Bharat Bhushan & Others v. Atul Gupta

1. The present revision petition is filed under section 25-B (8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as “the Act”) read with Article 227 of the Constitution to challenge the impugned order dated 03.04.2023 (hereinafter referred to as the “the impugned RC.REV. 196/2023 Page 2 order”) passed by the court of Ms. Priyanka Rajpoot, CCJ-cum- ARC, Central, Tis Hazari Courts, Delhi (hereinafter referred to as “the trial court”) in eviction petition bearing RC ARC NO. 1002/2018 (CNR no. DLCT03-00769-2018) titled as Atul Gupta V Bharat Bhushan and others.

2. The respondent/owner/landlord (hereinafter referred to as “the respondent”) filed an eviction petition under section 14(1) (e) read with section 25B of the Act against the petitioners in respect of the premises i.e. shop no. 3 situated at second floor of the property bearing Municipal no. 2 to 5, Esplanade Road, Delhi-110006 (hereinafter referred to as “the tenanted shop”) as shown in red colour in the site plan annexed with the petition on the ground of bona fide requirement as prescribed under section 14(1)(e) of the Act. 2.[1] The respondent stated that the tenanted shop was let out to the petitioners/tenants (hereinafter referred to as “the petitioners”) for commercial purpose at a monthly rent of Rs.820/- exclusive of other charges which was revised to Rs.1000/- per month in April, 2023. The respondent is claiming to be the owner of the tenanted shop having acquired ownership rights from his late father, namely, Prem RC.REV. 196/2023 Page 3 Kumar Gupta. Late Prem Kumar Gupta was the owner of the property by virtue of registered partition deed dated 03.12.1957 and respondent after the death of his father who expired on 15.01.2015 has acquired the tenanted shop by memorandum of family settlement dated 10.04.2015 executed by other surviving legal heirs of late Prem Kumar Gupta. The petitioners were inducted in the tenanted shop by Late Prem Kumar Gupta vide rent note dated 18.01.1993 and the petitioners after the death of Prem Kumar Gupta started to pay rent to the respondent. 2.[2] The respondent pleaded that he requires the tenanted shop for doing his own business of import and export of electronic goods such as Televisions, LEDs, LCDs, etc. and was doing the said business along with his younger son, namely, Salil Gupta. The respondent wanted to settle his younger son Salil Gupta in the business who is being settled and as such the respondent desires to work independently. 2.[3] The respondent also filed an eviction petition bearing E NO. 80388/16 titled as Atul Gupta V Chander Prakash Kapoor for eviction of the shop bearing no.14A/IV, Ground Floor of property RC.REV. 196/2023 Page 4 bearing no. 2, 3, 4, 5, 14 & 15, situated at Gali Kucha Chaudhary, Chandani Chowk, Delhi-110006 for the bona fide requirement of space for his younger son Salil Gupta, which was later on withdrawn by the respondent vide order dated 11.10.2018 passed by the court of Prashant Sharma, SCJ-cum-RC, Central, Delhi due to the reason that the said shop was small in size and the respondent sold said shop to the tenant Chander Prakash Kapoor. Salil Gupta, younger son of the respondent has already taken another shop on rent in the area of Karol Bagh at the monthly rent of Rs.10,000/- to carry his business. The respondent also wanted to settle his elder son, namely, Sahil Gupta for which he filed an eviction petition bearing E no. 649/17 titled as Atul Gupta V S. Deep Singh in respect of the shop bearing no. 2 situated on ground floor of the property bearing Municipal no. 2 to 5, Esplande Road, Delhi and said petition was later on compromised between the parties vide order dated 25.01.2018 passed by the court of Ms. Susheel Bala Dagar, Pilot Court (Central), Tis Hazari Court, Delhi and the respondent sold said shop to Sunil Walia, Director of M/s Kanta Jib Crane Pvt. Ltd. subsequently for sale consideration of Rs. 1,30,00,000/-. Sahil Gupta, the elder son of the RC.REV. 196/2023 Page 5 respondent has already shifted to London. The above-mentioned two shops were not suitable for the needs of the respondent and due to this reason, those shops were sold. The respondent does not have any source of income and no any other alternate suitable accommodation available. Hence, the respondent filed the eviction petition.

