Delhi District Court
Sh. Krishan Lal vs Sh. Ramesh Mehta on 20 July, 2016
IN THE COURT OF MS. SHUCHI LALER, SENIOR CIVIL
JUDGE-CUM- RENT CONTROLLER (SHAHDARA), KKD
COURTS, DELHI
RC/ARC No. 794/16
In the matter of :
Sh. Krishan Lal,
S/o Late Sh. Mathura Dass,
R/o 70A, Baldev Park,
Delhi- 110 051 ....... Petitioner
Versus
Sh. Ramesh Mehta,
S/o Late Mool Chand,
R/o one shop in property no. 70A,
Baldev Park, Delhi- 110051 ...... Respondent
Date of Institution : 20.05.2015
Date of Arguments : 06.06.2016
Date of Pronouncement : 20.07.2016
ORDER
1. Vide this order, the court shall dispose off an application for leave to defend filed by the respondent in reply to the eviction petition under Section 14(1)(e) of DRC Act filed by the petitioner.
2. Brief narration of the facts as disclosed in the petition is as under:-
2.1 That the petitioner is co owner and landlord of property bearing no. 70A, Baldev Park, Delhi - 51 (hereinafter referred to as property in question). A shop situated at ground floor of the property in question (henceforth referred RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 1 of 20 pages to as tenanted shop) was originally let out to the father of respondent by the mother of petitioner, however, after the death of father of respondent, the tenancy devolved upon respondent and he started paying rent to the petitioner after demise of petitioner's mother.
2.2 That the petitioner is living along with his family comprising of his wife, major son and three daughters on the first floor of property in question and the residential portion on ground floor is in use and occupation of petitioner's bhabhi, Smt. Krishnawati and his brother Sh. Madan Lal. 2.3 That after death of father of petitioner, the property in question devolved upon his four sons namely, Sh. Amarnath (who expired in the year 2003, survived by his wife Ms. Krishnawati and 3 sons), Sh. Sundar Lal, petitioner, Sh. Madan Lal and his wife Smt. Laxmi Devi (who died in the year, 1988). Thus, the petitioner is a co owner of the property in question. 2.4 That the petitioner bona fidely requires the tenanted shop for his wife and son Sh. Hemant Chopra who are unemployed and want to start a business of Kiryana shop. The petitioner, his wife and son do not have any other reasonable, suitable and alternative vacant shop which could be used for the bona fide need.
Being aggrieved, the petitioner filed the present eviction petition.
3. Summons of the eviction petition in the prescribed proforma as per Schedule III of DRC Act was served upon the respondent. In pursuance of the service of summons, the respondent filed an application for grant of leave to contest the Eviction Petition on 06.06.2015.
RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 2 of 20 pages
4. In the application for leave to defend, the averments made by the respondent are as under:-
4.1 That the petitioner has falsely stated, in his petition, that respondent is a tenant in respect of one shop with a mala fide intention to grab the other shop. In the year 1982, respondent took one shop measuring 6' x 9' on rent from Smt. Laxmi Devi at monthly rent of Rs.150/- and when his business grew he took the adajent shop of same measurement in the year 1984 at monthly rent of Rs.150/-.
4.2 That there are 5 shops in the property in question and all the shops are ad measuring about 6' x 9' each, however, the petitioner has not disclosed all the shops in the Site Plan nor in his eviction petition.
4.3 That the petitioner has failed to plead the required particulars in the petition and the same is barred under Section 1 of DRC Act, 1958 as the property in question is situated in Baldev Park, Delhi - 110 051 where the provisions of DRC Act is not applicable.
4.4 That the petitioner is neither owner nor landlord of the property in question and the petitioner is falsely claiming title qua the property in question without producing any ownership documents in his favour.
4.5 That the petitioner is claiming title qua the property in question by way of Sale Deed dated 14.12.1961 in favour of his father, namely, Late Sh. Mathura Dass, however, he failed to place the same on record. Even, if it is presumed that father of petitioner was the owner of property in question then also he has not placed anything on record such as partition deed or NOC from other legal heirs etc. RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 3 of 20 pages 4.6 That the petitioner has intentionally and deliberately not disclosed that he has various other properties in Delhi and the property in question is having various other commercial portions, which are suitable for the need of petitioner, hence, he has falsely alleged that the tenanted shop is most suitable accommodation for his alleged needs.
