Ashok Kumar Sharma & Anr vs Ram Prasad Sharma & Anr
2012 Latest Caselaw 1090 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Judgment: 16.02.2012.

+                 RC.REV. 61/2012 & CM Nos.2468-70/2012


ASHOK KUMAR SHARMA & ANR              ..... Petitioners
                Through  Mr. Prem Kumar, Adv.

                  versus


RAM PRASAD SHARMA & ANR                           ..... Respondents
                Through               Nemo.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 The impugned judgment dated 12.08.2011 had dismissed the

application seeking leave to defend filed by the tenant in eviction

proceedings under Section 14 (1)(e) of the Delhi Rent Control Act

(DRCA) filed by the landlord Ram Prasad Sharma seeking eviction of

his tenant M/s Bhagwan Sahai & Company. Eviction petition

accordingly stood decreed.

2 The disputed premises comprise of a godown forming part of

property bearing No. 1013-14, Kucha Sarif Beg, Bazar Sita Ram, Delhi.

The averments in the eviction petition disclose that the aforenoted

godown had been rented out to the tenant at a monthly rent of `293/-

excluding other charges; the tenant was an old tenant; contention of the

petitioner is that he is carrying out a general merchandise shop in Bazar

Sita Ram which is opposite to the disputed premises; his shop is very

small having no storage space available to him to store his merchandise;

he accordingly requires the aforenoted premises for storage purpose;

further contention is that the petitioners who comprise of a family of

two sons, their wives, five grand children besides the two petitioners

themselves are living in a very small accommodation i.e. two rooms and

a verandah and a store on the first floor, one room and a small room on

the second floor which has a latrine; their residential accommodation is

also insufficient for their needs. Eviction petition had accordingly been

filed.

3 The averments made in the application seeking leave to defend

have been perused. The ownership of the disputed premises has not been

challenged. The challenge laid by the tenant to the eviction and which

has been urged and argued before this Court is a twofold challenge.

(a) The banafide need of the landlord has not been set up in his

eviction petition; he is confused; he is not aware whether the godown is

required for storage or for his residence.

(b) The premises have been let out for godown; they cannot be used

as a room and as such the averment of the petitioners that they need it

for residential purpose will not be established.

4 Submission being that the impugned judgment decreeing the

eviction petition suffers from an infirmity. The averments made in the

application seeking leave to defend have been perused. They are by and

large bordered on these submissions; the ground of ownership as noted

supra has not been disputed. The contention before this Court is that the

merchandise shop which is being run by the landlord has not described

as to what is the general merchandise he is selling and how many pans,

biddies and gutka are required to be stored in the disputed premises; no

details have been given; it is clear that the eviction petition suffers from

vagueness; pleas of the landlord have not been established.

5 The corresponding para of the reply filed by the landlord have

also been perused. In this reply, the landlord has reiterated that the

petitioner is doing the business of selling pan, gutka and biddies and

other daily used items; his business is of general merchandise; premises

had been let out to the tenant for a commercial purpose i.e. for a godown

which premises are now required by the landlord himself for the storage

of his goods.

5 These submissions made by the landlord have in fact not been

disputed; the arguments of the tenant being that the eviction petition is

vague for the reason that it has not disclosed the number of items which

the landlord is going to store in the aforenoted godown. The site plan

shows that the godown (which is admittedly opposite the shop from

where the landlord is carrying out his business) is a godown measuring

34'X18' feet; it is a fairly big size; the shop which is in possession of

the tenant is a small shop; the size of the shop has not been described in

the eviction petition. Even on a specific query put to learned counsel for

the petitioner if he could disclose about the dimension of the shop, he

has admitted that it is a small shop from where the landlord is carrying

out his merchandise business but the measurements are not known to

him either. Be that as it may, the scenario which has emanated clearly

shows that the shop from where the landlord is carrying out his business

of general merchandise of Pan, gutka, biddies and other allied items is a

small business premises and which is opposite the tenanted shop, he

needs the present shop/godown for storage of his business merchandise;

this submission is well substantiated and the submission of the tenant on

this count that details of the actual merchandise which is to be stored not

having been given by the landlord will not diminish his otherwise

bonafide need which is for the purpose as disclosed by him in his

eviction petition and reiterated in his reply.

6 In Prativa Devi (Smt.) Vs. T.V. Krishnan (1996) 5 SCC 353 it

was held herein as under:-

"The landlord is the best Judge of his requirement and Courts have no concern to dictate to the landlord as to how and in what manner he should live. The bona fide personal need is a question of fact and should not be normally be interfered with."

7 The application seeking leave to defend is wholly without any

triable issue. Unless and until the tenant sets up a prima facie defence

disclosing an issue which is triable, the Courts cannot in a routine or a

mechanical manner grant leave to defend; otherwise the very purport

and import of the summary procedure as contained in Section 25-B of

the DRCA which has been engrafted for a special class of landlords

would be defeated and this was not the intent of the legislature. If the

defence raised by the tenant is merely bald, whimsical or fanciful having

no basis or foundation, leave to defend may not be granted.

8 In 111 (2004) DLT 534 Shri Hari Shanker Vs. Shri Madan

Mohan Gupta and 155 (2008) DLT 383 Rajender Kumar Sharma &

Others Vs. Smt. Leela Wati and Others the Courts have time and again

reiterated:-

"The Courts cannot and should not in a mechanical or in a routine manner grant leave to defend."

9      Petition is without any merit. Dismissed.




                                                INDERMEET KAUR, J
FEBRUARY 16, 2012
A