Shree Ram Sharma vs Mohd. Sabir
2011 Latest Caselaw 945 Del

 IN THE HIGH COURT OF DELHI AT New Delhi

                          RC.REV. No. 58/2009

                              Date of Decision:- 17.2.2011

       Shree Ram Sharma                                  ... Petitioner
                                      Through:      Mr. K.K.Sharma, Sr.
                                      Adv. with Ms. Bhanita Patowary for
                                      petitioner

                          Versus

       Mohd. Sabir                                     Respondent

                                      Through: Mr. L. Roshmani with Mr.
                                      Israr Ahmad for respondent

       CORAM:
       HON'BLE MR. JUSTICE S.L. BHAYANA

       1.    Whether reporters of local paper may be
       allowed to see the judgment?                  Yes

       2.     To be referred to the reporter or not?     Yes

       3.    Whether the judgment should be referred in
       the Digest?                                  Yes



S. L. BHAYANA, J.

The present revision petition under section 25-B(8) of Delhi Rent

Control Act, 1958 (for short as "Act") has been filed by the petitioner

against the order dated 30.05.2009 passed by Additional Rent

Controller (for short as "controller") Delhi, vide which leave to contest

has been granted to the respondent tenant.

2. Undisputedly, the petitioner is the landlord in respect of premises

bearing No.2, Satnam Park, Chander Nagar Road, Delhi 110051

admeasuring 190 sq. yards. The respondent is a tenant of the

petitioner at a monthly rent of Rs. 825/- p.m. excluding the electricity

and other charges for the last about 39 years. The respondent has

been running a hair cutting saloon in the tenanted premises. The

petitioner is a senior citizen aged about 70 years and his family

consists of his ailing wife aged about 66 years, 2 married sons and 3

RC. REV. No. 58/2009 P a g e 1 of 7 married daughters. The elder son has one son aged 18 years and 2

daughters aged about 17 and 16 years. The younger son of the

petitioner has 2 sons aged about 10 years and 5 years. The younger

son is a practicing lawyer and has been occupying two rooms as his

office and library on the ground floor. His three married daughters

often pay visits to their parental house along with their families.

Other relatives of the petitioner reside in the vicinity and they also

often pay visits. The petitioner is suffering from heart problem coupled

with old age related ailments and his wife is also suffering from high

blood pressure, lungs disease and acute arthritis. The petitioner and

his wife are not able to climb stairs and have been medically advised

to stay at the ground floor.

3. The petitioner has two small kitchens and almost 25 sq. yards of

un-constructed open area in the premises. There is one pooja room,

one drawing room, one dining room and one store room. A servant is

also residing in the house in one room. The respondent is using the

tenanted premises for the last about 38 years and now the family of

the petitioner needs more space for their own use. The property in

question i.e. the shop is required bonafide by the petitioner for himself

and family members. The petitioner has no other reasonably suitable

accommodation.

4. Learned counsel for the petitioner has contended that the

petitioner is a senior citizen aged about 72 years and his ailing wife is

aged about 68 years, 2 married sons and 3 married daughters with

their minor and major children along with their spouses. Further

learned counsel has submitted that the petitioner is suffering from

heart ailment coupled with old age related diseases and is not able of

climbing the stairs and similarly the wife of the petitioner is suffering

RC. REV. No. 58/2009 P a g e 2 of 7 from acute arthritis and acute incurable Lungs disease therefore, she is

also not able to climb the stairs.

5. Learned counsel for the petitioner has argued that three married

daughters of the petitioner along with their kids and husband and

relatives of the petitioner visit and reside for couple of days almost

every week. Therefore the petitioner‟s need is bonafide and at least

one guest room is required to accommodate his daughters, their

children and other relatives.

6. Further learned counsel for the petitioner has vehemently argued

that the entire family of the petitioner is occupying lesser

accommodation than actual requirement of his family. The younger

son of the petitioner is a practicing lawyer and has been occupying two

rooms as his office and library.

7. Learned counsel for the petitioner has contended that the DRC

Act is a complete Code in itself and the present petition is maintainable

under section 25-B (8) of the DRC Act which provides with ample

revisional powers vested in the High Court to look into the order

passed by the Rent Controller whether allowing and disallowing the

leave to contest the eviction petition filed by the respondent/tenant as

upheld by the High Court in the case R.S.Bakshi & Anr. V/s.

H.K.Malhari, 2003(67) DRJ 410 in paras 8, 9, and 13.

8. Further learned counsel for the petitioner has argued that no

evidences is required to be adduced by the parties when there is no

dispute as to the size of the family of the petitioner/landlord and

requirement of accommodation as detailed by the petitioner/landlord

in the petition as upheld by the High Court in case of Sanwal Ram

Aggarwal V/s. Smt. Gianwati, 1999 (1) RCR529, Para 11 and Para 15.

RC. REV. No. 58/2009 P a g e 3 of 7

9. Learned counsel for the petitioner/landlord has submitted that

the petitioner being the landlord is the best judge of his requirement

for residential or business purpose as upheld by the Supreme Court in

Raghavendra Kumar V/s. Firm Prem Machinery & Co., 2000(1) SCC679.