4.7 That out of five shops at the property in question, two shops are under the tenancy of respondent, one shop is under the possession of other tenant and the petitioner is in possession of remaining two shops. The petitioner with mala fide intention has shown the said two shops as one room in possession of his Bhabhi, namely, Smt. Krishnawati. The two shops were converted to allege room only on 17.03.2015 to conceal available additional accommodation of two shops. 4.8 That petitioner's son is running his own huge business of trading and wholesale of fashion wears from a commercial shop bearing no. IX/6175, opposite Gurudwara, Pratap Gate, Gandhi Nagar, Delhi and the same is owned by him.
4.9 That petitioner's wife is a house wife and she has no experience of any kind of any business so it is not possible for her to run any business as alleged by the petitioner. 4.10 That the respondent has come to know that petitioner has approached Asiad Properties to sell the property in question and said property dealer advised that the property in question will sale out on higher rates only after eviction of tenants.
4.11 That the petitioner is a permanent government servant is getting handsome salary. It is unbelievable that RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 4 of 20 pages petitioner would induct his wife and his son in a business of Kiryana Shop.
4.12 That the respondent is an old aged person around 65 years and tenanted shop is the only source of livelihood of the respondent. The petitioner has not filed correct and complete plan of the property in question.
In view thereof, respondent has claimed that there are several triable issues involved in the present petition which require adjudication, accordingly, it has been prayed that leave to defend be granted to the respondent.
5. The petitioner has filed reply to the application for leave to defend denying the contents of the application for leave to defend and has reiterated the averments made in the eviction petition. The petitioner has averred that he and his family members have no right, title or interest in the property no. IX/6175, Opposite Gurudwara Partap Gate, Gandhi Nagar, Delhi.
Remaining material averments have been denied and the petitioner claimed that the respondent has failed to raise any triable issue and prayed for dismissal of application for leave to defend.
6. The respondent has not preferred to file any rejoinder to the reply of the petitioner to the application for leave to defend.
7. Rival submission advanced at bar have been heard and record perused. Written submissions filed on behalf of respondent have also been perused.
8. First and foremost, the court needs to adjudicate whether DRC Act is applicable to the area wherein the RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 5 of 20 pages tenanted shop is situated so as to make the present Eviction Petition under Section 14(1)(e) DRC Act maintainable.
9. In the application for leave to defend, respondent has alleged that the tenanted shop is situated in the area of Baldev Park to which DRC Act does not apply. The petitioner, in his reply, has averred that the tenanted shop is situated at Baldev Park which falls within the area of Village Khureji Khas, Illaqa Shahdara, Delhi and the same is notified and covered under the provisions of DRC Act.
10. In the case titled as Sadhna Gupta v Vijay Pal Kathuria dated 15.12.2014 in RC (Rev) no. 402/2014 the Hon'ble Delhi High Court has upheld the Order of Ld. ARC whereby Ld. ARC had dismissed the application for leave to defend in an eviction petition under Section 14 (1)(e) DRC Act with respect to tenanted shop situated in property no. 78, Baldev Park, Delhi.
11. Accordingly, the contention of the respondent that DRC Act has no application to the area of Baldev Park, Delhi is without merits. Having held that the present eviction petition under Section 14 (1) (e) DRC Act is maintainable, now, the Court needs to adjudicate whether the respondent / tenant is entitled to grant of leave to defend.
12. It is well-settled that in order to obtain leave to defend to contest the Eviction Petition, the tenant is required to file affidavit disclosing such facts which would dis-entitle the landlord from obtaining the eviction order. Such facts must be material and substantial and they must be bonafide. Further, it has to be seen that allegations of facts are not meant to delay the disposal of the eviction petition. It is well settled that mere RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 6 of 20 pages denials for the sake of denials are no ground in the eyes of law and if there is no ground or plea, eviction order has to be passed against the tenant whereas if the facts disclosed by the tenant in his affidavit raise triable issues, then he is entitled for the grant of leave to defend and contest the eviction petition.
