* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC. REV. No. 302/2013 & CM No. 12578/2013(stay)
% 5th September , 2014
SH.MAHESH KUMAR ......Petitioner
Through: Mr. Yashwant Jain, Advocate
VERSUS
SH.PRITAM CHAND (SINCE DECEASED) THR. LRS....... Respondents
Through: Mr. Man Mohan Gupta, Advocate CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Section 25-B(8) of the Delhi Rent Control Act, 1958 (hereinafter referred as to 'the Act') is filed against the impugned judgment of the Additional Rent Controller dated 31.5.2013 by which the Additional Rent Controller has dismissed the leave to defend application filed in the bona fide necessity eviction petition under Section 14(1)(e) of the Act and the eviction petition has been decreed with respect to the tenanted premises being the first floor of the property no. 1308, Gali Gulian, Near Dharampura, Jama Masjid, Delhi - 110006.
RCR 302/2013 Page 1 of 6
2. The respondents/landlords filed the subject eviction petition claiming that their family comprises of two sons aged 22 years and 12 years and two daughters aged 28 years and 24 years; (elder daughter being married), and the mother Smt. Sarita Jain/respondent no. 1, and therefore, they require a total of at least five rooms, one each for the sons, one for the unmarried daughter, one for the mother and one as a guest room for the elder married daughter. Besides above, the respondents/landlords would also require a store room, drawing room, dining room and also the amenities of kitchen, bath rooms etc. The respondents/landlords however had with them only two rooms on the second floor besides the amenities of bath room, kitchen etc and one godown on the ground floor which is being used as a store room, and hence the bona fide necessity eviction petition was filed.
3. Petitioner/tenant contested the eviction petition by filing the leave to defend application. Two main grounds were argued before this Court for setting aside of the impugned order and for granting of leave to defend. Firstly, it is argued that the respondents/landlords have sufficient accommodation as they have with them the entire second floor comprising of two rooms with amenities. Secondly, it is argued that the eviction petition filed is for partial eviction inasmuch three rooms on the ground floor were RCR 302/2013 Page 2 of 6 also included in the tenancy but those three rooms have been validly sub-let to two persons Sh. Kanhiya Lal and Sh. Bishan and since the sub-letted portions are part of the tenancy, the eviction petition filed only with respect to first floor of the tenanted portion is for partial eviction only and hence not maintainable.
A third argument was also raised for the first time in this revision petition that the respondents have subsequent to passing of the eviction order let out one shop on the ground floor to two tenants, namely, Sh. Dalip Chand and Sh. Brahm Dass Sharma, and therefore, the eviction petition is bound to be dismissed.
4. The family members of the respondents are admitted and who are five in number. These five persons will need five bed rooms, one drawing room, one dining room, one store room along with the amenities of kitchens, bath rooms etc. Respondents/landlords however have only two rooms on the second floor and one godown on the ground floor. Therefore the accommodation available with the respondents/landlords is quite clearly insufficient inasmuch as they have only two rooms instead of their requirement of seven rooms i.e five bed rooms, one drawing and one dining room. Therefore, I do not find any illegality in the impugned order holding RCR 302/2013 Page 3 of 6 that respondents/landlords have bona fide need of the tenanted premises being the entire first floor.
5. The argument that the eviction petition is not maintainable because it is for partial eviction inasmuch as two rooms on the ground floor with the sub-tenants Sh. Kanhiya Lal and Sh. Bishan are also part of the tenancy, the same is a misconceived argument because the admitted position on record is that eviction petition has been filed in the year 2004 and from 1990 the alleged sub-tenants are paying rent directly to the respondents/landlords thus showing that these persons are direct tenants under the respondents/landlords and are not sub-tenants through the petitioner. The fact that the petitioner accepts that from the year 1990 he is not getting any rent from Sh. Kanhiya Lal and Sh. Bishan is a clear pointer to the fact that the portions with Sh. Kanhiya Lal and Sh. Bishan are not part of the tenanted premises but are separate tenanted premises under the separate tenancies with the respondents/landlords. Surely, if the tenancies were not direct and Sh. Kanhiya Lal and Sh. Bishan were only sub-tenants through the petitioner then the petitioner/tenant since 1990 would not have waited to continue to allow Sh. Kanhiya Lal and Sh. Bishan to pay rent directly to the respondents/landlords. Therefore, it cannot be held that the portions with RCR 302/2013 Page 4 of 6 Sh. Kanhiya Lal and Sh. Bishan are part and parcel of the tenanted premises with the tenancy of the petitioner.
6. So far as the aspect of the respondents/landlords during the pendency of the petition having given out a shop on rent to Sh. Dalip Chand and Sh. Brahm Dass Sharma is concerned, besides noting the aspect that the respondents have denied this fact by stating that it is the respondent no. 1 who is carrying on small business in the subject shop which is alleged to be in tenancy with Sh. Dalip Chand and Sh. Brahm Dass Sharm, however, even if it is presumed that one shop on the ground floor is let out to Sh. Dalip Chand and Sh. Brahm Dass Sharma the said aspect will be irrelevant because the need of the respondents/landlords is for residential purpose and not for commercial purpose, and as already stated above the respondents/landlords need the tenanted premises on the first floor as per their requirements of seven rooms since they have only two rooms in their possession. Also, if the shop is treated as a residential room and which is added to the two rooms with respondents/landlords even then their need is not satisfied.
7. In view of the above, there is no merit in the petition and the same is therefore dismissed with costs. Respondents/landlords should file an RCR 302/2013 Page 5 of 6 affidavit in this Court along with the certificate of fees of the lawyers with respect to the fees paid to the lawyers for this petition. This affidavit of any one of the respondents supported by the certificate of fees which will be costs which shall be liable to be paid by the petitioner to the respondents within a period of four weeks of filing of the affidavit of costs with certificate of fees.
SEPTEMBER 05, 2014 VALMIKI J. MEHTA, J
godara
RCR 302/2013 Page 6 of 6