Delhi High Court
Ashok Kumar Gupta vs Rajesh Kumar And Anr. on 3 November, 2015
* HIGH COURT OF DELHI AT NEW DELHI
Decided on: 3rd November, 2015
+ RC.REV. 172/2015
ASHOK KUMAR GUPTA ..... Petitioner
Through: Mr. R.L. Kohli, Advocate with
Ms. Shikha Goyal, Advocate
Versus
RAJESH KUMAR AND ANR. ..... Respondents
Through: Mr. Sunil Malhotra, Advocate
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a revision petition filed by the petitioner against the order
dated 16.01.2015 by virtue of which leave to defend of the
petitioner was dismissed and an order of eviction was passed.
2. Briefly stated the case which has been set up by the respondents-
landlords in the eviction petition was that they have become
owners of the property in question bearing No.120, Hari Nagar,
Ashram, New Delhi. It is alleged that there are four shops in the
said premises out of which three are let out to the tenants while one
of the shops is with respondent No.1 (Rajesh Kumar). It is alleged
in the petition that the present petitioner was in occupation of Shop
No.2 in the suit premises and the said shop was required bona fide
by respondent No.2 (Sudesh Kumar), who is currently working as a
Plant Manager with V.A. Tech. Kondly, Mayur Vihar, Phase-III,
New Delhi. It has been alleged that he intends to start his own
business of Sucker Machines used for sewerage purposes and
wants to open an office in the said shop. It is further stated that on
the back side of the suit property there are five residential rooms,
two of the rooms are in occupation of tenant Talwinder Singh, one
is in occupation of one Inderjit Singh and one with Trilok Chand
and the remaining one room is in occupation with the respondents-
landlords. It is further stated that respondent No.1 intends to shift
his residence from the current place, that is, from 27, Bazar Lane,
Jangpura, Bhogal, New Delhi to the said room and occupy the
same himself. This is a broad parameter on the basis of which
retrieval of the shop which is under the occupation of the present
petitioner was sought.
3. The petitioner-tenant filed his leave to defend and challenged the
bona fides of the respondents-landlords seeking his eviction from
the shop in question. His contention was that apart from property
in question, the respondents-landlords owns property bearing
No.27, Bazar Lane, Jangpura, Bhogal, New Delhi. They also own
property in Aali, Village Badarpur, New Delhi, another property in
Village Dadri, U.P. as well as a property in Nehru Place, New
Delhi. It has been also stated that a shop which is adjoining to the
shop of one Banwai Lal in the suit premises is also lying vacant.
These facts were denied by the respondents-landlords in their reply
Affidavit except that they admitted property bearing No.27, Bazar
Lane, Jangpura, Bhogal, New Delhi as owned by them but it was
claimed to be purely a residential property. The property in Village
Aali, Village Badarpur, New Delhi was also admitted but it was
stated that it was acquired by govt., however, the ownership of the
property at Village Dadri, U.P. and Nehru Place, New Delhi was
denied. It was also denied that they have a shop adjoining to the
shop of Banwari Lal lying vacant.
4. On the basis of these broad parameters, the learned Additional Rent
Controller (ARC) rejected the leave to defend of the petitioner and
on 16.01.2015 passed the order of eviction.
5. I have heard Mr. R.L. Kohli, the learned counsel for the petitioner
as well as Mr. Sunil Malhotra, the learned counsel for the
respondents-landlords.
6. Mr. Kohli, the learned counsel for the petitioner has raised one
main issue for grant of leave to defend by contending that the
requirement of the respondents-landlords is not bona fides and in
order to challenge the same, it has been contended that when the
notice was given in the month of May, 2014 for vacation of the
shop in question it was stated that the shop is required for the bona
fide purpose by respondent No.1. But when the petition itself is
filed, the requirement of respondent No.2 was set up which clearly
proves that it was not genuine and bona fide. In addition to this, it
has been stated that the requirement of the respondents is not
immediate requirement reason being respondent No.2 is already
working in a private company and therefore, his requirement is not
genuine and he is gainfully employed. It was accordingly prayed
that the present petitioner be granted leave to defend to contest the
eviction petition.
7. Mr. Sunil Malhotra, the learned counsel for the respondents-
landlords has contested this and justified the order which has been
passed by the learned ARC. It has been stated that moment the
shop is vacated respondent No.2 will resign from his service and
would start his business.
8. I have carefully considered the rival contentions and gone through
the record. I feel that the order which has been passed by the
learned ARC rejecting the leave to defend application on
16.01.2015 at least on one aspect cannot be sustained. This is on
account of the fact that the legal position is that the bona fide
requirement of the landlord must be in praesenti. It is not to be a
deferred requirement in future. In the instant case, the case which
has been set up by the respondents-landlords is that the shop in
question is required for the benefit of respondent No.2 who
admittedly is working in a private company, therefore, if he is
working in a private company his requirement is not in praesenti.
One can understand that it is not necessary that a person must come
on to the road but at least he could have shown his bona fide by
tendering his resignation from his job in advance and pleaded
before his employer that his resignation be deemed to be from a
future date, i.e., a specific date fixed by him, especially, in the light
to the fact that the eviction order has been passed on 16.01.2015,
still petitioner No.2 originally, who is respondent No.2 in the
present revision petition, has not resigned and continue to be in
employment which clearly shows that his need is not in praesenti.
Therefore, it cannot be a ground on the basis of which the leave to
defend should have been rejected by any reasonable person and
more so when the law is in favour of the petitioner herein on this
aspect.
9. The bona fides of the respondents with regard to the requirement is
also suspect because of the fact that the notice is not disputed
having been given by the respondents before the process of
eviction was initiated. In this notice, it was specifically stated that
the shop is required for the benefit of respondent No.1, that is
Rajesh Kumar, which later on goes into oblivion and the
requirement of respondent No.2, that is, Sudesh Kumar is set up.
The reason for setting up the requirement of Sudesh Kumar in the
eviction petition later is not far to seek. The reason for this is that
one of the shops is already being used by respondent No.1, that is,
Rajesh Kumar. Therefore, if at all he had to seek retrieval of the
shop from the present petitioner, it would have been a case of
additional accommodation and, therefore, in a case of additional
accommodation, petitioner would have been granted leave to
defend and contest the matter because the requirement for
additional accommodation has to be proved.
10. All these things clearly show that the order of rejection of leave to
defend by the learned ARC cannot be sustained in the eyes of law
as no reasonable person could have arrived at this conclusion. I,
therefore, set aside the order of rejecting leave to defend and grant
leave to defend conditioned only with regard to the bona fide
requirement only.
11. The present petitioner shall file his written statement within a
period of four weeks from today with advance copy to the
respondents, who may file rejoinder within one month thereafter.
12. Parties to appear before the learned Additional Rent Controller on
01.12.2015.
13. With these directions, the revision petition is allowed.
14. Pending applications also stand disposed of.
V.K. SHALI, J.
NOVEMBER 03, 2015
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