Delhi High Court
Batliboi Limited vs Kiran Sharma on 18 April, 2018
$~ 13
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 18th April, 2018
+ RC. REV. 111/2016 and CM APPL.5721/2016,
CM APPL.12186/2017
BATLIBOI LIMITED ..... Petitioner
Through: Mr. Ravi Gupta, Senior Advocate with
Mr. Akshay Ringe,
Ms. Megha Mukerjee,
Mr. Sachin Jain, &
Mr. Siddharth Joshi, Advocates
versus
KIRAN SHARMA ..... Respondent
Through: Mr. Amit Swami, Advocate with
Ms. Smarika Azad, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The respondent is the landlord qua the petitioner in respect of
property described as N-197-A, Greater Kailash Part-I, New Delhi, it
having been let out in the year 1976 by his mother. He had filed a
case (E. No.26/2015) for eviction on 08.04.2015 on the ground of
bona fide need under Section 14 (1) (e) of Delhi Rent Control Act,
1958. Having regard to the nature of ground invoked, the procedure
under Section 25-B of Delhi Rent Control Act, 1958 was applied. In
response to the special summons served on the petitioner (tenant), it
submitted an application for leave to contest. The said application was
considered by the additional rent controller (ARC) but dismissed by
order dated 15.10.2015, resultantly granting an order of eviction in
favour of the respondent. It is the said order, the correctness, legality
and propriety whereof is questioned by the petition at hand.
2. Though a number of grounds have been taken in the application
for leave to defend, having heard the learned counsel on both sides
and having gone through the record, this court finds that a case of
grant of leave is made out on the issue of alternative accommodation,
there being lack of clarity in the pleadings of the respondent - rather
there being a possibility of an attempt to suppress faces.
3. For aforementioned purposes, it is not necessary to narrate the
facts in entirety. Suffice it to note here that the case from which the
present proceedings arise is third in a series of litigation initiated by
the respondent to seek eviction of the petitioner, the first one being an
eviction case, also on the ground under Section 14 (1) (e) of the Delhi
Rent Control Act, 1958, brought before the rent controller in
September, 1997 by the petitioner and his sister Ms. Usha Devi. Both
the petitioner and his sister had conceded in the said case that the
tenancy, being at the rental of Rs.1265/- per month, was protected
under Delhi Rent Control Act, 1958. The petitioner therein had
described himself to be then a resident of Sri Lanka, though he had
also given his local address (42, Birbal Road, Jangpura Extension,
New Delhi-110014), his sister being described as a resident of Kuala
Lumpur in Malaysia. The said eviction petition came to be dismissed
in default on 14.09.2000. Concededly, there was no effort made for its
restoration. Instead, the respondent filed a civil suit in 2013 in the
court of District Judge for South-East District, seeking decree of
possession and recovery of rent and mesne profits. Prior to filing of
the said suit, a legal notice dated 06.06.2012 had been served on the
petitioner (tenant) on instructions of the respondent and at his
instance. In the said legal notice, he was described as a resident of
Kuala Lumpur, Malaysia with permanent address being as that of the
said property. In the said legal notice it was, inter alia, stated that the
respondent is a resident of Malaysia and none of the legal heirs of
Mrs. Sumitra Devi Sharma (the late mother of the respondent) are
residing in India, the tenant (the petitioner) taking advantage of this
and enjoying the prime property at a meager rent of Rs.1265/- per
month. By the legal notice, the tenant was called upon to execute a
fresh lease deed at a rental of Rs.1,00,000/- per month for the period
of one year, the existing tenancy having been terminated on
30.06.2012.
4. The civil suit, however, was dismissed on 02.02.2015,
concededly with adverse finding on issue of jurisdiction of the civil
court, the tenancy apparently being protected by Delhi Rent Control
Act, 1958. The petition from which the present proceedings arise was
filed after dismissal of the suit as aforesaid.
5. It may be mentioned here that in the civil suit filed in 2013, and
in the eviction petition from which the present proceedings arise, the
respondent described himself as resident of Kuala Lumpur, Malaysia,
the address of the subject property being his permanent address,
reference being made (for correspondence purposes) to the chamber of
the counsel representing him.
6. Upon being served with the summons under Section 25-B of the
Delhi Rent Control Act, 1958, the petitioner submitted an application
for leave to contest, one of the grounds taken therein being that the
property at Jangpura Extension, to which the reference was made in
the first eviction case was under use and occupation of the respondent
- this, in the context of averments made in the eviction case that the
respondent and his daughter Sarita wants to "settle in Delhi" and
therefore require the premises for bona fide residential use, he also
being obliged to accommodate his brother and sister and their family
members (concededly they not being ordinary residents of India) on
their visits to India, there being no other residential accommodation
available except the subject property.
7. In the above fact - situation, the availability or non-availability
of the Jangpura Extension property is crucial to the just decision of the
case. In answer to the application for leave to contest, the respondent
has come up with bald averment that no such property at Jangpura
Extension "was ever owned by the petitioner". There is no
explanation offered in this respect with reference to the pleadings in
the first eviction case, the dismissal in default whereof was suffered on
14.09.2000.
8. Thus, tribal issues do arise and, therefore, the eviction case
cannot be disposed of in the manner done by the additional rent
controller by depriving the petitioner (tenant) to prove its contentions
in above nature.
9. For above reasons, the petition and the applications filed
therewith stand allowed. The impugned order dated 15.10.2015 is set
aside. Leave to contest stands granted to the petitioner. The
proceedings before the Rent Controller consequentially stand revived.
They shall be taken up by the Rent Controller for further proceedings
in accordance with law on 14th May, 2018, when the parties are
directed to remain present.
10. Needless to add, the petitioner (shown as respondent in the
eviction case) will be obliged to submit the written statement on the
afore-said date fixed for first appearance.
11. Dasti.
R.K.GAUBA, J.
APRIL 18, 2018
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