KHANNA JEWELLERS  Vs KAPIL TANDON & ORS

RC.REV. 599/2018 & RC.REV. 129/2020 Page 1 of 27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 01.09.2020
Judgment delivered on: 11.01.2021
+ RC.REV. 599/2018
KHANNA JEWELLERS ….. Petitioner
versus
KAPIL TAN DON & ORS. ….Respondent s
Advocates who appeared in this case:
For the Petitioner : Mr. Sudhanshu Batra, S enior Advocate with Mr. Rambhakt Agrawal,
Advocate
For the Respondents : Mr. Suhail Dutt, S enior Advocate with Mr. Vikas Tiwari, Mr. Faizal
Khan and Mr. Kumar Deepraj, Advocates for R -1 & R -2 along with R –
2 in person.
Mr. Rushab Aggarwal with Mr. Mohit Paul, Advocates for R -3.
+ RC.REV. 129/2020
RAJEEV TANDON ….. Petitioner
versus
M/S KHANNA JEWELLERS & ORS. ….Respondents
Advocates who appeared in th is case:
For the Petitioner : Mr. Mohit Paul and Mr. Rushab Aggarwal , Advocates.
For the Respondents : Mr. Sudhanshu Batra, S enior Advocate with Mr. Rambhakt Agrawal,
Advocate for respondent No.1.
Mr. Suhail Dutt, S enior Advocate with Mr. Vi kas Tiwari, Mr. Faizal
Khan, Mr. Kumar Deepraj and Ms. Ritika Priya, Advocates for R -2 &
R-3 with R -2 and R -3 in person.
CORAM: –
HON’BLE MR . JUSTICE SANJEEV SACHDEVA
JUDGEMENT
SANJEEV SACHDEVA, J
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RC.REV. 599/2018 & CM APPLN. 52211/2018, 52213/2018,
13763/2019, 14710/ 2019, 22274/2019, 29718/2019, 13291/2020,
15856/2020, 15858/2020 & 18719 -20/2020
&
1. Petitioner in RC.REV. 599/2018 (i.e. Respondent No. 1 in the
Eviction Petition) is the Tenant in the tenanted property and impugns
order dated 09.07.2018 pa ssed by the Rent Controller, dismissing the
application for grant of leave to defend the E viction Petition filed by
Respondents 1 & 2 therein (i.e. Petitioners in the Eviction Petition) . RC.REV. 129/2020
2. Petitioner in RC.REV. 129/2020 (i.e. Respondent No. 2 in the
Eviction Petition) is a co-owner of the subject property and impugns
order dated 09.07.2018 passed by the Rent Controller to the limited
extent that the Tenant has been directed to deliver possession of the
tenanted premises exclusively to Respondent No. 2 & 3 (i. e. the
EVICTION PETITIONERS ).
3. For the sake of convenience Petitioner in RC.REV. 599/2018
(also the Respondent No. 1 in RC.REV . 129/2020 ) shall be referred to
as the T ENANT . Petitioner in RC.REV. 129/2020 (also the Respondent
No. 3 in RC.REV. 599/2018 ) shall be referred to as the CO-OWNER .
Respondent No. 1 & 2 in RC.REV . 599/2018 (also t he Respondent
No. 2 & 3 in RC.REV. 129/2020) shall be referred to as the EVICTION
PETITIONER S.
4. The EVICTION PETITIONERS filed the subject Eviction Petition
under section 14( 1)(e) read with Sect ion 25B of the Delhi Rent
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Contr ol Act, 1958 (hereinafter referred to as ‘the Rent Act’ ) seeking
eviction of the TENANT on the ground of bonafide necessity. The
TENANT sought leave to defend the eviction petition but by the
impugned orde r dated 09.07.2018, the application seeking leave to
defend filed by the T ENANT has been dismissed and an eviction order
has been passed.
5. The EVICTION PETITIONERS contended in the eviction petition ,
that they are the co -owners of property bearing No. G – 3, situate d in
New Delhi South Extension Market, N.D.S.E. -I, New Delhi- 110049.
Said property was purchased jointly by (i) Smt. Usha Rani Tandon,
mother of the EVICTION PETITIONERS , (ii) Sh. Ravi Shanker and (iii)
Sh. Subhash Tandon by way of a registered sale deed dated
09.04.1969. The sale deed describes the shares of aforesaid persons in
the property. The mother of the E VICTION PETITIONERS possessed 50%
share in the said property.
6. It is contended that upon death of Smt. Usha Rani Tandon on
01.08.1993 and in pursuance to registered Relinquishment Deed dated
30.08.1993 executed by Sh. Purshottam Lai Tandon and
Relinquishment Deed dated 30.08.1993 executed by Smt. Ritika Sachdev, E
VICTION PETITIONERS succeeded to the half share (50%) in
the above said property. Other 25% share which was owned by Sh.
