Delhi District Court
Sh. Pankaj Madan vs Sh. Noria Mal Ram Kumar on 18 April, 2019
IN THE COURT OF SH. AJAY NAGAR, ADDITIONAL RENT
CONTROLLER (WEST), TIS HAZARI COURTS, DELHI.
ARC No.- 25583/16
Smt. Kamlesh Madan (since deceased)
Through her LRs
1. Sh. Pankaj Madan
S/o Late Sh. Prem Kumar Madan
2. Sh. Dhiraj Madan
S/o Late Sh. Prem Kumar Madan
3. Sh. Neeraj Madan
S/o Late Sh. Prem Kumar Madan
4. Smt. Mamta Kohli
D/o Late Sh. Prem Kumar Madan
All Residents of
B-47, Moti Nagar,
Delhi-110015. ...Petitioners
VERSUS
Sh. Noria Mal Ram Kumar
Sons of Sh. Tek Chand
R/o 24/8, Tri Nagar,
Delhi. ...Respondent
Date of Filing : 04.09.2013
Date of Order : 18.04.2019
ORDER ON LEAVE TO DEFEND
1. Present petition U/Sec. 14 (1) (e) of Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act") has been filed by the petitioner for eviction of the respondent in respect of shop at ground floor in property no.3/14, Industrial Area, Kirti Nagar, New Delhi shown in the site plan in red colour attached with the petition ARC No. 25583/16 Kamlesh Madan (since deceased) Vs Sh. Noria Mal Ram Kumar -2- (hereinafter referred to as 'tenanted premises') in favour of the petitioner and against the respondent.
2. The case of the petitioner is that she is one of the co-owners and landlady of the tenanted premises including the property wherein tenanted premises is situated. That tenanted premises was let out to the respondent for commercial use and is required for bonafide requirement for herself and her daughter, namely, Ms. Mamta Kohli to assist the petitioner for running her business of trading. It is also mentioned by the petitioner that one eviction petition was filed by her husband U/S 14(1) (e) of DRC Act which was dismissed as no right to sue survived. It is also disclosed that another eviction petition U/S 14 D of DRC Act was filed by her which was withdrawn by her due to technical defect. Lastly, it is prayed that eviction order may be passed against the respondent.
3. Notice of this eviction petition was sent to the respondent in the prescribed format which was duly served on the respondent and the leave to defend was filed by the respondent accompanied by the affidavit raising several pleas.
4. It is inter-alia averred by the respondent in his leave to defend that husband of the petitioner filed an eviction petition U/S 14(1)(e) read with Section 25B of DRC Act for bonafide requirement for carrying out his business. But the court dismissed the petition filed U/S 14(1)(e) of DRC Act holding that the petition was for the requirement of Sh. Prem Kumar Madan and right to sue does not survive to the legal heirs of Sh. Prem Kumar Madan.
That the petitioner again filed an eviction petition U/S 14-D of the DRC Act but she withdrew the said petition. That the petitioner ARC No. 25583/16 Kamlesh Madan (since deceased) Vs Sh. Noria Mal Ram Kumar -3- has no intention to carry on any business. That petitioner is pressurizing the respondent to accede to her illegal demand. That petitioner is doing the business as partner under the name of M/s Persoft Computers Services.
That the petitioner is living with her three sons in the same property. The petitioner never carried out any business or has no intention to carry out any business. The present petition has been filed by the petitioner alone without joining the other co-landlords. The petitioner and sons of Sh. Prem Kumar Madan got the possession of one shop on the ground floor from the tenants and will get the possession of another two shops in January, 2014 by the time which was granted by the Hon'ble High Court and an undertaking has been given by the said tenant to vacate the premises by January, 2014. The petitioner has got possession of one shop recently. If the petitioner had any intention to carry any business, the petitioner could have started the business in the said shop which was got vacated from one of the tenants.
The petitioner does not require any accommodation and the present case is nothing but case of additional accommodation.
5. The petitioner filed the reply to leave to defend inter-alia stating that Sec. 14 D was withdrawn because the property was neither let out by her husband nor by the deponent herself as such the petition U/S 14 D was not maintainable.
