Delhi High Court
Om Prakash Arora vs Ratan Mala Jain on 17 December, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ R.C. REV 492/2011
Date of Decision: 17.12.2012
OM PRAKASH ARORA ....Petitioner
Through: Mr.Ravi D.Sharma, Adv.
Versus
RATAN MALA JAIN ...Respondent
Through: Mr.Rajesh Banati, Adv.,
Mr.Sunil Verma, Adv.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition, u/S 25-B (8) of the Delhi Rent Control Act (for
short "the Act"), assails the order dated 21.09.2011, passed by the
court of the Ld. ARC, Karkardooma Court, Delhi, by which the leave
to defend application filed by the petitioner was dismissed and an
eviction order was passed.
2. The petitioner is a tenant with respect to a shop forming part of
property bearing no. T-336, Gali No. 9, Gautam Puri, Delhi-110053
(hereinafter referred to as "the tenanted shop"). The tenanted shop was
let-out to the petitioner for non-residential purposes at a monthly rent
of Rs. 440/-. The respondent landlady filed an eviction petition u/S 14
(1) (e) of the Act on the ground that she requires the tenanted shop for
her husband who has retired from Delhi Jal Board in the year 2008 and
who wants to run his shop for their livelihood. It was submitted that the
husband of the respondent is suffering from illness and is under
continuous treatment and that his pension is not sufficient to meet the
medical expenses. The respondent is in possession of two shops, of
which one shop is run by her mentally retarded son with the help of his
uncle and she no longer has any relations them. The other shop is being
occupied by the petitioner. Thus the tenanted shop was bonafidely
required by her.
3. The petitioner filed a leave to defend application u/S 25 B (4) of
the Act wherein he brought about various issues. The same was
dismissed by the Ld. ARC vide order dated 21.09.2011. The said order
is under challenge in the present petition.
4. Before adverting to the submissions made by the learned
counsels for the parties, I must reiterate that the power of this Court
under Section 25-B (8) Act are not as wide as those of Appellate
Court, and in case it is found that the impugned order is according to
law and does not suffer from any jurisdictional error, this Court must
refrain from interfering with the same. The power under this provision
is limited and supervisory in nature. Only when it is evident that the
Rent Controller has committed grave illegality or came to a conclusion
which was not possible, based on the material produced, should this
Court interfere in the orders passed by the Rent Controller.
5. In light of the above principles of law, I have heard the counsels
for the parties and examined the records.
6. The submissions which are made by the learned counsel for the
petitioner before me are the same which were made by him before the
ARC and which have been adequately dealt with by him in the
impugned order. It was his submission that the tenanted shop is not
required by the respondent for herself or for her husband or for her son,
inasmuch as she is already in possession of one shop where her son is
running business along with his father. The case of the respondent in
this regard is that her son is mentally retarded and he is running a shop
with the assistance of his uncle and that her husband is a retired
Chowkidar from Delhi Jal Board and is suffering from ailments and his
meager pension is not sufficient enough for the medical expenses as
also for the livelihood and so he wants to set up his own business in the
tenanted shop.
7. There is no dispute that the son of the petitioner is mentally
retarded and he has two sons who are also mentally retarded and that
he is doing his business in one of the shops. There is also no dispute
that husband of the respondent is a retired Chowkidar from Delhi Jal
Board and is getting pension, which according to the respondent is
about Rs.4,000/- per month. This was also the plea of the respondent
that they are paying Rs.6500/- annually for the medical treatment card
and that they are also incurring further expenses on the treatment of the
illness of her husband. The pleas of the petitioner that there is no proof
of illness or that of the medical expenses or that the husband of the
respondent intended to start a business of his own, are vague and
irrelevant. It is common knowledge that old age has its own problems
and also diseases. There is no bar for a retired person to set up his
independent business not only to make some income for livelihood, but
also for his self esteem and also to keep him busy for sometimes.
Taking as is submitted that he has been working with his mentally
retarded son, still he is entitled to set up his own business, at least for
his self esteem.
8. Likewise plea that what business was sought to be set up by the
husband of the respondent, is also irrelevant in that it is not required to
be disclosed by the respondent as to what business he would be setting
up in the tenanted shop after its vacation. If the need is found to be
bonafide, he is entitled to take his own decision in due course of time
depending upon the finances that may be available with the family.
9. It was the submission of learned counsel for the petitioner that
the petitioner is also an aged person of 76 years and evicting him from
the tenanted shop will cause him hardships. It is also settled
proposition that this plea cannot be a ground for allowing leave to
defend application as the comparative hardships caused to the
petitioner due to eviction cannot be the deciding factor while
considering his leave to defend application. The Apex Court in the
case of Mohd. Ayub Vs. Mukesh Chand, (2012) 2 SCC 155 held thus:
"18......In our opinion, the hardship the appellants would
suffer by not occupying their own premises would be far greater
than the hardship the respondent would suffer by having to move
out to another place. We are mindful of the fact that whenever
the tenant is asked to move out of the premises some hardship is
inherent. We have noted that the respondent is in occupation of
the premises for a long time. But in our opinion, in the facts of
this case that circumstance cannot be the sole determinative
factor."
10. Lastly, it was submitted by the learned counsel for the petitioner
that the petitioner has paid a sum of Rs.25,000/- as security to the
respondent, which she was liable to refund. In this regard, he referred
to the Civil Suit that was filed by the respondent against the petitioner
and his son vide Suit No. 50A/2002/419/02. This was entirely a
misleading submission that was made by the learned counsel for the
petitioner. A look at the said suit would evidently show that an
advance of Rs.25,000/- was stated having been paid by the son of the
petitioner to the erstwhile owner Ashok Kumar Jain and not to the
respondent. On being controverted with these, the learned counsel
fairly conceded that the money was not paid to the respondent and that
the respondent never took the liability to pay the same to the petitioner.
In any case, this is entirely extraneous to the considerations governing
leave to defend application.
11. In view of my above discussion, I do not see any illegality or
infirmity in the impugned order of the learned ARC.
12. The petition stands dismissed.
M.L. MEHTA, J.
DECEMBER 17, 2012
awanish/rmm
