Delhi High Court
Sh. Shiv Charan vs Sh. Ram Parshad on 15 October, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC.REV.No.337/2014 & C.M.Nos.17060/2014 (Stay),
17061/2014 (Exemption)
% 15th October, 2014
SH. SHIV CHARAN ......Petitioner
Through: None.
VERSUS
SH. RAM PARSHAD ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. Though this petition is filed under Section 25B(8) of the Delhi Rent
Control Act, 1958 (hereinafter referred to as 'the Act') however it ought to
have been filed under Article 227 of the Constitution of India since it is a
petition filed against allowing of the leave to defend and a review can be
filed under Section 25B(8) of the Act only against the dismissal of a leave to
defend. Therefore, the same is treated as a petition filed under Article 227
of the Constitution of India.
2. This petition under Article 227 of the Constitution of India impugns
the order of the Additional Rent Controller dated 07.7.2014 by which leave
to defend has been granted to the respondent/tenant. No one is present for
the petitioner on the first call as also on the second call.
3. The relevant paras of the impugned order showing that leave to
defend should have been granted are para nos. 6 to 9, and which paras read
as under:-
" 6. The respondent has placed on record a Rent Agreement Dated
2.1.2013 whereby the Petitioner has rented out one Shop in the very
same premises to a tenant namely Shri Ravinder Kumar and hence
argued that in case the petitioner is in bonafide need of suit property
under the tenancy of Respondent, there was no reason for the
petitioner to let out the same just 5 months prior to filing the present
petition.
7. The Respondent submitted that besides the suit property, the
plaintiff is owner of other properties viz:-
a. Property No.D-558, JJ Colony, Madipur, Delhi;
b. Property No.D-516, JJ Colony, Madipur, Delhi;
c. Property No.T-124, Baljeet Nagar, Delhi.
8. The respondent also stated that Hira Lal - the son of the petitioner
for whose need the present petition has been filed:
a. is already running a Factory of manufacturing of Jeans at E-
16/1072, Top Floor, Khalsa Nagar, Tank Road, Karol Bagh, Delhi;
b. is having a Shop no.1, Ground Floor, Dev Nagar, Delhi where
he is engaged in Retail Trade under the name and style of M/s
Versary.
CONCLUSION
9. After considering the rival contentions made by the parties, the
Court is of the opinion that the present leave to defend application is
entitled to be allowed on account of the following reasons:-
a. The Rent Agreement Dated 2.1.2013 by virtue of which the
petitioner has let out one shop in the very premises in which the suit
Shop is situated (though denied by the petitioner) just 5 months prior
to filing the present petition cast a doubt about the genuineness of the
Bonafide Need of the petitioner.
i. Whether the said Rent Agreement is genuine or not is a
Triable issue which needs to be established during trial
only.
b. Whether Sh. Hira Lal - Son of the petitioner for whose need the
petitioner has filed the present petition, is running a Factory of
manufacturing of Jeans at E-16/1072, Top Floor, Khalsa Nagar, Tank
Road, Karol Bagh, Delhi is also a triable issue which needs to be
established during Trial only.
c. Whether Sh. Hira Lal - petitioner's son for whose need he has
filed the petition, is having a Shop No.1, Ground Floor, Dev Nagar,
Delhi where he is engaged in Retail Trade under the name of M/s
Versary is again a Triable issue which needs to be established during
Trial only as prima facie the photographs, CD and the Business Card
filed by the Respondent cannot be ignored without granting an
opportunity to prove the same.
Hence, in the opinion of the Court, the Respondent has been
able to raise Triable issues w.r.t. BONAFIDE NEED of the
Petitioners.
Accordingly, the application of the Respondent seeking Leave to
Defend is allowed.
Let the written statement be filed within 30 days from today."
4. The aforesaid paras show that immediately before filing of the
eviction petition, one shop had been let out by the petitioner/landlord. The
petitioner/landlord is also stated to have other properties, and especially the
son Hira Lal for whose need the eviction petition was filed is also stated to
be carrying on business in shop no.1, ground floor, Dev Nagar, Delhi and
with respect to which, photographs, CDs and Business Cards were filed by
the respondent/tenant.
5. Powers under Article 227 of the Constitution of India are
discretionary and extraordinary powers, and these are meant to be exercised
only to prevent injustice. In the present case, there is no grave injustice to
the petitioner/landlord on account of grant of leave to defend to the
respondent/tenant, because the petitioner/landlord can always prove his case
on merits during the course of trial in accordance with law, and if the same
is done, the eviction petition would be decreed.
6. In view of the above, there is no merit in this petition, and the same is
therefore dismissed, leaving the parties to bear their own costs.
VALMIKI J. MEHTA, J
OCTOBER 15, 2014
KA
