* THE HIGH COURT OF DELHI AT NEW DELHI
+ R.C.REV.408/2011& CM 1899/2011
Date of Decision: 20.09.2012
SHAKTI KUMAR BHOLA ALIAS SHAKTI BHOLA.. Petitioner
Through: Mr. Aseem Mehrotra, Adv.
Versus
ATMA RAM ...... Respondent
Through: Mr. J.S. Kanwar, Adv.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This revision petition under Section 25B(8) of DRC Act is directed against the order dated 08.06.2011 passed by the ARC (North- East), whereby leave to defend application filed by the petitioner, was dismissed.
2. The respondent had filed a petition for eviction of the petitioner from the tenanted premises comprising of two rooms/shops bearing No. 1 and 3 in property No. 1/9241 (old No. 1/1520), Ground Floor, Gali No. 6, West Rohtash Nagar, Shahdara, Delhi. The eviction of the petitioner was sought by the respondent on the ground of bonafide R.C.REV.408/2011 Page 1 of 6 requirement of the said premises by him for his own business as he does not have any other reasonably suitable accommodation for the same. It was alleged that the tenanted premises was let out to the petitioner for residential purpose, but the same is being used by him for commercial purpose.
3. The petitioner filed leave to defend application, which came to be dismissed by the ARC vide the impugned order. The said order has been challenged in the instant petition by the petitioner. The foremost plea that was raised by the petitioner is that a shop, which is adjoining to the tenanted shop, has been got vacated by the respondent from M/s Fashion Palace, and by removing its shutter, the respondent has fixed a window, and that the said vacant shop is in the possession of the respondent. The respondent in his reply to leave to defend application denied that he has obtained possession of the shop from M/s. Fashion Palace of Rinku or that the same is lying vacant and is in his possession. The learned ARC taking note of this denial of the respondent observed that even for the sake of arguments if it is assumed that the said shop was got vacated, the same cannot be considered as a triable issue, because this has no bearing upon the R.C.REV.408/2011 Page 2 of 6 bonafide requirement of the petitioner as this has admittedly been converted into a residential accommodation by putting a window after removing the shutter. This observation of the learned ARC is, apparently, erroneous.
4. The learned counsel for the petitioner has drawn my attention to the copy of the petition filed by the respondent against the tenants in respect of the aforesaid adjoining shop, as also order dated 16.10.2004 passed by the ARC in that case. It was submitted by him, and was not controverted by the counsel for the respondent, that the respondent had filed the aforesaid eviction petition against the tenants who had taken the plea of their using the said premises for commercial purposes of Fashion Palace, and further that in pursuance of the settlement, that was arrived at between them, the respondent had taken possession of the said premises on 16th October 2004. This fact having come on record, the denial by the respondent, of having obtained possession of the aforesaid shop from M/s. Fashion Palace, cannot be said to be honest. The respondent had outrightly denied having obtained the possession of this premises or the same being adjoining to the tenanted shop or being in his possession. The learned ARC has fallen in error in R.C.REV.408/2011 Page 3 of 6 believing the denial of the respondent. He also fell in error in observing that in any case, the said shop was not available with the respondent, having been now converted into residential, after removal of shutter and by putting a window. The conversion of the commercial premises, which was just adjoining the tenanted premises, into residential also tends to create doubt in the bonafide requirement of the respondent.
5. Moving further, it is the case of the respondent that he requires the tenanted premises for setting up his business. The respondent is an old person aged about 85 years. In the second legal notice dated 27.03.2010 issued to the petitioner, the respondent had stated the suit premises to be required for the business/office purpose for himself and for establishing his two grandsons, who were studying and needed accommodation for office and for their residence. In the petition, there was no averment of requirement of the tenanted premises for the business or residence of those grandsons. In the third legal notice of 23.07.2010, the eviction was sought on the ground of the petitioner allegedly misusing the tenanted premises for commercial purposes. Though, there is no bar of setting up of business at any age, but the R.C.REV.408/2011 Page 4 of 6 requirement that is projected by the landlord, who is aged about 85 years, would require to be examined and evaluated to assess his bonafide. In view of the fact that the respondent had tried to suppress the fact of his having acquired a shop adjoining the tenanted premises and later on having converted the same for residential purpose, the petitioner seems to have raised triable issue as regard to the bonafide requirement of the tenanted shop by the respondent.
6. Further, the conversion of the aforesaid shop into residential, also needs to be tested in view of the fact that the respondent and his wife were prima facie shown to be in possession of residential or commercial properties either in their joint names or in the name of his wife.
7. In view of my above discussions, the learned ARC seems to have erred in recording that the respondent bonafidely required the tenanted premises for setting up his business. The projected requirement by the respondent of the tenanted premises, in the given facts and circumstances, requires to be tested by affording an opportunity to the petitioner, who has prima facie raised triable issues. R.C.REV.408/2011 Page 5 of 6 It is settled law that at this stage it is only to be seen as to whether the tenant has been able to show prima facie any triable issue which may disentitle the landlord to eviction order, and not that the defence may ultimately fail.
7. In view of the above, the impugned order is set aside. Leave to defend is granted to the petitioner. The parties are directed to appear before the ARC on 8.10.2012 for further proceedings. Having regard to the age of the respondent, it is expected from the learned ARC to expedite the disposal of the petition.
8. The petition is disposed of accordingly.
M.L. MEHTA, J.
SEPTEMBER 20, 2012 awanish R.C.REV.408/2011 Page 6 of 6