Vijay vs Avinash Kumar
2014 Latest Caselaw 541 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                              Date of Decision: 28.1.2014
+     R.C.REV.51/2014, CM No.1623/2014

      VIJAY                                     ..... Petitioner
           Through:      Mr. Arun K. Yadav, Adv.

                         versus

      AVINASH KUMAR                                ..... Respondent

                  Through:            None.

%     MR. JUSTICE NAJMI WAZIRI (Open Court)

The petitioner has impugned an order dated 15 th November, 2013

whereby his leave to defend application was dismissed and an eviction

order was passed against him with respect to the suit shop at the ground

floor of property No.WZ-853, Rani Bagh, Shakur Basti, Delhi-34, on an

eviction application filed by the respondent-landlord under Section

14(1)(e) of the Delhi Rent Control Act. The petitioner contends that

triable issues were raised in the application, which upon consideration

ought to have been allowed. The triable issues contended were that: i)

there was no bonafide need of the suit shop, since two shops having got

vacated by the landlord were re-let out two to three years ago; ii) there

was sufficient accommodation available with the landlord just at a

walking distance where the landlord could park six or seven cars if he so

wanted; iii) the petitioner wanted the suit shop for parking of a car which

had not even been purchased, therefore, the eviction petition was baseless

and he could not be evicted yet and finally; iv) that the suit shop was the

only place from where the petitioner-tenant was earning his livelihood.

The bonafide need was claimed on the ground that the son of the

petitioner intended to purchase a car for his own use and also for the use

of his family which included his wife and two sons, therefore there was a

need of parking space on the ground. After considering the contentions

of the parties, the Court concluded that no triable issue has been raised by

the respondent to grant him leave to defend; no material has been

disclosed nor any document filed or any evidence indicated prima facie to

falsify the claim of the petitioner for granting the leave to defend. The

Court reasoned that the suitability of parking space of a vehicle for family

use is to be decided by the landlord. It cannot be a case that when a

vehicle is being used for the family it may be parked at another property

although such parking space may be at a walking distance. It is settled

law that the suitability of accommodation is the prerogative of the

landlord and that "convenience and the safety of the landlord and his

family members would be relevant factors" Shiv Sarup Gupta vs. Dr.

Mahesh Chand Gupta, AIR 1999 SC 2507). The landlord had submitted

that the suit shop being in the rear portion of the property could be most

suitable for parking of the car and he being the best judge of the use for

which the accommodation was required it would not be open for the

Court to re-examine the landlord's judgment.

This Court is of the view that re-letting out of two shops two to

three years ago would have no bearing upon the present case. A

landlord's bonafide need have to be considered in presenti i.e. in the

present on the date when the eviction petition was filed. In the period of

two to three years since the re-letting out of two shops much would be

transpired to bring about change in circumstances for need of additional

space. The Trial Court rightly observed that the bonafide need for space

required for parking of a car to be purchased by the son, for his own use

and also for his family, was justified. The parking of car in the suit shop

being in the rear of the premises would be logical. The comparative

hardship of the petitioner in having to vacate the suit shop from where he

is stated to be earning his livelihood cannot be a ground for denial of

eviction. The Supreme Court has held that: "The Courts are required to

adopt a reasonable and balanced approach while interpreting the

legislations starting with an assumption that an equal treatment has been

meted out to both sections of society. In spite of the overall balance

tilting in favour of the tenants, while interpreting such of the provisions to

take care of the interest of the landlords, Courts should not hesitate in

leaning in favour of the landlords. Such provisions are engrafted in rent

control legislations to take care of those situations where the landlord too

is week, feeble and feel humble." (Shiv Sarup Gupta vs. Dr. Mahesh

Chand Gupta (supra)). The said judgment also held that along with other

accommodation a garage is a bare necessity for a comfortable living.

This Court is of the opinion that it would be most impractical and

inconvenient to expect one to park his family car at the distance from the

residence and trudge the distance with his wife and family and such

luggage as may be, whether in rain, winter or summer, whether in the day

or in the night, or in medical emergencies when a parking space is

available right in the residential building itself; and all this trouble and

inconvenience is expected to be borne by the landlord, only so that the

tenant is not evicted from the tenanted premises. Nothing could be more

odd and unpersuasive. The other parking space would be most

inconvenient and unsuitable.

Counsel for the petitioner has argued the same points which were

contended in the leave to defend. Each of those arguments has been duly

considered and not found favour in the impugned order for the reasons

discussed hereinabove. The conclusions arrived at by the Trial Court and

the reasons therefor are plausible in law, cogent and indeed correct.

In view of the aforesaid, this Court is not persuaded by the

arguments advanced by the counsel for the petitioner. The impugned

order does not warrant the interference of this Court in its revisionary

jurisdiction. The petition is devoid of any merit accordingly, it is

dismissed.

NAJMI WAZIRI (JUDGE) JANUARY 28, 2014/ak