M/S. Upper India Trading vs Smt. Shobha Asrani
2011 Latest Caselaw 3580 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment: 27 July, 2011

+             CM (M) No. 1566/2010


M/S. UPPER INDIA TRADING
COMPANY PVT. LTD.                         ...........Appellants
                    Through:         Mr. Ashwini Kr. Mata, Sr.
                                     Advocate with Mr. Ankur
                                     Chandhoke.

                       Versus

SMT. SHOBHA ASRANI                        ..........Respondents
                  Through:           Mr. Rakesh Makhija,
                                     Advocate.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

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

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

INDERMEET KAUR, J.

1. The order impugned before this court is the order dated

10.11.2010 whereby the application filed by petitioner seeking a

decision on his application which in turn had sought dismissal of

the eviction petition had been dismissed.

2. Facts as emanating from the record are that an eviction

petition i.e. E.P. No. 30/2009 had been filed before the Delhi

Rent Control Act (DRC Act); in that application leave to defend

had been granted in favour of the defendant vide order dated

11.11.2005. On 25.05.2010, on a prayer made by the petitioner

seeking permission to withdraw the eviction petition, the

petitioner had been granted permission to withdraw the eviction

petition and to file another eviction petition on the same cause

of action as and when required; it had accordingly been

dismissed as withdrawn.

3. The second petition had been filed under Section 14(1) (e)

of the DRC Act; this was numbered as E.P. No. 27/2010. After

service of notice in this petition which had been affected on the

defendant on 07.08.2010, the application for leave to defend had

been filed by the defendant. Meanwhile, the order dated

25.05.2010 permitting the petitioner to withdraw the first

eviction petition (with permission to file another eviction

petition on the same cause of action) was assailed before the

Rent Controller Tribunal. The RCT vide its order dated

04.10.2010 set aside the order passed by the ARC dated

25.05.2010; the first eviction petition i.e. E.P. No. 30/2009 was

directed to be dealt with in accordance with law and the parties

had been directed to appear before the ARC for the said purpose

on 11.10.2010.

4. The contention of the petitioner is that pursuant to this

order the eviction petition i.e. E.P. No. 30/2009 had been

restored with retrospective effect i.e. with effect from

25.05.2010 and as such the second execution petition which had

been filed on 28.07.2010 was not maintainable on the said date

i.e. 28.7.2010 and was liable to be dismissed. This was the

vehement contention of the tenant/petitioner before the ARC; he

had sought dismissal of this petition; this request was declined

vide the impugned order. This order is now the subject matter of

the present petition.

5. Learned counsel for the respondent on the other hand

submits that the first eviction petition had been withdrawn by

him on 25.05.2010 because of a formal defect; names of the

parties had not been correctly mentioned; additional fact had to

be brought to the notice of the ARC that the landlord suffers

from knee and joint pain which submission needed to be

incorporated in the plea of bonafide requirement seeking

eviction of the tenant under Section 14(1) (e) of the DRC Act.

The contention is that the law is well settled that the need of

bonafide requirement is a changing need; it is not static and

need may be one on one date and it may change in the future.

This proposition of law is not in dispute.

6. Counsel for the respondent states that he may be

permitted to withdraw the first eviction petition i.e. E.P. No.

30/2009 and in fact, he would be moving an appropriate

application to the said effect before the concerned court. It is

pointed out that second petition i.e. 27/2010 has to be

adjudicated upon and the application for leave to defend is still

pending before the ARC; all these submission now made before

this court could have been taken by the petitioner before the

ARC.

7. This submission of the learned counsel for the respondent

has force. The procedure to deal with an eviction petition under

Section 14(1) (e) of the DRC Act which is on the ground of

bonafide requirement is contained in Section 25 B of the DRC

Act. This is a complete Code in itself. After summons are served

on the defendant, defendant may file his application for leave to

defend and he can raise all defences available to him. The

arguments now propounded before this court that the second

eviction petition is not maintainable could well have been taken

by the tenant in his second eviction petition by incorporating it

in his application for leave to defend; ARC would then adjudicate

upon the same. In fact this has been left open in the impugned

order and the ARC has granted liberty to the tenant to raise the

question of bonafides and the applicability of subsequent events

in his application for leave to defend which matter had been

adjourned for further arguments for 11.11.2010. The question as

to whether the need of the landlord has changed after the date

of the filing of the first petition in the intervening period i.e. till

the time he had filed his second eviction petition is a question

yet to be gone. The matter has been left open by the ARC.

9. The impugned order suffers from no infirmity; it warrants

no interference.

10. Dismissed.

(INDERMEET KAUR) JUDGE July 27, 2011 rb