Ravi Shankar has been succeeded by Sh. Rajiv T andon ( Petitioner in
RC.REV. 129/2020 the C O-OWNER ). Remaining 25% in the property
is now jointly owned by (i) Smt. Madhu Rani Tandon , (ii) Sh. Sanjeev
Tandon , (iii) Sh . Sumeet Tandon and (iv) Sh. Sudhir Tandon .
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7. It is further contended that Smt. Usha Rani Tandon along with
other co- owners entered into the lease agreement dated 12.05.1979
with the T ENANT for letting out one shop measuring 67 x 14.5 ft. on
the ground floor of th e entire property no. G – 3. The monthly rent
was Rs. 1 ,000/-. Later on , a basement measuring 46 x 14.5 ft. was
constructed underneath this shop and the rate of rent was increased to
Rs. 1,200/- per month. Th e shop on the ground floor along with the
basement underneath is the subject tenanted premises.
8. It is inter alia contended in the Eviction Petition that the
EVICTION PETITIONERS require the tenanted premises to fulfill the
bonafide need of their children. It is stated that the son of Eviction
petitioner no. 1 and elder daughter of Eviction petitioner no. 2, intend
to start their own business in partnership with each other, however ,
due to unavailability of any suitable commercial space they are unable to start the same.
9. It is contended that the E viction Petitioner No. 1 has two sons
(1) Kartik Tandon and (2) Kritin Tandon, whi le Eviction petitioner
No. 2 has two daughters namely (1) Ms. Revti Tandon and (2) Ms.
Ujasvini Tandon. The son of Eviction Petitioner No. 1 (Sh. Kartik
Tandon ) and elder daughter of Eviction Petitioner No.2 (Ms. Revti
Tandon ) have studied from Pearls Fashion Academy, New Delhi and
are to start their own venture in partnership, however, due to paucity
and unavailability of any suitable and commercial
space/accommodation, the p artnership have not been able to carry
their business. It is contended that the E
VICTION PETITIONERS ,
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therefore, require the rented shop in occupation and possession of the
TENANT to have the showroom of their newly formed business,
besides, they would req uire sufficient space for Accessories and for a
Studio , which requirement shall be met from the 50% share in part at
the first floor and second floor of the property, likely to be possessed
soon in the partition suit/proceedings pending in the High Court.
10. It is contended that the son of the Eviction Petitioner No. l and
the Daughter of Eviction Petitioner No. 2 are dependent on the
EVICTION PETITIONERS for requirement of commercial space so as to
have a showroom and other commercial space for Accessories a nd a
Studio for their business.
11. It is further contended that the EVICTION PETITIONERS do not
own any other commercial property in Delhi except the properties
detailed in the Eviction Petition i.e. l/ 6th undivided share each in the
property at Karol Bagh a nd the 50% share jointly in the property in
question viz. G – 3, situate in N.D.S.E. Market, N.D.S.E.-I, New
Delhi -110049 while the father of the EVICTION PETITIONERS also has
certain share in the abovementioned two immovable properties. It is
contended th at none of the above said properties except the property
in question where the rented premises is situated, is either available or
suitable so as to meet the requirement of the children of the E VICTION
PETITIONERS .
12. The TENANT applied for grant of leave to defend raising
primarily six grounds as noticed by the Rent Controller.
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13. First of all , it was contended that the tenanted premises is
jointly owned by seven persons and since the other five owners have
not given any permission to the E VICTION PETITIONERS to initiate the
eviction petition, therefore , the present petition is liable to be
dismissed.
14. Secondly, it was contended that the deed of partnership for the
proposed business executed between the children of the E VICTION
PETITIONERS , (who need the premises for their own use), was
executed soon before the initiation of the present proceedings
therefore , the bonafide need as alleged is a false one and the children
of the petitioners do not intend to start their own business venture at
all.
15. Thirdly, it was contended that EVICTION PETITIONERS have
various other suitable accommodations available with them to fulfill
their alleged bonafide need.
16. Fourthly, it was contended that the T ENANT is a partnership
firm and since the partners of this partnership firm have not been
specifically sued, therefore, the eviction petition is untenable in law.
17. Fifthly, it was contended that the basement in the tenanted
premises was constructed at the expense of the partners of the T ENANT
firm in the year 1981 – 82 with the unders tanding that since they have
spent so much money in constructing the said basement, their
possession over the same shall never be disturbed.
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18. Lastly, it was contended that the procedure prescribed under
Section 25B of the Rent Act and the relief available to the landlord
under section 14 (1) (e) of the Rent Act cannot be availed by the
EVICTION PETITIONERS since the tenanted premises is a commercial
premises and these provisions are not applicable to commercial
tenanted premises.