That the petitioner has no source of income and during the lifetime of her husband she was being maintained by her husband independently and now after his death she is having no source of income nor is being supported by any of the family members. M/s Prosoft Computers Services is owned by two partners since its ARC No. 25583/16 Kamlesh Madan (since deceased) Vs Sh. Noria Mal Ram Kumar -4- inception Sh. Pankaj Madan and Sh. Dhiraj Madan. There is no space/shop as per the suitability or otherwise is not available for the deponent to run her business independently to earn her bread. The respondent can not dictate the owners of the property how to use the same by the owners. No business is possible to be run by the deponent as the sons of the deponent are engaged in their own business and they have no time to assist the deponent in her business. There is no triable issue in the application or in the affidavit filed by the respondent. Lastly, it is prayed that eviction petition may be allowed.
6. Rejoinder to reply to leave to defend also filed by the respondent reiterating the same facts as stated in the leave to defend.
THE LAW:
It is well settled that burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in clause
(e) are good enough to grant leave to defend.
It is further well settled that at a stage when the tenant seeks leave to defend, it is enough if he prima-facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. Unless the tenant at that stage itself establishes a strong case as would non-suit the landlord leave to defend should not be granted when it is not the requirement of Section 25 B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special ARC No. 25583/16 Kamlesh Madan (since deceased) Vs Sh. Noria Mal Ram Kumar -5- provisions contained in Chapter IIIA of the Act, leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of landlord to recover possession of the premises from a tenant. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to her and her family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction.
It is also well settled at the stage of granting leave to defend, parties rely on affidavits in support of the rival contentions. Assertions and counter assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend where either frivolous, untenable or most unreasonable.
It is also well settled that when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire.
In short and substance wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the rent controller by the statute itself to grant leave. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims.
There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly ARC No. 25583/16 Kamlesh Madan (since deceased) Vs Sh. Noria Mal Ram Kumar -6- improper. When leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action.
7. I have carefully and minutely gone through petition, leave to defend application accompanied by affidavit, reply, documents and material on record as well as the written submissions and case law relied upon.
8. Perusal of record shows that in the present case the respondent has raised the plea that present petition has been filed without joining the other co-landlords.
On the other hand, in reply thereto, the petitioner has contended that it is not necessary to implead other co-owners as parties and even without impleading the other co-owners petition can be maintained.
In the case titled as M/s Indian Umbrella Manufacturing Co. & Ors. vs. Bhagabandei Agarwalla (Dead) by LRs Smt. Savitri Agarwalla & Ors., AIR 2004 1321; it was held that:
"The consent of other co-owners is assumed to be taken unless it is shown that the other co-owners were not agreeable to the ejectment of the tenant and suit/petition for their eviction was filed despite their dis-agreement."
Perusal of well settled proposition of law clearly shows that petition U/S 14(1)(e) of DRC Act may be maintained even without ARC No. 25583/16 Kamlesh Madan (since deceased) Vs Sh. Noria Mal Ram Kumar -7- impleading the other co-owners. As such, this plea of the respondent does not raise any triable issue which could dis-entitle the petitioner to obtain the order of eviction.
9. Another contention of the respondent is that the petitioner and her late husband filed two eviction petition one U/S 14(1)(e) and another U/Sec. 14 D of the DRC Act but both the eviction petition could not succeed.
On the other hand, petitioner has claimed that first eviction petition U/S 14(1)(e) filed by her husband dismissed by the court on the death of her husband as it was observed by the court that no right to sue survived. As far as petition U/S 14 D is concerned, the petitioner has contended that it was withdrawn by the petitioner herein as the tenanted premises was neither let out by her husband nor petitioner.
10. As such, perusal of record shows that respondent has claimed that there is malafide on the part of petitioner due to which number of petitioners are filed against him. In my considered view, there is no prohibition of law in respect of number of petition for bonafide requirement. Moreover, no malafide is shown on the part of petitioner in case one eviction petition U/S 14(1)(e) was dismissed due to not surviving of right to sue. Moreover, another eviction petition U/S 14 D was also withdrawn on the ground of non satisfying the ingredient of 14D of DRC Act. It is a right of petitioner to withdraw any eviction petition at any point of time. As such, this plea also does not have force and does not raise any triable issue.
