Sunil Kumar vs Sahi Ram
2011 Latest Caselaw 4957 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         RC.REV. 41/2011

+                                    Date of Decision: 5th October, 2011


#      SUNIL KUMAR                                     ....... Petitioner
!                               Through: Ms. Manjula Gandhi, Advocate

                                       versus

$      SAHI RAM                                        ....... Respondent
                                    Through: Mr. Rishi Prakash, Advocate

CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to see the
judgment? (No)
2. To be referred to the Reporter or not? (No)
3. Whether the judgment should be reported in the digest? (No)

                                ORDER

P.K BHASIN,J:

This petition under Section 25-B (8) of the Delhi Rent Control Act,

1958 (hereinafter called 'the Act') has been filed against the order passed

by the Rent Controller (South) whereby the application filed by the

petitioner-tenant seeking leave to defend the eviction petition filed against

him by his landlord, the respondent herein, under Section 14(1) (e) of the

Act in respect of shop no. 378/5 on the ground floor of property no. 378,

Hanuman Market, Munirka, New Delhi (hereinafter to be referred as the

'tenanted shop') has been dismissed and he has been ordered to vacate the

tenanted shop.

2. The respondent -landlord had let out the tenanted shop to the

petitioner's father and after his father's death the petitioner became the

tenant by operation of law. In June, 2008 the respondent filed an eviction

petition against the petitioner, under Section 14(1) (e) of the Act alleging

that he was 80 years old and was unable to undertake any work to earn

livelihood for himself and his family comprising of twelve persons who

were dependent upon him and so his two married sons who were

unemployed wanted to start their business to earn livelihood for

themselves and their family members including the respondent since theirs

was a joint family but since the petitioner did not have any other suitable

accommodation he required the tenanted shop in occupation of the

petitioner.

3. As required under Section 25-B (4) of the Act the petitioner-tenant

had sought leave from the trial Court to contest the eviction petition. The

main plea taken by the petitioner-tenant in his leave to contest application

(as also before this Court) was that respondent-landlord's sons were settled

and living in village Tawroo in Haryana where they have agricultural lands

and substantial agricultural income and were maintaining luxury cars. It

was further pleaded that the sons of the respondent-landlord were also

having car and tractor repair workshop at Village Tawroo and they have no

intentions of shifting to Delhi. In any case ,they were not in any way

dependent upon their father. Another plea taken was that the petitioner had

let out many shops in property no. 378 and was having huge rental income

of more than ` 40,000/- from the tenants every month and so his plea that

the tenanted shop was required to earn more for the family is not bonafide.

4. The respondent-landlord in his reply to the petitioner's leave

application refuted the allegation that his sons are permanently settled in

Village Tawroo, Haryana. He claimed that he and his sons have meagre

agricultural income with which they cannot even make both ends meet

rental income from various shops let out to other tenants, is claimed by the

petitioner, was not denied.

5. The learned trial Court rejected the plea raised by the petitioner by

observing as under in the impugned order:

"3. .......... The first ground put forth by the respondent in the leave to contest the eviction petition which requires consideration is that the essential ingredients of Section 14(1) (e) of DRC Act are missing in the present petition. Respondent contended that petitioner has nowhere stated that petition or his sons have no other reasonable suitable accommodation. It is clearly stated in para 18A page 5 of the petition that two sons of petitioner are unemployed and as such want to start their own business to earn their livelihood to support their above mentioned joint family but have no other reasonable business premises. These averments are sufficient so far as the ingredients of Section 14(1)(e) of DRC Act are concerned.

8. Petitioner has strongly disputed the contention of respondent that sons of petitioner are settled in Tauru, Haryana and they have their own car and tractor repair shop. Even if, the sons of petitioner are running their business at Tauru, they will find it more convenient to have their business in Delhi where their father is residing as sons will not like their father who is aged about 80 years to live alone. Even otherwise, no document has been placed on record by the respondent to show that the sons of petitioner are gainfully employed in Tauru, Haryana. In other words, the defence that the sons of petitioner are settled in Tauru, Haryana is a sham and bogus defence which will not entitle the respondent to leave to contest the eviction petition.

9. Keeping in mind the factual position of the case and being guided by the aforesaid legal proposition, the Court is of the considered opinion that the application of respondent seeking leave to contest the eviction petition miserably fails to give rise to any triable issue. In fact none of the contentions raised by the respondent requires trial and investigation. I find no merit in the application. Accordingly, the application of respondent seeking leave to contest the eviction petition is dismissed."

6. Feeling aggrieved by the dismissal of his leave to contest

application the petitioner-tenant has invoked the revisional

jurisdiction of this Court.

7. Learned counsel of the petitioner-tenant had submitted that the

respondent -landlord had filed two eviction petitions against two

tenants, including the petitioner herein, in respect of two different

shops and both the tenants were declined leave to contest by the Rent

Controller. However, this Court has already set aside the order of

eviction passed against the other tenant Satpal on 27.05.2011 in RCR

No. 25/2010. She produced before me a copy of that order.