19. The Rent Controller in the impugned judgment has noticed that
there is no dispute regarding the tenanted premises, the lease
agreement dated 12.05.1979 and that the status as a tenant is admitted
and it is also admitted that the E VICTION PETITIONERS are co -owners
and co -landlords of the tenanted premises.
20. The Rent Controller has held that the premises was let out to
M/s Khanna Jewellers, a partnership firm and the eviction petition has also been filed against M/s Khanna Jewellers and notice of the petition was also addressed to M/s Khanna Jewellers and the leave to
defend has been filed by one of the partners of M/s Khanna Jewellers,
so the plea that the partners have not been separately im pleaded is a
minor technical defect and is not sufficient to raise a triable issue.
21. Before th is court , no challenge has been raised by learned
senior counsel for the T
ENANT on the said ground.
22. With regard to the plea that the basement was constructed at the
expense of the partners of the T ENANT firm in the year 1981 – 82
with the understanding th at their possession over the same shall never
be disturbed , no such ground/ plea was raised before this court. Even
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otherwise, t he Rent Controller has held that nothing has been filed on
record to show that any such alleged understanding regarding transfer
of rights qua the basement took place between the landlord and tenant
and also as to when such an arrangement was arrived at and exactly
between whom is not even mentioned by the respondent in the leave
to defend application, therefore , appears to be a bal d, vague and
unsubstantiated averment.
23. With regard to the ground taken in the leave to defend
application that the relief available to the landlord under section 14 (1)
(e) of the Rent Act cannot be availed by the E VICTION PETITIONERS
since the tenanted premises is a commercial premises and these
provisions are not applicable to commercial tenanted premises, the
Rent Controller has relied upon the judgment of the Supreme Court in
Satyawati Sharma versus Union of India (2000) 5 SCC 287 that a
landlord may seek eviction of tenant from a commercial property also
invoking the provisions and procedure prescribed in Section 25B and
Section 14 ( 1)(e) of the Rent Act.
24. Before this court, the focus of the submissions of l earned Senior
Counsel appearing for the TENANT is with regard to the first three
pleas raised in the leave to defend application i.e. (i) that the Eviction
Petition was not maintainable in the absence of the consent of the
other co- owners; (ii) availability of alternative accommodation and
(iii) the partnership between the daughter and son of the EVICTION
PETITIONERS is a sham partnership executed solely to create a ground
for eviction.
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25. It is contended by learned senior counsel for the TENANT that
the Eviction Petition was filed without the consent of the other co –
owners and as such the petition was not maintainable. It is contended
that all the seven co-owners and co- landlords are litigating amongst
themselves for partitioning the property at G -3, NDSE-I, New Delhi .
26. It is contended that the CO-OWNER has categorically stated in
his written statement in the Partition Suit that the Eviction Petition has
been filed without consulting him. It is submitted that no eviction
order can be passed against the tenant if a co- owner / co-landlord does
not consen t to such an eviction. Reliance is placed on the decision of
the Supreme Court in Sk. Sattar Sk. Mohd. Choudhari versus
Gundappa Amabadas Bukate (1996) 6 SCC 373 .
27. Learned Senior Cou nsel relies upon the decision of the
Supreme Court of India in Girish s/o Dharamvir Madan versus
Nanadkumar s/o Shankarrao Rasne & Ors (2018) 13 SCC 255 to
contend that till the Partition Suit is finally decreed, the Eviction Proceed ings should remain stayed.
28. Learned Senior Counsel for the Petitioner further relies upon
the deci sion of a coordinate bench of this court in Ranbir Yadav
versus Lif e Insurance Corporation of India (2018) 253 DLT 611 to
contend that only one co- owner cannot terminate the tenancy, once
there is objection of the other co-owners.
29. Before proceeding furth er, it would be expedient to consider the
scope of the Re visional Jurisdiction of the High Court under Section
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25B(8) of the Rent Act. The scope has been explained by the Supreme
Court of India in Shiv Sarup Gupta v ersus Mahesh Chand Gupta (Dr),
(1999) 6 SCC 222 as under:
11. Section 25 -B of the Delhi Rent Control Act, 1958
finding its place in Chapter III -A of the Act was inserted
in the body of the main Act by Act 18 of 1976 with effect
from 1 -12-1975. It provides for a special procedure to be
followed f or the disposal of applications for eviction on
the ground of bona fide need. Obviously, this ground for
eviction of the tenant has been treated on a footing
different from the one on which other grounds for
eviction of the tenant stand. Section 25-B is a self –
contained provision in the sense that remedy against an
order passed by the Rent Controller thereunder is also
provided by that provision itself. Sub -section (8) provides
that no appeal or second appeal shall lie against an
order for the recovery of p ossession of any premises
made by the Controller in accordance with the procedure
specified in Section 25-B:
“Provided that the High Court may, for the
purpose of satisfying itself that an order made by
the Controller under this section is according to
law (or not), call for the records of the case and
pass such order in respect thereto as it thinks fit.”
