Deepak Gupta vs Dhanesh Kumar Akaria
2015 Latest Caselaw 5307 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Judgment Reserved on: July 22, 2015
%                                      Judgment Delivered on: July 24, 2015

+                                RC.REV.361/2015

       DEEPAK GUPTA                                          ..... Petitioner
                            Through:   Mr.Kunal Sabharwal, Advocate.

                   versus

       DHANESH KUMAR AKARIA                                   ..... Respondent
                   Through: None.

CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI

PRATIBHA RANI, J.

1. The petitioner/tenant is aggrieved by the order dated 28th January, 2015 whereby his application seeking leave to defend in the eviction petition bearing No.E-439/13 under Section 14(1)(e) of Delhi Rent Control Act has been dismissed.

2. The Eviction Petition has been filed by the respondent claiming himself to be the landlord of the tenanted premises i.e. one room situated on the ground floor of premises No.1675/35, Nai Wala Karol Bagh, New Delhi, on the ground of bonafide requirement.

3. The facts as pleaded in the Eviction Petition are that the respondent/landlord along with his family consisting of his wife, two grown up children studying in 6th and 3rd standards and aged mother as well as family of his deceased brother, is residing at the second floor of the premises No. 1675/35, Nai Wala Karol Bagh, New Delhi. The petitioner/tenant is residing and carrying on business in a room on the ground floor. The

respondent/landlord needs the tenanted premises for the purpose of providing comfortable accommodation at the ground floor to his mother, who is a heart patient and it is not advisable for her to climb the stairs.

4. The petitioner/tenant filed leave to defend the eviction petition mainly on the following grounds:-

(i) The respondent is not the owner/landlord of the tenanted premises.

(ii) The respondent has created an artificial scarcity of accommodation by transferring four rooms at the ground floor to his paternal uncle in the garb of a family settlement which is neither registered nor adequately stamped.

(iii) The respondent is already in occupation of entire second floor of property No. 1675/35, Nai Wala Karol Bagh, New Delhi consisting of four big rooms, two kitchens and bathrooms.

(iv) The respondent is also having huge property in Rajinder Nagar, Delhi consisting of at least six rooms, bathrooms and kitchens etc. which has been given on rent. However, the petitioner has not been able to ascertain the complete details of said property in Rajinder Nagar.

(v) The respondent wants to get the petitioner evicted to sell the entire property and brokers have already been notified by him for the said purpose.

5. Learned counsel for the petitioner has submitted that his application seeking leave to defend has been dismissed by the learned ARC without even realising that at that stage the petitioner was not required to prove his defence as observed by learned ARC in para 19 of the impugned order.

6. Learned counsel for the petitioner has submitted that the family settlement has been entered into only in the year 2010 just with a view to create an artificial scarcity of accommodation to evict the tenant. The respondent inherited the suit property under the Will executed by his grandfather Mr.Ram Nath. As per the said Will, the respondent had a limited

right to live, use and give on rent the property falling in his share without having any right, title or interest in any manner to sell or to dispose of the same. Thus, under the Will the respondent had no right to part with the possession of the four rooms at the ground floor falling in his share, to his paternal grandfather and later on seek the eviction of petitioner on the ground of bonafide requirement.

7. In an eviction petition filed under Section 14(1)(e) of Delhi Rent Control Act, following three aspects are required to be considered for decreeing the petition.

(i) Firstly, there must be a relationship of landlord and tenant between the parties.

(ii) Second requirement is that the landlord must need the premises for his own need and/or the need of his family members.

(iii) Thirdly, the landlord does not have any alternative suitable accommodation.

8. It is admitted case of the parties that respondent has inherited the property No.1675/35, Nai Wala Karol Bagh, New Delhi under a Will executed by his grandfather. The petitioner was a tenant in the said property in respect of one room at the ground floor of that premises. The contention of the petitioner that an artificial scarcity of the accommodation has been created by entering into a family settlement is liable to be rejected for the reason tenant has no right to dispute the transactions which have taken place interse the family members once the family members did not dispute the said settlement. The tenant has no locus to raise an issue over the settlement between the family members with respect to the transactions of the transfer of the property under a family settlement.

9. As a tenant in the suit property the petitioner cannot deny the title of the respondent who has derived his title under a Will executed by his grandfather. Reliance can be placed on the decision reported as 155 (2008) DLT 383 Rajender Kumar Sharma & Ors. Vs. Leela Wati & Others wherein it was held that a landlord is not required to prove absolute ownership as required under Transfer of Property Act and he is required to show only that he is more than a tenant.

10. Another contention raised on behalf of the petitioner is the availability of the alternative accommodation. In the application seeking leave to defend only bald assertions have been made about existence of huge property in Rajinder Nagar which has been let out by the respondent without disclosing any particulars of the said property. In reply to the application seeking leave to defend this fact was denied by the respondent/landlord. A bald assertion without giving any details of the property in Rajinder Nagar which stands denied by the respondent/landlord, in itself is not sufficient to grant leave to defend.

11. The ground taken in the application seeking leave to defend that the respondent intends to sell the entire property after getting the tenant evicted is liable to be ignored for the reason that in reply to this paragraph the landlord specifically asserted that he does not want to sell the property. Otherwise also in case of any such conduct by the respondent, legal consequences ought to follow.

12. Now the question left to be considered is whether learned ARC was right in arriving at the conclusion that the tenanted premises was required bonafide by the landlord to meet the requirements of his aged mother who is suffering from various ailments. We may note the following facts:-

(i) The second floor is not in exclusive possession of the respondent/landlord as it is also shared by the family of his deceased brother. This fact is also clear from the fact that two kitchens are running on the second floor.

(ii) There is no dispute that the family of the respondent consists of his wife, two grown up children and his aged mother. Requirement of ground floor is basically to meet the requirement of mother of the respondent, who is a heart patient and climbing stairs upto second floor is an uphill task for her.

(iii) Non-existence of kitchen at the ground floor where the mother of the petitioner is likely to reside as and when the tenanted premises is vacated, cannot be permitted as a ground for grant of leave to contest as the old lady is not expected to cook for herself. Rather it is for the family of her sons to take care all these requirements.

(iv) Similarly merely because there is no bathroom on the ground floor does not raise a triable issue. Thus could not have resulted in grant of leave to defend as such provisions can always be made to meet the requirement of the mother of the respondent/landlord.

13. The contentions raised on behalf of the petitioner are not correct either on facts or on law. The petitioner has not been able to raise any triable issue hence learned ARC has rightly rejected the application of the petitioner seeking leave to defend.

14. In view of the above, the petition is dismissed.

15. No costs.

(PRATIBHA RANI) JUDGE JULY 24, 2015/st