Daljit Dutta vs Sukh Dev Mongia
2015 Latest Caselaw 8713 Del

*                 HIGH COURT OF DELHI AT NEW DELHI
+                            RC. Revision No.295/2015
                                        Reserved on: 3rd November, 2015
                                     Pronounced on: 23rd November, 2015

DALJIT DUTTA                                          ...... Petitioner
                       Through:   Mr. S.D. Ansari, Advocate with
                                  Mr. I. Ahmed, Advocate along with
                                  Petitioner in person.
                         Versus

SUKH DEV MONGIA                                     ...... Respondent
            Through:              Mr. Sunil Malhotra, Advocate with
                                  Mr. Amit Sanduja, Advocate.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is a revision petition filed by the petitioner against the order

dated 18.12.2014 passed by the learned Additional Rent Controller,

(Central), Tis Hazari Courts, Delhi rejecting the leave to defend

application of the present petitioner-tenant in an Eviction Petition

No.E-791/14 titled Sukh Dev Mongia v. Daljit Dutta and passing

an eviction order.

2. I have heard the learned counsel for the petitioner as well as the

learned counsel for the respondent-landlord. I have also gone

through the record.

3. Briefly stated the facts as alleged in the eviction petition are that

the property No.4759, Deputy Ganj, Sadar Bazar, Delhi was owned

by M/s. Debi Prasad & Sons. Respondent Sukhdev Mongia along

with one Santosh Jain had purchased the aforesaid property in the

year 1984 from M/s. Debi Prasad & Sons. It was stated in the

eviction petition that on 14.07.2011 the suit property was

partitioned mutually by the respondent Sukh Dev Mongia and

Santosh Jain and a Partition Deed was also drawn. The present

petitioner was a tenant in respect of one room and a kitchen on the

ground floor with a common latrine, bathroom and an open

courtyard on the ground floor and another room on mezzanine

floor, more particularly shown in red in the site plan attached to the

eviction petition. The petitioner was inducted as a tenant by the

erstwhile owner M/s. Debi Prasad & Sons and by virtue of the suit

property having been purchased by Sukh Dev Mongia and Santosh

Jain the present petitioner became the tenant under them. It is also

stated that after the partition, the tenanted portion fell to the share

of Sukh Dev Mongia and thus Sukh Dev Mongia was stated to be

the landlord of the petitioner and the owner of the present premises.

Sukh Dev Mongia is stated to be a practicing Advocate and having

a law office on the first floor of the property bearing No.385,

Shivaji Road, Azad Market, Delhi. It is stated that Sukh Dev

Mongia is a senior citizen and suffering from age related problems

because of which he finds it difficult to climb up to the stairs and

hence he wants to shift to the suit property where he would not

only stay but also run his law office.

4. The present petitioner filed his leave to defend application duly

supported by an Affidavit. It was claimed by the petitioner-tenant

that there is no relationship of landlord and the tenant between the

petitioner and Sukh Dev Mongia-respondent. The respondent-

landlord was alleged to be having another property bearing

No.9720, Gali Neem Wali, Nawabganj, Delhi-110006 and the

existence of office at 385, Shivaji Road, Azad Market, Delhi was

denied. In addition, it was stated that the respondent Sukh Dev

Mongia is residing at B-114, Pushpanjali Enclave, Pitampura,

Delhi and is also running his law office from there. The filing of

the eviction petition was stated to be actuated to compel the present

petitioner to enhance the rent from Rs.22/- to Rs.2,500/- per month.

5. The learned counsel for the petitioner-tenant has also contended

that in the leave to defend application the present petitioner has

denied the existence of landlord-tenant relationship and therefore

the eviction petition itself must fail as the jural relationship of

landlord-tenant was lacking between the parties.

6. The learned ARC on the basis of the averments made in the leave

to defend and the reply thereof, came to the conclusion that the

relationship of landlord and tenant exists between the parties and

that the issue raised by the present petitioner does not make out any

triable issue so as to grant leave to defend. It was also stated that

the respondent-landlord being an aged advocate maintaining law

office at 385, Shivaji Road, Azad Market, Delhi it was totally

unfair not to allow the respondent to retrieve the possession and

thus the bona fide need of the respondent-landlord was held to be

in existence and decree of eviction followed the case after rejecting

the leave to defend application of the petitioner.