3. The petitioners after service of summons as per the Third Schedule of the Act filed an application for grant of leave to defend as per section 25B of the Act. The petitioners stated that the present petition is not maintainable as the respondent has sold the shop no. 2, Ward No. IV, Esplanade Road, Chandni Chowk, Delhi-110006 after getting the possession in view of the settlement dated 25.01.2018 in eviction petition bearing no. 649/2017 titled as Atul Gupta V S. Deep Singh under section 14(1)(e) of the Act. The respondent sold the said shop to Sunil Walia, Director of M/s Kanta Jib Crane Pvt. Ltd. for a consideration of Rs.1,30,00,000/-. The respondent also sold another shop bearing no. 4/14, Kucha Chaudhary, Chandni Chowk, Delhi- 110006 to the tenant Chander Prakash Kapoor after the order dated 03.08.2018 which was passed by the court of Sh. Prashant Sharma, SCJ-cum-RC, Central, Tis Hazari Courts, Delhi in eviction petition RC.REV. 196/2023 Page 6 bearing no. 80388/2016 titled as Atul Gupta V Chander Prakash Kapoor whereby the application for leave to defend was granted in favour of the tenant Chander Prakash Kapoor.

4. The respondent is habitual in filing false petition under section 14(1) (e) of the Act for bona fide need in order to fetch exorbitant market rent from the buyers or the tenants. The respondent has sold the two shops within a span of one year as such the need of the respondent in respected of the tenanted shop is not bona fide. The building of which the tenanted shop is a part is comprising 1st floor, 2nd floor and 3rd floor and the said building is commercial in nature having about 50 shops in total therein. The respondent is in possession of number of shops which can be used by the respondent for starting his business. The respondent is having sufficient space to run his business of import and export of electronic goods along with his son at Patparganj, Delhi. The requirement of the respondent is not bona fide. There is no relation of landlord and tenant between the petitioners and the respondent as the memorandum of family settlement dated 10.04.2015 is not registered and cannot be looked into for any purpose. The respondent is having spacious property at RC.REV. 196/2023 Page 7 Punja Sharif, Kashimiri Gate measuring 950 sq. yds., Gupta Motor Market where the respondent along with his son is running the business of import and export of electronic goods. 4.[1] The respondent filed the reply and counter affidavit to contest the application for leave to defend filed by the petitioners.

5. The court of Aditi Garg, CCJ cum AR (Central) vide order dated 16.12.2019, allowed the application for leave to defend on the ground that the respondent has sold two shops within one year proceeding the date of filing the present eviction petition which cast doubt on the bona fide requirement of the petitioner. The respondent being aggrieved by the order dated 16.12.2019 filed CM(M)70/2020 titled as Atul Gupta V Bharat Bhushan & others and this Court vide order dated 31.01.2023 had set aside the order dated 16.12.2019 and the trial court was directed to rehear the application for grant of leave to defend.

6. The trial court in the impugned order after considering the registered partition deed dated 03.12.1957 by which Late Prem Kumar Gupta, father of the respondent acquired the ownership right in respected of the tenanted shop and the Memorandum of Family RC.REV. 196/2023 Page 8 Settlement dated 10.04.2015 by which the respondent acquired the ownership right in respect of the tenanted shop observed that there is a relationship of landlord and tenant between the parties. The perusal of relevant portion of the impugned order reflects that the trial court has rightly observed that the respondent is the owner in respect of the tenanted shop for the purpose of section 14(1) (e) of the Act and there exists relationship of landlord and tenant between the parties.

