Delhi High Court

Sh Ram Lakhan Chaurasia vs Smt Santosh Kumari on 20 January, 2016

*               HIGH COURT OF DELHI AT NEW DELHI
+              RC. Revision No.607/2015 & CM APPL.27232/2015

                                      Pronounced on: 20th January, 2016

SH RAM LAKHAN CHAURASIA                      ...... Petitioner
            Through: Mr. J.M. Bari, Advocate with
                     Ms. Meenakshi Bari, Advocate.

                      Versus

SMT SANTOSH KUMARI                                  ...... Respondent
             Through:

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is a Revision Petition against the order dated 05.10.2015, by

virtue of which the leave to defend filed by the petitioner/tenant,

was dismissed and eviction order has been passed. Before dealing

with the present petition it is pertinent to mention the facts of the

case.

2. The tenanted premises comprises of one shop privately marked as

shop no. 1 situated on the ground floor of Property no. BE-355,

Gali no. 6, Hari Nagar, New Delhi-110064, as delineated in red in

the site plan. The rate of rent was Rs.176/- per month upto October,

2008, thereafter it stood increased by ten percent on expiry of three

years. The premises was let out by the previous owner of the

property, however, the tenancy is according to an English Calendar

month commencing from the first day of the month and ending on

the last day of the same month.

3. It was averred in the Eviction Petition that the petitioner/tenant has

allegedly sublet, assigned and parted with the possession of the

premises without the consent of the respondent/landlady.

4. It was further stated that the premises were let out for non

residential purpose and are required bona fide by the

respondent/landlady for occupation as a non-residential premises

for herself or for any member of her family dependent upon her

since the respondent/landlady or such person has no other

reasonably suitable non-residential accommodation. It was also

stated that she became the owner of the suit premises by virtue of

sale deed dated 15-09-1998.

5. Regarding suit premises i.e. property no. BE-355, Gali no. 6, Hari

Nagar, New Delhi-110064, it was stated that it consists of ground

floor, first floor and second floor. It was averred that there are three

shops on the ground floor of the property, out of which shop no. 1

is with the petitioner/tenant, shop no. 2 is with another tenant S.P.

Gulati and shop no. 3 is in occupation of the grandson of the

respondent/landlady Akshay Verma (S/o Rakesh Kumar Verma),

who has been doing business, under the name and style of Verma

Pneumatic from said shop. The first floor of the property is being

used as a godown by M/s. Verma Mill Store, being run by the sons

of the respondent/landlady Sh. Rakesh Kumar Verma and Sh.

Vinod Verma. The second floor of the property is being used for

residence by the workers/employees of M/s Verma Mill Store and

M/s G.D. Traders, being run by the sons of the respondent and

herself. There is one shop on the back of the said property also,

which has been in use and occupation of the son of the respondent

Ashwani Verma for the purpose of his business, under the name of

M/s G.D. Traders.

6. Regarding availability of alternate accommodations, the

respondent/landlady was stated to be the owner of ground floor of

Property no. BE-204, Hari Nagar, New Delhi-110064, which is

being used as a godown by M/s G.D. Traders. It was stated that the

three of the said properties are owned by wives of the three sons of

the respondent/landlady and the same are being used for residence

by them. The husband of the respondent Virender Singh Verma

was stated to be the owner of Property No. BE-303, Hari Nagar,

New Delhi-110064 which consists of Shop No. 3 and the same is

being used as a godown by the sons of the respondent for business

of Hardwares and Tools. Another property bearing no. BE-204/1,

Hari Nagar, New Delhi-110064, measuring 50 sq. yards, was stated

to be owned by Seema Verma wife of Rakesh Kumar Verma i.e.

son of respondent/landlady, the ground floor of which is having

parking, and first floor and second floor have been let out to one

tenant Prabhu Dayal for residence.

7. The averments regarding bona fide requirement were that two sons

of the respondent/landlady Rakesh Kumar Verma and Vinod

Verma have been running business jointly in partnership under the

name and style of M/s Verma Mill Store and due to differences

between them it is not possible to carry on the business jointly in a

partnership and in order to enable them to do their independent

business, and to accommodate them especially Vinod Verma, the

shop under the tenancy of the petitioner/tenant is required bona

fide. It was further reiterated that the said shop is therefore required

bona fide for occupation by said sons Rakesh Kumar Verma and

Vinod Kumar of respondent/landlady, and preferably for Vinod

Verma, to enable them to have their separate independent business

to resolve the dispute between them and no other suitable non

residential accommodation is available in the nearby locality, Delhi

or elsewhere.

