Delhi High Court
Salma vs Nanhey Miyan @ Naseem Khan on 18 May, 2012
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:18.05.2012
+ RC.REV. 114/2011 & CM No. 7744/2011
SALMA ..... Petitioner
Through Petitioner with her counsel
Mr. Saurabh Sharma, Adv.
versus
NANHEY MIYAN @ NASEEM KHAN ..... Respondent
Through Mr. Shamim Ahmad Khan, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 The impugned judgment is dated 22.01.2011; the application filed
by the tenant seeking leave to defend in pending eviction proceedings
under Section 14 (1)(e) of the Delhi Rent Control Act (DRCA) had been
dismissed.
2 Record shows that the present eviction petition has been filed by
Nanhe Miya, the landlord seeking eviction of his tenant Salma from a
room with common bath and latrine on the ground floor of property
bearing No. 4415, Ground Floor, Gali No. 22, Shanti Mohalla, Old
Seelampur, Delhi. The petitioner claims himself to be the owner of the
suit premises; eviction petition has been filed on the ground of bonafide
requirement; contention is that the family of the petitioner comprise of
himself, his wife and six children of whom five are sons and one is a
daughter; the daughter is aged 14 years and is a chronic patient of T.B.;
her treatment is going on at Jain Charitable Hospital; petitioner has two
other rooms on the second floor which are occupation of his two
brothers-in-law; there are two rooms on the back side which are also
with other tenants; the petitioner is presently living in a hall measuring
about 18'X10' feet on the first floor of the premises. The present room
which is on the ground floor opens from front side. Premises are
required by him in order that he can accommodate his daughter who
being of weak health is facing difficulty in climbing stairs on the first
floor; fresh air flow is also required by a T.B. patient and the petitioner
himself who is also 55 years of age also find it difficult in climbing
stairs. Present premises are required for the aforenoted purpose.
3 Leave to defend has been filed. The averments contained therein
by and large recite what has been contained in the eviction petition;
contention is that the rate of rent is not Rs.1,500/- per month but is
Rs.400/- per month and the same is being paid; it is denied that the only
accommodation available with the petitioner is a hall measuring
18'X10' on the first floor; contention is that the second floor also
comprises of two rooms which are available with the petitioner; it is
denied that the premises are required by the landlord. This is the sum
and substance of the application seeking leave to defend.
4 Reply filed by the corresponding paras of the application seeking
leave to defend have been perused. It is reiterated that the two rooms on
the second floor are with the brothers-in-law of the present petitioner
and the two rooms on the back side are with the other tenants which
factum is also not in dispute. The size of the family of the petitioner is
also not in dispute; the family comprises of a married couple and six
children; it is also not in dispute that the daughter of the petitioner is
suffering from T.B. and she is in week health condition and has
difficulty in climbing stairs. Even otherwise, the present premises opens
up on the front side and have a good ventilation which is easily
decipherable from the site plan.
5 In this background, on no count can it be said that any triable
issue has arisen.
6 In (1982) 3 SCC 270 Precision Steel & Engineering Works &
another Vs. Prem Devi Niranjan Deva Tayal the Apex Court had noted
that the 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.
7 Unless and until a triable issue has arisen leave to defend cannot
be granted; if this is done the very purpose and import of the Section 25-
B of the DRCA will be given a go by; which was not the intent of the
legislature.
8 The Supreme Court in Prativa Devi (Smt.) Vs. T.V. Krishnan
(1996) 5SCC 353 had held in this context inter alia noted as:-
"The landlord is the best judge of his residential requirement. He has a
complete freedom in the matter. It is no concern of the courts to dictate to
the landlord how, and in what manner, he should live or to prescribe for him
a residential standard of their own."
9 In this background impugned order decreeing the petition and
dismissing the leave to defend application filed by the tenant suffers
from no infirmity. Petition is without any merit. Dismissed.
INDERMEET KAUR, J
MAY 18, 2012
A
