Jawahar Lal Budhiraja vs Chander Mohan Gupta

Sanjeev Sachdeva, J

Petitioner impugns order dated 04.01.2019 whereby the eviction petition filed by the respondent has been allowed after trial and an order of eviction

has been passed against the petitioner.

Subject eviction petition was filed by the respondent with regard to one shop on the ground floor of property No.13/40, Geeta Colony, Delhi, more

particularly as shown in red colour in the site plan annexed to eviction petition.

Subject eviction petition was filed by the respondent contending that he is the owner landlord of the tenanted premises and the tenanted premises

was urgently required by him for his own use as he had no other property in his possession to open a showroom and he wanted to open his own

showroom.

It is contended that he is a retired person and wants to open a showroom and there is no other property except the tenanted premises with the

landlord in Delhi. It is further alleged in the eviction petition that the tenanted premises is most appropriate as he is residing in the remaining portion of

the property and his son is also running his business in the property and it is very convenient for him to start his business.

Leave to defend the eviction petition was granted to the petitioner by order dated 04.07.2014. Thereafter, written statement was filed by the

petitioner contending that shop No.8 in the property was in the possession of the son of the respondent, Ajay Mahajan who was carrying on his

business of sale and purchase of mobile phones and shop No.7 having a separate shutter is lying vacant and in possession of the respondent.

In the replication, respondent/landlord has merely denied the suggestion that the son of the respondent was carrying on business from shop No.8

and shop No.7 is lying vacant.

Respondent examined himself as PW-1 and reiterated the averments made in the eviction petition. With regard to the accommodation in possession

of his son, he in examination-in-chief deposed as under:-

“5. I further says that the respondent/tenant has taken false plea that I have another shop available to me by pvt. No.7 and the shop No.8 is with

my with my son and this plea is false as there is only shop available to my son who is doing-the business, of mobile sale repair etc. and said shop is,

having two shutter, but said shop is single shop and the same is also visible from the photographs filed by me and the same are collectively exhibited as

PW1/4 (Colly)â€​

In the cross examination, the respondent was shown two photographs of the ground floor of the property which was admitted by the respondent

(PW-1) and the photographs were marked exhibits PW-1/R6 and exhibit PW-1/R7. Further respondent was confronted with rent receipts exhibit PW-

1/R4 to PW-1/R5 which show that there were two shops bearing Nos.7 & 8 separately.

The case of the petitioner is that in the photographs exhibit PW-1/R6 and PW-1/R7 it is clearly visible that there are two shops which the petitioner

contends as shop No.7 and 8 and only in shop No.8 there seem to be business of mobile phone being carried out by the son of the respondent.

The contention of the petitioner is that the shop No.7 as is visible in exhibit PW-1/R6 and PW-1/R7 is having an independent shutter and is lying

vacant. The petitioner in his examination-in-chief qua shop No.7 and 8 has stated as under:-

“ THAT the petitioner has not come to the court with clean hands and has suppressed and concealed the material facts with regard to the

accommodation available with him i.e. shop-no. 7 having shutter and duly fitted with glass, doors, which is lying vacant and the same is in possession

of the petitioner under his own key and lock, which is clear from the photographs and rent receipts, which have been admitted by the petitioner in his

cross examination as EX.PW-1/R4 to PW-1/R5 and the photographs EX.PW-1/R6 and PW-1/R7, which are pertaining to the ground floor. The

petitioner has made a wrong statement that my site plan is incorrect as I have shown two shops bearing no. 7 and 8 on the ground floor. Thus, the

petitioner has been falsely stating that there is no shop no. 7 in the suit property.â€​

Petitioner was examined as RW-2. In his cross examination, the petitioner has categorically stated that when the eviction petition was filed the

shop marked D in exhibit PW-1/1 (shop No.7) was vacant and locked and in possession of the respondent. The petitioner has further deposed in his

cross examination that initially shop No.7 & 8 were two shops having two shutters, however, about 10 years back the intervening wall was removed

and it was replaced with a wooden partition.

Further petitioner has contended that at the time of filing of the eviction petition, there were two separate shops and business was carried by the

son of the respondent only from shop No.8 and shop No.7 was lying vacant and subsequently after the leave to defend was granted shop No.7 was

merged with shop No.8 and converted into a single shop and the photographs filed by the respondent are of the period after the filing of the eviction

petition when the shops have been merged.

Learned counsel for the petitioner contends that the bonafide necessity has to be considered as on the date of filing of the eviction petition and not

subsequently. Learned counsel for the petitioner submits that when the eviction petition was filed shop No.7 was lying vacant and unused as is evident

from exhibit PW-1/R6 and PW-1/R7. The photographs exhibit PW-1/R6 & PW-1/R7 having not been denied by the respondent.

