Bhagwati Prasad Garg vs Rakesh Chaudhary
2012 Latest Caselaw 3557 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Judgment: 28.05.2012


+            RC.REV. 229/2012 & CM Nos.9300-01/2012


      BHAGWATI PRASAD GARG         ..... Petitioner
                  Through: Mr.S.N.Gupta, Adv.

                  versus


      RAKESH CHAUDHARY                       ..... Respondent
                  Through:           Ms.Kamlesh Mahajan, Adv.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 Impugned judgment is dated 29.8.2011; the application filed by

the tenant in pending proceedings under Section 14(1)(e) of the DRCA

had been dismissed. Eviction petition filed by the landlord had been

decreed.

2 Record shows that the present eviction petition had been filed by

landlord Rakesh Chaudhary on the ground of bonafide need. The

premises in dispute is a part of property No.57, Subhash Market, Kotla

Mubarakpur, Delhi; they comprise of three rooms i.e. two store rooms

and one shop on the ground floor; they have been depicted in red colour

in the site plan; out of these three rooms one is being used as a shop and

the other two are being used as godowns for storage purpose. Contention

of the petitioner is that he along with his brother Vinod Choudhary are

the co-owners of the properties bearing No.54 and57, Subhas Market,

Kotla Mubarakpur, Delhi. These properties had been bequeathed to

them by virtue of a will of their father. The brothers had arrived at a

family settlement on 01.4.2007 whereby the portion as depicted in blue

colour in the site plan had fallen to the share of his brother and portion

as shown in green colour had fallen to the share of the present petitioner;

stair case was common. This family settlement had been acted upon and

there upon a memorandum dated 06.9.2007 had also been executed

between the parties. Contention is that the present petitioner is living in

the rooms marked A, B, C which is in the blue coloured portion which

belongs to his brother Vinod Choudhary; in terms of the aforenoted

settlement; this portion has gone to the share of his brother Vinod

Choudhary and the parties had agreed that the premises which has fallen

to share of Vinod Choudhary (which is presently in occupation of the

present petitioner) will be vacated by him. Further contention is that the

family of the petitioner consist of himself, his mother Ram Wati, his

wife Roshni and two sons namely Raunaq and Sahil aged 13 and 11

years respectively. The size of the family is not in dispute. It is also not

in dispute that the portion presently in occupation of the petitioner has

fallen to the share of Vinod Choudhary in terms of the settlement. The

vehement submission of the learned counsel for the petitioner/tenant is

that the portion shown in red colour which is adjacent to the disputed

premises comprises of three rooms and which have now been vacated by

other tenants on 30.4.2011satisfies the need of the landlord. This is in

fact the only submission which has been urged before this Court.

3 The status of the parties as owner/landlord had not been disputed;

only argument addressed is on the issue that the landlord has already a

sufficient alternate accommodation available with him or not.

4 What is now borne out from the record is that a family settlement

had in fact been arrived at between the parties. It is even otherwise not

for the tenant to lay any challenge when a settlement had been arrived at

interse between the brothers. It is also not in dispute that in terms of the

settlement (written memorandum dated 06.9.2007) the portion A, B, C

which is in the blue colour had been agreed to be vacated by the

landlord in favour of his brother and since the portion adjacent to the

disputed premises which also comprises of three rooms had fallen

vacant on 30.4.2011 (pursuant to order of the court in another eviction

petition) this portion had also come into the hands of the landlord; even

then the accommodation with the petitioner (as is clear from the

averments made in the eviction petition) which is a minimum of seven

rooms is insufficient. The size of the family of the petitioner as noted

supra is not in dispute. One room is required for the mother of the

petitioner; one room for the petitioner and his wife, one room for his

children. Apart from three bed rooms a drawing/dining room, one puja

room (for his aged mother) and a study room for his two children as also

a kitchen are the requirement of the family of the petitioner. The

accommodation which has fallen vacant on 30.4.2011 comprises of

three rooms; the accommodation where the landlord is presently

residing has fallen to the share of his brother and he has to vacate this

property; the portion now available with the landlord is only three

rooms; the accommodation with the present tenant is two godowns and a

shop which the petitioner proposes to add to the existing three rooms

(which had fallen vacant on 30.4.2011) and thus give some kind of

semblance to his need which has been established to be bonafide and

genuine.

5 It is for the landlord to decide his own requirement and it is not

for the tenant to dictate terms to him. The averments made in the

eviction petition clearly show that the effective need of the landlord is

seven rooms. It is only if the demised premises are added to the existing

accommodation (fallen vacant on 30.4.2011) can the need of the

landlord be satisfied; he would thus have six rooms in his occupation;

he admittedly has to vacate the premises marked A,B and C which are

his brother's share of the property.

6 Averments made in the application seeking leave to defend as

also the oral arguments are all bordered on this submission; submission

being that the need of the landlord is satisfied by the vacation of the

three rooms on 30.4.2011. This submission is factually incorrect.

7 In this background the impugned judgment holding that the

landlord is entitled for a decree of eviction as no triable issue which has

to emanate from the application of the tenant for leave to defend suffers

from no infirmity; leave to defend cannot not have been granted in a

routine and mechanical manners. Petition is without any merit.

Dismissed.

INDERMEET KAUR, J

MAY 28, 2012 nandan