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2014 DIGILAW 2156 (DEL)

Soma Devi Jain v. Anita Pawar

2014-08-11

VALMIKI J.MEHTA

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Judgment : Valmiki J. Mehta, J (Oral): 1. This revision petition is filed under Section 25B(8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as ‘the Act’) by the petitioner/landlord impugning the judgment dated 31.8.2013 by which the Additional Rent Controller has granted leave to defend. The petitioner/landlord seeks eviction of the respondents/tenants from a shop in the ground floor of property bearing no.G-14, Ground Floor, South Extension, Part-I, New Delhi as shown in yellow colour in the site plan as annexed alongwith the eviction petition. The tenanted premises are in an area of approximately 927 sq feet. 2. Admittedly, the whole premises are situated in the South Extension market i.e the entire area is a commercial area. Petitioner/landlord claims that she needs the tenanted premises for carrying on the business by her son Sh. Arun Jain who is already carrying on the business in the part of the first floor of the property. It is stated that the first floor portion is not only insufficient for the business because the business needs to be expanded, also the first floor is inconvenient because the entry is from the rear side of the property which is a small road behind the main market. Accordingly, the bonafide necessity petition was filed. 3. Respondents appeared and filed their leave to defend application. In the leave to defend application, basically three grounds were averred as defences to the eviction petition and for seeking leave to defend. Firstly, it was stated that one half part of the first floor premises is lying vacant, and if the business has to be expanded the same can be expanded in the balance portion of the first floor which is in possession of the petitioner/landlord. The second aspect which was averred was that the subject petition was barred by res judicata inasmuch as an earlier eviction petition for bonafide necessity was filed more or less with the same facts, and that petition though was prayed to be withdrawn but that prayer for withdrawal was not granted and actually the earlier petition was dismissed and which would operate as res judicata. Thirdly, the issue with respect to the claim for expansion of the business of the son of the petitioner Sh. Arun Jain has also been disputed. 4. Thirdly, the issue with respect to the claim for expansion of the business of the son of the petitioner Sh. Arun Jain has also been disputed. 4. Before I proceed to decide this revision petition, I must state that during the hearing of petition, learned senior counsel for the respondents/tenants on instructions came up with a very fair offer that since the entire property in part of which the tenanted premises are located, is in a commercial market where besides on the ground floor, both on the first floor and the second floor commercial shops and showrooms exist, and all of which have glass fascade, the respondents/tenants are ready to give to the petitioner/landlord a five feet width frontage from the tenanted shop in which portion a staircase can be constructed so as to reach the first floor of the premises, and resultantly the alleged disadvantage of an entry from rear portion will no longer be there. Once that alleged disadvantage is not there, the petitioner’s son can expand his business in the adjacent vacant portion in the first floor. To this offer, counsel for the petitioner took time to take instructions, but after a pass over, it is stated that the petitioner/landlord is not interested in taking the frontage offer for constructing a staircase to reach the first floor portion. The offer of the respondents/tenants was refused because the case of the petitioner/landlord is that there is no portion available vacant on the first floor in which the business can be expanded. 5. Therefore, the issue now really boils down to the aspect that whether there is available a balance portion on the first floor of the property and which portion is above the premises which is on tenancy with another tenant who is carrying on the jewellery business in the ground floor of the property. 5. Therefore, the issue now really boils down to the aspect that whether there is available a balance portion on the first floor of the property and which portion is above the premises which is on tenancy with another tenant who is carrying on the jewellery business in the ground floor of the property. The case of the petitioner is that the first floor portion above the jewellery shop is in occupation of the another son of the petitioner/landlord for doing business, however, a reference to the reply to the leave to defend application with its supporting affidavit shows that there are no details given as to what business actually is being carried on by the other son, no documents have been filed for carrying on of the business in a particular name or of existence of a municipal licence or a certificate under the Delhi Shops and Establishments Act, 1954 for carrying on business by the other son, including any bills or invoices showing carrying on of the alleged business etc etc, and which documents were necessary not only to determine the carrying on of the business but also of the size of the business so that it can be held that no such space is available adjacent to the portion on the first floor in occupation of the son of the petitioner/landlord Sh. Arun Jain so as to expand the business. With respect to grant of leave to defend a triable issue arises from reading of the pleadings in the leave to defend application and the documents filed therewith, and mere self-serving statements cannot show that the son of the petitioner/landlord Sh. Rajeev Jain is carrying on the business from the portion adjacent to the portion where Sh. Arun Jain is carrying on the business on the first floor. Hence this issue in the facts of the present case surely raises a triable issue for grant of leave to defend. In fact, in my opinion, respondents have been more than fair in offering a frontage for going on to the first floor, but the petitioner/landlord for some reasons, which this Court fails to comprehend, is not ready to take up the offer. 6. In fact, in my opinion, respondents have been more than fair in offering a frontage for going on to the first floor, but the petitioner/landlord for some reasons, which this Court fails to comprehend, is not ready to take up the offer. 6. So far as the aspect of the present petition being barred by res judicata is concerned, I need not observe one way or the other finally because this will be an issue in the main eviction petition and the same will be decided in due course, I need not observe anything because I am granting leave to defend on the grounds as stated above. 7. In view of the above, there is no merit in the petition, and the same is therefore dismissed, leaving the parties to bear their own costs.