Naresh Kumar Sharma vs Bengali

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Judgment:21.05.2012

+     RC.REV. 227/2012 & CM Nos.9292-93/2012


      NARESH KUMAR SHARMA              ..... Petitioner
                  Through Mr.D.K. Sharma, Adv.

                  versus


      BENGALI                                      ..... Respondent
                           Through    None

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 The impugned order is dated 15.02.2012 whereby the eviction petition filed by the landlord Bengali seeking eviction of his tenant Naresh Kumar Sharma from the disputed premises i.e. a shed bearing No. B-16, DSIDC, Kalyan Puri, Delhi on the ground of bonafide requirement had been decreed; the application filed by the tenant seeking leave to defend had been declined.

2 Record shows that the petitioner was the allottee of the aforenoted shed; on 22.08.2005, the same had been tenanted out to the tenant at a RCR 227/2012 Page 1 of 5 monthly rent of Rs.1,200/-; the plaintiff has six children of whom his elder son Govind is handicapped as he had suffered an accident and his right leg has been crushed; because of this physical disability his son Govind cannot do a sitting business which requires a greater physical labour. Document showing the medical condition of his son has been placed on record. The second child of the petitioner namely Geeta was married to Mahesh who had died in an accident; Geeta along with her four children is living with the petitioner which causes a financial burden upon the petitioner; Geeta is also handicapped and is unable to earn or fend for herself; her disability certificate has also been placed on record. None of the aforenoted documents have been disputed. Learned counsel for the petitioner has sought vacation of these premises on the ground of bonafide requirement for the use of his son and daughter as also for himself as he being a senior citizen aged 62 years and presently earning his livelihood by selling vegetables on the road; he wants to run his livelihood from this shop; in fact this shop is required for himself as also for all the aforenoted family members who because of their handicap cannot earn their livelihood. Eviction petition was accordingly filed.

3 The averments made in the application seeking leave to defend have been perused. It is not in dispute that the landlord is the allottee of the aforenoted premises; a bald submission has been made that the family of the petitioner is self-dependent and as such there is no liability upon the landlord; disability certification of both his children namely Govind and Geeta have not been disputed; there is also not a whisper in the application seeking leave to defend that the said children are not handicapped; in view of this admitted position being that the plaintiff himself is a senior citizen and two of his children are handicapped as also the additional fact that Geeta is a widow with four children and is staying with the petitioner, the financial burden on the petitioner is no doubt heavy; it has also not been disputed that the petitioner is presently carrying on the business of selling vegetables on the road side; this shed is accordingly bonafide required by him for enabling him to carry on some means of business which he can do with the assistance of his handicapped children. The other averments made in the application seeking leave to defend are to the effect that the tenant himself has no other space from where he can run his shop and this is the only source of RCR 227/2012 Page 3 of 5 income; he himself having a large family any occupying the premises since the last several years.

4     No triable issue has arisen on any count.


5     It is also a settled position at law that leave to defend cannot be

granted in a routine or a mechanical manner. If this was permitted the whole intent and purpose of the provisions of Section 25-B of the Delhi Rent Control Act which contains a summary procedure would be given a go-by and this was not the intent of the legislature. 6 In (1982) 3 SCC 270 Precision Steel & Engineering Works & another Vs. Prem Devi Niranjan Deva Tayal the Apex Court has held that the prayer for leave to contest should be granted to the tenant only where a prima-facie case has been disclosed by him. In the absence of the tenant having disclosed a prima-facie case i.e. such facts as to what disentitles the landlord from obtaining an order of eviction, the Court should not mechanically and in routine manner grant leave to defend. 7 There is also no dispute to the factum that the landlord is the best Judge of his requirement.

RCR 227/2012 Page 4 of 5 8 The need of the landlord vis-à-vis tenant, if balanced, would show that the need of the landlord is much greater which even otherwise is not to be taken into account while dealing with an eviction petition under Section 14 (1)(e) of the DRCA; comparative hardship of the tenant is of little consequence.

9 In AIR 2004 SC 2049 P.S.Pareed Kaka & Ors.Vs.Shafree Ahmed Saheb the Apex Court had in fact held that the comparative hardship of the tenant is of little consequence.

10 In this background impugned judgment having decreed the eviction petition and having dismissed the leave to defend application suffers from no infirmity. Petition is without any merit. Dismissed.

                                             INDERMEET KAUR, J
MAY       21, 2012
A




RCR 227/2012                                      Page 5 of 5