Harsh Kumar & Ors vs Man Mohan & Ors
2012 Latest Caselaw 1589 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 06.3.2012


+     RC. REV.No.524/2011 & CM Nos.22653-54/2011


HARSH KUMAR & ORS.                         ..... Petitioners
                Through:               Mr.Naresh Thanai, Advocate.

                   versus


MAN MOHAN & ORS.                            ..... Respondents
                            Through:   Nemo.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1. Impugned judgment is dated 27.8.2011; application filed by the

tenant seeking leave to defend had been dismissed; eviction petition

filed by the landlord had been decreed.

2. Record shows that the present eviction petition has been filed by

the landlord on the ground of bonafide requirement; the premises in

dispute is one room, kitchen WC on the first floor (as depicted in red

colour in the site plan attached) which has been tenanted out to the

tenant @ `12.12 per month exclusive of electricity charges. The

present eviction petition has been filed on the ground that the premises

are required bonafide by the landlord; the family of the landlord consists

of himself, his wife and their two grown up children. They are presently

in occupation of one room, baithak, WC as depicted in blue colour in the

site plan; they are also in occupation of one room ,WC and kitchen with

a kolki as shown in green colour; portion marked X in the site plan

consisting of one room WC and bath is being used as a factory portion

since the last 8-10 years by the petitioner. Present accommodation

available with the petitioner is insufficient.

3. The site plan has depicted these portions correctly; there is one

room, kolki and WC are on the ground floor and there is one room on

the first floor.

4. Application for leave to defend and the corresponding reply have

been perused. The main thrust of the argument of the learned counsel

for the petitioner is that the eviction petition has not disclosed the

complete accommodation; attention has been drawn to the averments

made in the eviction petition; contention being that only three rooms

have been disclosed in the present eviction petition wherein in the

application for leave to defend it has been vehemently averred that there

are six rooms in the occupation of the landlord to which there has been a

mere bald denial; second submission being that another alternate

accommodation is also available with the landlord at 1234, Mahal Sari,

Kashmere Gate, Delhi which has not been disclosed by the landlord to

which again there has been a bald denial. These are the only two

submissions which have been urged.

5. First contention of the petitioner that the landlord is in occupation

of six rooms and not of three rooms and he has not disclosed correct fact

in the eviction petition is not borne out from the record. Site plan has

depicted status of the property which is available with the petitioner; the

portions shown in blue and green colour are in the occupation of the

landlord which comprise of one room, baithak and WC on the ground

floor and one room, WC, kitchen on the first floor. There has been no

concealment of any material fact. The submission of the tenants that

there are six rooms available with the landlord has been vehemently

denied; no counter site plan has been filed by the tenant to support this

submission; how and from where he has gathered this notion has not

been explained. A mere bald submission that the landlord is in

occupation of the six rooms without anything else to substantiate this

submission does not and cannot in any manner raise a triable issue. This

submission is without any merit.

6. The second submission of the petitioner that an alternate

accommodation is available with the landlord at 1234, Mahal Sarai,

Kashmere Gate, Delhi has also been vehemently denied. No evidence

of any kind whatsoever has been placed on record by the tenant to

substantiate this averment which has been categorically denied on

affidavit by the landlord. Even as per the case of the tenant this property

is even otherwise in occupation of the tenants; thus in no manner can it

be said to be alternative suitable accommodation available with the

landlord. There is also nothing on record to show that this property is

owned by the landlord; the trial court has also returned a finding that

ARC in a connected petition qua the same property has returned a

positive finding that one Savitri Dhama was the tenant of the sister of

the petitioner in these premises at 1234, Mahal Sarai, Kashmere Gate

and not of the petitioner; these submissions of the petitioner that this

property is owned by the landlord is negatived on this count as well. No

triable issue has arisen.

7. Courts have time and again reiterated the position that unless and

until a triable issue arises leave to defend should not be granted in a

routine or a mechanical manner.

8. In (1982) 3 SCC 270 Precision Steel and Engineering Works and

Anr. vs. Prem Devi Niranjan Deva Tayal, the Apex Court held had held

as follows:-

"Prayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclosed a prima facie case i.e. such facts as to what disentitles the landlord from obtaining an order of eviction, the Court should not mechanically and in routine manner grant leave to defend."

9. No triable issue having been raised in this case; and the averments

made in the eviction petition having disclosed the bonafide need of the

landlord; the eviction petition was rightly decreed. Petition is without

any merit. Dismissed.

INDERMEET KAUR, J MARCH 06, 2012 nandan