Shakti Kumar Bhola Alias Shakti ... vs Atma Ram
2012 Latest Caselaw 5689 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                  R.C.REV.408/2011& CM 1899/2011

                                           Date of Decision: 20.09.2012

SHAKTI KUMAR BHOLA ALIAS SHAKTI BHOLA.. Petitioner
                Through: Mr. Aseem Mehrotra, Adv.

                                  Versus

ATMA RAM                                             ...... Respondent
                           Through:     Mr. J.S. Kanwar, Adv.

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

M.L. MEHTA, J. (Oral)

1. This revision petition under Section 25B(8) of DRC Act is

directed against the order dated 08.06.2011 passed by the ARC (North-

East), whereby leave to defend application filed by the petitioner, was

dismissed.

2. The respondent had filed a petition for eviction of the petitioner

from the tenanted premises comprising of two rooms/shops bearing

No. 1 and 3 in property No. 1/9241 (old No. 1/1520), Ground Floor,

Gali No. 6, West Rohtash Nagar, Shahdara, Delhi. The eviction of the

petitioner was sought by the respondent on the ground of bonafide

requirement of the said premises by him for his own business as he

does not have any other reasonably suitable accommodation for the

same. It was alleged that the tenanted premises was let out to the

petitioner for residential purpose, but the same is being used by him for

commercial purpose.

3. The petitioner filed leave to defend application, which came to

be dismissed by the ARC vide the impugned order. The said order has

been challenged in the instant petition by the petitioner. The foremost

plea that was raised by the petitioner is that a shop, which is adjoining

to the tenanted shop, has been got vacated by the respondent from M/s

Fashion Palace, and by removing its shutter, the respondent has fixed a

window, and that the said vacant shop is in the possession of the

respondent. The respondent in his reply to leave to defend application

denied that he has obtained possession of the shop from M/s. Fashion

Palace of Rinku or that the same is lying vacant and is in his

possession. The learned ARC taking note of this denial of the

respondent observed that even for the sake of arguments if it is

assumed that the said shop was got vacated, the same cannot be

considered as a triable issue, because this has no bearing upon the

bonafide requirement of the petitioner as this has admittedly been

converted into a residential accommodation by putting a window after

removing the shutter. This observation of the learned ARC is,

apparently, erroneous.

4. The learned counsel for the petitioner has drawn my attention to

the copy of the petition filed by the respondent against the tenants in

respect of the aforesaid adjoining shop, as also order dated 16.10.2004

passed by the ARC in that case. It was submitted by him, and was not

controverted by the counsel for the respondent, that the respondent had

filed the aforesaid eviction petition against the tenants who had taken

the plea of their using the said premises for commercial purposes of

Fashion Palace, and further that in pursuance of the settlement, that

was arrived at between them, the respondent had taken possession of

the said premises on 16th October 2004. This fact having come on

record, the denial by the respondent, of having obtained possession of

the aforesaid shop from M/s. Fashion Palace, cannot be said to be

honest. The respondent had outrightly denied having obtained the

possession of this premises or the same being adjoining to the tenanted

shop or being in his possession. The learned ARC has fallen in error in

believing the denial of the respondent. He also fell in error in

observing that in any case, the said shop was not available with the

respondent, having been now converted into residential, after removal

of shutter and by putting a window. The conversion of the commercial

premises, which was just adjoining the tenanted premises, into

residential also tends to create doubt in the bonafide requirement of the

respondent.

5. Moving further, it is the case of the respondent that he requires

the tenanted premises for setting up his business. The respondent is an

old person aged about 85 years. In the second legal notice dated

27.03.2010 issued to the petitioner, the respondent had stated the suit

premises to be required for the business/office purpose for himself and

for establishing his two grandsons, who were studying and needed

accommodation for office and for their residence. In the petition, there

was no averment of requirement of the tenanted premises for the

business or residence of those grandsons. In the third legal notice of

23.07.2010, the eviction was sought on the ground of the petitioner

allegedly misusing the tenanted premises for commercial purposes.

Though, there is no bar of setting up of business at any age, but the

requirement that is projected by the landlord, who is aged about 85

years, would require to be examined and evaluated to assess his

bonafide. In view of the fact that the respondent had tried to suppress

the fact of his having acquired a shop adjoining the tenanted premises

and later on having converted the same for residential purpose, the

petitioner seems to have raised triable issue as regard to the bonafide

requirement of the tenanted shop by the respondent.

6. Further, the conversion of the aforesaid shop into residential,

also needs to be tested in view of the fact that the respondent and his

wife were prima facie shown to be in possession of residential or

commercial properties either in their joint names or in the name of his

wife.

7. In view of my above discussions, the learned ARC seems to

have erred in recording that the respondent bonafidely required the

tenanted premises for setting up his business. The projected

requirement by the respondent of the tenanted premises, in the given

facts and circumstances, requires to be tested by affording an

opportunity to the petitioner, who has prima facie raised triable issues.

It is settled law that at this stage it is only to be seen as to whether the

tenant has been able to show prima facie any triable issue which may

disentitle the landlord to eviction order, and not that the defence may

ultimately fail.

7. In view of the above, the impugned order is set aside. Leave to

defend is granted to the petitioner. The parties are directed to appear

before the ARC on 8.10.2012 for further proceedings. Having regard to

the age of the respondent, it is expected from the learned ARC to

expedite the disposal of the petition.

8. The petition is disposed of accordingly.

M.L. MEHTA, J.

SEPTEMBER 20, 2012 awanish