13. Clause (e) of Proviso to Sub Section (1) of Section 14 of the D.R.C. Act postulates following conditions which must be satisfied : - (i) That the landlord must be the owner of the property ; (ii) The premises must be required bonafide by the landlord and (iii) Non availability of any other reasonably suitable accommodation.
14. OWNERSHIP OF LANDLORD/PETITIONER 14.1 The respondent has disputed the relationship of landlord as well as ownership of the petitioner. It has been alleged that the sale deed dated 14.12.1961 in the name of father of petitioner late Sh. Mathura Dass has not been filed on record. Even the petitioner has not placed on record partition deed or NOC of other legal heirs of late Sh. Mathura Dass. 14.2 The petitioner, in his reply to leave to defend, has stated that by virtue of Hindu Succession Act, he became co owner of the property in question and mother of petitioner, admittedly, had given tenanted shop to respondent on rent so respondent cannot challenge title of his late landlady and her legal heirs.
14.3 In M.M. Quasim Vs Manohar Lal Sharma (1981) 3 SCC 36 it was observed by the Apex Court that an "owner- landlord", who can seek eviction on the ground of his personal RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 7 of 20 pages requirement, is one who has a right against the whole world to occupy the building in his own right and exclude anyone holding a title lesser than his own.
14.4 It was observed in Shanti Sharma Vs Smt Ved Prabha AIR 1987 SC 2028 that the term "owner" has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. The Act has been enacted for protection of the tenants. But, at the same time, it has provided that the landlord under certain circumstances will be entitled to eviction and bona fide requirement is one of such grounds. Ordinarily, the concept of the ownership may be absolute ownership in the land as well as of the structure standing thereon. But in the modern context, where all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Government or the authorities constituted by the State. The legislature, when it used the term "owner" in s. 14(1)(e), did not think of ownership as absolute ownership. The meaning of the term "owner" is vis-a-vis the tenant i.e. the owner should be something more than the tenant. In cases where the plot of land is taken on lease, the structure is built by the landlord and he is the owner of the structure.
14.5 In the present case, the defence raised by the respondent that the petitioner is not the owner / landlord of the tenanted shop is not tenable even, prima facie, for the following reasons:-
14.5.1 Because, the respondent, in para no. (2) of Affidavit filed along with application for leave to defend, admitted that the RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 8 of 20 pages tenanted shop was let out to him by mother of petitioner Smt. Laxmi Devi. The respondent, being a tenant, cannot challenge the ownership of landlady late Smt. Laxmi Devi, as Section 116 of Evidence Act, precludes him from raising such as plea. 14.5.2 Because, the petitioner, being son of Late Smt. Laxmi Devi, is a co-owner and certainly has better rights in the tenanted shop than the respondent, who was and is only a tenant.
14.5.3 Because, in a petition under Section 14 (1)(e) of DRC Act, the Rent Controller need not hold a trial to determine as to who is the true owner of the premises and whether or not there is any defect in petitioner's title, that too at the behest of a tenant. Imperfection of the title is no defence to contest an Eviction Petition by a person admittedly inducted as a tenant. 14.5.4 If any of the legal heirs of Late Smt. Laxmi Devi feel that he / she has a better claim to the title of the tenanted shop then he / she can approach the Civil Court, but the tenant cannot certainly take cudgles on their behalf. 14.5.5 Because, the respondent being tenant, has no legal right to compel the petitioner and other legal heirs of late Smt. Laxmi Devi to firstly seek partition or enter into a family settlement w.r.t. the property in question and only after determination of their respective shares, they shall file an eviction petition against him. It is an internal arrangement of petitioner and other legal heirs whether they want to seek partition of the property in question or not. The respondent cannot challenge the inter se family arrangement of petitioner and other legal heirs of late Smt. Laxmi Devi. Reliance is placed upon the judgment titled as A.K. Nayar v. Mahesh Prasad, RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 9 of 20 pages (2008) 153 DLT 423.
14.5.6 Because, it is not mandate of law that the co-owners shall firstly get the property in question partitioned and thereafter they shall file an eviction petition. Rather the law permits a single co-owner to file an eviction petition even without impleading other co-owners. The petitioner, being a co- owner, is competent to file the present eviction petition against the respondent. (Reference may be made to the judgments titled as M/s India Umbrella Manufacturing Co. v. Bhagbarla Aggarwal (dead) by LRs, (2004) 3 SCC 178, Sri Ram Pasricha v. Jagannath & Ors., (1976) 4 SCC 184; Dhanndu v. Kalawati Bai & Ors., (2002) 6 SCC 16).
