Sh. Bhim Sain Shastri Through His Legal Heirs v. Sh. Sharat Chand & Ors.

1. Counsel appears for the caveators and thus the caveat stands discharged. + RC. REV. No.257/2014 and C.M. No.12334/2014 (stay)

2. This petition under Section 25B(8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as ‘the Act’) is filed impugning the judgment of the Additional Rent Controller dated 28.4.2014 by which the 2014:DHC:3679 Additional Rent Controller has dismissed the leave to defend application and has passed an eviction order in the petition for bonafide necessity with respect to the tenanted premises being shop bearing private no.2, property no.230, Main Road, Gandhi Nagar, Delhi as shown in red colour in the site plan Ex.PX.

3. In a petition for bonafide necessity, three aspects have to be shown for seeking eviction; (i) there is a relationship of landlord and tenant between the parties, (ii) the landlord and/or his family members bonafidely need the premises, and (iii) there is no other alternative suitable premises. In the present case, the respondents/landlords pleaded that the tenanted shop was required by the respondent no.1 for carrying on his business of repairing of gas stove, cooker, chullah etc and which work for the present was being carried out in a passage in the same property.

4. The petitioners/tenants contested the eviction petition by filing the leave to defend application. They have argued before this Court that the leave to defend ought to be granted inasmuch as the respondent no.1 is no longer carrying on the business of repairing of gas stoves, cooker, chullah etc but is only selling pan, biri, cigarette etc and therefore there is no requirement of the tenanted shop for the purpose of carrying on the business of repairing of the gas stove, cooker, chullah etc. It is also argued that the respondents are wrongly contending that they are doing business in a passage whereas what is in their possession is a shop and not a passage.

5. The Additional Rent Controller has by a detailed judgment decreed the petition by holding that there is a relationship of landlord and tenant between the parties and there is a need of the tenanted shop for the purpose of carrying on the business by the respondent no.1/landlord and the respondent no.1/landlord has no other alternative premises.

6. Before this Court, essentially what is only argued is the aspect of existence of alternative premises and because of which the need of the respondent no.1 is not said to be bonafide.

7. So far as the aspect which is urged before this Court that the respondent no.1 is not carrying on the business of repairing of gas stove, cooker, chullah but is selling pan, biri, cigarette etc is concerned, firstly it is to be noted that in the reply to the application for leave to defend the respondents/landlords have categorically stated that the respondent no.1 is not carrying on the business of selling of pan, biri, cigarette etc but that the business is carried out on the road by one Sh. Jameel in front of the suit premises. Therefore, merely because the petitioners would like to contend that the respondent no.1 is not doing the business of repairing of gas stoves etc and only selling of pan, biri, cigarette etc, the same will not make the business of selling of pan, biri, cigarette of Sh. Jameel on the road as the business of the respondent no.1. Even assuming that the respondent no.1 is not doing the business of repairing of gas stoves, cooker, chullah etc but is doing the business of selling of pan, biri, cigarette etc, yet even for this business the tenanted premises are required inasmuch as presently the business is being carried out in a passage. I do not find that the need for a shop can be said to be lacking bonafides because surely a landlord can ask that he should be allowed to carry on his business whichever it be, in a shop and not on the passage.

8. So far as the second argument urged by the counsel for the petitioners by referring to page 133 of the paper book is concerned, and which was a plan filed in an earlier eviction petition in relation to the tenanted premises, and on which basis it is sought to be argued that the area in which the business is being conducted by the respondent no.1 is a shop and not a passage, however, a reference to this plan filed in the earlier petition shows that the area from where the business is being carried out is specifically stated to be a shop/passage i.e use of the passage as a shop and the site plan makes it clear that the said portion where the respondent no.1 is carrying on the business is an access to the remaining residential portion of the property at the back. Therefore, no capital can be made out of the fact that in the pleadings of the earlier petition as also in the site plan the portion with the respondent no.1 is referred to as a shop inasmuch as actually the so called shop is only a passage from where respondent no.1 is carrying on the business.

9. In view of the above, I do not find any merit in the petition, and the same is therefore dismissed, leaving the parties to bear their own costs.

AUGUST 04, 2014 VALMIKI J. MEHTA, J. Ne