Sewa Singh & Anr. vs Om Prakash & Anr.
2011 Latest Caselaw 4631 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                         RCR.No. 66/2010
+                                Date of Decision: 20th September, 2011



      SEWA SINGH & ANR.                               ....Petitioners
!                                Through: Mr.J.C. Mahindroo, Advocate


                                Versus

$     OM PRAKASH & ANR.                                 ....Respondents
                                                        Through: None

       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)


                             JUDGMENT

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 by the petitioners-

landlords against the order dated 02.03.10 passed by the learned

Additional Rent Controller whereby the application filed by respondent

no.2 herein for leave to contest the eviction petition filed against him and

respondent no.1 under Section 14(1)(e) of the Act for their eviction from

two shops on the ground floor of property bearing no. 26, Rameshwar

Nagar, Azad Pur, Delhi, has been allowed.

2. The petitioners are the owners of a double storey building no. 26,

Rameshwar Nagar, Azad Pur, Delhi which has five shops on the ground

floor out which four shops, in respect of which three eviction petitions

were filed, had been let out separately to three tenants. The respondent

no.1 herein was let out two shops bearing nos. 2 and 4. The respondent

no.2 was impleaded in the eviction petition as a sub-tenant.

3. The petitioners-landlords, who are father and son, pleaded in the

eviction petitions that their family comprised of ten members comprising

of the parents of petitioner no.1, wife of petitioner no.2 and their one son.

It was claimed that though another son of petitioner no.1 had shifted to

Chandigarh on account of riots but he was also now desirous of settling in

Delhi keeping into account the educational prospects of his children. It

was also pleaded that petitioner no.1 wanted his old parents also to live

with him because of their old age but the accommodation available with

them in property no. 26, Rameshwar Nagar, Azad Pur was comprising of

only two bed rooms on the first floor and a drawing room, living/dining

room, one kitchen, WC and bathroom, one small store room. The second

floor was in occupation of a tenant and on the ground floor there was a

shop also with them. The petitioners-landlords pleaded that the

accommodation available with them was not sufficient for accommodating

the parents of petitioner no.1 who were separately living in another house

in Rameshwar Nagar, Azadpur due to paucity of accommodation in

property where the petitioners were living and also his other son presently

living in Chandigarh. As far as the petitioner no. 1 is concerned, it was

also claimed that he being an old person required the accommodation on

the ground floor.

4. The respondent no.1 had not filed an application seeking leave to

defend the eviction petition but respondent no.2, who was impleaded as a

sub-tenant, filed leave application claiming that he was a tenant. He sought

leave to contest on the ground that the requirement of the shops under his

tenancy by the landlord was not bona fide inasmuch as they were already

having sufficient accommodation for both of them and the wife and son of

petitioner no. 2. It was claimed that the petitioners were also having four

rooms on the rear side of the ground floor. It was also claimed that since

the parents of petitioner no. 1 were already residing in another house near

to the house in question the requirement of additional accommodation for

them was also not bona fide and the other son of the petitioner no. 1 was

already well settled in Chandigarh for many years. The shop in event

could not be used for residence. Ownership of the petitioners was also

challenged.

5. The learned Additional Rent Controller had come to the conclusion

in the impugned order, by which common order he had allowed all the

applications moved in the three petitions seeking leave to defend the

eviction petitions, that there was no dispute about the extent of

accommodation available with the petitioners on the first floor of house

No. 26, Rameshwar Nagar, Azad Pur and as far as the plea of the tenant

that the landlord had four rooms on the ground floor also is concerned, it

was not acceptable. The petitioners' case was that they required one

room for petitioner no. 1 on the ground floor because of his old age and

medical problems, one room for petitioner no. 2 and his wife, one room

for their son, one room to be used as study room by the grandchildren and

one room for pooja. The trial Court has accepted this requirement to be

bona fide. The petitioners also claimed one room for guests and one room

for the son of petitioner no. 1 who was living in Chandigarh and who,

even according to the trial court, had every right to visit his parents. The

trial court, however, accepted the requirement of one room only for the

guests as well as the son staying at Chandigarh. The case of the

petitioners that the parents of the petitioner no.1 who were over eighty

years of age also needed to be live with their son has not been accepted by

the trial court on the ground that they were not dependant on their son for

their residence. Thus, the learned Additional Rent Controller concluded

that the petitioners were having only two bed rooms, one drawing room

and one dining room with them on the first floor and one room (shop

no.1) on ground floor while their requirement was of five rooms i.e. one

room for the petitioner no.1, one room for the petitioner no.2 and his wife

and one room for their child , one room to be used as a pooja room and

one for the guests. Still, leave was granted to the respondent to contest the

eviction petition on the ground that the landlords were claiming the

possession of four shops from three different tenants while their

requirement was not for all the four shops and since it could not be

decided at the stage of disposal of leave to contest application as to which

of the three shops should be got vacated and from which of the three

tenants leave deserved to be granted in all the three petitions. This is what

the learned Additional Rent Controller observed in the concluding para of

the impugned order:-

"In the present case, the total suit shops involved are four in number all measuring about 12 ft 9 inch x 7 ft 9 inch and since the requirement of the petitioner as discussed hereinabove not appears to be for the entire suit shops and it is coardinal principle of law that in such a situation leave to defend cannot be granted by pick and choose and therefore, in the circumstances, the bonafide requirements as stated by the petitioner's requires evidence in respect of their additional accommodation and in this regard reliance can be placed upon judgment reported in 2000 JT 3 397 titled as 'Santosh Devi Soni vs. Chand Kiran.'

6. Feeling aggrieved by the grant of leave to contest to the

respondent no.2, the petitioners filed the present revision petition.

7. The respondents were served with the notice of this petition but

they chose not to enter appearance and, therefore, I had heard the counsel

for the petitioners-landlords only.

8. In my view, the trial Court should have passed an eviction order

straightaway when respondent no.1, who was claimed by the petitioners to

be their tenant, failed to file any leave application. In any event, if the

leave application of the alleged sub-tenant was to be entertained, then too

the learned trial Court should have found the requirement of one room to

be used as a study room by the son of the petitioner no.2 and one room for

the old parents of the petitioner no.1 as bona fide. Even though the parents

of the petitioner no. 1 were living separately but considering the fact that

they were more than eighty years old the claim of petitioner no.1 that he

wanted them to live with him so that he could take care of them in case of

an emergency could not be considered to be not bona fide. The mother of

the petitioner no. 1 has already undergone bye-pass surgery. So, the claim

of the petitioners on that count should not have been rejected just because

of the fact that the old couple was not dependent on their son for residence.

For their safety and well being in old age they are definitely dependent on

their son. In fact, this aspect appears to have escaped the attention of the

trial court. So, the trial court should not have granted leave to defend to

the respondent no.2 and its view that even though the requirement of

landlord was bona fide the leave to defend deserved to be granted in all the

three cases against as there was no need of all the four shops for the

petitioners and it could not be decided at this stage as to which of the

tenants should be asked to vacate is totally an unreasonable view.

9. This petition is, therefore, allowed and an eviction order is passed

against the respondents but six months time is granted for the vacation of

the two shops.

P.K. BHASIN, J September 20, 2011 sh