Mukesh Kumar Gupta vs Ajay Kumar
2012 Latest Caselaw 5758 Del

*           THE HIGH COURT OF DELHI AT NEW DELHI

+                          RC.REV. 508/2011

                                           Date of Decision: 25.09.2012

MUKESH KUMAR GUPTA                               ...... Petitioner
               Through:                 Mr. M.C.Dhingra, Adv.

                                  Versus

AJAY KUMAR                                          ...... Respondent
                           Through:     Mr. Ashwin Vaish, Adv.

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

M.L. MEHTA, J. (Oral)

1. This revision petition under Section 25-B(8) of the Delhi Rent Control Act (for short the 'Act') is directed against the order dated 24.08.2011 of Addl. Rent Controller (ARC), whereby the leave to defend application filed by the petitioner, was dismissed.

2. The petitioner is the tenant in respect of one shop in premises C- 102, Mandawali Unchepar, Delhi His eviction is sought by the respondent on the ground of bona fide requirement thereof by him for setting up of his own business. The respondent's case is that there are two shops on the ground floor of the premises, one of which is with the petitioner and another with the other tenant, and that he does not have

any other suitable commercial property for setting up of his business. The petitioner filed leave to defend application disputing the ownership of the respondent of the suit premises. It was alleged in the leave to defend application that the respondent has evicted Gurdeep Singh from a third shop on the ground floor of the premises, and has converted the same for residence and has not shown the same as a shop in the site plan.

3. With regard to the plea of the ownership of the suit premises, there is not much contest since the petitioner was admittedly the tenant under the mother of the respondent, and was paying the rent to her. It is not in dispute that the respondent is one of the legal heirs of his mother and other legal heirs have given no objection in favour of the respondent. That being so, the respondent can be taken to be co-owner of the suit premises. It is not the case of the petitioner that anyone-else other than the respondent has ever claimed to be the ownership of the tenanted premises.

4. This is not disputed by the respondent that he has got vacated one shop on the ground floor from Gurdeep Singh and has converted the same for residential purpose. The site plan that was filed by the respondent alongwith the eviction petition shows only two shops on the ground floor, one of which being with the petitioner and the other

with the tenant Tajuddin. The petitioner has filed his site plan to show that one shop of bigger size in the extreme left is converted into a room. During the course of arguments, it was not disputed by the learned counsel for the respondent that this shop was got vacated from Gurdeep Singh and has been converted into a room for residence. It is the submission of the learned counsel for the petitioner and to which, there was no satisfactory response that if the respondent required the shop for setting up business, he could not have converted the aforesaid bigger shop, taken from Gurdeep Singh, for residential purpose. This points towards the necessity of testing the bona fide requirement of the respondent of the tenanted premises. Further, it is seen that it has also not been disclosed in the eviction petition that this shop was got vacated from Gurdeep Singh and has been converted for residential use. So much so, it has also not been stated as to for whose residence, the aforesaid shop and other rooms are being used. In the petition, it has only been averred that the mother of the respondent died, leaving behind her husband and two sons and a daughter, and that the family of the respondent consisted of his wife and two minor children. It has not been averred that the accommodation, which was available with the respondent, except the shop vacated from Gurdeep Singh, was not sufficient for the respondent and his family.

5. The learned ARC seems to have overlooked all these aspects and simply proceeded to believe that the shop vacated from Gurdeep Singh

was being used as a residence by the respondent and so, there was no shop available with him for setting up his business.

6. The petitioner has succeeded in raising triable issues, requiring the respondent to establish his bona fide requirement of the suit premises for adjudication by leading evidence. Dismissal of the leave to defend application has led to gross injustice to the petitioner at the threshold. This calls for interference by this court. Consequently, the impugned order is set aside and the leave to defend is granted to the petitioner. The parties are directed to appear before the ARC on 17.10.2012 for further proceedings.

7. Petition stands disposed accordingly.

M.L. MEHTA, J.

SEPTEMBER 25, 2012/akb