The phraseology of the provision as reproduced
hereinbefore provides an interesting reading placed in
juxtaposition with the phraseology employed by the
legislature in drafting Section 115 of the Code of Civil
Procedure. Under the latter provision the exercise of
revisional jurisdiction of the High Court is circumscribed by
the subordinate court having committed one of the three
errors, namely (i) having ex ercised jurisdiction not vested in
it by law, or (ii) having failed to exercise a jurisdiction so
vested, or (iii) having exercised its jurisdiction with
illegality or material irregularity. Under the proviso to sub-
section (8) of Section 25 -B, the expression governing the
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exercise of revisional jurisdiction by the High Court is “for
the purpose of satisfying if an order made by the Controller
is according to law”. The revisional jurisdiction exercisable
by the High Court under Section 25-B(8) is not so lim ited as
is under Section 115 CPC nor so wide as that of an
appellate court. The High Court cannot enter into
appreciation or reappreciation of evidence merely because
it is inclined to take a different view of the facts as if it were
a court of facts. Howe ver, the High Court is obliged to test
the order of the Rent Controller on the touchstone of
“whether it is according to law”. For that limited purpose it
may enter into reappraisal of evidence, that is, for the
purpose of ascertaining whether the conclusion arrived at
by the Rent Controller is wholly unreasonable or is one that
no reasonable person acting with objectivity could have
reached on the material available. Ignoring the weight of
evidence, proceeding on a wrong premise of law or deriving
such conclusion from the established facts as betray a lack
of reason and/or objectivity would render the finding of the
Controller “not according to law” calling for an
interference under the proviso to sub- section (8) of Section
25-B of the Act.
30. Coming to the contention of the T ENANT that the Eviction
Petition was not maintainable in the absence of the consent of the
other co -owners, the Rent Controller, in the impugned judgment, has
noticed that the legal position, that even one of the co -owners/co-
landlords can file a suit for evi ction of a tenant, has not been disputed
by the TENANT . The argument raised was that the filing of the
Partition Suit between the co-owners showed that the consent, which A judgment leadi ng to a miscarriage of
justice is not a judgment according to law. (See: Sarla
Ahuja v. United India Insurance Co. Ltd. [(1998) 8 SCC
119] and Ram Narain Arora v. Asha Rani [(1999) 1 SCC
141] .)
(underlining supplied)

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is usually presumed amongst co -landlords to file an eviction against a
tenant , stood dispelled.
31. The Rent Cont roller further held that, from the proceedings
before the Hon’ble High Court, it was clear that all the parties to the
Partition Suit were well aware of the pendency of this E viction
Petition and none ha d opposed or objected to the se eviction
proceedings. The Rent Controller has further noticed that Rajiv
Tandon , the C O-OWNER , who was impleaded in the Eviction Petition,
neither objected to the maintainability of the petition nor contended
that the eviction of the TENANT was not desired by him also.
32. The Supreme Court of India in Kanta Goel versus B.P. Pathak,
(1977) 2 SCC 814 has held “that a co- owner is as much an owner of
the entire property as any sole owner. Therefore, there is no
substance in the contention that the absence of t he other co- owners
disentitled the 1st respondent from suing for eviction”.
33. In Dhannalal v ersus Kalawatibai, (2002) 6 SCC 16, India
Umbrella Manufacturing Co. v ersus Bhagabandei Agarwalla (dead)
by LRs Savitri Agarwalla, (2004) 3 SCC 178 the Supreme Cour t of
India held “that consent of co- owner is assumed, unless it is shown
that other co- owner is not agreeable to eject the tenant and the
proceedings for ejectment are inspite of the disagreement”.
34. The Supreme Court in Mohinder Prasad Jain versus Manohar
Lal Jan (2006) 2 SCC 724 has held that “a suit filed by a co- owner,
thus, is maintainable in law. It is not necessary for the co-owner to
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show before initiating the eviction proceedings before the Rent
Controller that he had taken option or consent of the other co -owners.
However, in the event a co -owner objects thereto, the same may be a
relevant fact.”
35. Before this Court the C O-OWNER – Rajiv Tandon, has filed an
affidavit dated 10th February, 2020 and contended that the impugned
order is bad insofar as it grants exclusive possession to the EVICTION
PETITIONERS as specific portions of the property have not been
demarcated/allotted to any of the co- owners. He has further stated that
he also has bona fide need for the subject premises in question as the deponent has three grown up children (2 sons and 1 daughter), for
whose need and benefit he requires the subject premises in question
and his need is greater than the bona fide need of the E
VICTION
PETITIONERS .