8. On the other hand, learned counsel for the respondent -

landlord while not disputing the fact that the two eviction petitions

filed against two tenants, including the present one, were filed on the

same grounds and both the tenants had sought leave to contest also

on almost similar grounds, contended that in the order passed by this

Court in the case of other tenant Satpal reversing the trial Court's

order declining leave to defend to him this Court had not taken into

consideration the provisions of Sections 19 and 48 of the Act.

9. From the order dated 27.05.2011 passed by me, I find that the

eviction petitions against both the tenants were on identical

averments and leave was also sought by both the tenants on almost

similar grounds. The relevant findings of mine in the order in respect

of the other tenant Satpal are re-produced below:

"10. After considering the facts pleaded by the respondent - landlord in his eviction petition and the facts stated by the petitioner - tenant in his leave to contest application and the decision of the learned trial Court I am of the view that this revision petition deserves to be allowed. The leave application filed by the petitioner - tenant does raise triable issues which cannot be decided without giving him an opportunity to substantiate the same by producing relevant material/evidence and cross-examining the landlord. I also find force in the contention of the learned counsel for the petitioner that the facts of this case are quite similar to the facts in Inderjeet Kaur's case (supra) before the Supreme Court wherein leave to defend was granted to the tenant.

11. There is another reason also for grant of leave to the petitioner- tenant in the present case. The petitioner-tenant has filed an additional affidavit claiming that the respondent-landlord had four more shops also in his property in Munirka and the same had been let out to different tenants and he was getting rent of ` 2,000/- from two tenants, ` 2,700/- from one tenant and ` 2,500/- from another one and with effect from 1st January, 2011 he had re-let all the four shops at a monthly rent of ` 8,000/- each. Learned counsel for the petitioner had submitted that this subsequent development which came to the knowledge of the petitioner after the disposal of the eviction petition, shows the mala fides of the respondent-landlord in filing the eviction case against the petitioner. The respondent-landlord in his counter affidavit to the said additional affidavit of the petitioner claimed that the rent had been increased because of the rise in price index and further that actual market rent of the shops was much higher and, therefore, the bona fides of the respondent cannot be doubted because of his having got the rents of other tenants increased to a reasonable extent. Learned counsel for the respondent had submitted that though this Court could consider this subsequent development the justification given by the respondent in his counter affidavit should be accepted and no mala fides can be inferred from that circumstance.

12. I am, however, of the view that at least for the purpose of grant of leave to contest to the petitioner-tenant the aforesaid circumstance of the respondent-landlord having increased the rent of other tenants four times does bring an element of mala fides in his decision to initiate eviction

case against the petitioner herein and learned counsel for the petitioner was justified in submitting that eviction petition against him appears to have been filed to increase the rent in respect of the shop in dispute."

10. In my view, since this Court has already granted leave to contest to

another tenant against whom also the respondent - landlord had filed

eviction petition on the same ground of bona fide requirement there is no

reason for this Court not to give the same relief to the petitioner herein.

The reasons given by me for granting leave to contest to the other tenant

have already been reproduced by me in the earlier part of this order and

those reasons are applicable to the facts of the present case also. As far as

the provisions of Section 19 of the Act are concerned the same have no

relevance while considering the case of the petitioner - tenant for grant of

leave to him to contest the eviction petition this Section comes into play

only if a landlord, who has succeeded in securing eviction order against a

tenant on the ground of bona fide requirement etc. re-lets the tenanted

premises within a particular period the tenant can be put back in

possession. Since the petitioner - tenant has raised a plea that the

respondent's sons, for whose benefit alone, the eviction petition was filed

against the petitioner, are already well settled in Haryana and which plea

has not been specifically denied by the respondent - landlord, that plea

raises a triable issue. In this regard a useful reference can be made to a

decision of the Hon'ble Supreme Court in "Charan Dass Duggal vs.

Brahma Nand", (1983) 1 SCC 301 wherein the landlord was settled in

Pathankot and he had filed an eviction petition against his tenant in respect

of some premises in Delhi on the ground that the landlord wanted to shift

to Delhi. The tenant had sought leave to contest on the ground that since

the landlord was settled in Pathankot a triable issue did arise entitling him

to get the leave to contest the eviction petition on the ground of bona fide

requirement filed by the landlord and accordingly leave to contest, which

was rejected by the Rent Controller as well as by this Court in revision,

was granted to the appellant - tenant by the Supreme Court. Therefore,

leave could not be declined to the petitioner - tenant in the present case

since he had raised a strong triable issue which, in the event of being

proved by the petitioner, would disentitle the respondent-landlord from

securing eviction.

11. This revision petition, therefore, succeeds. The impugned order of

eviction is set aside. The matter is remanded back to the trial Court for

trial in accordance with law. The case shall now be taken up by the

learned Rent Controller on 24th October, 2011 at 2 p.m. for giving further

appropriate directions in the matter.

P.K. BHASIN,J

October 05, 2011