Ndmc vs Shiv Kumar & Ors.
2014 Latest Caselaw 4169 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+ C.M.(M) No.1134/2012 & C.M.Nos. 17849/2012 (Stay), 15977/2013
  (for permission)

%                                                     04th September, 2014

NDMC                                                            ......Petitioner
                          Through:       Mr.Sanjay Poddar, Sr.Advocate with
                                         Mr.Govind, Advocate.

                          VERSUS

    SHIV KUMAR & ORS.                                      ...... Respondents

                          Through:       Mr.Varun Sharma, Advocate for R-1.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This petition under Article 227 of the Constitution of India impugns

the judgment of the Additional Rent Controller dated 12.1.2012 by which

the Additional Rent Controller has dismissed the leave to defend application

and has decreed the bonafide necessity eviction petition under Section

14(1)(e) of the Delhi Rent Control Act, 1958 with respect to the tenanted

premises comprising of three rooms, two temporary sheds, latrine and

bathroom on the ground floor of the property bearing no.5289, Hardhian

Singh Road, Krishna Nagar, Karol Bagh, New Delhi-05.

2. At the outset, I would like to note that the petitioner is the North Delhi

Municipal Corporation and was running an Ayurvedic Dispensary from the

tenanted premises, however, petitioner has already been evicted in execution

of the impugned judgment and decree i.e the petitioner is no longer in

possession of the suit/tenanted premises.

3. For eviction on the ground of bonafide necessity, the landlord has to

show three aspects. Firstly, there is a relationship of landlord and tenant.

Secondly, the landlord requires the premises for bonafide need of himself

and/or his family members, and thirdly, a landlord has no other alternative

suitable accommodation.

4. Before me, the learned senior counsel for the petitioner argues only

two aspects. Firstly, it is stated that the eviction petition was bound to be

dismissed because the respondents/landlords have not pleaded that they do

not have an alternative suitable accommodation, and therefore the eviction

petition lacks cause of action. The second aspect which is argued is that the

respondents/landlords have various alternative suitable accommodations and

which are stated in para 12 of the present revision petition, and therefore

leave to defend ought to have been granted and that the eviction petition

would have to be ultimately dismissed.

5. So far as the first aspect is concerned, on the first blush this argument

appeared persuasive, however, in the facts of the present case where the

impugned judgment and decree has been executed, I am inclined to take the

view that, no doubt, there is no specific averment that the landlords do not

have alternative suitable accommodation, however, a reading of paras 7 and

10 of 18(a) of the eviction petition when read holistically, it can be said that

it is pleaded that there is no alternative suitable accommodation because in

these paras of the eviction petition it is specifically averred that the daughter

of petitioner no.1 in the trial court/co-landlord no.1 was requiring the

suit/tenanted premises for his daughter namely Priyanka who is a lawyer and

who wanted to practice law and also for the son of petitioner no.2 in the trial

court namely Rahul who wanted to open an office in Delhi as there was no

other place to be used for an office by the son of the petitioner no.2/co-

landlord no.2. Therefore, in the facts of the present case, in exercise of my

revisional jurisdiction, I refuse to interfere with the order of the Additional

Rent Controller decreeing the eviction petition by refusing to grant leave to

defend.

6. So far as the second ground of the respondents/landlords having

various alternative suitable accommodations as stated in para 12 of this

petition is concerned, I may note that it is conceded on behalf of the

petitioner/tenant that no such averments were made in the leave to defend

application. The Supreme Court in the judgment in the case of Prithipal

Singh Vs. Satpal Singh (dead) through LRs (2010) 2 SCC 15 has held that

the statutory period of 15 days for filing of the leave to defend application is

inflexible and delay of even one day cannot be condoned. Effectively, what

the Supreme Court has said that whatever has to be pleaded and filed for

granting of leave to defend has to be done within 15 days and nothing can be

filed beyond a period of 15 days in the form of filing additional affidavits,

documents etc to urge additional facts for seeking leave to defend. It is on

this principle that a learned Single Judge of this Court in the case of Madhu

Gupta vs. Gardenia Estates (P) Ltd. 184 (2011) DLT 103 has held that with

respect to events which have already happened prior to the expiry of 15 days

period, if not already stated in the leave to defend application, thereafter they

cannot be added in the leave to defend application by seeking amendment to

the leave to defend application. Therefore, since the so-called alternative

suitable accommodations which are pleaded for the first time in this revision

petition are not mentioned in the leave to defend application, this Court is

precluded from considering the alternative suitable accommodations as these

have not been stated in the leave to defend application within 15 days.

7. 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 SEPTEMBER 04, 2014 KA