Sushma Khanna vs Rajwant Kaur

Rajiv Sahai Endlaw, J

The counsel for the caveator/respondent appears.

The caveat stands discharged.

CM No.34635/2017 (for exemption)

Allowed, subject to just exceptions.

The application is disposed of.

RC.REV. 439/2017 & CM No.34634/2017 (for stay)

This Rent Control Revision Petition under Section 25B(8) of the Delhi Rent Control Act, 19858 impugns the order (dated 21st July,2017 in ARC

No.26185/2016 of the Court of Additional Rent Controller (ARC) (West), Tis Hazari Courts, Delhi) of dismissal of the application filed by the

petitioner for leave to defend the petition for eviction under Section 14(1)(e) of the Act filed by the respondent and the consequent order of eviction of

the petitioner from private shop No.1 in property No.A-10/119, Moti Nagar, New Delhi.

The counsels have been heard.

The respondent instituted the petition for eviction on the ground of her requirement of the shop in the tenancy of the petitioner pleading (i) that she

required the shop for her grandson Gurpreet Singh son of Kultar Singh; (ii) that Gurpreet Singh was unemployed and dependent upon the respondent

for accommodation; (iii) that Kultar Singh, being the son of the respondent and father of Gurpreet Singh, had severed relationships with Gurpreet Singh

and as such Gurpreet Singh was dependent upon the respondent for accommodation.

The petitioner sought leave to defend inter alia pleading that there are six shops on the ground floor of the property and of which one was in the

tenancy of the petitioner, another in the tenancy of one Babbar Jewellers and remaining four shops were in possession of the respondent and of which

three were lying vacant.

The respondent in reply to the aforesaid pleas, though admitted existence of seven shops pleaded that two shops had already been sold, one shop

was in the tenancy of the petitioner and another in the tenancy of Babbar Jewellers and with respect to the other three shops pleaded she had in 2008

entered into an agreement to sell with her son Kultar Singh and handed over possession of the said three shops to Kultar Singh and the said shops

were thus not available to the respondent for the need/requirement of her grandson Gurpreet Singh.

Admittedly, there is no registered document of sale by the respondent of the said three shops in favour of Kultar Singh. Though the counsel for the

respondent has contended that Kultar Singh is carrying on his business from the said three shops but he is unable to show any plea to the said effect

having been taken in the reply to the application for leave to defend. The contention of the counsel for the petitioner is of the three shops lying closed

and vacant as was pleaded in the leave to defend application as well.

I have in the aforesaid state of affairs enquired from the counsel for the respondent whether not the aforesaid facts, at least at the stage of

considering the application for leave to defend, amount to the respondent creating artificial paucity of accommodation. Significantly, the respondent in

the petition for eviction has not pleaded that her relations with her son Kultar Singh are estranged. All that is pleaded is that Kultar Singh’s

relations with his own son Gurpreet Singh have been severed. There are absolutely no particulars of such severance of relations between Kultar Singh

and Gurpreet Singh. The agreement to sell alleged in favour of Kultar Singh of three shops also raises suspicions. In the petition for eviction, no

disclosure was made and it is well nigh possible that the plea of agreement to sell of the year 2008 has been taken only in the reply to the application

for leave to defend, to meet the plea in the leave to defend application of existence of these shops. There is no plea that Kultar Singh, since 2008, has

been exercising any rights as owner or agreement purchaser in possession with respect to the said three shops.

All that can be observed is that at this stage, the case set up by the respondent cannot be considered as genuine as is the test laid down in Vijay

Kumar Ahluwalia Vs. Bishan Chand Maheshwari (2017) 3 SCC 189 for deciding, whether the leave to defend is to be granted or not.

The order denying the leave to defend the petition for eviction thus cannot be sustained and is set aside. Resultantly, the petitioner is granted leave

to defend the petition for eviction under Section 14(1)(e) of the Rent Act filed by the respondent.

The petition is disposed of.

The petitioner to file written statement within thirty days with advance copy to the counsel for the respondent.

The parties to appear before the Court of Additional Rent Controller (ARC) (West), Tis Hazari Courts, Delhi on 2nd November, 2017.