7. The trial court in the impugned order considered the bona fide requirement of the respondent in respect of the tenanted shop. The respondent stated that he requires the tenanted shop for doing his small business of import and export of electronic goods and the respondent was doing the said business along with his younger son Salil Gupta and now the respondent wants to start his own business independently. The petitioners contested the claim of the respondent in respect of the tenanted shop by pleading that the respondent had sold the shop no. 2, Ward No. IV, Esplanade Road, Chandni Chowk, Delhi-110006 to Sunil Walia, Director of M/s Kanta Jib Crane Pvt. Ltd. for a consideration of Rs.1,30,00,000/- after getting possession of the said shop in view of the settlement dated 25.01.2018 recorded RC.REV. 196/2023 Page 9 in eviction petition bearing no. 746/2017 titled as Anil Gupta V S. Deep Singh. The petitioners also alleged that the respondent had also sold another shop bearing no. 4/14, Kucha Chaudhary, Chandni Chowk, Delhi-110006 to the tenant Chander Prakash Kapoor after the order dated 03.08.2018 was passed by the court of Sh. Prashant Sharma, SCJ-cum-RC, Central, Tis Hazari Courts, Delhi whereby the application for leave to defend filed by the tenant Chander Prakash Kapoor was allowed. The petitioners also pleaded that the respondent is in the habit of filing false petition. 7.[1] The respondent admitted that he sold the two shops as detailed hereinabove in the year 2018 but before filing of the present case. The respondent also pleaded that he filed one eviction petition bearing E no. 649/17 titled as Atul Gupta V S. Deep Singh for eviction of shop bearing no. 2, ground floor forming part of the property bearing Municipal no. 2 to 5 situated at Esplande Road, Delhi as he wanted to settle his elder son Sahil Gupta but sold the shop as Sahil Gupta had shifted to London. The shop no. 2, Ward No. IV, Esplanade Road, Chandni Chowk, Delhi-110006 was no longer required by him or his son at that time. The respondent also pleaded RC.REV. 196/2023 Page 10 that in order to settle his younger son, namely, Salil Gupta, he filed an eviction petition under section 14(1)(e) of the Act bearing NO. 80388/2016 titled as Atul Gupta V Chander Prakash Kapoor in respect of the shop bearing no. 4/14, Kucha Chaudhary, Chandni Chowk, Delhi-110006 but the said petition was withdrawn by the respondent due to the settlement with the tenant Chander Prakash Kapoor and the said shop was sold to the tenant and the sale consideration was given to his son so that the same can be utilised for business purpose. The respondent gave justification regarding the sale of those two shops by pleading that his elder son Sahil Gupta has moved abroad and the younger son Salil Gupta did not require the shop which was subject matter of the earlier eviction petition. 7.[2] The trial court in the impugned order observed that no mala fide can be imputed in the action of the respondent in selling the said shops as the respondent has given valid reasons i.e. pressing/urgent financial needs in reply to application for leave to defend as such no triable issues were raised for the petitioners to claim there exists mala fide in action of the respondent in selling the two shops. The trial court in the impugned order also opined that the respondent was not RC.REV. 196/2023 Page 11 having any need for any shop to start his own business. The trial court also did not believe in the averments made by the petitioners that the respondent along with his son is running the business of import and export of electronic items at Patparganj and Karol Bagh, Delhi.

8. The trial court in the impugned order regarding the alternative accommodation observed that the petitioners have made false allegations regarding the availability of alternate accommodation as stated in the application for leave to defend. The trial court vide impugned order observed that there is no triable issue raised between the parties which entitles them to claim the leave to contest the present petition. Accordingly, the application for leave to defend was dismissed as a consequence of which eviction order in respect of the tenanted shop was passed. The petitioners being aggrieved, filed the present petition.

9. Sh. A.K Singla, the learned Senior Counsel for the petitioners advanced oral arguments and submitted short synopsis wherein stated that the eviction petition filed by the respondent/landlord was not a case of bona fide requirement rather it was a clear case of mala fide RC.REV. 196/2023 Page 12 requirement as in the present case the respondent/landlord recovered possession of the other two shops by filing eviction petitions on the ground of bona fide requirement wherein vacant peaceful possession of the tenanted premises was received by the respondent on 23.01.2018 and thereafter both shops were sold by the respondent on 10.09.2018 to the third parties. 9.[1] Sh. A.K Singla, the learned Senior Counsel for the petitioners also relied upon the judgment of the Supreme Court tiled as Ambadas Khanduji Shinde & Ors V Ashok Sadashiv Mamurkar (2017) 14 SCC 132 to argue that that the sale by the respondent/landlord shows that there was no real bona fide requirement on the part of the respondent/landlord at the time of filing the eviction petition in respect of tenanted shop which is the subject matter of the present petition. The trial court while passing the impugned order dated 03.04.2023 observed that Ambadas Khanduji Shine and others V Ashok Sadashiv Mamurkar and others is distinguishable from the facts and circumstances of the present case. RC.REV. 196/2023 Page 13 9.[2] Sh. A.K. Singla, the learned Senior Advocate for the petitioners draws the attention of the court to the order dated 31.01.2023 passed by the coordinate bench of this court in CM(M) bearing no.270/2020 which had been filed by the respondent/landlord wherein the trial court was directed to examine the other eviction petitions filed by the respondent/landlord while deciding the application for leave to defend. The trial court was also directed to examine that on what basis the two other shops owned by the respondent/landlord were sold and the circumstances surrounding the sale while deciding the application for leave to defend filed by the petitioners/tenants. He stated that the evidence of the two sale deeds executed by the respondent/landlord in respect to the other premises came on record after the leave to defend was allowed in the present case vide order dated 16.11.2019 and despite the order passed by this court in CM(M) bearing no.270/2020 vide order dated 31.01.2023 the trial court has failed to appreciate the material placed on record and passed the impugned order dated 03.04.2023. It is prayed that the present petition of the petitioner be allowed and the impugned order dated 03.04.2023 be set aside. RC.REV. 196/2023 Page 14