11. One of the pleas by the respondent is that the main motive of ARC No. 25583/16 Kamlesh Madan (since deceased) Vs Sh. Noria Mal Ram Kumar -8- the petitioner is to pressurize the respondent to accede the illegal demands of the petitioner.
Perusal of record shows that the respondent has not mentioned the details of the illegal demands by the petitioner. As such, this plea of the respondent also does not raise any triable issue and a vague plea.
12. The next plea of the respondent is that petitioner is doing the business under the name of M/s Persoft Computers Services.
On the other hand, the petitioner has denied being the partner of aforesaid firm and has specifically contended that she does not have any concern with the aforementioned firm.
Perusal of record shows that the respondent has not placed on record any document which shows that petitioner is the partner in the aforementioned firm. Moreover, even if, it is assumed for the sake of argument, that she is already doing the business, the respondent, in my view, can not stagnate the growth of the landlord/petitioner or her family member merely to save his tenancy.
In the judgment of Hon'ble Supreme Court in case titled as Raghunath G. Panhale (dead) through L.Rs. Vs. Chagan Lal Sundarji & Co. (1999) 8 SCC 1 wherein it was held that:-
"It will be seen that the trial court and the appellate court had clearly erred in law. They practically equated the test of "need or requirement" to be equivalent to "dire or absolute or compelling necessity". According to them, if the plaintiff had not permanently lost his job on account of the lockout or if he had not resigned his job, he could not be treated as a person without any means of livelihood, as contended by him and hence not entitled to an order for possession of the shop. This test, in our view, is ARC No. 25583/16 Kamlesh Madan (since deceased) Vs Sh. Noria Mal Ram Kumar 9 not the proper test. A landlord need not lose his existing job nor resign it nor reach a level of starvation to contemplate that he must get possession of his premises for establishing a business. The manner in which the courts have gone into the meaning of "lockout" in the Industrial Disputes Act, 1947 appears to us to be nothing but a perverse approach to the problem. One cannot imagine that a landlord who is in service should first resign his job and wait for the unknown and uncertain result of a long-drawn litigation. If he resigned his job, he might indeed end up in utter poverty. Joblessness is not a condition precedent for seeking to get back one's premises. For that matter assuming the landlord was in a job and had not resigned it or assuming that pending the long- drawn litigation he started some other temporary water business to sustain himself, that would not be an indication that the need for establishing a grocery shop was not a bona fide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant".
In the case titled as Ram Babu Agarwal vs. Jay kishan Das 2009(2) RCR 455, the Apex Court observed as under:-
"However, as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to do footwear business in the premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also."
ARC No. 25583/16 Kamlesh Madan (since deceased) Vs Sh. Noria Mal Ram Kumar -10- In the case titled as Lajpat Rai Vs Raman Jain 2012 Law suit (Del) 1439, it was observed by Hon'ble High Court as under:-
"The facts have been disclosed by the petitioner himself in the eviction petition; the petitioner also being a commerce graduate from the Shri Ram College of Commerce seeks an independent business of his own; thus this need to set up a business of his own cannot be in any manner be said to be imaginative or a need which is moonshine; it is a genuine need; the present petitioner having inherited this shop from his grandmother by virtue of the aforenoted Will wishes to set up his own business of rubber and latex which he was earlier carrying on with his father and in which he has gained expertise and knowledge. Thus in no manner can it be said that this need of the landlord is not a bonafide need.
10. The landlord is the best judge of his requirement; it is not for the tenant to dictate terms to him; neither the Court tell him the manner he wishes to set up his business."
As such, in my view of settled proposition of law respondent/tenant does not have any right to raise such issue and certainly it is not a triable issue.
13. The next contention of the plea of the respondent is that petitioner is living with her three sons and was maintained by her husband and now she is being maintained by her sons and she never carried out any business.
