RAM SAROOP GUPTA Vs. MAJOR SP MARWAH

JUDGEMENT

(1.) THE impugned judgment is dated 17.02.2011; the eviction petition filed by the landlord Major S.P.Marwah seeking eviction of his tenant Ram Swarup Gupta from the suit premises i.e. shop bearing No. 56 -B, Khan Market, New Delhi had been decreed. The application filed by the tenant seeking leave to defend had been declined.

(2.) RECORD shows that the present eviction petition has been filed by the landlord on the ground of bonafide requirement under Section 14 (1)(e) of the Delhi Rent Control Act (DRCA). Premises had been tenanted out to the tenant; relationship of landlord and tenant has not been disputed. Grounds of eviction are contained in para 18 (a) wherein it has specifically been contended that the petitioner is the owner of the suit shop; premises had been leased out to the tenant; wife of the petitioner namely Smt. Afsana Marwah is a jewellery designer; the petitioner and his wife started a jewellery business at 297, Forest Land, Neb Sarai, New Delhi which is their residential address; they have been running this business from their residence as they have no other commercial space available with them to carry out this business of jewellery; because of this handicap, they have not been able to increase the volume of their sale and are not able to attract more customers; only persons known to the petitioner and his wife come to purchase jewellery from them; the petitioner got a company incorporated in the name of 'A & T Jewels Pvt. Ltd.' on 13.08.2007 having a registered office at their residence. In this company, the petitioner, his wife and his son are the directors and shareholders; the petitioner and his wife are assessed to income tax in their jewellery business since the last ten years; premises are required bonafide by the petitioner to carry out their business in order to augment the sale of jewellery products; present business being carried out from their residence is not lucrative; honest need to start the business from the aforenoted commercial premises is accordingly made out; further contention being that the petitioner and his family members do not own any other commercial space for running the aforenoted business.

(3.) ARGUMENTS have been countered. Submission is that this submission now pleaded does not even find mention in the application seeking leave to defend. This submission of the learned counsel for the respondent has force. There is no dispute to the proposition that triable issues have to be emanate from the pleadings of the parties which includes the application seeking leave to defend filed by the tenant. The application seeking leave to defend does not make any mention of this first argument which has now been urged to which the learned counsel for the petitioner has fairly conceded but his submission is that this is a legal proposition and can be taken up at any point. This submission of the petitioner is mis -directed; no objection having been raised by the tenant about the petition not being maintainable under Section 14 (1)(e) of the DRCA for the reason as aforenoted which is to the effect that the company being a legal person, the need of the company cannot be equated with the need of the landlord and in the absence of this objection having been taken up in the application seeking leave to defend, it is clear that the landlord did not get an opportunity to reply this in the trial Court and that is why, the impugned judgment has not noted this submission now propounded before this Court.