36. As noticed hereinabove, Rajiv Tandon, the C O-OWNER has also
filed a Petition ( RC. REV . 129/2020) impugning the order dated
09.07.2018. In the said Revision Petition also he has not objected to
the eviction of the TENANT . He has prayed that the impugned order be
set aside to the extent the TENANT has been di rected to delive r the
possession to the E VICTION PETITIONERS .
37. Even before this court, the categorical submission of learned
counsel appearing for the C O-OWNER is that he is not opposing the
eviction of the T ENANT but contends that the possession should either
be given jointly to the owners or leave to defend should be granted
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and evidence should be led to show as to who out of the owners
should be given possession.
38. It is noticed that the C O-OWNER neither before the Rent
Controller nor before this court has objected to the eviction of the
TENANT but has only disputed the grant of possession to the EVICTION
PETITIONER S. Even in the Affidavit filed by the C O-OWNER in the
Revision Petition filed by the T ENANT and in the Revision Petition
filed by him, he has not objected to eviction but has only claim ed joint
possession.
39. There is accordingly no opposition of objection by any of the
other co- owners to the eviction of the TENANT .
40. Reliance placed by learned senior counsel for the T ENANT on
the judgment in Sk. S attar Sk. Mohd. Choudhari versus Gundappa
Amabadas Bukate (supra) is misplaced. In the said case the issue was
with regard to splitting of tenancy and a co -sharer initiating action for
eviction of the tenant from a portion of the property and not the entir e
property. Said issue does not arise in the present case. The E viction
Petition has been filed for the entire tenanted premises and not a
portion there of. There is no question of splitting of the tenancy.
41. The judgment in Ranbir Yadav versus Lif e Insuranc e
Corporation of India (supra) , relied upon by learned senior counsel
for the T ENANT , is not applicable to the facts of the present case. As
noticed above the C O-OWNER has not objected to the eviction of the
TENANT . The stand of the C O-OWNER is only that e xclusive possession
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cannot be given to the EVICTION PETITIONERS . Opposing eviction of
the TENANT is different from seeking joint or exclusive possession of
the tenanted premises , post eviction of the TENANT .
42. Further, reliance placed by learned Senior Counsel for the
TENANT on the judgment in Girish s/o Dharamvir Madan Versus
Nanadkumar s/o Shankarrao Rasne & Ors is misplaced. In as much as
in the said case a preliminary decree of partition had already been
passed and the identification of the respective sha res was pending and
the Supreme Court directed appointment of a commissioner to
identify the respective shares of the parties and pending the same kept the eviction proceedings in abeyance. In the present case there is no
preliminary decree of partition and identification of respective shares
of parties.
43. In view of the above, the plea of the T
ENANT that as the other
co-owne rs have not consented to the filing of the eviction petition and
as such the petition is not maintainable, does not hold any merit and
does not give rise to any issue , which if proved, would disentitle the
landlord from any order of eviction.
44. Further, the submission of learned counsel for the C O-OWNER
that possession should either be given jointly to the owners or leave to
defend should be granted and evidence should be led to show as to
whom out of the owners should be given possession, is not
sustainable. It may be noticed that Rajeev Tandon – the CO-OWNER
has only a 25% share in the property. The EVICTION PETITIONERS have
50% share and the remaining 25% co-owners have not come forward
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to oppose the petition. In any event the T ENANT is not concerned with
this issue and this would be a question which would be determined by
the concerned court before which the Partition Suit between the
owne rs is pending .
45. A submission is made by learned Senior Counsel for the
Petitioner, that in case the C O-OWNER were to get possession of the
tenanted premises or a portion thereof, after the eviction of the
TENANT , either under some interim arrangement or on final division
of the properties in the P artition Suit, the same would be in breach of
Section 19 of the Rent Act.
46. This submission merits rejection for the reason that t he
restriction imposed by Section 19 of the Rent Act on the landlord i.e.
not to re -let the whole or part of the premises within three years from
the date of obtaining such possession, except with the permission of
the Controller, is not an absolute restriction but is subject to the
conditions mentioned therein. Further, section 19 of the Rent Act
comes into operation post the obtaining of possession by the landlord.
47. In this case, t he TENANT is merely speculating that such a
contingency may arise in the future. At the stage of the consideration
of the application for grant of leave to defe nd, the court has to
consider the facts as pleaded by the T ENANT in the leave to defend
application and not base the decision on speculative assumptions
being made by the T ENANT .
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48. With regard to the ground of the TENANT that the D eed of
Partnership for the proposed business executed between the children
of the E VICTION PETITIONERS is a sham document and the children of
the petitioners do not intend to start their own business venture at all,
the Rent Controller has held that even if the Partnership D eed was
taken off the record, there was nothing on record to hold that the
children of the petitioners d id not intend to start their own business.
