upon the
petitioner. Both Smt. Roopali Agarwal and Kumari Damini
Aggarwal who are dependent upon the petitioner and are
family members of the petitioner for doing business of
Manufacturing of and sale of Ladies Handbags. Industrial
shed no.35 which is in the tenancy of respondent Naveen
Prakash Gupta @ Naveen Gupta is very suitable. This shed
is also in front of shed no.36, where the petitioner is doing
business. There is only common passage between shed
no.35 and 36. Nowadays government is also encouraging
and helping to ladies to do business. Smt. Roopali Agarwal
has already done M.Sc. (PG) in Chemistry. She is young
lady aged about 47 years of age. Kumari Damini Aggarwal
has already done her B.Tech and MBA and she is aged
about 23 years. Both of them shall be doing business of
manufacturing ladies handbags in the Industrial Shed
No.35, which has got area about 48 sq.mtr. The need /
requirement of the premises in dispute to the petitioner and
his family members is genuine and bonafide.
iv) The petitioner at present is doing business in industrial
shed no.36 which is also having area of about 48 sq.mtr. In
this shed no.36, the petitioner is doing the business of
RC.REV. 140/2018 Page 2 of 8
leather embossing on job work basis. This accommodation
is not even sufficient for doing the business of artificial
leather embossing on job work basis. There is no regular
office in this industrial shed no.36 for office purposes.
There is already wooden office cabin in built in shed no.35
which is in the tenancy of the respondent. The wife of the
petitioner and the daughter of the petitioner shall also be
having her office in this wooden cabin for running her
business. The petitioner shall also be using that office
accommodation for running the business of the petitioner.
The industrial shed no.35 is also required for the
petitioner, so that he may have his office alongwith the
office of his wife and daughter. The requirement / need of
the petitioner and family members is very genuine and
bonafide. v) There is no space available in the shed no. 36
for opening the manufacturing business of Smt. Roopali
Agarwal and Kumari Damini Aggarwal. The
accommodation in shed no.36 is not sufficient for the
business of the petitioner which he is doing.
vi) Smt. Roopali Agarwal is owning and possessing the
residential ground floor only of Building No. 5221/6,
Krishna Nagar, Karol Bagh, Delhi and the petitioner and
his family members have nothing to do with the remaining
aforesaid building/floors. This ground floor portion cannot
be used under the rules and regulations for manufacturing
of ladies hand bags. The residential accommodation under
law cannot be used in Delhi for manufacturing/industrial
purpose and for the business which Smt. Roopali Agarwal
and Kumari Damini Aggarwal shall be doing in Shed
No.35. It is also not suitable for the business of
manufacturing of ladies hand bags which Smt. Roopali
Agarwal has decided to start.
vii) The requirement/need of shed No. 35 is bonafide and
Genuine for the petitioner and his wife and daughter. The
petitioner and his family do not have any other suitable
accommodation/premises for starting the business of
manufacturing ladies hand bags.”
3. At the outset the learned counsel for the petitioner did not
challenge the ownership of the petitioner and his main stress was the
respondent does not require the premises bonafide and the issue raised by
RC.REV. 140/2018 Page 3 of 8
the petitioner ought to have been treated as a triable issue and the leave to
defend should have been granted.
4. Now, the petitioner has sought an eviction on the plea that his wife
and daughter require the premises for manufacturing of ladies handbags.
It was urged there exist a common passage between sheds No.35 & 36
and since Shed No.36 is already in possession of the respondent where he
is doing the business of leather embossing on job work basis, therefore,
the manufacturing of ladies handbags by his wife and daughter in
adjoining shed would be a supplement to his business and since the
subject premises has a wooden office, his wife and daughter can
conveniently sit and it would also be used by him as his office too. The
wife of petitioner is aged 47 years and is M.Sc (PG) in Chemistry and
whereas his daughter is B.Tech/MBA and is aged 23 years. Since both of
them are inclined to do the business as above, the need of the respondent
was rightly declared to be bonafide.
5. The learned counsel for the petitioner then referred to the reply of
the respondent herein to the leave to defend application wherein the
respondent has disclosed the financial stability of his wife stating
interalia she is an income tax payee for last several years; has her
istridhan , fixed deposits, shares, bonds in several companies, mutual
funds and saving bank account etc. It is alleged by petitioner if the wife
of the respondent is financially secured then she cannot be treated as a
dependent upon the petitioner and hence the petitioner is entitled for
leave to defend. This argument is misconceived as the ‘dependency’
RC.REV. 140/2018 Page 4 of 8
under Section 14(1)(e) of the Act is not limited to the financial
dependency but includes dependency for accommodation too.
