Rakesh Gupta vs Nirmal Nanda
2015 Latest Caselaw 7327 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+         RC. Rev. No.300/2015 & C.M. No.11180/2015

                                      Decided on : 24th September, 2015

RAKESH GUPTA                                     ...... Petitioner
                          Through:     Mr. Anupam Dwivedi, Advocate

                       Versus

NIRMAL NANDA                                      ...... Respondent
                          Through:     Mr. Gurmit Singh Hans, Adv. With
                                       Ms. Aarti Manchanda, Adv. &
                                       Ms. Rashmi, 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 01.04.2015 passed by Shri Shailender Malik, the learned

Rent Controller, Rohini Courts, Delhi in case No. ENo.4/15, titled

Nirmal Nanda v. Rakesh Gupta by virtue of which the leave to

defend of the present petitioner was dismissed and an order of

eviction was passed.

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

learned counsel for the respondent. The learned counsel for the

petitioner has raised before this Court only one point on the basis

of which he has contended that the bonafide requirement of the

respondent-landlord is suspected in the instant case which ought to

have been treated as giving rise to a triable issue. It was contended

that the petitioner-tenant is in occupation of a shop on the ground

floor of property No.B-1/21, Rana Pratap Bagh, Delhi and the

respondent-landlord has sought his eviction on the ground that he

and his wife are senior citizens and therefore, unable to climb to

the second floor of the suit property where they are living along

with their married son. It has been stated that because of the old

age problems it is becoming very difficult for them to climb the

stairs and to reach the second floor and therefore, would like to

shift to the ground floor. However, on the ground floor there is

only one room, kitchen and a washroom which is under the

occupation of younger son of the respondent-landlord. In case, the

shop which is basically a room under the occupation of the present

petitioner-tenant is vacated, they will convert this into a bedroom

and use the same. It was contended by the learned counsel that the

respondent-landlord has talked about the ground floor and the

second floor but he had not purposely mentioned about the

accommodation on the first floor where also respondent-landlord

has two rooms available with him and therefore, that can be treated

as an alternative suitable accommodation to the respondent-

landlord. It has also been stated by the learned counsel for the

petitioner-tenant that the respondent-landlord could have shifted to

the ground floor by relocating his own son to the first floor. But

the learned Rent Controller has brushed aside this submission of

the petitioner-tenant by observing that the tenant cannot dictate

terms to the landlord.

3. The aforesaid facts having been considered by the learned counsel

for the petitioner-tenant to be sufficient to raise a triable issue with

regard to the bonafide requirement of the respondent-landlord, this

should have resulted in grant of leave to defend.

4. The learned counsel for the respondent-landlord contested the

aforesaid and submitted that the first floor of the suit premises

belongs to the elder brother of the respondent-landlord and is

occupied by him and, therefore, the first floor could not be

considered to be an alternative suitable accommodation available to

the respondent-landlord. He has further contended that all other

objections raised by the petitioner-tenant in his leave to defend

have been rejected by the learned Rent Controller by a speaking

and a reasoned order.

5. I have considered the submissions made by the respective counsels

and have gone through the record. I find considerable merit in the

submissions of the learned counsel for the petitioner-tenant. The

landlord who files an eviction petition on the ground of bonafide

requirement must in the first instance disclose all the facts which

will have bearing on his bonafide requirement. This would include

not only the availability of all such accommodation including

residential and commercial available to him but also the number of

family members. Even the ownership of this property has to be

necessarily disclosed. It is not good simply saying that the

respondent-landlord does not have any alternative suitable

accommodation available to him and then leave it to the tenant to

do recce or conduct an investigation either himself or through a

specialized agency in order to find out what other properties are

owned by respondent-landlord who has filed an eviction petition.

6. In the instant case, the respondent-landlord in the eviction petition

does not disclose the fact that he is the co-owner or a part owner of

the entire property. As a matter of fact, the eviction petition is

couched in such form that it gives an impression that he is the

owner of the entire property. In such circumstances, during the

course of argument to contend that the first floor of the suit

property is not available to him as the same is owned by his brother

or occupied by his brother seems to be only an afterthought which

is raised because of the ambiguous pleadings made by the

respondent-landlord. The respondent-landlord ought to have in the

beginning stated all these details. The petitioner-tenant is justified

in contending that the bonafides of the respondent-landlord are

suspected because he fails to disclose that he is in possession of the

rooms on the first floor also which are two in number. Therefore,

that can be considered to be an alternative accommodation as

climbing to first floor in comparison to the second floor would be

less onerous. Moreover, the learned Rent Controller has also noted

the disparity in the ages of the respondent-landlord as the case

which has been set up is that they are senior citizen but from the

appearance, the learned Rent Controller has noted that the age of

the respondent does not seem to be more than 50 years. Therefore,

this fact also becomes relevant. The age, health condition, which is

attributed to old age seems to be only a ploy to draw the sympathy

of the Court. These facts, in my view, if permitted to be proved by

the petitioner-tenant would show that the respondent-landlord had

sufficient alternative accommodation available to him in the suit

property itself to take care of his needs where the learned Rent

Controller has erroneously faulted at.

7. The learned Rent Controller has no doubt rightly observed that it is

not for the tenant to dictate the terms when the present petitioner

has taken up the plea that the respondent-landlord could ask his

younger son who is occupying the premises on the ground floor to

shift to the first floor, it becomes a relevant fact because it casts

doubt on the bonafides of the respondent-landlord.

8. Having regard to the totality of the circumstances and because of

the aforesaid points raised, I feel this should have been good

enough to raise triable issue, which if permitted to be proved by the

present petitioner, would disentitle the petitioner from claiming the

possession of the suit premises on the ground of bonafide

requirement.

9. I accordingly, set aside the order dated 01.04.2015 rejecting the

leave to defend application of the petitioner and passing an eviction

order. The parties are directed to appear before the learned Rent

Controller on 01.10.2015 at 2:00 p.m. for further proceedings.

10. However, in the meantime, the present petitioner-tenant shall file

his written statement within 30 days from today with advance copy

to the respondent-landlord.

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

12. Pending application also stands disposed off.

V.K. SHALI, J.

SEPTEMBER 24, 2015 vk