Smt. Kusum Tyagi vs Sh. Satish Gupta
2014 Latest Caselaw 4339 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           R.C.Rev. No. 520/2012
%                                              10th September , 2014

SMT. KUSUM TYAGI                                           ......Petitioner
                            Through:     Mr. C.Mohan Rao and Mr. Lokesh
                                         Kumar Sharma, Advocates.

                            VERSUS

SH. SATISH GUPTA                                           ...... Respondent
                            Through:     Mr. K.N.Popli and Mr. Rohit Mehra,
                                         Advocates.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.             This petition is filed under Section 25-B(8) of the Delhi Rent

Control Act, 1958 (in short 'the Act') impugning the order of the Additional Rent

Controller dated 26.5.2012 by which the leave to defend application has been

granted to the respondent/tenant.


2.             One surprising fact is that today we are in September 2014 ie more

than two years and three months after passing of the impugned order, but the

petitioner has not even commenced leading her evidence. I may note that in Delhi

eviction petitions are decided in about one and a half years or so and if the

petitioner was sincere by now the main eviction petition itself would have been

decided after completion of evidence.
RCR 520/2012                                                                   Page 1 of 3
 3.             The only aspect with respect to the issue of grant of leave to defend

is that the petitioner/landlady claimed the suit/tenanted shop for carrying on

business, however, respondent/tenant pleaded that an adjoining shop in November

2011 was let out to one Mr. Pawan Radhey. The Additional Rent Controller in

para-4 of the impugned order notes that the respondent/tenant has placed on record

the photographs as well as visiting card of the occupier of the second shop Mr.

Pawan Radhey and who is carrying on business in the name of Shri Radhey

Traders from the adjoining shop.


4.             Therefore, there is clearly a bonafide disputed question of fact which

requires trial as to whether or not the need of the petitioner is bonafide because the

eviction petition is filed in the year 2012 and if the adjoining shop was let out in

November 2011 to Sh. Pawan Radhey, then really the petitioner/landlady would

not be requiring the premises for her bonafide need as was projected. Paras 2 and

4 of the impugned order dealing with this aspect read as under:-


               "2.     In the leave to contest application, the relationship is not
               disputed but it is claimed that the adjoining shop was lying vacant
               since 2009 to November, 2011 and has been let out by the petitioner
               in November, 2011 to one Pawan Radhey at a monthly rent of
               Rs.5,000/- and there is no bonafide requirement. It is also
               mentioned that one of the daughters is already married and three out
               of remaining four are employed for handsome salary and there is no
               bonafide requirement. It is also mentioned that property no.WZ-89,
               is fetching rent of more than Rs.40,000/- Per Month and therefore,
               there is no bonafide requirement.
                                             xxxxx

RCR 520/2012                                                                       Page 2 of 3
                4.     I have heard the submissions. Respondent has placed on
               record photographs as well as visiting card of the occupier of the
               second shop in the property. The same shows that one Pawan
               Radhey is running his business in the name of Shri Radhey Traders
               from that shop. The same prima facie shows that it is not in
               possession of Praveen Tyagi as alleged by the petitioner. Further
               though the petitioner in reply to leave to contest claims that the
               second shop is fetching rent @ Rs.2,100/- but petition says that it is
               fetching Rs.5,000/- Per Month as rent. Further the petitioner has
               misrepresented the court that all the five daughters are of
               marriageable age though admittedly one of them is already married
               and further the income of the second daughter was also concealed.
               In these circumstances, I am inclined to grant leave to contest to the
               respondent. The application therefore, is allowed."


5.             In view of the above, I do not find any error in the impugned order

granting leave to defend to exercise my extraordinary jurisdiction under Article

227 of the Constitution of India. I may note that the petition is filed under Section

25-B(8) of the Act, but no petition lies under Section 25-B(8) with respect to grant

of leave to defend, and Section 25-B(8) of the Act applies only when an

application for leave to defend is rejected and hence this petition is treated as one

under Article 227 of the Constitution of India.


6.             Dismissed.




SEPTEMBER 10, 2014                                VALMIKI J. MEHTA, J.

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