49. The Rent Controller has held that e xecuting a formal written
partnership deed is no prerequisite for starting a new business venture
and the need to start one , cannot be doubted only on the basis of some
insufficiency in proper execution of any document pertaining to the
proposed business.
50. Learned Senior Counsel for the Petitioner has not been able to
show anything to cast a doubt on the genuineness of the Partnership
Deed.
51. Further, t he need projected by the E VICTION PETITIONERS in the
Eviction Petition is that the son of Eviction Petitioner no. 1 and the
elder daughter of Eviction Petitioner no. 2, have studied from P earls
Fashion Academy, New Delhi and are to start their own venture in partnership, however, due to paucity and unavailability of any suitable
commercial space/accommodation, the partnership ha s not been able
to carry the business. It is contended that the E
VICTION PETITIONERS
therefore, require the rented shop in occupation and possession of the
TENANT to have the showroom of their newly formed business,
besides requir ing sufficient space for Accessories and for a Studio
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which requirement shall be met from the 50% share in part of the first
floor and second floor of the property, likely to be possessed soon in
the partition suit/proceedings pending in the High Court.
52. It may be observed that for seeking eviction on the above
ground, no formal D eed of Partne rship was required to be executed.
The children of the E VICTION PETITIONERS were not required to enter
into any formal partnership to start the business from the tenanted
premises. Since no formal partnership was required to start the
business, so it does not stand to reason that the EVICTION PETITIONERS
would create a sham Partnership Deed for the purposes of seeking
eviction of the TENANT .
53. In the Revision Petition filed by the T ENANT , an additional plea
has been taken, which had not been taken in the lea ve to defend
application i.e. that Kartik Tandon, the son of the Eviction Petitioner
No. 1 has migrated abroad. Reliance is placed on online profiles of
Kartik Tandon (Annexure P – 25).
54. It is submitted by learned Senior Counsel appearing for the
EVICTION PETITIONERS that Kartik Tandon had gone to pursue higher
course in Global Fashion and after completion of his course he has
returned to India.
55. Though the TENANT cannot be permitted to raise a fresh plea,
not taken in the application seeking leave to defend, this plea is liable
to be rejected even on merits. The online profiles of Kartik Tandon
show that he was pursuing his Masters of Science – MS, Global
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Fashion Enterprise from the Philadelphia University for the academic
session 2017 – 2019. Nothing has bee n produced by the TENANT to
show that Kartik Tandon has migrated abroad.
56. Now coming to the availability of suitable alternative
accommodation s, as contended by the T ENANT in the leave to defend
application, it may be seen that the E VICTION PETITIONERS in the
Eviction Petition have stated that they do not own any other
commercial property except 50% share in the property in which the
tenanted premises is situated and 1/6th undivided share in property
bearing No. 2874, Hardhian Singh Road, Karol Bagh, which
comprises of built up ground floor, mezzanine floor and first floor .
1/6th share is owned by the father of the Petitioner s while the
remaining 50% share is owned by L egal Representatives of Late Sh.
Subhash Tandon . In the said property , the family business in the name
and style of M/s Ushnak Mal Mool Chand is being carried on by the
Petitioners alongwith their father on the ground floor and mezzanine
floor , while the first floor of the said property is in occupation of
Allahabad Bank as a tenant.
57. The Rent Controller in a tabular form has dealt with the ground
raised by the T ENANT about alternative accommodations as under:

S.No. Property Explanation of Petitioner
1. First and the second
floor of property no.
G3, South Extension
Market, Part I. The first and the second floor is not as
conducive for attracting customers as the
tenanted premises on the ground floor.
Additionally that the first floor would be
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required for a work studio for the articles
which will be exhibited in the ground
floor showroom.
2. The first and the
second floor of building
no. G11, South
Extension Market, Part
I. Again being on the first and the second
floor is not suitable for the proposed
business of the children of the petitioner.
Further, as admitted by the respondent
itself, this property is not vacant and is in
occupation of another tenant, since
December 2014 i.e. more than a year
prior to filing of the present petition. Also the respondent has stated in the leave
application that this property is owned by
the father of the p etitioner.
3. Shop measuring 1800
sq. ft. on ground floor
of building no. G11,
South Extension
Mark et, Part I. This property is already let out to
another commercial tenant and no space
is vacant. Further, it is the own case of
the respondent that this pr operty is
owned by the father of the petitioner.
4. 2874, Hardayan Singh
Road, Karol Bagh, New
Delhi – 110005. Business under the name and style of M/s
Ushnak Mal Moolchand is already being
carried out from this premises (in the
leave itself the respondent has mentioned
that indeed such a business is being
carried out). No space is vacant in this
premises for starting the new business of
the children of the petitioner.

