Surender Garg vs Mohit Jindal And Anr.
2012 Latest Caselaw 5274 Del

*      THE HIGH COURT OF DELHI AT NEW DELHI

+                  RC REV. 360/2012

                                        Date of Decision:04.09.2012

SURENDER GARG                                      ......Petitioner
                          Through:      Mr.M.M.Singh, Adv.

                               Versus

MOHIT JINDAL AND ANR.                              ......Respondent
                 Through:               Mr.Ashutosh Gupta, Adv.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. This revision petition under Section 25B(8) of Delhi Rent Control Act (for short the 'Act') is directed against the order dated 19.05.2012 of Addl. Rent Controller (ARC), whereby the leave to defend application filed by the petitioner herein, was dismissed.

2. In the eviction petition filed by the respondents seeking eviction of the petitioner from the tenanted premises, which is a shop bearing No. 530, West Guru Angad Nagar, Laxmi Nagar, Delhi, the petitioner/tenant had filed leave to defend application, which was dismissed by the ARC vide the impugned order. The eviction of the petitioner was sought on the ground of the tenanted premises being required by respondent No.1 Mohit Jindal, for the

commercial purpose, as the respondents did not have any reasonably suitable commercial premises. The respondents' case was that the suit premises was owned by them, being the legal heirs of late Smt. Chameli Devi, the original owner/landlady of the premises. It was their case that out of the three shops on the ground floor of the suit premises, one shop was in the tenancy of the petitioner, second with some other tenant and third in the possession of the respondents. It was also the case of the respondents that the respondent No. 1 Mohit Jindal intended to start the business of telecommunication and other related goods from the shop in their possession as also the tenanted shop. It was averred that the shop, which is in the possession of the respondents, is not sufficient for operating or carrying franchisee business of any company of telecommunication, and to have a decent livelihood, Mohit Jindal intended to do his business from both the shops jointly.

3. The leave to defend application was filed by the petitioner, disputing the respondents to be the owners/landlords of the suit premises. It was alleged that the respondents owned several other properties such as 70A, Pocket A, Dilshad Garden, premises No. 74, Krishna Kunj Extension, II Part, IInd Floor, premises No. 219, Ist Floor, Guru Ram Das Nagar, Laxmi Nagar and premises being 629, Guru Ram Das Nagar, Laxmi Nagar, Delhi. It was also alleged that the site plan filed was not correct. It was further alleged that the

present accommodation with the respondents in the suit premises as also at other places, as stated, was sufficient and suitable.

4. The learned ARC has declined leave to defend, observing that the petitioner has not been able to make out any triable issue. With regard the bona fide requirement, he observed that it was the admitted case of the petitioner that the respondent No. 1 Mohit Jindal had long experience in telecommunication and now, required the premises to start the franchisee business in this field. So far as this observation of the ARC is concerned, it was submitted by the learned counsel for petitioner tenant and rightly so, that the ARC has committed an error. Though, it was admitted by the petitioner that the respondent No. 1 Mohit Jindal had the experience in telecommunication filed, but it was nowhere admitted by him that the respondents required the premises to start franchisee in telecommunication. The case that was set up by the respondents, was that the respondent No. 1 Mohit Jindal intended to have a franchisee from any company of telecommunications as he has experience in this field and was unemployed. The fact that he had some offer of opening a franchisee in telecommunication in hand as averred, is not supported by any document on record. Further, admittedly, the respondents are in possession of one shop in the suit premises, which is bigger in size than the tenanted shop. In view of the respondents being in occupation of one shop on the ground floor in the suit premises, the requirement of the adjoining tenanted shop,

in any case, would be that of additional accommodation and thus, the leave to defend is to be ordinarily granted and the tenant cannot be ousted at the threshold. On this aspect, I am of the view that the learned ARC has erred in declining the leave to defend to the petitioner. In the absence of there being any document on record that the respondent No.1 Mohit Jindal had any offer of franchisee as alleged, and further he being in possession of a similarly situated bigger shop, the genuineness and authenticity of his bonafide can be allowed to be tested by the petitioner tenant. The petitioner has made a triable issue in this regard, which needs to be tested by adjudication after evidence.

5. In view of all this, the impugned order is seen to be suffering from material infirmity and perversity. The petition is accordingly allowed; the impugned order dated 19.05.2012 is set aside. The parties are directed to appear before the court of ARC (East), Karkardooma Courts, who shall proceed with the case for trial.

6. Petition stands disposed of.

M.L. MEHTA, J.

SEPTEMBER 04, 2012 akb