The submission of learned counsel for the respondent is that the said premises was being used by the mobile companies for displaying their

products. The submission made by learned counsel for the respondents is not acceptable in view of the fact that there is no such explanation given by

the respondent neither in his pleadings nor in his evidence.

The case set up by the respondent is that the respondent has no alternative accommodation available with him from where he can start his

business. The position as it existed at the time of the filing of the eviction petition has to be considered. Petitioner/tenant has placed on record

photographs exhibit PW-1/R6 & PW-1/R7, which depict the situation as it existed when the eviction petition was filed. Respondent has not been able

to show that the photographs exhibit PW-1/R6 & PW-1/R7 are not of the relevant period. The Photographs filed by the Respondent exhibit PW1/4

(Colly) are stated to be of the position as it existed at the time of the deposition at Trial.

To ascertain the position as it existed at the time of filing of the petition, it would be expedient to refer to the photographs PW-1/R6 & PW-1/R7.

They are:

Exhibit PW-1/R6 & R7 clearly establish that there were two independent premises and the shop which is shown as Shop No.7 was vacant as no

goods or articles are lying therein. It is also the admitted case of the parties that both the shops have independent access and independent shutters.

If the need of the respondent was bonafide, respondent could have very well commenced his business from shop No.7 which would not have

interfered with the business being carried on by the son of the respondent from the shop called as shop No.8 by the petitioner.

It is further not the case of the respondent that the photographs did not pertain to the relevant period i.e. at the time of filing of the eviction petition.

The photographs clearly show that the need projected by the respondent was a mere desire and not a bonafide need.

Rent receipts exhibited as Exh.PW-1/R1, 4 & 5 show that the son of the respondent is a tenant in shop Nos.7 & 8. Petitioner has exhibited the

said receipts only to show that the site plan filed by the respondent without referring to any shop numbers and referring with alphabets A, B, C & D is

incorrect and it further fortifies the contention that shops were being identified by private numbers i.e. Nos.1 to 8.

It is not the case of the respondent either in the pleadings or in the evidence that shop Nos.7 & 8 have been rented out to the son of the

respondent and thus are not available to the respondent. The case set up by the respondent is that there is no accommodation available and his son is

doing business from the said property. Respondent has not clarified as to what is the accommodation available with the son. Even in the site plan

annexed with the eviction petition, there is no reference to any of the shop under the tenancy of the son of the respondent.

Further, it is observed that the impugned order is a very cryptic order and does not deal with any of the contentions of the petitioner. Rent

Controller has merely noted that shop marked D and the adjoining shop are in possession of Ajay Mahajan and thus has returned a finding that there is

no accommodation available with the respondent.

With regard to the plea of the petitioner that shop marked D i.e. Shop No.7 is vacant and in possession of the petitioner, the Rent Controller has

recorded that now it is in possession of Ajay Mahajan. He has held that the petitioner has not examined Ajay Mahajan so that Court could have

known the time when Ajay Mahajan came to occupy the said shop.

Rent Controller has completely lost sight of the fact that Ajay Mahajan is the son of the respondent/landlord and could not have been produced by

the petitioner as his witness. Further, Respondent has also not pleaded a case of tenancy in favour of Ajay Mahajan and has also not produced him as

a witness to establish his date of possession.

Clearly the photographs exhibit PW1/R6 and PW1/R7 show that Ajay Mahajan is carrying on business from only one of the two shops and the

other shop is completely vacant.

The finding returned by the Rent Controller that the need of the respondent landlord is genuine and bonafide is not sustainable from the record as

noticed hereinabove.

Shop No.7 was vacant when the eviction petition was filed. In case need of the respondent had been bonafide, respondent would have occupied

the said shop and commenced his business. Clearly, the eviction petition is malafide and has been filed with a view to evict the petitioner.

In view of the above, the impugned order is not sustainable and is accordingly set aside. The Revision Petition is allowed and the eviction petition

filed by the Respondent is dismissed.

It is pointed out by learned counsel for the petitioner that in execution proceedings, petitioner has been evicted by the bailiff on 04.09.2019. He

prays that the possession be directed to be restored

Since the eviction petition filed by the Respondent has been held to be malafide and has been dismissed, the petitioner continues to be a lawful

tenant protected under the Delhi Rent Control Act, 1958 and the sequitur to dismissal of the eviction petition is that petitioner is to be put back in the

possession of the tenanted premises.

Accordingly, the respondent is directed to hand over the peaceful, physical vacant possession of the tenanted premises to the petitioner within a

period of three weeks from today.

List the petition for reporting compliance on 15.11.2019.

Order dasti under signature of the Court Master.