Vijay Kumar Gupta vs Ashok Sharma

Indermeet Kaur, J.—The order impugned before this court is the order dated 22.12.2009 wherein an eviction petition filed by the landlord u/s 14(1)(e) of the Delhi Rent Control Act (DRCA) seeking an eviction of the tenant from the suit property had been decreed; the application filed by the tenant seeking leave to defend had been declined.

Record shows that the petitioner is one of the co-owners of property bearing No. 27/2, Shakti Nagar, Delih-110007. The respondent is stated to be a tenant in respect of one shop forming a part of this property at a monthly rent of Rs. 330/-. In the eviction petition it has been averred that the need of the landlord for this shop is bonafide; petitioner''s family comprises of himself, his wife, one son and one daughter; petitioner is a B-Tech (Textile) Engineer; his wife is also a graduate; his son is married and lives in Chennai and wants to come back to do his business; there is no commercial accommodation with the landlord; he requires this shop bonafidely to carry out his business.

In the application for leave to defend, the main contention of the tenant (as averred in para 4 and 5) is that the premises in dispute is in occupation of the landlord since the last 20 years; it is a huge area; five time more than the area in dispute. The landlord has removed the walls between the front portion of the shops which were in his occupation as also the wall of the back portion and converted it into a big hall and in May 2008, he let out this premises to M/s Reliance Money Ltd. from where its business is being run. Contention is that this fact has been concealed from the court; the need of the landlord is not bonafide; this petition is liable to be dismissed.

The reply filed by the landlord to the corresponding para 4 and 5 of the application seeking leave to defend have been perused. It has been admitted that the premises (as noted above) after breaking the partition walls has been converted into a big hall and has been leased out to M/s. Reliance Money Ltd. Contention of the landlord in his reply is that it is choice of the owner to decide which premises he has to get vacated and which is more suitable to him.

Lease Deed entered between the landlord and M/s. Reliance Money Ltd. is dated 19.02.2008; it shows that the premises (the back portion of the same premises) has been leased out to M/s. Reliance Money Limited, a company incorporated under the Indian Companies Act at a monthly rent of Rs. 80,000/- per month; a security deposit of Rs. 4,80,000/- has also been received by the landlord. Admittedly, this lease was created on 19.02.2008; this lease further stipulates that the time is granted to the leassee to make necessary alteration; submission of the tenant being that the actual occupation of the premises has been handed over only in May 2008; further being that the eviction petition having been filed in October, 2008, the paucity of accommodation has deliberately and malafidely been created by the landlord; the whole purpose of this eviction petition is to extract a higher rate of rent and this is clear from the lease deed which has been executed of the same shop on the back portion just a few months prior to the filing of the present eviction petition.

These facts are admitted and borne out from the record. In this factual scenario, a triable issue has arisen; triable issue being that as to whether the need of the landlord is actually bonafide or malafide. Admittedly, in February, 2008 a lease for the same shop of which he is now seeking eviction has been created at a monthly rent of Rs. 80,000/- per month; the present shop under the tenancy is fetching a rent of Rs. 330/- per month; submission of the tenant that the whole purport of the eviction petition being to extract a higher rate of rent cannot be ruled out; security deposit taken from the Reliance Co. is Rs. 4,80,000/- which is a huge amount; the terms of the lease also specifies that the tenant to carry out an addition and alteration in the said portion as such the submission of the tenant that actual occupation of the premises has been handed over only in May 2008 i.e. just three months prior to the eviction petition also support this finding that a triable issue has arisen.

The submission of the landlord that it was on 31.03.2008 that he landlord has retired and thus, although admittedly he had leased out these premises in February 2008, yet the fact of his retirement hit the landlord only in March, 2008 and in fact, he has filed a document dated 01.04.2008 showing that he had been relieved from his service and thus his need has now arisen which is a bonafide need is an argument which carries little force. Reply filed by the landlord to the application for leave to defend nowhere discloses that he had retired in March 2008 and thus his need in October 2008 (the date of filing an eviction petition), had become a genuine need (i.e. run a business post retirement); even otherwise the fact of retirement of the landlord was a fact which was well within his knowledge at the time when he had leased out this premises in February, 2008.

All these raise issues which require trial; Trial Court decreeing the eviction petition without given the tenant an opportunity to defend his case suffers from an infirmity.

Impugned order is set aside. Leave is granted to the tenant; written statement be filed by the tenant in four weeks with advance copy to the petitioner who may file rejoinder before the next date. Parties to appear before the ARC on 06.02.2012 who shall proceed to deal with the case on its merits.

Petition is disposed of.