Delhi High Court
Manju Bahrgava vs Kamlesh Gupta on 5 November, 2015
* HIGH COURT OF DELHI AT NEW DELHI
+ RC. REVISION 340/2014 & CM APPL.17306/2014
Decided on: 5th November, 2015
MANJU BAHRGAVA ..... Petitioner
Through: Mr. R.K Pathak, Advocate
Versus
KAMLESH GUPTA ..... Respondent
Through: Mr. Praveen Jha, Advocate for
Mr. Manu Nayar, Advocate
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. By virtue of the present revision petition, the petitioner-tenant has
challenged the rejection of her leave to defend application and
passing of an eviction order dated 08.07.2014 by the learned
Additional Rent Controller-1, Central, Tis Hazari Courts, Delhi
(ARC).
2. Briefly stated the facts of the case are that the respondent-landlady
Smt. Kamlesh Gupta filed an eviction petition against the present
petitioner-tenant Smt. Manju Bhargava in respect of a premises
consisting of one room (miyani) above the garage and a common
latrine, more particularly shown red in the site plan annexed with
the petition, situated at 40/1, Shakti Nagar, Delhi-110007 filed
under Section 14 (1) (e) of the Delhi Rent Control Act, 1958 (DRC
Act).
3. It has been alleged in the eviction petition that one Smt. Savitri
Devi, mother of the respondent-landlady was the absolute owner of
the premises and in the year 1988 she had died whereupon the
premises was inherited by the respondent-landlady on the basis of a
Will dated 14.11.1983. The husband of the petitioner was inducted
as a tenant in the premises, however, his tenancy was terminated on
01.05.2009 and since he did not vacate the premises after expiry of
30 days, consequently, the petition for eviction under Section 14
(1) (e) of the DRC Act was filed.
4. It has been stated by the respondent-landlady that she is suffering
from brain cancer as well as breast cancer and has undergone
massive brain surgery due to which she is physically unable to
attend to her work. It is also alleged that she is suffering from
serious knee injury because of which she has not been able to climb
the stairs and she is residing all alone in Greater Kailash where also
the property is owned by her. It has been stated that since most of
her relations are living in Shakti Nagar area at this age she needs
help and comfort of her dear ones, therefore she has sought
eviction from the premises in question and wants to shift to
tenanted premises in Shakti Nagar area.
5. The petitioner-tenant contested the eviction petition and filed her
leave to defend in which bona fides of the respondent-landlady
were assailed. It was stated that the respondent-landlady had earlier
let out a portion of the tenanted premises as she did not have any
independent source of income and consequently this was only a
ploy to get the present petitioner evicted.
6. The learned ARC has rejected the leave to defend application of
the petitioner-tenant after referring to number of cases by
observing that the respondent-landlady is a old lady suffering from
brain and breast cancer and also suffering from knee injury,
therefore, medical condition is such as she has to be permitted to
retrieve the possession of the suit premises so that she is able to
shift to Shakti Nagar area under the tenanted premises where she
can get some assistance in maintaining herself from her relatives.
It is this rejection of the leave to defend application by the learned
ARC, which has been assailed by the tenant in the present revision
petition.
7. I have heard the learned counsel for the parties and have perused
the record.
8. I do not agree with the finding which has been returned by the
learned ARC wherein it had rejected the application seeking leave
to contest the petition as not raising any triable issue. The finding
returned by the learned ARC seems to be very highly unreasonable
as no reasonable person could have returned the same. It has not in
dispute that the parties have a relationship of landlord and tenant
nor is in dispute that the respondent-landlady is having property in
a posh area like Greater Kailash available with her where she is
presently living. Even if it is assumed that she is living all alone
without any assistance it cannot be imagined that a person would
leave a comfortable living and openness of accommodation and the
environment so as to shift in a highly congested area of Shakti
Nagar that too in a room which is only a miyani. The Miyani is a
mezzanine floor which is not having a height more than 7 ft. and if
a person lives in a room with a 7 ft. height, he is bound to feel
suffocation because of low ceiling. These miyanies are essentially
used for storage purpose though in the instant case because it was
let out to the petitioner-tenant who was living therein on account of
the necessity. But a person who is used to live in a regular
ventilated room or a spacious house can hardly be expected to shift
to a miyani because of the fact that her relations are living in that
part of the city.
9. Even from medical point of view the area where the respondent-
landlady is living is having number of government and non-
government hospitals as she is living in South Delhi and yet she
prefers to shift to Shakti Nagar area where there is hardly any
medical assistance available which will be imperatively needed by
the landlady as she is suffering from dreaded diseases of cancer
and has orthopedic problems also. Therefore, in such a factual
situation, the very bona fides of the respondent-landlady becomes
suspect whether the eviction of the petitioner is sought for the
purpose of shifting or only is a ploy to get rid of her from the
tenanted premises in question. This could be decided by the
learned ARC after permitting the tenant as well as the landlady to
produce evidence rather than believing the Affidavit of one party
over the other.
10. Therefore, I feel that the order of the learned ARC on this score is
erroneous which no reasonable person could have arrived at. The
impugned order dated 08.07.2014 is set aside and the petitioner-
tenant deserves leave to defend to be granted. Accordingly, the
present petition is allowed and the petitioner is granted leave to
defend.
11. Petitioner is directed to file written statement within a period of 30
days with advance copy to the other side who may file
rejoinder/replication.
12. Parties to appear before the concerned learned ARC on 11.12.2015.
13. Pending applications also stand disposed of.
14. Copy of the order be sent to the learned ARC for information.
V.K. SHALI, J.
NOVEMBER 05, 2015
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