Bal Krishan Khanna vs Smt.Ravi Kanta Madhok
2010 Latest Caselaw 2725 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

             + RC. REV. 38/2010 and CM 2786/2010

                                                Decided on 24.05.2010

IN THE MATTER OF :

BAL KRISHAN KHANNA                                  ..... Petitioner
                           Through: Mr. Naveen Kumar Nayyar, Advocate along
                           with petitioner in person


                    Versus


SMT.RAVI KANTA MADHOK                     ..... Respondent
                   Through: Mr.Mithilesh Kumar Singh and
                   Mr.D.Kishor, Advocates along with
                   respondent in person.


CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may           No
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?          No

     3. Whether the judgment should be                  No
        reported in the Digest?


HIMA KOHLI, J. (Oral)

1. The petitioner (respondent before the court below) is

aggrieved by an order dated 5.12.2009 passed by the learned

Additional Rent Controller dismissing an application filed by him

seeking leave to contest the eviction petition filed by

respondent/landlady(petitioner before the trial court), in respect of a

shop bearing No.1, situated on Ground Floor of property No.11/4,

West Patel Nagar, New Delhi.

2. The facts relevant to decide the petition are that the

respondent/landlady filed an eviction petition in respect of the aforesid

tenanted premises stating inter alia that she needs the same bonafide

for her use, as also for the use of her family members which consists

of herself, her son, his wife, a grandson and a married granddaughter.

It is averred in the petition that the respondent/landlady, who is aged

80 years and suffering from a number of ailments, is residing on the

first floor of the suit premises, consisting of two bed rooms, a dinning-

cum-drawing room, a toilet, bathroom, kitchen and open space along

with her aforesaid dependants. It is further averred that the son of

the respondent/landlady is an LIC agent and requires the shop in

question and other space on the ground floor, for running his office

and that the grandson of the respondent/landlady is 21 years of age

and requires some space to set up his own business. The daughter-in-

law of the respondent/landlady also requires some space for

commercial use as she wants to run her own business. As per the

respondent/landlord, she is finding living on the first floor highly

inconvenient and that the same is causing acute hardship to her. She

has stated that the shop in question and the other space on the

ground floor is required for her own bonafide use and for her

dependants. It is further stated that as and when the married

granddaughter of the respondent/landlady and her husband visit her

maternal home, she is unable to stay there because of paucity of

accommodation.

3. Summons were issued to the petitioner/tenant in the

aforesaid petition, in reply to which an application for leave to defend

was filed. The petitioner/tenant stated that the shop in question was

let out to him on rent by the father-in-law of the respondent/landlady

40 years ago and ever since, he had been running his business

therefrom. It was averred that there was sufficient space available on

the ground floor of the suit premises with the respondent/landlady and

her family and that they did not require the tenanted premises which

is commercial in nature and cannot be put to use for residential

purposes and that the son of the respondent/landlady has an office on

the first floor of the suit premises which he had been using for the past

several years. Thus it was stated that there was no change in the

circumstances which necessistated any further accommodation for his

business purpose.

4. Arguments were heard by the learned Additional Rent

Controller who held that the accommodation available with the

respondent/landlady was highly insufficient to meet the growing

requirements of her family and that the requirement for acquiring the

tenanted shop for commercial/residential purposes was bonafide. As a

result, the leave to defend application filed by the petitioner/tenant

was dismissed and an eviction order passed in favour of the

respondent/landlady.

5.         Two     fold   objections   have   been    raised   by    the

petitioner/tenant to assail the impugned order.       Counsel for the

petitioner states that the impugned order is liable to be set aside as

the learned Additional Rent Controller failed to take into consideration

the submission of the petitoner that the deceased father-in-law of the

respondent/landlady had an understanding with the petitioner that he

would remain in the tenanted premises at his will for the rest of his

life, having taken a security amount of Rs.8,000/- from him 40 years

ago. Secondly, it is stated that there is sufficient accommodation

available in the suit premises and about two years ago, the

respondent/landlady has malafide let out a portion of the ground floor

measuring 155 sq. yards, which demonstrates that her need for

additional accommodation is not bonafide.

6. In so far as the plea of the petitioner/tenant that there was

a mutual understanding between the deceased father-in-law of the

respondent/landlady and the petitioner/tenant that the tenanted

premises in question shall be used by the petitioner/tenant at his will

for the rest of her life is concerned, a perusal of the leave to defend

application filed by the petitoner/tenant before the learned Aditional

Rent Controller shows that no such ground was taken by him to

contest the eviction petition. In para 1 of the leave to defend

application, the petitioner/tenant only stated that the tenanted

premises was let out to him on rent by the father-in-law of the

respondent/landlady 40 years ago after taking security amount of

Rs.8,000/-. There is not a whisper in the application with regard to

such a mutual understanding between the petitoner/tenant and the

deceased father-in-law of the respondent/landlady, as claimed in the

present petition. The said ground cannot be permitted to be taken at

this stage by the petitioner/tenant.

7. As for the second contention of the petitoner/tenant that

the respondent/landlord has let out 155 sq.yards on the ground floor

of the tenanted premises to a tenant about two years, a perusal of the

paper book shows that while the aforesaid plea was specifically taken

by the petitioner/tenant in pars 11 of the leave to defend application,

the same has not been dealt with in the impugned order.

8. In these circumstances, it would be appropriate if the

matter is remanded back for a finding to be returned by the learned

Additional Rent Controller, limited to the aforesaid aspect alone. The

parties shall appear before the learned Additional Rent Controller to

address arguments in respect of the issue raised by the

petitioner/tenant in para 11 of the leave to defend application. After

arguments are heard, the learned Additional Rent Controller shall pass

an order on the aforesaid aspect.

9. The parties shall appear before the learned Additional Rent

Controller on 12.7.2010, when a date shall be fixed for addressing

arguments by the parties. Neither of the parties shall seek an

adjournment before the learned Additional Rent Controller, for

addressing arguments. In case either of the parties are aggrieved by

the order that may be passed by the learned Additional Rent

Controller, they shall be entitled to seek their remedies in accordance

with law.

10. As the period of six months granted to the petitioner/tenant

under the impugned order expires on 4.6.2010, and now that the

matter is being remanded back to the learned Additional Rent

Controller for 12.7.2010, for arguments to be addressed on the limited

ground mentioned in para 7 hereinabove, counsel for the

respondent/landlady fairly states that his client shall not take any

coercive steps against the petitioner/tenant, till a decision is rendered

by the learned Additional Rent Controller on the aforesaid aspect.

11. It is further directed that in the event the learned Additional

Rent Controller decides the issue against the petitioner/tenant, the

said order shall not be acted upon for a period of four weeks from the

date it is passed.

12. The petition is disposed of, along with the pending

application.

13. The Registry is directed to forward a copy of this order

forthwith, to the learned Additional Rent Controller, for perusal and

compliance.

                                                     (HIMA KOHLI)
MAY 24, 2010                                           JUDGE
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