Harcharan Singh vs Neeraj Sahu & Anr.
2012 Latest Caselaw 1851 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                        RC.REV. 115/2011


+                           Date of Decision:      19th March, 2012

#      HARCHARAN SINGH                         ....Petitioner
!                   Through: Mr. Brijesh Singh, Advocate

                                Versus


$      NEERAJ SAHU & ANR.                  .....Respondents
                      Through: Mr. S.D. Ansari, Advocate


      CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN

                               ORDER

P.K.BHASIN, J:

The present revision petition is filed by the petitioner-tenant under section 25-B of the Delhi Rent Control Act against the impugned order dated 22.11.2010 passed by Additional Rent Controller whereby the application filed by him under Section 25(5) seeking leave to contest the eviction petition filed against him by his landlords, respondents herein, in respect of one shop bearing no. 10274 ,Library Road, Azad Market, Delhi(hereinafter referred to be as tenanted shop) had been dismissed and consequently eviction order was been passed against him.

2. The relevant averments made in para no.18 (a) of the eviction petition on the basis of which eviction of the petitioner-tenant was sought by the respondents are re-produced below:-

"The petitioners are the owners of the shop no. 10274, Library Road, Azad Market, Delhi .

The said premises were let out for commercial purposes and the same is required bonafidely by the petitioners for themselves and for their brother who have no suitable premises to do the business.

The petitioner no.1 is aged 35 years is married having wife and a child, aged about 9 years, school going, and his mother too, petitioner Dheeraj Sahu is married aged about 33 years, is also married having wife and a child aged 7 years. All the family members are dependent on the petitioner for livelihood. One brother Pankaj Sahu; is also dependent on the petitioners. The petitioners have no place to work they have been purchasing and selling the electronic items as squatters having no permanent place to sit, they are facing great hardship for non availability of business place, due to non availability of shop , they are not able to earn sufficient to comfortably feed them. They thus need the shop in question bonafidely for themselves."

3. The petitioner-tenant filed an application for leave to contest the eviction petition wherein he had pleaded that the respondents - landlords had concealed material facts and had no bona fide requirement for the tenanted shop and that was evident from the

fact that the landlords have been disposing of their other shops and thus their requirement of the tenanted shop was not bona fide .

4. The landlords filed a reply to the application for leave to contest wherein they submitted that they required the tenanted shop bona fide for themselves and their brother who had no suitable commercial accommodation to do the business. They further pleaded that they had not concealed any material fact in eviction petition and that the other portions sold by them earlier were not commercial in nature.

5. The learned Additional Rent Controlloer has rejected the petitioner's application for leave to contest on the ground that he had failed to raise any triable issue. Feeling aggrieved, this revision petition was filed by the petitioner tenant.

6. From the record of the eviction case, it appears that the main plea raised by the petitioner tenant before the Additional Rent Controller was that the respondents-landlords were not requiring the tenanted shop since they themselves have been disposing of their other shops forming part of the property of which the tenanted shop was also a part.

7. The respondents-landlords had while not denying the fact that they had sold some portions of their property, had claimed that those portions were not commercial in nature and therefore, could not be used by them for starting their business for which the tenanted shop was required. The learned Additional Rent Controller has considered this plea raised by the petitioner to be not raising any triable issue on the ground that there was nothing on record to show as to who had

actually sold those portions and whether those portions could be used for running any business or not.

8. However, in my view, the petitioner-tenant was not required at the stage of consideration of his leave to contest application as to whether the portions which had been sold by the landlords could be used for business or not. That was a matter of evidence. Even otherwise, prima facie, the portions which the petitioner claimed to have been sold by the respondents were a part of the main building which appears to be totally commercial in nature and situated in a commercial area and so during the trial the petitioner will have to justify the sale of some portions of their property if they really were in need of some accommodation to start some business and in case they fails to justify that they might become disentitled to an order of eviction against the petitioner-tenant.

9. Learned Additional Rent Controller also noticed in the impugned order that admittedly the landlords had sold one shop during the pendency of the eviction petition but that fact was also not sufficient to grant leave to contest to the tenant as that property was also not commercial in nature. This was also a question of trial as to whether the property which the landlords had sold during the pendency of the eviction petition was commercial or residential. At the stage of disposal of an application for leave to contest, the Controller is not expected to require the tenant to bring on record full proof of the facts pleaded by him and particularly in the present case, that was not required to be done in view of the fact that the landlords themselves had admitted that they had sold certain properties not only

prior to the filing of the eviction petition but even thereafter also. In fact, during the course of hearing of the revision petition, the respondents' counsel had taken a different stand that some portions were sold by the respondents as they required money. This plea should have been taken before the Controller but was not taken and in fact there the stand was that the sold properties were not commercial and that fact also casts a doubt about the genuineness of their requirement of the tenanted premises.

10. I am, therefore, of the view that this revision petition deserves to be allowed and the impugned order of the learned Additional Rent Controller refusing leave to contest to the petitioner-tenant is liable to be set aside. This revision petition is accordingly allowed. The impugned order of eviction passed by the learned Additional Rent Controller is set aside.

11. The petitioner-tenant, consequently, is granted leave to contest the eviction petition. The matter is remanded back to the Additional Rent Controller where the parties shall appear for receiving further directions on 13th April, 2012 at 2.00 p.m.

P.K. BHASIN, J MARCH 19, 2012