In case titled as Sunder Singh Talwar Vs Kamal Chand Dugar (supra) in which the Hon'ble Delhi High Court inter-alia observed that:-
"7. The following judgments do help the case of ARC No. 25583/16 Kamlesh Madan (since deceased) Vs Sh. Noria Mal Ram Kumar 11 the respondent: Start new business/no experience required
(i) I n R a m B a b u A g a r w a l v s . J a y K i s h a n D a s , MANU/SC/1719/2009MANU/SC/1719/2009: (2010) 1 SCC 164, it was observed that "A person can start a new business even if he has no experience in the new business that does not mean that his claim for starting new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business and sometimes they are successful in the new business also."
(ii) In Tarsem Singh vs. Gurvinder Singh, MANU/DE/2640/2010: 173 (2010) DLT 379, it was observed that "If the landlord wants to start his own business in the premises owned by him then by no stretch of imagination, it can be said that the requirement of the landlord for the premises is neither bonafide nor genuine."
(iii) In Balwant Singh Chowdhary & Anr. vs. Hindustan Petroleum Corporation Ltd., 2004 (1) RCR 487, it was held that "It is not necessary for the landlord to plead and prove the specific business he wants to set up, if the landlord wanted the premises for business purposes."
(iv) In Gurcharan Lal Kumar vs. Srimati Satyawati & Ors., MANU/DE/1078/2013: 2013 (2) RCR (Rent) 120 it was observed that "Merely because the exact nature of business has not been described would not take away their bonafide need to carry out a business (when admittedly both the sons are dependent upon petitioner for this need). It was observed that if the business need is not disclosed this would not wipe away the bonafide need of the landlord as has been pressed under Section 14(1)
(e) of the DRCA, 1958."
(v) In Raj Kumar Khaitan & Ors. vs. Bibi Zubaida Khatun & Anr., MANU/SC/0411/1995: AIR 1995 SC 576, it was observed that "It was not necessary for the appellants-landlords to indicate the precise nature of the business which they intended to start in the premises. Even if the nature of business would have been indicated ARC No. 25583/16 Kamlesh Madan (since deceased) Vs Sh. Noria Mal Ram Kumar -12- nobody would bind the landlords to start the same business in the premises after it was vacated."
Hence, the legal position is quite clear. The landlord need not to show evidence that he has experience of said business that he proposes to start. In fact, it is not necessary for landlord to indicate the precise nature of business which he intends to start in the premises. Hence if for some reason there is an impediment in the way of the petitioner/petitioners son from starting a computer shop from the tenanted premises, the said petitioners would be free to change the nature of business and use the suit property for carrying on business which confirms to the legal requirements.
There is no merit in the contention of the petitioner that the need for starting a computer shop is not bonafide requirement."
Hence, it is settled law that the landlord need not show evidence that he has experience of said business that he proposes to start. In fact, it is not necessary for the landlord to indicate the precise nature of business which he intends to start in the premises. There is hence no merit in the said contention of the petitioner."
As such, in view of settled proposition of law this is also not a triable issue.
14. One of the pleas of the respondent is that the petitioner and her sons got the possession of one shop on the ground floor from the tenant and will get the possession of another two shops in January, 2014. It is contented by the respondent that if the petitioner had any intention to carry any business, she could have started the business in the said vacated shop.
On the other hand, in the reply thereto, the petitioner has asserted that said shops were got vacated by the husband of the deponent to settle his all three sons in their business and lives ARC No. 25583/16 Kamlesh Madan (since deceased) Vs Sh. Noria Mal Ram Kumar -13- because they are doing their business in hotch potch and they are unable to run their business smoothly despite of the fact that there father was having such space to settle their sons but the same was occupied by tenants. As such, eviction petitions were filed to get those shops vacated for three sons only.
15. As such, perusal of record shows that all three shops as claimed by the respondents are required bonafide for three sons and not for the petitioner. Moreover, in my view, every person as a right to excel in his/her of life and a person is not supposed to be stagnated in the same position for large number of years. As such, this issue raised by the respondent is not a triable issue.
16. One of the pleas of the respondent is that petitioner in the earlier petition disclosed that petitioner requires the premises for her business but later on she changed her mind and now wants the tenanted premises for the business of her daughter Ms. Mamta Kohli to assist the petitioner for running the business.
In my view, this contention does not raise any triable issue as the petitioner is not restricted to change his bonafide requirement and no law imposes upon the duty to take same pleas in all the eviction petitions.