7. I have carefully considered the submission. However, I find

myself in disagreement with the analysis of evidence arrived at by

the learned ARC. The main question which has been raised by the

respondent is regarding bona fide requirement which is crystallized

by the learned ARC by saying that he has a law office at Shivaji

Road, Azad Market and since he is an aged person, he wants to

shift in the suit property and open an office there in order to avoid

the day to day travel from his residence to his office in Azad

Market. The learned ARC has disbelieved the submission of the

learned counsel for the petitioner that the respondent is maintaining

a law office at Pitam Pura and that there is hardly any reason for

him to shift to the suit property in Deputy Ganj and therefore, this

was only a ploy to oust the tenant from the suit property.

8. I find considerable force in this submission of the learned counsel

for the petitioner that the respondent is admittedly an advocate,

who has spent considerable period of his life in litigation and

merely because he has been running a law office at 385, Shivaji

Road, Azad Market, Delhi and allegedly finds it difficult to travel

there from his residence at Pitampura, is not a ground in itself to

assume that the respondent is entitled to a decree of eviction.

Despite the question of availability of alternative accommodation

to the respondent-landlord at Nawab Ganj or a factum of him

letting out other portions of suit property being raises, it cannot be

summarily believed that he would leave his plush office at Pitam

Pura and shift to an area which is essentially a slum. It is not as if

the respondent/landlord has become old overnight. It is admittedly

his case, despite being old during all these years before filing of the

petition, he has been coming from Pitam Pura; therefore, it cannot

be assumed that he should be able to retrieve the possession only

on his averments without the tenant being given an opportunity to

prove his case as it raises a triable issue. To that extent, I prima

facie agree with the view of the learned counsel for the petitioner

that this is only a ploy to retrieve the possession from the

petitioner-tenant. In a case where two competing stand which are

dramatically opposite to each other are taken, the Court does not

have a magic wand available with it to see as to whether the

petitioner is telling the truth or the grounds on which the premises

are sought to be taken were actuated with mala fide or not. The

learned ARC, in my view has passed a very sketchy order on the

basis of an assumption, which no reasonable person could have

drawn and has arrived at a faulty conclusion. The Apex Court has

observed in a number of cases that at the stage of grant of leave to

defend, the only thing which is to be seen is a ground which if

proved by the tenant would disentitle the landlord from retrieving

the possession and thereafter, the parties are required to adduce

evidence since the Court does not have a magic wand to determine

which of the parties is telling the truth. The learned Rent

Controller ought to have considered this alternate view, which is

also possible under the circumstances of this case, therefore, I feel

that it is a fit case where the leave to defend ought to be given to

the petitioner as otherwise it will result in great deal of injustice to

him.

9. Further, the fact that the respondent is running a law office at his

residence in Pitam Pura clearly persuades the undersigned that the

sale of a part portion of the suit property in question to one Anil

Jain during the pendency of a suit for recovery filed by the

respondent against the petitioner is also casting doubt on his bona

fide requirement. The suit property in Deputy Ganj is essentially a

commercial property and is thus, worth crores. To that extent, I

feel the learned ARC has fell into a serious error in not

appreciating the averments in their proper perspective.

10. For the above mentioned reasons, I am of the considered view that

the petitioner-tenant is entitled to leave to defend to contest the

matter.

11. I accordingly, set aside the impugned order of eviction dated

18.12.2014 passed by the learned ARC being an erroneous order

with the direction that the petitioner/tenant filed the written

statement within four weeks from today with an advance copy to

the respondent, who may file response thereto within two weeks

thereafter.

12. The parties to appear before the learned Additional Rent Controller

on 14th December, 2015.

13. A copy of the order be sent to the learned Additional Rent

Controller.

V.K. SHALI, J.

NOVEMBER 23, 2015 vk