Salma vs Nanhey Miyan @ Naseem Khan

Indermeet Kaur, J.—The impugned judgment is dated 22.01.2011; the application filed by the tenant seeking leave to defend in pending eviction proceedings u/s 14 (1)(e) of the Delhi Rent Control Act (DRCA) had been dismissed. Record shows that the present eviction petition has been filed by Nanhe Miya, the landlord seeking eviction of his tenant Salma from a room with common bath and latrine on the ground floor of property bearing No. 4415, Ground Floor, Gali No. 22, Shanti Mohalla, Old Seelampur, Delhi. The petitioner claims himself to be the owner of the suit premises; eviction petition has been filed on the ground of bonafide requirement; contention is that the family of the petitioner comprise of himself, his wife and six children of whom five are sons and one is a daughter; the daughter is aged 14 years and is a chronic patient of T.B.; her treatment is going on at Jain Charitable Hospital; petitioner has two other rooms on the second floor which are occupation of his two brothers-in-law; there are two rooms on the back side which are also with other tenants; the petitioner is presently living in a hall measuring about 18''X10'' feet on the first floor of the premises. The present room which is on the ground floor opens from front side. Premises are required by him in order that he can accommodate his daughter who being of weak health is facing difficulty in climbing stairs on the first floor; fresh air flow is also required by a T.B. patient and the petitioner himself who is also 55 years of age also find it difficult in climbing stairs. Present premises are required for the aforenoted purpose.

Leave to defend has been filed. The averments contained therein by and large recite what has been contained in the eviction petition; contention is that the rate of rent is not Rs. 1,500/- per month but is Rs. 400/- per month and the same is being paid; it is denied that the only accommodation available with the petitioner is a hall measuring 18''X10'' on the first floor; contention is that the second floor also comprises of two rooms which are available with the petitioner; it is denied that the premises are required by the landlord. This is the sum and substance of the application seeking leave to defend.

Reply filed by the corresponding paras of the application seeking leave to defend have been perused. It is reiterated that the two rooms on the second floor are with the brothers-in-law of the present petitioner and the two rooms on the back side are with the other tenants which factum is also not in dispute. The size of the family of the petitioner is also not in dispute; the family comprises of a married couple and six children; it is also not in dispute that the daughter of the petitioner is suffering from T.B. and she is in week health condition and has difficulty in climbing stairs. Even otherwise, the present premises opens up on the front side and have a good ventilation which is easily decipherable from the site plan.

In this background, on no count can it be said that any triable issue has arisen.

In (1982) 3 SCC 270 Precision Steel & Engineering Works & another V.Prem Devi Niranjan Deva Tayal the Apex Court had noted that the prayer for leave to contest should be granted to the tenant only where a prima-facie case has been disclosed by him. In the absence of the tenant having disclosed a prima-facie case i.e. such facts as to what disentitles the landlord from obtaining an order of eviction, the Court should not mechanically and in routine manner grant leave to defend.

Unless and until a triable issue has arisen leave to defend cannot be granted; if this is done the very purpose and import of the Section 25-B of the DRCA will be given a go by; which was not the intent of the legislature.

The Supreme Court in Prativa Devi (Smt.)V.T.V. Krishnan (1996) 5SCC 353 had held in this context inter alia noted as:-

The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own.

In this background impugned order decreeing the petition and dismissing the leave to defend application filed by the tenant suffers from no infirmity. Petition is without any merit. Dismissed.