17. One of the plea of the respondent is that the daughter of the petitioner is married and is not the family member of the petitioner and she can not be considered as dependent U/S 14(1)(e) of the DRC Act.
In Anil Kumar Gupta Vs Deepika Verma passed in RC Revision No. 138/2015 on 14.10.2015, it is observed as under:-
ARC No. 25583/16 Kamlesh Madan (since deceased) Vs Sh. Noria Mal Ram Kumar 14 "12. Customarily or in common parlance a dependent would be defined as any person who is reliant on another either for financial or physical support for sustenance of life. It is pertinent to note that the word dependent or as to what constitutes a family has nowhere been defined in the Delhi Rent Control Act. Rather, the legislators consciously and deliberately have used the words "any member of family dependent on the landlord" instead of defining a clear degree of relations so as to construe a wider meaning to the aforesaid words as man is a social creature and part of a complex societal system involving myriad of relations from which he cannot be isolated. It is significant to understand that the dependency is not restricted to financial or physical but will also include emotional reliance on another person. Reliance in this regard is placed on the findings of this court." Further in M/S. Jhalani Tools (India) Pvt. Ltd. vs B.K. Soni; AIR 1994 Delhi 167, wherein the court observed "the social set up of our society is such where a married daughter continues to enjoy a place of pride in her maternal home and therefore while considering the requirement of the landlord her married daughter and her expected visits cannot be lost sight of. Similarly in Sain Dass v.
Madan Lal; 1972 Ren CJ (SN) 8 (Delhi), this Court has acknowledged "the word "himself" has to be construed to mean "himself" as cohabiting with his family members with whom he is normally accustomed to live. Therefore, contrary to the submissions of the learned counsel for the petitioner financial or physical incapacitation cannot be the sole premises for determining dependency on another." The Hon'ble Delhi High Court Further observed "14. As it crystallizes from the aforesaid the word dependent cannot be constructed in a narrow and literal manner. The same have to be interpreted judiciously keeping in mind the intent of the legislators. As discussed above the words used under S.14 (1) (e), are "any member of family dependent on him" which would include the daughter in law who in the instant matter is dependent on her mother in law/landlady (respondent herein) and on account of sharing of residence both the daughter in law and the respondent are physically, emotionally and financially inter-dependent." The Hon'ble Delhi High Court Further observed "it is settled principle that no blanket approach can be followed and the ARC No. 25583/16 Kamlesh Madan (since deceased) Vs Sh. Noria Mal Ram Kumar 15 court must look at each case in the light of its own peculiar circumstances."
18. As such in view of settled proposition of law, a married daughter is not restricted from assisting her mother in carrying out the business by her mother.
19. Next plea of the respondent is that present case is nothing but case of additional accommodation.
On the other hand, in reply thereto, the petitioner has inter-alia stated that the petitioner needs the help of a daughter at this old age as three sons are doing their own business.
In the case titled as "Mittar Sain Vs Rajesh Kumar" passed in RC Revision 196/2013 and CM 8431/2013 passed by the Hon'ble High Court of Delhi, the relevant portion is as under:-
"14. On the issue of alternate accommodation, this court is of the view that the reliance by the tenant on the cases of S.M. Mehra, Santosh Devi Soni and Liaq Ahmad (Supra) are misplaced. This court is of the view that decision in the said cases were given in the peculiar set of facts and such decisions would not be applicable to the present case as the facts are entirely different. Moreover, as has been relied upon by the Ld. Counsel for the landlord, in the case of Madan Lal Gupta (Supra) the Hon'ble Supreme Court has held that neither Santosh Devi Soni (Supra) nor Liaq Ahmad (Supra) laid down any principle of law, it was further observed in these cases, certain orders were passed on the facts arising in them."