6. The learned counsel for the petitioner then pointed at some
photographs showing the ground floor of House No.5221/6, Krishna
Nagar, Karol Bagh, Delhi being used for commercial purposes to say the
said house belong to the wife of the respondent and commercial activity
is being carried from the said house hence the wife of respondent could
very well start manufacturing of handbags from the said house and hence
does not require the premises bonafidely. This argument too is
misconceived since it is not the case of the petitioner that any
manufacturing activity is allowed to be carried from House No.5221/6,
which per-se is a residential accommodation. Further when the
respondent owns an industrial accommodation why he would then allow
his wife to use residential premises for industrial purpose. Even
otherwise, the respondent has alleged the said residential house is not
suitable for such purpose, and this Court has no reason to disbelieve him.
7. Let me now see as to how the learned ARC has dealt with this
issue.
“13. Petitioner has projected his bonafide requirement of
the tenanted premises from where his wife and daughter
intends to start a manufacturing business of hand bags. His
daughter is stated to have completed her M.B.A. and is thus
in a position to start the business. As regards the
contention of the respondent that the wife of the petitioner
does not live any experience to start the manufacturing
business, it is stated that there are slew of judgments of the
Superior Courts where they have observed that even in the
absence of any experience in any field, in case of genuine
and bonafide requirement the person cannot be denied the
eviction of the premises. To embolden this view, reference
is this are as below.
RC.REV. 140/2018 Page 5 of 8
th
14. Puran Chand Aggarwal v. Lekh Raj DOD, 16 April
2014, Relevant paragraph in this regard wherein it was
held
"27. As far as business is concerned, it is not
necessary that the landlord must show some
evidence that he has experience of said business.
That is not the requirement of law in order to file
the eviction petition on the grounds of bonafide
requirement".
"28. The following judgments do help the case of
the respondent:
(I) In Ram Babu Agarwal vs. Jay Kishan Das,
(2010) 1 SCC 164, it was observed that" A person
can start a new business even if he has no
experience in the new business that does not mean
that his claim for starting new business must be
rejected on the ground that it is a false claim. Many
people start new businesses even if they do not have
experience in the new business and sometimes they
are successful in the new business also."
(ii) In Tarsem Singh vs. Gurvinder Singh, 173
(2010) DLT 379, it was observed that " if the
landlord wants to start his own business in the
premises owned by him then by no stretch of
imagination, it can be said that the requirement of
the landlord for the premises is neither bonafide nor
genuine."
(iii) In Balwant Singh Chowdhary & Ann vs.
Hindustan Petroleum corporation Ltd., 2004 (1)
RCR 487, it was held that "It is not necessary for
the landlord to plead and prove the specific
business he wants to set up, if the landlord wanted
the premises for business purposes."
(iv) In Gurcharan Lai Kumar vs. Srimati Satyawati
& Ors., 2013 (2) RCR (rent) 120 it was observed
that "Merely because the exact nature of business
has not been described would not take away their
bonafide need to carry out a business (when
admittedly both the sons are dependent upon
petitioner for this need). It was observed that if the
business need is not disclosed this would not wipe
away the bonafide need of the landlord as has been
RC.REV. 140/2018 Page 6 of 8
pressed under Section 14 (I) (e) of the DRCA,
1958."
(v) In Raj Kumar Khaitan & Ors. vs. Bibi Zubaida
Khatun & anr., AIR 1995 SC 576, it was observed
that " It was not necessary for the appellants-
landlords to indicate the precise nature of the
business which they intended to start in the
premises. Even if the nature of business would have
been indicated nobody would bind the landlords to
start the same business in the premises after it was
vacated." Even, after having gone through the
pleadings and documents placed on record, it
appears to the Court that it is not a triable issue..."
15. As far as the employment of Kumari Damini Agarwal
with M/s E Value Serve is concerned, there is nothing to
show that at the time of filing this petition, she was still
continuing with that employment. Petitioner has already
tendered explanation that his daughter merely did
internship with M/s E Value Serve and was never in a
permanent employment. Respondent has not furnished any
material to the contrary. Petitioner is stated to be carrying
on his business from Shed No. 36 in the same premises and
if his daughter and wife wants to start their own business
from the tenanted premises, this requirement cannot be
doubted.”
8. A bare perusal of the reasoning given by the learned Trial Court do
show the eviction order does not suffer from any error of law and is not
perverse or arrived at without consideration of the material evidence filed
before it. It is only when such findings are based on no evidence or on
misreading of the evidence or is grossly erroneous that if allowed to stand
it would result in miscarriage of justice it is open to the High Court to
upset such finding. If this Court is satisfied qua the correctness, legality
or proprietary of any decision or the order impugned, this Court shall not
exercise its power as an appellate court to re-appreciate or reassess the
evidence for coming to a different finding on fact. The revisional power
cannot be equated with the power of reconsideration of all questions of
RC.REV. 140/2018 Page 7 of 8
facts as a Court of first appeal, per Hindustan Petroleum Corporation Ltd
vs Dilbahar Singh 2014 AIR(SC) 3708.
9. Finding no infirmity in the impugned judgment dated 09.01.2018,
the petition stands dismissed. All pending applications stands disposed of
in terms of above.
YOGESH KHANNA, J.
DECEMBER 12, 2018
DU
RC.REV. 140/2018 Page 8 of 8