58. It is not the case of the T ENANT that apart from the above
propert ies, there is any other commercial property available, which
could be suitable or alternative.
59. The Supreme Court of India in Shiv Sarup Gupta v ersus
Mahesh Chand Gupta (Dr), (1999) 6 SCC 222 has held that “The
judge of facts should place himself in the armchair of the landlo rd and
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then ask the question to himself — whether in the given facts
substantiated by the landlord the need to occupy the premises can be
said to be natural, real, sincere, honest. If the answer be in the
positive, the need is bona fide. The failure on the part of the landlord
to substantiate the pleaded need, or, in a given case, positive material
brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord was
merely attempting at finding ou t a pretence or pretext for getting rid
of the tenant, would be enough to persuade the court certainly to deny
its judicial assistance to the landlord. Once the court is satisfied of the bona fides of the need of the landlord for the premises or additional
premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The court would permit the landlord to satisfy the proven need by
choosing the accommodation which the landlord feels would be most
suited for the purpose; the court would not in such a case thrust its
own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the la ndlord to
satisfy his such need. In short, the concept of bona fide need or
genuine requirement needs a practical approach instructed by the
realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. ”
60. The Sup reme Court in Shiv Sarup Gupta v ersus Mahesh Chand
Gupta (Dr), ( supra ) has further held that an alternative
accommodation, to entail denial of the claim of the landlord, must be
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reasonably suitable, obviously in comparison with the suit
accommodation where from the landlord is seeking eviction.
61. A commercial premises on the ground floor cannot be said to be
reasonably suitable and alternative in comparison to a commercial
premises on the first and second floor.
62. The Supreme Court in Dhannalal v ersus Kalawati bai, (2002) 6
SCC 16 has held that an accommodation situated on the first floor
cannot be said to be an alternative suitable accommodation in comparison with the shops situated on the ground floor. A shop on the first floor cannot attract the same number of customers and earn the same business as a shop situated on the ground floor would do.
63. In Uday Shankar Upadhyay v. Naveen Maheshwari, (2010) 1
SCC 503 , the Supreme Court held that once it is not disputed that the
landlord is in bona fide need of the prem ises, it is not for the courts to
say that he should shift to the first floor or any higher floor. It is well known that shops and businesses are usually (though not invariably)
conducted on the ground floor, because the customers can reach there
easily. T he court cannot dictate to the landlord which floor he should
use for his business; that is for the landlord himself to decide.
64. A tenant cannot dictate as to how else a landlord can adjust
himself. It is for the landlord to choose the place of business more suitable to him. He has complete freedom in the matter.
1

1 Bhupinder Singh Bawa Versus Asha Devi (2016) 10 SCC 209
Anil Bajaj & another Versus Vinod Ahuja (2014) 15 SCC 610 The
Landlord is the best judge of his requirement and it is neither open to
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the tenant nor to the Court to dictate to him with regard to his
requirement and utilisation and it is quite unnecessar y to make an
endeavour as to how else the landlord could have adjusted himself.2
65. It is further noticed by the Rent Controller that in the additional
written arguments filed by the T ENANT on 25.05.2018 it was
contended that the first floor of property no. 2874, Hardayan Singh
had since been vacated by the erstwhile tenant, Allahabad Bank
recently and this space is also available to the petitioners for fulfilling
the bonafide need of their children. The Rent Controller has found the
same to be not a suitable alternative accommodation to the tenanted
premises.
66. Said premises is situated on the first floor of a property on
Hardayan Singh Road, Karol Bagh and not in New Delhi South Extension Market. Applying the above referred principles, it can also not be trea ted as a comparable premises to the tenanted prem ises and
as such has rightly been held not to be a suitable alternative premises.
67. Clearly, there is no infirmity in the finding returned by the Rent
Controller that no triable issue arises. Even before this Court , the
T
ENANT has not been able to show such facts which, if proved , would
disentitle the EVICTION PETITIONERS from an order of eviction. There
is no merit in the Revi sion Petition (RC.REV. 599/2018) filed by the
TENANT against the order dated 09.07.2 018 dismissing the application
seeking grant of leave to defend.

2 Salra Ahuja Versus United India Insurance Co. Ltd (1998) 8 SCC 119
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68. Further, the C O-OWNER Rajeev Tandon, has filed the Revision
Petition (RC.REV. 129/2020) impugning the order dated 09.07.2018 .
However , in the said Revision Petition he has not objected to the
eviction of the TENANT but has only prayed that the impugned order
be set aside to the extent the TENANT has been directed to deliver the
possession to the E VICTION PETITIONERS .