In the case titled as Madan Lal Gupta Vs Ravinder Kumar passed in SLP (Civil) 10729/2000 passed by the Hon'ble Apex Court, the Hon'ble Apex Court inter-alia observed as under:-
ARC No. 25583/16 Kamlesh Madan (since deceased) Vs Sh. Noria Mal Ram Kumar 16 "However, the learned Counsel for the petitioners sought to rely upon two decisions of this court in Santosh Devi Soni Vs Chand Kiran, J.T 2000 (3) SC 397, and Liaq Ahmad ORS Vs Shri Habeeb Ur Rehman, JT 2000 (5) SC 611. Neither of these two decisions set down any principle of law so as to call for interference by us. In these two cases on the facts arising in the case certain orders have been passed by this court."
In the case titled as Sudesh Kumar Soni & Ors. Vs. Prabha Khanna & Ors. 153 (2008) DLT 652 it was observed that:-
"24. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.
25. Suitability has to be seen from the convenience of the landlord and his family members and on the basis of the circumstances including their profession, vocation, style of living, habits and background. Landlord is the best judge of his residential requirement".
In the case titled as Ragavendra Kumar Vs Firm Prem Machinery AIR 2000 SC 534, it was observed as under:-
"It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter, (See: Prativa Devi (Smt.) v. T.K Krishnan, [1996] 5 SCC 353. In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted."
In the case titled as Sarla Ahuja Vs United India Insurance ARC No. 25583/16 Kamlesh Madan (since deceased) Vs Sh. Noria Mal Ram Kumar 17 Co. Ltd. AIR 1999 SC 100 , the Hon'ble Supreme Court has held that:
"The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
Perusal of record shows that the respondent has not disclosed any other property excepting three shops in the possession of petitioner, but the same are already occupied or to be occupied by the three sons and no other alternative reasonably suitable commercial accommodation has been disclosed by the respondent in his leave to defend where petitioner can start her own business with the help of her daughter.
20. As such, in my view, this plea of the respondent also does not raise any triable issue which could disentitle the petitioner to obtain the eviction order in her favour.
21. The respondent has also relied upon the Judgments titled as Davinder Pal Singh & Ors. Vs M/s Pritam Prakash Dawar & Sons ARC No. 25583/16 Kamlesh Madan (since deceased) Vs Sh. Noria Mal Ram Kumar 18 (HUF) passed in RC Rev. 222/2013 passed on 06.11.2013 and Inderjit Kaur Vs Nirpal Singh 89 (2001) DLT 27 (SC) & Jagdish Lal Khurana Vs Hemant Arora 2013 I AD(Delhi).
I have carefully gone through the aforementioned judgments relied upon by the respondent. But in my view, these judgments are not applicable to the present case as the facts and circumstances of the present case is different from facts of those cases. In one of the cases as mentioned above, the petitioner/landlord as well as his family members were permanently settled in U.K. In other cases also, the facts were different from present case. As such, these judgments relied upon by the respondent are distinguishable for the reasons as discussed earlier.
22. In my considered view, no triable issue has been raised by the respondent in the present leave to defend which could dis-entitle the petitioner to obtain an eviction order against the respondent.
CONCLUSION:
23. In view of the above discussion, I find no triable issue in the leave to defend application of the respondent which could dis-entitle the petitioner to obtain an eviction order in his favour. The application for leave to defend filed by the respondent is thus, dismissed.
24. Hence, as a consequence thereof, an eviction order is passed U/s. 14 (1) (e) of DRC Act in favour of petitioner and against the respondent in respect of the tenanted premises i.e. shop at ground floor in property no.3/14, Industrial Area, Kirti Nagar, New Delhi shown in red colour in the site plan attached with the petition ARC No. 25583/16 Kamlesh Madan (since deceased) Vs Sh. Noria Mal Ram Kumar 19 which is marked as Mark- P1 (Put by the court for the purpose of identification).
25. However, this order shall not be operative before the expiry of six months from today keeping in view Sec. 14(7) of D.R.C. Act.
26. File be consigned to the Record Room after due compliance.
Digitally signedAnnounced in the open Court AJAY by AJAY
NAGAR
on 18th April, 2019.
NAGAR Date:
2019.04.18
(This order contains 19 pages) 17:25:53 +0530
(AJAY NAGAR)
Additional Rent Controller,
West District, THC, Delhi.
ARC No. 25583/16 Kamlesh Madan (since deceased) Vs Sh. Noria Mal Ram Kumar