8. Leave to defend was filed by the petitioner/tenant wherein he

admitted the relationship of landlord tenant and also stated that the

respondent is not accepting rent despite the requests having been

made by him.

9. It was also contended by the petitioner/tenant in the leave to defend

that the respondent/landlady as well as her family members are

having seven residential properties in Delhi spread in an area of 50

to 300 square yards having a total area of nearly 4000 square yards

of total area on the all floors and 12 Commercial shops of 20 X 30

feet to 10 X 20 feet within the vicinity of one kilometer and that

the respondent does not have any bona fide need at all since as per

her admission in another case she is a housewife and not involved

in any business. It was also stated that in the entire petition the

respondent/landlady has not stated her bonafide need or the reason

for insufficiency of the available accommodation.

10. The petitioner also contended that the respondent/landlady wants to

evict him due to ulterior motive and was demanding exuberant

rent. It was also stated that in the eviction petition itself, the

respondent/landlady has admitted to having ownership and

possession of as many as three different premises i.e. B-204, B-

204/1 and B-303 all if which are situated in Hari Nagar and are

stated to be in use by the family members of respondent which

clearly highlights that neither the respondent nor her family

members have any paucity of space so the question of bona fide

requirement does not arise. It was further averred that the family

members of the respondent/landlady are having 3 shops on the

main road of Mayapuri Metal Forging with the name of Verma

Traders, Verma Steel and Verma Mill Store and each of these three

shops is having an area of 30 feet to 20 feet 20. Also the

respondent and her other family members were stated to be in the

possession of two 100 square yards floors of the adjoining property

i.e. BE-203, Hari Nagar, New Delhi-64. It was contended that this

is also an indication/reflection about the mala fide intention of the

respondent/landlady who is adamant on evicting the petitioner

from the tenanted premises at any cost.

11. The respondent/landlady thereafter filed her reply to the leave to

defend after which learned Additional Rent Controller passed a

detailed order running into 32 pages rejecting leave to defend

application and passing an order of eviction against the present

petitioner.

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

counsel for the respondent and gone through the record including

the impugned order.

13. A perusal of the impugned order shows that the learned Additional

Rent Controller has passed an unduly long order, which gives an

impression as if he is not deciding the leave to defend application,

but is deciding the Eviction Petition itself on merits. The Apex

Court in Charan Dass Duggal vs. Brahma Nand; (1983) 1 SCC

301 while criticizing the practice of writing lengthy orders has very

clearly observed that while deciding the leave to defend application

all that is expected of the ARC is to see whether the tenant has a

prima facie case, which if permitted to be proved would disentitle

the landlord from retrieval of possession. It has also been observed

that prima facie case need not be an iron cast case or a strong case

but should raise a triable issue. In the judgment of Inderjeet Kaur

v. Nirpal Singh, (2001) 1 SCC it has been laid down by the Apex

Court that the onus for grant of leave to defend on the tenant is

very light. The counsel for petitioner/tenant has also relied on the

judgment in Precision Steel & Engineering Works Anr. Vs. Prem

Deva Niranjan Deva Tayal (1982) 3 SCC 270 which has also held

that:

"....The language of Sub-section 5 of Section 25B casts a statutory duty on the Controller to give to the tenant leave to contest the application, the only pre-condition for exercise of jurisdiction being that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground mentioned in Section 14(1)(e)."

14. In the instant case, the learned ARC seems to have fallen into a

grave error by going into minute details as to what are the different

kinds of accommodations owned by the respondent/landlady and as

to how she is utilizing the same.

15. This is a case where the respondent is an old lady and wants to

retrieve the possession of one shop, which is under the tenancy of

the petitioner for the benefit of either of the sons preferably Vinod

Verma, while admittedly she is in possession of several shops as

well as ample alternative accommodation, though explanation has

been furnished by her as to how these properties are being used.

The question of sufficiency or suitability of alternative

accommodation can be decided by the Additional Rent Controller