Delhi High Court
Shri Digambar Singh Rana vs Sh. Janam Singh Dhariwal & Anr. on 7 August, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC REV No. 210/2013
% 7th August, 2014
SHRI DIGAMBAR SINGH RANA ......Petitioner
Through: Mr. Sidharth Pandit, Advocate.
VERSUS
SH. JANAM SINGH DHARIWAL & ANR. ...... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. No one appears for the respondents. No one appeared for the
respondents even on 8.7.2014 and therefore they were proceeded exparte on
that date.
2. The present petition under Section 25B(8) of the Delhi Rent
Control Act, 1958 (hereinafter referred to as 'the Act') impugns the order of
the Additional Rent Controller dated 15.5.2013 by which the
respondents/tenants have been granted leave to defend. Leave to defend has
been granted by making the following observations in para 4 of the
RC REV No.210/2013 Page 1 of 4
impugned order and in which it is stated that two shops on the main road in
property bearing No.H-193-B, Dilshad Garden, Delhi would be an
alternative suitable accommodation as also one shop in property bearing
No.194A, Dilshad Garden, Delhi:-
"4. In the respective leave to defend applications, the applicant-
respondent No.1 has averred that he ceased to be a tenant 3-4 years
back and since then vide an oral agreement, tenancy is continuously
in the name of his son, who has been impleaded as respondent
No.2. Further the premises in question is stated to be a residential
premises and not a commercial shop. Besides these grounds,
certain other properties are also allegedly owned by the petitioner
and the nature of these properties is residential, commercial,
residential-cum-commercial. The defence grounds on these lines
do appear in para 6 and para 7 of the respective affidavits in support
of the leave applications. It is alleged that in property No.H-193-B,
Dilshad Garden, Delhi, the petitioner is having two shops on the
main road and that another shop is there in the property No.H-194-
A, Dilshad Garden, Delhi, which is being used for running it as
Titan-Timex (Watches) Shop, by the elder son of the petitioner.
These grounds are prima facie sufficient for the purpose of granting
leave to the respondents to defend the present proceedings.
Ordered accordingly.
The written statements be filed within 30 days positively; with an
advance copy to the opposite party/counsel against receipt.
Be put up on 30.7.2013 for replication etc."
3. In my opinion, the Additional Rent Controller has committed a
clear cut illegality and perversity in passing the impugned order inasmuch as
the respondent/tenant only made a self-serving statement in the affidavit
supporting the leave to defend application that there were two shops of the
petitioner/landlord in property bearing no.H-193B, Dilshad Garden, Delhi
RC REV No.210/2013 Page 2 of 4
and which cannot be believed, because in the reply to leave to defend
application with the supporting affidavit thereof it is specifically denied by
the petitioner/landlord that there do not exist the alleged two shops which
are stated to exist in property bearing No.H-193B, Dilshad Garden, Delhi.
Therefore, a mere self-serving averment of the respondents/tenants cannot
create existence of two shops belonging to the petitioner/landlord when
really those shops do not exist or stand in the name of the
petitioner/landlord. Such a defence of a tenant thus does not create a triable
issue.
4. The second reason for grant of the leave to defend is that the
elder son of the petitioner/landlord is allegedly carrying on the business of
watches of Titan and Timex in a property being shop no.H-194A, Dilshad
Garden, Delhi. In this regard, once again except the self-serving averment of
the respondents/tenants there is nothing filed in support of the same and in
fact, of such a plea, the petitioner/landlord has stated that neither the
petitioner nor his son has anything to do with the shop bearing no.H-194A
which is in fact a shop in which one Mohd. Akram is running an electronic
repair shop in the name and style of M/s The Time Clinic. Therefore, a mere
self-serving averment that the son of the respondent/landlord is having a
shop cannot help the respondent to allege existence of triable issue. In any
RC REV No.210/2013 Page 3 of 4
case, the petitioner/landlord has asked for vacation from the suit/tenanted
shop for business of both his sons, and therefore even if one son allegedly is
carrying on the business of Titan and Timex (and which story in any case is
not correct) yet there would be requirement for another son of the tenanted
shop and accordingly to decree the bonafide necessity petition.
5. I may note that counsel for the petitioner states that respondents
are not even appearing before the Court of the Additional Rent Controller
below after passing of the impugned order.
6. In this view of the matter, the petition is allowed. Impugned
order dated 15.5.2013 granting leave to defend is set aside. Eviction petition
of the petitioner/landlord with respect to the tenanted shop on the ground
floor of property bearing no.N-11/A-2, Dilshad Garden, Delhi as shown in
red colour in the site plan annexed with the eviction petition is decreed.
Respondents will be entitled to a statutory period of six months to vacate the
suit premises.
AUGUST 07, 2014 VALMIKI J. MEHTA, J.
Ne
