Shri Ramesh Kumar vs Shri Mohd. Ibrahim Ahmed Pai
2011 Latest Caselaw 5213 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Judgment: 24.10.2011


+             RC.REV.No.428/2011 & CM No.19594/2011


SHRI RAMESH KUMAR                                ........... Petitioner
                 Through:             Mr. Y.S. Chauhan, Advocate.

                        Versus

SHRI MOHD. IBRAHIM AHMED PAI                     ..........Respondent
                  Through: Nemo


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. (Oral)

1. The petitioner is aggrieved by the order dated 29.07.2011.

Vide this order, the application for leave to defend filed by the

tenant had been dismissed.

2. Record shows that the present eviction petition had been

filed under Section 14 (1)(e) read with Section 25-B of the Delhi

Rent Control Act (DRCA). The respondent is the tenant of the

premises i.e. 3385, ground floor, Delhi Gate, Delhi. In the eviction

petition it has been averred that the premises are required

bonafidely by the petitioner for running a private spectacle shop

for the purpose of business of his son and grandsons both of

whom are dependent upon him. In the eviction petition, the

petitioner has admitted that he has five small shops bearing No.

3377, 3378, 3379, 3380 and 3385; all are occupied by other

tenants; the present premises are bonafidely required by him for

his son and grand sons who are dependent upon him in order they

can carry out their business from there. In the eviction petition,

the first contention raised was that the petition is barred under

Section 19 of the Slum Areas (Improvement and Clearance) Act,

1956 as necessary permission under Section 19 of the Act has not

been taken. This objection had been conceded and in view of the

judgment of a Bench of this Court reported in 17 (1980) DLT 344

Krishna Devi Nigam Vs. Sham Babu Gupta for an eviction petition

under Section 14(1)(e) of the DRCA, permission under Section 19

of the Slum Areas (Improvement and Clearance) Act, 1956 is not a

pre-condition. This objection is without any merit. The second

contention raised by the tenant in his application for leave to

defend was that the petitioner is not the owner and he is not a

tenant; this argument was also not pressed in view of the property

tax receipts placed on record by the landlord which documents

remained undisputed; the rent receipts bearing the signatures of

the tenant Ramesh had also been placed on record; these

documents were also not in dispute. Landlord-tenant relationship

having admitted and there being no serious dispute about the

imperfectness of the title of the premises in question, this

objection was also without any merit and in fact was not pressed

before this Court. The only argument urged before this Court that

there is an alternate accommodation which is available with the

landlord and this comprises not only of the five shops (referred to

Supra) as noted in the eviction petition but also another haveli

bearing No. 1304, Hisamuddin, Ballimaran, Delhi as also a

compound of about 5000 square yards bearing No. 3387, situated

in Delhi Gate Bazar.

3. In the reply filed by the landlord, these averments were

answered; there is no dispute about the fact that the aforenoted

five shops i.e. shops bearing No. 3377, 3378, 3379, 3380 and 3385

had been leased out to earlier tenants and this has been stated by

the landlord himself in his eviction petition. These premises are

thus not available to the landlord for his use. The premises

bearing No. 1304, Hisamuddin, Balimaran, Delhi is a residential

house where he along with his family member is living and there

are two tenants on two other floors; this submission has been

substantiated by the rent receipts showing the presence of the

said tenants on the said two floors of the said property. Qua the

third property i.e. 3387 in Katra Hisamuddin, Ballimaran, Delhi

contention of the landlord is that it is not a 5000 square yards

property but it is only 1000 square yards and this is under the

tenancy of Choudhary Bir Singh since 1947 and after the death of

Bir Singh his son and grandson had become tenants and eviction

petition on the ground of non-payment is pending against them

before the ARC. These facts are undisputed. The only contention

urged today before this Court that a triable issue had been arisen

for the reason that this disputed plot is 5000 square yards as has

been alleged by the tenant but the landlord has averred that it is

only 1000 square yards and this can be decided only by way of

evidence. Relevant would it be to state that in the reply filed to

leave to defend application, the landlord has specifically stated

that this property i.e. property No. 3387 is 1000 square yards; no

rejoinder has been filed to this reply affidavit; nothing has been

substantiated by the tenant to show that this plot comprises of

5000 square yards and not 1000 square yards; no site plan or any

other document to this effect has been placed on record. In these

circumstances, the ARC had correctly noted that the defence

sought to be raised by the tenant that this property comprises of

5000 square yards is only sham and moonshine; it being illusory

only, no prima-facie right to defend the eviction petition had

arisen in favour of the tenant. The impugned order has correctly

noted that the petitioner has a son namely Qaiser Ibrahim aged 46

years, grandson Anas Ibrahim aged 20 years and another

grandson Fahed Suleman aged 25 years; they are all dependent

upon the petitioner; because of the non-availability of any shop,

they are not able to carry out their business; bonafide need of the

petitioner is that his son and grandsons wants to do business from

the aforenoted shop; their need is bonafide. The only argument

that the property bearing No. 3387 was 5000 square yards which

was unsubstantiated by any document, it was rightly rejected.

Court had correctly noted that no triable issue had arisen.

4. It is not for the tenant to dictate terms to the landlord and

decide the manner in which he has to live his life; the bonafide

requirement of the landlord is best known to himself; unless the

tenant is able to show that the need as set up by the landlord is

malafide, fanciful and not bonafide and there being no triable

issue; an application for leave to defend cannot mechanically in

routine be granted. If this is done, the provisions of Section 14

(1)(e) read with Section 25-B of the DRCA which is an enactment

engrafted by the Legislature to dispose of an eviction petition

summarily would be given a go-bye. The impugned order suffers

from no infirmity.

5. Dismissed.

INDERMEET KAUR, J OCTOBER 24, 2011 a