10. Sh. Manish Vashisht, the learned Senior Counsel for the respondent advanced oral arguments and submitted written submissions wherein stated that the sole ground of the petitioners challenging the impugned order dated 03.04.2023 is that the respondent/landlord had sold two shops on earlier occasions and the requirement of the respondent/landlord was not bona fide. The learned Senior Counsel for the respondent argued that the earlier eviction petitions were filed by the respondent for the bona fide requirement for settling his two sons and due to change in circumstances, the said shops were sold and the money so received was utilized for settling sons. The eviction petition subject matter of the present revision petition was filed for the bona fide requirement of the respondent/landlord himself and the said facts were also disclosed in the eviction petition. The trial court pursuant to the order dated 31.01.2023 has taken note of all the submissions made by the parties and has rightly dealt with the fact of sale of shops and there’s no mala fide on the part of the respondent/landlord. It is further argued that the petitioners/tenants are relying on the copy of the sale deed dated 10.09.2018 which do not form part of the trial court RC.REV. 196/2023 Page 15 record for consideration of the leave to defend application as the same was not filed along with the leave to defend application but was filed subsequently. The impugned order dated 03.04.2023 passed by the trial court is reasoned and is passed after considering all the relevant facts and circumstances. 10.[1] The learned senior counsel for the respondent relied upon Rishal Singh V Bohat Ram & Ors, (2014) SCC Online Del 3694, Anil Bajaj V Vinod Ahuja, 210 (2014) DLT 58, Satish Kumar Chhabra & Ors. V Vinod Kumar Ahuja, 266 (2020) DLT 634, Khem Chand Ramesh Kumar V Vijay Mehra, 216(2015) DLT 544, M/s J.P. Gupta & Sons V Malti Narang & Anr., (2017) SCC Online Del 6745, Madan Lal V Sunil Kumar, MANU/DE/0168/2023 and argued that the present revision petition be dismissed.

11. It is appearing that the respondent filed the present eviction petition against the petitioners in respect of the tenanted shop which was let out for commercial purpose by pleading that the tenanted shop is required bona fide by the respondent for doing his own business of import and export of electronic goods such as Television, RC.REV. 196/2023 Page 16 LED, LCD etc. The respondent also admitted that earlier he filed two eviction petitions as detailed hereinabove for eviction of two shops which were subsequently sold to the different persons for a sale consideration. Although, the respondent pleaded that the sale consideration were utilised to settle his two sons. 11.[1] It is pertinent to mention that the respondent has sold two shops within one year preceding from the date of filing of the present petition and the eviction petitions were filed for the bona fide requirement of the sons of the respondent. Had the respondent required the tenanted shop for his bona fide use for starting own business i.e. for selling the electronic items then he should not have sold two shops to the other persons. The reasons given by the respondent for selling/disposing of two shops in pursuance of earlier two eviction petitions due to the reasons as pleaded by the respondent requires further consideration of the Court to establish that the requirement of the petitioner as pleaded in the present petition is actually bona fide or not. The trial court was not justified in observing that the respondent had given valid reasons for selling two shops as at that time he was not having any need for any shop to start RC.REV. 196/2023 Page 17 his own business without considering the facts that these two shops were sold/disposed of within one year prior to filing the present petition. There is no force in the arguments advanced by the learned Senior Counsel for the respondent that the sale consideration receipt by the respondent by selling two shops on earlier occasion was utilised by the respondent to settle his sons and as such, the bona fide requirement of the respondent in contest of the present petition is genuine. There is force in the arguments advanced by the learned Senior Counsel for the petitioners that the issues raised by the petitioners for leave to defend needs consideration. 11.[2] The petitioner has raised triable issues in the application for leave to defend and the trial court ought to have granted the leave to defend to the petitioner after considering all the facts and circumstances of the case. Accordingly, the impugned order cannot sustain on facts and law and is set aside. The application for leave to defend by the petitioner is allowed and the leave to defend is granted to the petitioner. Accordingly, the present petition is allowed and pending applications, if any also stand disposed of. RC.REV. 196/2023 Page 18 12 The parties are directed to appear before the concerned trial court on 01.10.2024 at 2:30 PM for further direction.

SUDHIR KUMAR JAIN (JUDGE) SEPTEMBER 20, 2024 N/J/ABK