Delhi High Court
Rajender Narayan Rastogi (Since ... vs Jagdish Sethi on 16 March, 2018
$~12
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on :- 16th March, 2018
+ RC.REV. 332/2017
RAJENDER NARAYAN RASTOGI (SINCE DECEASED)
& ORS. ... Petitioners
Through: Mr. C.S. Bhandari along with
Ms. Devagya Kainth,
Advocates.
versus
JAGDISH SETHI ..... Respondent
Through: Respondent in person.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The revision petition at hand seeks to assail the order dated
21.03.2017 of the Additional Rent Controller passed on the file of case
(RC/ARC no.440/16) which was instituted by the petitioners seeking
an order of eviction of the respondent on the ground of bona fide need
under Section 14(1)(e) Delhi Rent Control Act, 1958 whereby while
dealing with an application under Section 151 of Code of Civil
Procedure, 1908 (CPC), submitted to bring on record an additional
affidavit in evidence post the death of second original petitioner
Ashok Kumar Rastogi, the Additional Rent Controller found the case
itself meriting no further proceedings, dismissing it and thereby
guillotining further process.
2. The respondent is present in person.
3. It may be mentioned here that first original petitioner Rajender
Narayan Rastogi also died on 14.06.2017 and his legal representatives
have been brought on record by order dated 13.12.2017.
4. The petition for eviction was instituted by the said Rajender
Narayan Rastogi (since deceased), Ashok Kumar Rastogi (since
deceased) joining with two others, namely, Anand Kumar Rastogi and
Sudha Rastogi, all petitioners before this Court, they being co-owners
of the subject property. It is not in dispute that the respondent has
been a tenant in the subject premises, it being described as shop no.6,
forming part of property no. E-4/10, Krishna Nagar, New Delhi-
110051. The eviction order is sought on the ground that Nitin Rastogi,
then aged about 28 years, an unmarried youth, son of the second
original petitioner Ashok Kumar Rastogi wanted to establish himself
in business and thus, the need for vacation of the subject premises by
the tenant had arisen.
5. The petition was entertained and notice was issued to the
respondent. The respondent upon being served with special summons
appeared and submitted an application seeking leave to contest. While
the said application under Section 25B of Delhi Rent Control Act,
1958 was pending, the second petitioner Ashok Kumar Rastogi died.
In view of this subsequent development, an additional affidavit of his
widow Shobha Rastogi who had been brought on record was sought to
be submitted with the application under Section 151 CPC, during the
consideration of which the impugned order was passed. The said
prayer for permission to bring on record additional affidavit was
resisted by the respondent on the ground that with the death of Ashok
Kumar Rastogi, the need had come to an end, the petitioners, on the
other hand, seeking to plead that after the death of Ashok Kumar
Rastogi his business (of poly-bags) had been taken over by his widow
Shobha Rastogi and, therefore, the requirement of the son Nitin
Rastogi subsists.
6. The observations of the Additional Rent Controller leading to
the impugned order being passed need to be noted, in extenso, thus:
"4. The petition was moved for the alleged need of
son of petitioner no.2 who was 28 years of age as on
25.08.2012 (this is the day when the affidavit
supporting the petition was sworn in). The need was
that Nitin Rastogi had no independent business of his
own and his father i.e. petitioner no.2 had his
business of poly bag items which was conducted from
shop no.2 in the building in which the premises i.e.
shop no. 6 is situated. In these circumstances, Nitin
Rastogi wanted to conduct his business of General
store from the premises and therefore the premises
was needed.
5. At the outset, it is trite to mention that the
present case was not a case of need but want. At this
sole basis, the petition warrants to be dismissed. The
said case of want is made out from the contents of
para no.4 of the petition as reproduced below:
"He wants to carry on his own business in the
suit premises of general store and other
connected/allied goods...."
6. There were four petitioners to the present
petition. The reason that four petitioners were there
is that they all succeeded their mother Ramkali who
was the owner of the premises. Thus, at the time when
the petition was moved the property was not divided
and after the death of petitioner no.2, another stripe
of succession has arisen. The status of Nitin Rastogi
being dependent was neither pleaded and the affect of
death of petitioner no.2 upon his status of being
dependent has neither been pleaded thereafter.
7. Accordingly, the alleged cause on which the
present petition is brought is determined with the
death of petitioner no.2."
7. To say the least, the approach of the Additional Rent Controller
in dealing with case as aforesaid was wholly misdirected, if not unjust
and unfair.
8. Having entertained the eviction petition on the existing
pleadings, it was not correct mid course to jump to conclusions by
construing the use of expression "want" so as to treat the case as one
not being "a case of need". The observations as to the effect of the
death of the second original petitioner on the claim of Nitin Rastogi
regarding his dependence could not be commented upon in the manner
done in the context of the prayer then being considered for permission
to place on record additional affidavit.
9. In view of above, the impugned order is set aside. The eviction
case is restored on the file of Additional Rent Controller with
directions for it to be considered afresh after hearing the parties and an
appropriate order in accordance with law, to be passed on the
application of the petitioner under Section 151 CPC as indeed the
application of the respondent for leave to contest.
10. The parties are directed to appear before the Additional Rent
Controller on 10th April, 2018.
11. The petition stands disposed of in above terms.
R.K.GAUBA, J.
MARCH 16, 2018
srb
