Full Text
ANIL MADAN ..... Petitioner
Through : Dr.Anurag Kumar Agarwal and Mr.Umesh Mishra, Advocates.
Through : Mr.Sanjeev Sindhwani, Sr Advocate with Mr.Ajay Gupta and
Ms.Surbhi Gupta, Advocates.
JUDGMENT
1. This revision petition challenges the judgment dated 11.05.2018 passed in respect of eviction of shop No.3463-A and D, Krishna Niketan, Ground Floor, Delhi Gate, Delhi-110002. The rent of the said premises is Rs.400/month.
2. The petition under Section 14 (1) (e) of the Delhi Rent Control Act, 1958 (hereafter ‘the Act’) is filed on the premise the tenanted shop is required bonafidely by the respondent for its commercial activity which can only be run from the ground floor portion. It is alleged though some portion on the ground floor is in occupation of the respondent but it cannot be used since it doesn’t lead to a proper opening from the front road side to use the rear/ internal portion of the property. 2019:DHC:1812
3. Admittedly the location of the property is prime and the respondent company alleges to run a business of display of goods viz. refrigerators, LED TVs, other electrical gadgets, a departmental store; or selling electronic items and has numerous other options to start any of the aforesaid businesses but the big hall on the rear side can only be used effectively once the front shops are got vacated. It is alleged the front potion can be used as a reception office or a showroom, hence the space presently available with the respondent company is not suitable as is on internal/ rear side of the property and hence this eviction petition.
4. The petitioner herein has challenged the impugned order, primarily on following grounds (a) during the pendency of the petition a shop on the front was got vacated but this aspect was overlooked by the learned Trial Court; (b) notice under Order 12 Rule 8 CPC for production of documents, though given by the petitioner, but the respondent failed to produce such documents; (c) the site plan of the entire property viz. of first, second and third floor was never filed by the respondent; (d) PW-1 was not aware of the facts of the case; (e) as per the Delhi High Court Rules the respondent was obliged to disclose other litigations which the respondents had with different tenants, hence is guilty of concealment.
5. Before coming to the objections so raised by the learned counsel for the petitioner, let me have a look on the evidence of the respondent herein led before the learned Trial Court.
6. Mr.Ankit Gupta was examined as PW[1] on behalf of the respondent as its authorized representative and he filed an affidavit Ex.PW1/A, a replica of the eviction petition and proved the certificate of incorporation of the respondent company as Ex.PW1/3; its Memorandum of Association Ex.PW1/4; Form 18 as Ex.PW1/5; Form 32 as Ex. PW1/7; order of slum petition as Ex.PW1/8.
7. Admittedly, PW[1] during his cross-examination could not depose with clarity about the earlier businesses of the respondent company and could not file such documents as did not have access to the entire record of the company. He rather deposed he occasionally visits the property but admitted the portions on first and third floor are occupied by the respondent herein and whereas some portion of the second floor is occupied by a tenant and is being used by him for commercial activities. He admitted of a notice PW1/R[1] received by the respondent but did not produce the documents. He admitted there are six tenants on the ground floor of the suit property and the petitioner Mr.Anil Nanda was one of them and he handed over the possession of a corner front shop to the petitioner by way of a compromise in December 2017, The said shop is marked X in site plan Ex.PW1/1. However PW[1] deposed he was not present when site plan Ex.PW1/1 was prepared and hence could not verify the dimensions, area, numbers of the shops referred to therein but he believed the site plan is correct and is as per site though he has not personally compared it with the site. He admitted the photographs Ex.PW1/R[2], Ex.PW1/R[3], Ex.PW1/R[4] and Ex.PW1/R[5] to be the photographs of the respondent’s building and admitted the eviction petitions were filed against other tenants too. He admitted the premises at the rear portion, now is in occupation of the respondents, was earlier let to a bank. The respondent company started business of auto accessories but later closed it and now the said portion is lying vacant. PW[1] did not remember the date of letting and vacation of the premises by the Bharat Overseas bank and did not produce its lease agreement, the respondent had with the bank, though was asked to produce such documents and he rather deposed he shall produce such documents only if available. PW[1] admitted of two entrances in the rear side of ground floor of the suit property marked A and B in the site plan Ex.PW1/1 and an entrance at point C which lead to the upper floors,PW[1] admitted the rent is the only source of income of the respondent. PW[1] denied commercial activity can be carried from rear portion of the ground floor or from first, second or third floor or the respondent is not authorised to carry any alteration or structural changes in the suit properly as it fall within the Prohibited limits of the Protected monuments viz, Delhi Gate.