10. Learned counsel for the respondent has submitted that the

present revision petition is not maintainable as the same is filed

against interim order wherein leave to defend has been granted.

Regarding maintainability of this revision petition learned counsel for

the respondent has relied upon Mahavir Singh V/s Kamal Narain, 15

DLT (1979)232 (SN) in which the High Court has observed that order

granting leave to defend is not open to revision.

11. Further learned counsel for the respondent has relied upon Shiv-

Shakti Co-opt. Housing Society V/s. Swaraj Developer, (2003)6SCC659

wherein it has been observed that, no revision lies against interim

order under section 115 CPC after the amendment of 2002 except in

case where it amounts to disposal of the main matter. Further the

said proposition of law has also been upheld by the Supreme Court in

the case of Gayatri Devi-Shashi Pal Singh, (2005)5SCC527.

12. Learned counsel for the respondent has further submitted that

the petitioner has filed eviction petition without giving a true

description of his own property as the same is not in accordance with

the site plan filed by the petitioner and he has concealed the number

of rooms available to him.

13. Further learned counsel for the respondent has asserted that

petitioner‟s requirement is for his residential purposes he is seeking

possession of a shop which is not fit for residential purpose.

14. Learned counsel for the respondent has further asserted that the

petitioner had refused to receive rent from the respondent in order to

RC. REV. No. 58/2009 P a g e 4 of 7 term him as defaulter therefore, the respondent has deposited the rent

with the Additional Rent Controller under section 27 of the DRC Act,

1958.

15. Learned counsel for the respondent has asserted that the

petitioner has concealed that he has only one more tenant besides the

respondent. It is incorrect because the petitioner has two more shops

beside the shop of respondent. There is one T.V. shop and one tea

shop namely "Satya Tea Stall". Besides these shops the petitioner still

has one more room on the 2nd floor which is shown in the photographs

filed by the respondent, therefore, petitioner does not have bonafide

requirement of the said tenanted premises.

16. I have heard learned counsel for both the parties and perused

the record carefully. As there is an expansion in the family of the

petitioner and the petitioner and his wife both are aged persons and

suffering from diseases regarding which the medical documents have

been filed by the petitioner. The younger son of the petitioner is a

practicing advocate and he requires at least two rooms to use as office

and library. The elder son is having one son and two daughters and his

wife. Three married daughters with their spouses and children

regularly pay visits at their parental home. Even the relatives of the

petitioner residing in the vicinity of the petitioner oftenly pay visits.

17. I may refer to the decision of this court in Mukesh Kumar V/s.

Rishi Prakash, MANU/DE/2622/2009. The factual situation in that case

was very similar to the present case. The eviction petition has been

filed by the landlord on the ground of bonafide requirement under

section 14 (1) (e) of the Act. Against which leave to defend was filed by

the tenant and the learned ARC had granted leave to defend to the

tenant against the landlord. The order of the trial court was challenged

by the landlord by filing a revision petition. The High Court held that

RC. REV. No. 58/2009 P a g e 5 of 7 the need of the petitioner/landlord was bonafide. The leave to defend

application filed by the respondent in Trial Court has been wrongly

granted by the Learned ARC by adopting an erroneous approach.

18. The learned ARC has also not taken into account the fact that the

petitioner and his wife being aged and suffering from heart diseases

and acute arthritis can‟t climb stairs and they need accommodation on

the ground floor. Moreover, their three married daughters, along with

their family, also visit them frequently. The requirement of the

petitioner cannot be pegged down at only one room. Whenever they

visit them, they would require at least two rooms. The disease of the

petitioner and his ailing wife are of such a nature that they are advised

not to climb the stairs and not to put pressure on their knees.

Therefore the need of the petitioner to stay at the ground floor is

genuine and bonafide.

19. Considering the aforesaid aspects, I am of the view that the need

of the petitioner was clearly bonafide. The tenanted accommodation

was the most suitable to meet the requirement of the petitioner„s

expanded family. The need of the petitioner as made out appears to be

sincere and honest and not a mere pretence or pretext to evict the

respondent/tenant. Viewed in the aforesaid light it can be said that the

need of the petitioner to occupy the tenanted premises is natural, real

sincere and honest. I am of the view that the respondent did not raise

any triable issue which required a trial, and for which the respondent

was granted leave to defend the eviction petition. The same has been

granted by adopting an erroneous approach and on a perfunctory

reading of the submissions of the parties.

20. Accordingly, I set aside the impugned order and reject the

respondent‟s application seeking leave to defend the eviction petition.

Eviction order is accordingly passed against the respondent and in

RC. REV. No. 58/2009 P a g e 6 of 7 favour of the petitioner in respect of the suit premises which is shown

in red colour in the site plan filed by the petitioner along with the

eviction petition as Annexure P-2. Petitioner will not execute the

decree of eviction against the respondent for a period of six months

from today.

The Revision petition stands disposed of.

S.L.Bhayana, J.

February 17, 2011




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