69. As held hereinabove, the TENANT is not concerned with this
issue and this would be a question which would be determined by the
Court before which the Partition Suit between the owners is pending .
Accordingly, there is no merit in the said Revision Petition also.
70. Both t he Revision Petitions are accordingly dismissed. In view
of the fact that the T ENANT is in the business of jewel lery and would
be required to shift his stronghold etc, one month’s time is granted to
the TENANT to vacate the tenanted premises and hand over the
peaceful vacant possession of the same, subject to paying, to the
EVICTION PETITIONERS , the entire arrears of use and occupation
charges @ Rs. 4,00,000/- per month in terms of order of this Court
dated 16.01.2019. The arrears shall be paid within two weeks. There shall be no orders as to costs.
71. The amounts already deposited by the T
ENANT with the
Registrar General of this Court shall be released by the Registry in
favour of the EVICTION PETITIONERS alongwith the interest accrued
thereon.
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72. On receipt of the amount from the Registry of this court and the
arrears of use and occupation charges from the TENANT , the EVICTION
PETITIONERS , shall immediately pay to the other co-owners of the
property their respective share.
PENDING APPLICATIONS IN RC.REV.599/2018
CM APPLN. 52211/2018 (by TENANT for stay of impugned
judgment), CM APPLN. 52213/2018 (by TENANT for permission to
place on record additional evidence) , CM APPLN. 22274/2019 (by
TENANT for vacation of order directing deposit of use and occupation
charges ), CM APPLN. 13291/2020 (by EVICTION PETITIONERS for
dismissal of Revision Petition for non compliance of order dated
16.01.2019)
These applications are disposed of in terms of the order s passed
in RC.REV.599/2018.
CM APPLN. 12142/2019 (by TENANT for condonation of delay in
depositing charges) , CM APPLN. 14710/2019 (b y EVICTION
PETITIONERS for change of date), CM APPLN.15856/2020 (by
TENANT to consolidate with RC REV 129/.2020), CM
APPLN.15858/2020 (by TENANT for hearing through VC), CM
APPLN. 18719/2020 (by TENANT for permission to deposit user
charges)
In view of or ders passed in RC.REV.599/2018, these
application s are dismissed as infructuous .
CM APPLN. 29718/2019 (by EVICTION PETITIONERS under section
340 Cr.P.C. against the TENANT )
In view of the facts and circumstances of this case, this court
does not find it e xpedient or in the interest of justice to direct conduct
of any inquiry in the allegations contained in the application.
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The application is dismissed.
CM APPLN. 18720/2020 (by TENANT for exemption from filing
attested affidavits)
Exemption is allowed in accordance with the rules. The duly
attested affidavits be filed within one week of the resumption of
normal functioning of the court.
1. EVICTION PETITIONERS seek a direction to the T ENANT to pay
use and occupation charges from the date of the eviction order. CM APPLN. 13763/2019 (by EVICTION PETITIONERS for direction to
TENANT to pay user charges from date of the eviction orde r)
2. It is contended that i n terms of the judgment of Supreme Court
in Atma Ram Properties (P) Ltd. Versus Federal Motors (P) Ltd.
(2005) 1 SCC 705 the use and occupation charges are liable to be
paid from the date of the eviction order (i.e. 09.07.2018) and not from 09.01.2019 i.e. after the expiry of the period of six months of the
eviction order.
3. It may be noticed that in Atma Ram Properties (P) Ltd. (supra)
the Supreme Court directed that w hile passing an order of stay under
Rule 5 of Order 41 of the Code of Civil Procedure, 1908, the appellate court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree –
holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and insofar as those proceedings are concerned.
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4. In the present case , the Eviction Petition has been filed under
section 14(1)(e) of the Rent Act and the eviction order was passed on
09.07.2018. In terms of Section 14(7) of the Rent Act, the landlord
was not entitled to obtain possession of the premises before the
expiration of a period of six months from the date of the eviction
order i.e. till 09.01.2019.
5. The eviction petition in Atma Ram Properties (P) Ltd.(supra)
had been filed on the ground of sub- letting under section 14(1)(b) of
the Rent Act, where there is no such restriction as imposed by Section
14(1)(7) of the Rent Act.
6. Accordingly, the E VICTION PETITIONERS are not entitled to
recover use and occupation charges for the period 09.07.2018 till 08.01.2019, during which period there was a statutory bar from
recovery of possession. The stay order in the Revision Petition came
into effect only from 09.01.2019 and the T
ENANT has been directed to
pay use and occupation charges from the said date .
7. The application is accordingly dismissed.
8. Copy of the Judgment be uploaded on the High Court website
and be also forwarded to learned counsels for the parties through email by the Court Master.

SANJEEV SACHDEVA, J
JANUARY 11, 2021
HJ
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