8. The learned ARC has dealt with these objections of the petitioner in the following manner:-
9. The learned council for petitioner also relied upon Rule 2 Chapter 22, Volume-I to allege concealment. The rule is as under:-
10. The rule does not show the respondent is bound to disclose the litigation it had with other tenants in the same property. What is required under the rule is to furnish is details of other pending cases between the same parties or with different parties in respect of the same very premises, hence no concealment can be alleged and rightly held so.
11. The learned counsel for the petitioner argued though the proposal was given by the respondent in the cross-examination of the petitioner herein to shift his business to first and third floors, but since he is carrying business of cycle sale and sale of cycle parts/repair and since it cannot be carried from upper floors such a proposal was though a farce but was considered by the learned ARC against the petitioner. However, if one reads the entire cross examination of the respondent the suggestion were also given for shifting the premises to another shops, even on the ground floor portion viz shop X[1], lying vacant but the petitioner avoided answers.
12. Qua non-filing of documents, required to be filed vide notice under Order XII Rule 8 CPC, I may say such documents were never relied upon by the respondent and even otherwise, it is an admitted fact Bharat Overseas Bank had vacated the premises way back in the year 2002. The lease deeds with such bank after 15 years were, even otherwise, not relevant. Similarly, the lease deed with another tenant, an Insurance Company on the first floor was also not relevant to the issues involved. Admittedly the respondent had filed eviction petitions for shops at ground floor only. Para Nos.x and xi of 18.a of eviction petition do show the premise at the ground floor, with a space of 4000 square feet, is actually required by the respondent to start its businesses, as aforesaid. There is no cross-examination on these aspects by the petitioner herein and per settled law if the averments are not challenged in cross examinations, it would be deemed to have been admitted.
13. Another contention raised was qua the concealment in the site plan. It was alleged the accommodation available to the respondent on different floors is not shown in the site plan Ex.PW-Y[1] Admittedly, the petition was filed for the shop on the ground floor and it was necessary to disclose only the accommodation available with the respondent on the ground floor of the said property. The site plan Ex.PW1/1 does show the shop X[1], and the interior /rear portion of the property, being in possession of the respondent herein. Admittedly, the petitioner has not filed any site plan to show the site plan filed by the respondent is incorrect. There was no need for the respondent to file the site plan for the upper floors when petition does not make any claim for the premises on the upper floors and that the bona fide need is for opening a showroom on the ground floor.
14. The eviction petition, replication and the evidentiary affidavit Ex.PW1/A of PW[1] do show one of the tenant viz the Bharat Overseas Bank had vacated the rear portion of the ground floor in the year 2002 and another portion since the year 2005 is also lying vacant but as the respondent needs at least 4000 square feet area to open a showroom at the ground floor so even after vacation of the shop by Anil Nanda, the premises in occupation of the respondent could not be put to use as it require a bigger opening in the front. No question was put in cross to PW[1] as to if the respondent does not require 4000 square feet area with a bigger opening on the ground floor of the building.
15. I have also perused the site plan Ex.PW1/1, Despite vacation of shop by Anil Nanda, the front has a small opening on the front main road and it would certainly not satisfy the need of the respondent. In Naresh Kumar vs Surender Kumar Gulati 2017 (236) DLT 265 the Court has observed the requirement of the premises facing main road is a valid requirement.
16. In Parveen Kumar Arora vs Akshay 2019 (256) DLT 662 this Court held the requirement of the shop on the ground floor need to be viewed from a different perspective then the availability of business spaces on upper floors. In Neelam Sharma vs Ekjant Rekhan 2019 (70) DLT 750 the requirement of 1800 square feet on the ground floor for the purposes of showroom as also the additional area for bill counter, office cabin, waiting area was termed as genuine.
17. Thus a bare perusal of the reasoning given by the learned Trial Court do show that it 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 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 power to re-appreciate or reassess the evidence for coming to a different findings on fact. The revisional power cannot be equated with the power of reconsideration of all questions of facts as a Court of first appeal, per Hindustan Petroleum Corporation Ltd vs Dilbahar Singh, 2014 AIR(SC) 3708.
18. I see no infirmity in the impugned order passed by the learned Trial Court and hence the petition is dismissed with no order as to costs. The pending application(s), if any, also stands disposed of.
YOGESH KHANNA, J. MARCH 28, 2019 DU/M