Madhu Gupta vs Mukesh Bansal
2015 Latest Caselaw 8049 Del

*                   HIGH COURT OF DELHI AT NEW DELHI


                                            Decided on: 19th October, 2015

+      RC.REV. 370/2015

       MADHU GUPTA                                      ..... Petitioner
               Through:          Mr. Raj Kumar Mittal, Advocate with
                                 Petitioner in person.

                          Versus

       MUKESH BANSAL                                     ..... Respondent
               Through:          Mr. Sukumar Pattjoshi, Senior Advocate
                                 with Mr. S. Shantanu, Advocate &
                                 Mr. Pratap Shanker, 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 23.04.2015 by virtue of which the petitioner's leave to

defend has been rejected and an eviction order has been passed in

respect of a shop more particularly shown in red in the site plan

annexed to the eviction petition.

2. I have heard the learned counsel for the petitioner and Mr.

Pattjoshi, the learned senior counsel for the respondent-landlord. I

have also gone through the record.

3. Before dealing with the submissions of the leaned counsel for the

parties, it may be pertinent here to give brief background of the

case.

4. The respondent-landlord filed an eviction petition in respect of a

shop under the tenancy of the present petitioner. It was claimed by

him that he is the owner of the property bearing No.24/3, Shakti

Nagar, Vyas Marg, Delhi-110 007 on the basis of a Will dated

24.05.2010 executed by his father. He claimed that he required the

premises bona fide for himself and for his wife both of whom are

stated to be cancer patients. It has also been alleged in the eviction

petition that the mother of the respondent-landlord is bedridden and

suffering from old age ailments which requires frequent medical

treatment from the hospital as well at home because of which it

becomes impossible for them to bring her to the ground floor from

the third floor and then take her to the hospital. The respondent-

landlord has also stated that they need the shop in occupation of the

present petitioner-tenant for having a gate on the main 40 ft. wide

road from the shop in question. It was stated that the service lane

has a width of only 15 ft. which is invariably dug up because of

which it is not possible for the ambulance to come and pick up the

patient.

5. The present petitioner-tenant filed his leave to defend and

contested the claim. It was contended by him that the requirement

of the respondent-landlord is not bona fide and the present plea of

shifting of mother to the ground floor or even the property having

no access from the rear was only ruse to seek unlawful eviction of

the present petitioner. It was stated that the respondent-landlord

himself intends to settle abroad along with his son and daughter

and therefore, the present eviction petition is totally misconceived.

It has also been stated by the learned counsel for the respondent

that there are three shops on the ground floor and in respect of one

shop which is similarly placed to the shop of the present petitioner,

the same Rent Controller has already granted leave to defend and

there was absolutely no reason for denying the leave to defend to

the present petitioner.

6. Mr. Sukumar Pattjoshi, the learned senior counsel contested the

claim by stating that there was no parity in the case in hand with

the case in which the leave to defend was granted. Moreover, it

was stated that this was not the plea taken by the petitioner-tenant

in the leave to defend application and therefore, could not be

considered.

7. I have carefully gone through the record and thoughtfully

considered the submissions of the learned counsel for the parties.

8. The very fact that the respondent-landlord is claiming the

possession of the ground floor shop on two counts, namely, on

account of shifting of his mother to the ground floor and in the

same breath stating that he wants to have a gate from the said shop

for access from the front road so as to permit the patients to be

taken to hospital is clearly a contradictory stand. This is because of

the fact that in case a gate is opened from the shop then the shop in

question cannot be used for bringing the mother of the respondent-

landlord to the ground floor, if that be so, then there was hardly any

occasion or genuine cause on the part of the respondent-landlord to

get the premises vacated on that score. I feel that by hook or crook

the respondent-landlord wants to evict his tenant. It is not a case

where he does not have access to the house. Since he has been

using the back portion for entrance during all these years of his

residence. Even in 2012 when the legal notice was given by the

respondent-landlord to the petitioner, he did not mention the bona

fide need for using the tenanted shop for access into the house on

the basis of which eviction was allowed vide impugned order. This

clearly shows that the plea which has been taken by the respondent

is prima facie not bona fide and cannot be summarily believed so

as to order the eviction of the present petitioner. Even the order

which has been returned by the learned ARC is very cryptic and

without any detail. I feel that this is a fit case where the leave to

defend should be granted to the petitioner-tenant in order to enable

him to contest the petition. I accordingly, set aside the impugned

order dated 23.04.2015 and grant the leave to defend to the present

petitioner-tenant.

9. The petitioner shall file his written statement within 30 days from

today.

10. Parties are directed to appear before the learned ARC on

16.11.2015.

11. With these directions, the revision petition is allowed.

12. Pending application also stands disposed of.

V.K. SHALI, J.

OCTOBER 19, 2015 vk