Delhi High Court
Manju Sharma @ Maya Devi vs Kalawati on 12 January, 2015
Author: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC.REV. 436/2013 & CMs. 18963/2013 & 2970/2014 (stay)
% Decided on: 12th January, 2015
MANJU SHARMA @ MAYA DEVI ..... Petitioner
Through Mr. G.P. Thareja, Adv.
versus
KALAWATI ..... Respondent
Through Mr. Shahid Ali, Adv.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. The petitioner is aggrieved by the order dated 2nd August, 2013
whereby leave to defend application filed by the petitioner was dismissed.
2. Eviction petition was filed by the respondent claiming herself to be the
owner of a shop admeasuring 7 x 9 ft. situated at the ground floor of
premises No.1/3215, Mandoli Road, Shahdara, Delhi-110032. In the
eviction petition, the respondent claims that she was the owner of the
premises wherein four shops had been constructed. One shop had been sold
by her around 10 years ago and the other in the year 2008 for her bona fide
needs. Thereafter, the respondent was left with two shops one of which was
given in tenancy to the petitioner. It is further claimed that in the other shop,
the petitioner‟s husband is running a general merchant business however,
because of ingress and egress of the property being provided from the said
shop, the husband of the respondent is using only 1/3 rd area of the shop and
the rest of the shop is being used for ingress and egress of the property.
Thus, the respondent needs the tenanted premises for expansion of the
business of her husband.
3. Eviction petition was filed on 15th January, 2013. On a notice being
issued, leave to defend application was filed on 13th February, 2013 wherein
it was specifically denied that the respondent‟s husband was running a
general merchant shop. It was stated that in fact a pan-bidi shop was being
run from the said premises and the respondent‟s husband was running a tour
and travel business.
4. In the reply affidavit to the leave to defend application, the respondent
admitted that the respondent‟s husband is no more running general merchant
business, however stated that even if pan-bidi shop was being run, the
respondent was entitled to the tenanted premises for expansion of the
business.
5. A perusal of the pleadings in the present case would show that the
very basis of the respondent‟s eviction petition that the tenanted premises
was required for expansion of the business of respondent‟s husband i.e.
General Merchant was refuted by the petitioner which fact was admitted by
the respondent in the reply affidavit to the leave to defendant application.
6. In view of this fact situation the learned Trial Court ought to have
granted leave to defend to the petitioner as a triable issue was raised. The
petitioner has been able to discharge the onus which was on her to show that
the averments in the eviction petition cannot be accepted on the face of it and
hence triable issue was raised. The learned ARC brushed aside this plea of
the petitioner noting that the petitioner herein has taken contrary pleas, on
the one hand contending that some one is running a pan-biri shop and on the
other hand the petitioner‟s husband is running tour and travel business from
the same shop. He has not given any "particulars" of the other person who is
allegedly in possession of the adjoining shop. It is not alleged that the other
person is paying any rent to the petitioner and there is no allegation of recent
letting of the shop. The learned ARC failed to notice the admission of the
respondent that her husband was no more running a general merchant shop
and no denial of the fact that pan-biri shop was being run. The onus at the
stage of grant of leave to defend on the tenant is not to prove by way of
preponderance of probability by intimating who the "other person" is but to
prima facie show that there is material on which adjudication by leading
evidence is required.
7. It is well settled that the scope of interference in a revision petition in
terms of the proviso to Section 25B(8) of the DRC Act is akin to Article 227
of the Constitution of India whereby this Court exercises supervisory
jurisdiction and does not exercise appellate jurisdiction. This Court will
interfere in the order of the learned ARC declining to grant leave to defend
only if the view taken by the Trial Court is not a plausible view and is
perverse leading to failure of justice. The Hon‟ble Supreme Court in Shiv
Sarup Gupta Vs. Dr. Mahesh Chand Gupta AIR 1999 SC 2507 held as under:
"....The revisional jurisdiction exercisable by the High Court
under S.25B(8) is not so limited as is under S.115 CPC nor so
wide as that of an Appellate Court. The High Court cannot
enter into appreciation or re-appreciation of evidence merely
because it is inclined to take a different view of the facts as if it
were a Court of facts. However, the High Court is obliged to
test the order of the Rent Controller on the touchstone of
„whether it is according to law‟. For that limited purpose it may
enter into reappraisal of evidence, that is, for the purpose of
ascertaining whether the conclusion arrived at by the Rent
Controller is wholly unreasonable or is one that no reasonable
person acting with objectivity could have reached that
conclusion on the material available. Ignoring the weight of
evidence, proceeding on wrong premise of law or deriving such
conclusion from the established facts as betray the lack of
reason and/or objectivity would render the finding of the
Controller „not according to law‟ calling for an interference
under proviso to sub-section (8) of Section 25B of the Act. A
judgment leading to miscarriage of justice is not a judgment
according to law."
8. Considering the facts noted above, I am of the view that the petitioner
has made out a case for leave to defend as triable issues are raised and in
view thereof the impugned order is set aside. Leave to defend application of
the petitioner is allowed. Written statement be filed by the petitioner within
30 days. Replication, if any, be filed within 30 days thereafter. The matter
be listed before the learned Additional Rent Controller for further
proceedings on 6th April, 2015. The learned Additional Rent Controller is
however requested to expedite the trial and conclude the same within six
months. The user charges as directed by the learned Trial Court will
continue to be paid during the pendency of the eviction petition. In case any
amount is found to be paid in excess after the trial, the same will be refunded
to the petitioner.
9. Petition and applications are disposed of.
(MUKTA GUPTA)
JUDGE
JANUARY 12, 2015
'vkm'
