Delhi High Court
Vijay Kumar Gupta vs Ashok Sharma on 23 January, 2012
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 23.01.2012
+ RC.REV. 47/2010
VIJAY KUMAR GUPTA ..... Petitioner
Through Mr.G.P. Thareja, Adv.
versus
ASHOK SHARMA ..... Respondent
Through Mr. Vikas Gautam, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1. The order impugned before this court is the order dated
22.12.2009 wherein an eviction petition filed by the landlord under
section 14(1)(e) of the Delhi Rent Control Act (DRCA) seeking an
eviction of the tenant from the suit property had been decreed; the
application filed by the tenant seeking leave to defend had been
declined.
2. Record shows that the petitioner is one of the co-owners of
property bearing No. 27/2, Shakti Nagar, Delih-110007. The respondent
is stated to be a tenant in respect of one shop forming a part of this
property at a monthly rent of Rs. 330/-. In the eviction petition it has
been averred that the need of the landlord for this shop is bonafide;
petitioner's family comprises of himself, his wife, one son and one
daughter; petitioner is a B-Tech (Textile) Engineer; his wife is also a
graduate; his son is married and lives in Chennai and wants to come
back to do his business; there is no commercial accommodation with the
landlord; he requires this shop bonafidely to carry out his business.
3. In the application for leave to defend, the main contention of the
tenant (as averred in para 4 and 5) is that the premises in dispute is in
occupation of the landlord since the last 20 years; it is a huge area; five
time more than the area in dispute. The landlord has removed the walls
between the front portion of the shops which were in his occupation as
also the wall of the back portion and converted it into a big hall and in
May 2008, he let out this premises to M/s Reliance Money Ltd. from
where its business is being run. Contention is that this fact has been
concealed from the court; the need of the landlord is not bonafide; this
petition is liable to be dismissed.
4. The reply filed by the landlord to the corresponding para 4 and 5
of the application seeking leave to defend have been perused. It has been
admitted that the premises (as noted above) after breaking the partition
walls has been converted into a big hall and has been leased out to M/s.
Reliance Money Ltd. Contention of the landlord in his reply is that it is
choice of the owner to decide which premises he has to get vacated and
which is more suitable to him.
5. Lease Deed entered between the landlord and M/s. Reliance
Money Ltd. is dated 19.02.2008; it shows that the premises (the back
portion of the same premises) has been leased out to M/s. Reliance
Money Limited, a company incorporated under the Indian Companies
Act at a monthly rent of Rs. 80,000/- per month; a security deposit of
Rs. 4,80,000/- has also been received by the landlord. Admittedly, this
lease was created on 19.02.2008; this lease further stipulates that the
time is granted to the leassee to make necessary alteration; submission
of the tenant being that the actual occupation of the premises has been
handed over only in May 2008; further being that the eviction petition
having been filed in October, 2008, the paucity of accommodation has
deliberately and malafidely been created by the landlord; the whole
purpose of this eviction petition is to extract a higher rate of rent and this
is clear from the lease deed which has been executed of the same shop
on the back portion just a few months prior to the filing of the present
eviction petition.
6. These facts are admitted and borne out from the record. In this
factual scenario, a triable issue has arisen; triable issue being that as to
whether the need of the landlord is actually bonafide or malafide.
Admittedly, in February, 2008 a lease for the same shop of which he is
now seeking eviction has been created at a monthly rent of Rs. 80,000/-
per month; the present shop under the tenancy is fetching a rent of Rs.
330/- per month; submission of the tenant that the whole purport of the
eviction petition being to extract a higher rate of rent cannot be ruled
out; security deposit taken from the Reliance Co. is Rs. 4,80,000/- which
is a huge amount; the terms of the lease also specifies that the tenant to
carry out an addition and alteration in the said portion as such the
submission of the tenant that actual occupation of the premises has been
handed over only in May 2008 i.e. just three months prior to the eviction
petition also support this finding that a triable issue has arisen.
6. The submission of the landlord that it was on 31.03.2008 that he
landlord has retired and thus, although admittedly he had leased out
these premises in February 2008, yet the fact of his retirement hit the
landlord only in March, 2008 and in fact, he has filed a document dated
01.04.2008 showing that he had been relieved from his service and thus
his need has now arisen which is a bonafide need is an argument which
carries little force. Reply filed by the landlord to the application for
leave to defend nowhere discloses that he had retired in March 2008 and
thus his need in October 2008 (the date of filing an eviction petition),
had become a genuine need (i.e. run a business post retirement); even
otherwise the fact of retirement of the landlord was a fact which was
well within his knowledge at the time when he had leased out this
premises in February, 2008.
7. All these raise issues which require trial; Trial Court decreeing
the eviction petition without given the tenant an opportunity to defend
his case suffers from an infirmity.
8. Impugned order is set aside. Leave is granted to the tenant;
written statement be filed by the tenant in four weeks with advance
copy to the petitioner who may file rejoinder before the next date.
Parties to appear before the ARC on 06.02.2012 who shall proceed to
deal with the case on its merits.
9. Petition is disposed of.
JANUARY 23, 2012 INDERMEET KAUR, J
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