Sri Kishan vs Rohitas Saini
2012 Latest Caselaw 1492 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Judgment: 02.3.2012

+                 RC.REV. No.114/2010


SRI KISHAN                                       ..... Petitioner
                           Through:   Mr.V.P.Chaudhary, Sr.Adocate
                                      with      Mr.Sanjay         Saxena,
                                      Advocate.

                  versus


ROHITAS SAINI                                    ..... Respondent
                           Through:   Mr.Uchit Bhandari, Advocate.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1. The eviction petition filed by the landlord had been decreed; the

application seeking leave to defend had been dismissed. The premises

are property bearing No.1531A, Tri Nagar, Tota Ram Bazar, Delhi.

Premises had been rented out for a commercial purpose. Present

petition had been filed by the landlord under Section 14(1)(e) of the

Delhi Rent Control Act (hereinafter referred to as the "DRCA").

Contention was that the petitioner and his son are both unemployed and

present accommodation at Tota Ram Bazar is required by the petitioner

for carrying out a business for him and his son; both of whom are not

employed. It has been averred that the petitioner is the landlord/owner

of the premises. In the application for leave to defend there is no

dispute about the ownership of the landlord. The triable issue sought to

be sought to be set up by the tenant is that the landlord has an adjoining

shop from where he is already doing a business of bangles and artificial

jewellery etc. The photographs depicting the said shop as also other

documentary evidence including visiting cards showing the name

"Sandeep Bhai Choori Wala" had been relied upon to substantiate this

submission.

2. The landlord had denied these averments. It is not in dispute that

this shop "Sandeep Bhai Choori Wala" is adjoining the shop of the

tenant and which is in the occupation of the landlord; contention of the

landlord is that this is only a passage which goes inside into the interior

where the landlord is living with his family; no business is being run

from the said shop; submission being that no other triable issue has

arisen on this count.

3. This court is not in agreement with this submission of the

landlord. The photographs and the visiting cards filed by the tenant

(part of the record of the trial court) show that a shop under the name of

"Sandeep Bhai Choori Wala" is being run from the adjoining shop i.e.

the shop adjoining and adjacent to the tenanted shop; bangles/chooris

and other items of artificial jewellery are being sold from that said shop.

The name-board of "Sandeep Bhai Choori Wala" is clear and evident on

the said shop; there are more than five photographs depicting this status

It is also not disputed that Sandeep is the son of the landlord. These

photographs shows that this is a busy lane where public persons going

on foot as also on two wheeler scooters; contention of the landlord that

this board has been fabricated is clearly negatived as the photographs

have depicted it to be a busy working day and a board could not have

been put up clandestinely in the aforenoted situation. This documentary

evidence has in fact depicted the clear status of this shop i.e. "Sandeep

Bhai Choori Wala" which is in fact selling bangles and chooris as also

other items of artificial jewellery; as is also evident from its display

counter which is clearly visible; this cannot be a passage leading to an

interior as has been contended by the learned counsel for the landlord;

the display of the aforenoted items is apparent; the landlord has not

come to the court with clean hands; his submission that this is only a

passage and he and his son Sandeep are unemployed is negatived by

this documentary evidence.

4. Triable issues have arisen in this case. In this back ground the

eviction petition having been decreed noting that no triable issue has

arisen thus suffers from an infirmity. The judgment passed by this

Court in RC.REV. No.242/2011 titled Sushil Mittal Vs. Arun Kumar and

RCR No. 67/2012 titled A.K.Kakar Vs. Sheela Khanna relied upon by

the learned counsel for the respondent were all on different facts. Each

case has to be adjudged in its factual scenario.

5. The impugned judgment is accordingly set aside. Leave to defend

is granted to the tenant. Written statement be filed in four weeks with

advance copy to the petitioner. Parties are directed to appear before the

concerned ARC on 15.3.2012.

INDERMEET KAUR, J

MARCH 02, 2012 nandan