Sh.Mahesh Kumar vs Sh.Pritam Chand (Since Deceased) ...
2014 Latest Caselaw 4180 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+              RC. REV. No. 302/2013 & CM No. 12578/2013(stay)

%                                                       5th September , 2014

SH.MAHESH KUMAR                                               ......Petitioner
                          Through:       Mr. Yashwant Jain, Advocate


                          VERSUS

SH.PRITAM CHAND (SINCE DECEASED) THR. LRS....... Respondents

Through: Mr. Man Mohan Gupta, Advocate

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 Section 25-B(8) of the Delhi Rent Control Act,

1958 (hereinafter referred as to 'the Act') is filed against the impugned

judgment of the Additional Rent Controller dated 31.5.2013 by which the

Additional Rent Controller has dismissed the leave to defend application

filed in the bona fide necessity eviction petition under Section 14(1)(e) of

the Act and the eviction petition has been decreed with respect to the

tenanted premises being the first floor of the property no. 1308, Gali Gulian,

Near Dharampura, Jama Masjid, Delhi - 110006.

2. The respondents/landlords filed the subject eviction petition claiming

that their family comprises of two sons aged 22 years and 12 years and two

daughters aged 28 years and 24 years; (elder daughter being married), and

the mother Smt. Sarita Jain/respondent no. 1, and therefore, they require a

total of at least five rooms, one each for the sons, one for the unmarried

daughter, one for the mother and one as a guest room for the elder married

daughter. Besides above, the respondents/landlords would also require a

store room, drawing room, dining room and also the amenities of kitchen,

bath rooms etc. The respondents/landlords however had with them only two

rooms on the second floor besides the amenities of bath room, kitchen etc

and one godown on the ground floor which is being used as a store room,

and hence the bona fide necessity eviction petition was filed.

3. Petitioner/tenant contested the eviction petition by filing the leave to

defend application. Two main grounds were argued before this Court for

setting aside of the impugned order and for granting of leave to defend.

Firstly, it is argued that the respondents/landlords have sufficient

accommodation as they have with them the entire second floor comprising

of two rooms with amenities. Secondly, it is argued that the eviction petition

filed is for partial eviction inasmuch three rooms on the ground floor were

also included in the tenancy but those three rooms have been validly sub-let

to two persons Sh. Kanhiya Lal and Sh. Bishan and since the sub-letted

portions are part of the tenancy, the eviction petition filed only with respect

to first floor of the tenanted portion is for partial eviction only and hence not

maintainable.

A third argument was also raised for the first time in this revision

petition that the respondents have subsequent to passing of the eviction order

let out one shop on the ground floor to two tenants, namely, Sh. Dalip Chand

and Sh. Brahm Dass Sharma, and therefore, the eviction petition is bound to

be dismissed.

4. The family members of the respondents are admitted and who are five

in number. These five persons will need five bed rooms, one drawing room,

one dining room, one store room along with the amenities of kitchens, bath

rooms etc. Respondents/landlords however have only two rooms on the

second floor and one godown on the ground floor. Therefore the

accommodation available with the respondents/landlords is quite clearly

insufficient inasmuch as they have only two rooms instead of their

requirement of seven rooms i.e five bed rooms, one drawing and one dining

room. Therefore, I do not find any illegality in the impugned order holding

that respondents/landlords have bona fide need of the tenanted premises

being the entire first floor.

5. The argument that the eviction petition is not maintainable because it

is for partial eviction inasmuch as two rooms on the ground floor with the

sub-tenants Sh. Kanhiya Lal and Sh. Bishan are also part of the tenancy, the

same is a misconceived argument because the admitted position on record is

that eviction petition has been filed in the year 2004 and from 1990 the

alleged sub-tenants are paying rent directly to the respondents/landlords thus

showing that these persons are direct tenants under the respondents/landlords

and are not sub-tenants through the petitioner. The fact that the petitioner

accepts that from the year 1990 he is not getting any rent from Sh. Kanhiya

Lal and Sh. Bishan is a clear pointer to the fact that the portions with Sh.

Kanhiya Lal and Sh. Bishan are not part of the tenanted premises but are

separate tenanted premises under the separate tenancies with the

respondents/landlords. Surely, if the tenancies were not direct and Sh.

Kanhiya Lal and Sh. Bishan were only sub-tenants through the petitioner

then the petitioner/tenant since 1990 would not have waited to continue to

allow Sh. Kanhiya Lal and Sh. Bishan to pay rent directly to the

respondents/landlords. Therefore, it cannot be held that the portions with

Sh. Kanhiya Lal and Sh. Bishan are part and parcel of the tenanted premises

with the tenancy of the petitioner.

6. So far as the aspect of the respondents/landlords during the pendency

of the petition having given out a shop on rent to Sh. Dalip Chand and Sh.

Brahm Dass Sharma is concerned, besides noting the aspect that the

respondents have denied this fact by stating that it is the respondent no. 1

who is carrying on small business in the subject shop which is alleged to be

in tenancy with Sh. Dalip Chand and Sh. Brahm Dass Sharm, however, even

if it is presumed that one shop on the ground floor is let out to Sh. Dalip

Chand and Sh. Brahm Dass Sharma the said aspect will be irrelevant

because the need of the respondents/landlords is for residential purpose and

not for commercial purpose, and as already stated above the

respondents/landlords need the tenanted premises on the first floor as per

their requirements of seven rooms since they have only two rooms in their

possession. Also, if the shop is treated as a residential room and which is

added to the two rooms with respondents/landlords even then their need is

not satisfied.

7. In view of the above, there is no merit in the petition and the same is

therefore dismissed with costs. Respondents/landlords should file an

affidavit in this Court along with the certificate of fees of the lawyers with

respect to the fees paid to the lawyers for this petition. This affidavit of any

one of the respondents supported by the certificate of fees which will be

costs which shall be liable to be paid by the petitioner to the respondents

within a period of four weeks of filing of the affidavit of costs with

certificate of fees.

SEPTEMBER 05, 2014                                VALMIKI J. MEHTA, J
godara