Thus, for the reasons recorded here-in-above, this defence raised by the respondent is a vague and sham defence and without substance.
15. BONAFIDE REQUIREMENT AND NON AVAILABILITY OF REASONABLY SUITABLE ACCOMMODATION.
15.1 These two ingredients are being dealt with together as they are inter-related to each other. The petitioner has claimed that he bona fidely requires the tenanted shop for his wife and son to start a business of Kiryana Shop. The respondent has challenged the bona fide need of the petitioner mainly on three grounds.
15.2 Firstly, the respondent has averred that the petitioner has deliberately not disclosed in the petition that he has various other properties in Delhi. It has been alleged that RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 10 of 20 pages petitioner's son is already running his huge business of trading and wholesale of fashion wears and all types of ladies apparel from a big commercial shop owned by him i.e. IX/6175, Opposite Gurudwara, Partap Gate, Gandhi Nagar, Delhi. 15.3 The petitioner has stated that he is not the owner of any other residential or commercial property except the property in question. The petitioner has claimed that he and his family members have no right, title or interest in the property bearing no. IX/6175, Opposite Gurudwara, Partap Gate, Gandhi Nagar, Delhi.
15.4 Self serving bald averment regarding petitioner being owner of several properties at Delhi cannot be a ground for grant of leave to defend. There is no material on record to substantiate the respondent's plea that petitioner is the owner of several properties. The details of the said properties have not been disclosed.
15.5 It is well settled law that bald allegation without any material on record to substantiate the same cannot be looked into as the mere bald allegations are not enough for grant of leave to defend. It is held by the Hon'ble High Court of Delhi in Rajinder Kumar Sharma and Ors. Vs. Leelawati and Ors., 155 (2008) DLT 383:
11....."Only those averments in affidavit are to be considered by Rent Controller which have some substance in it and are supported by some material."
15.6 Moreover, It is held by the Hon'ble High Court of Delhi in a case tiled as Hari Shanker Vs. Madan Mohan Gupta, 111 (2004) DLT 534 "Summary procedure in Section 25-B of Delhi Rent Control Act, 1958 cannot be defeated by RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 11 of 20 pages merely making frivolous and vague allegations which can never be substantiated."
15.7 Thus, the respondent has made a bald and vague allegation that the petitioner is the owner of several properties in Delhi or that his son is owner of property bearing no. IX/6175, Opposite Gurudwara, Partap Gate, Gandhi Nagar, Delhi. This plea of respondent is not supported by any document and is bereft of details, hence, it appears to be false and frivolous, accordingly, it is rejected.
15.8 Secondly, the respondent has alleged that the petitioner, who is a government employee, has a handsome salary and he has recently taken a residential premises on monthly rent of Rs.19,000/-, hence, he would not have any requirement to run a Kiryana Shop. It has also been alleged that the petitioner's wife is a housewife and she has no experience in the said business, hence, the requirement of tenanted shop is not bona fide. The aforesaid facts have been denied by the petitioner.
15.9 Presuming that the petitioner is well settled and is financially sound, still the petitioner / landlord can always set up an independent business for his wife and children to augment his family income. The tenant cannot determine the adequacy of funds or earnings for a landlord and / or his family. It is settled proposition of law that neither the court nor the tenant can dictate to the landlord as to how the landlord should utilize his financial resources.
15.10 In the case titled as, "Ishwar Chander V/s Saroj Karwal 2009(2) RCR page 657" it has been observed as under:
RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 12 of 20 pages "It is not necessary that the landlady/landlord has to start business only to earn livelihood or ease out financial constraints
- one can decide to start a business or some vocation to improve the standards of one's living and to generate self- earned income and respect both".
15.11 Thus, even if the monthly income of the petitioner / landlord is reasonable and sufficient, there can be no embargo on the landlord to augment / enhance his family income.
Moreover, it is not the mandate of petition under Section 14 (1)
(e) DRC Act that the landlord has to prove some experience in the business which he or his family members intends to start at tenanted shop. The following judgments do assist the case of the petitioner:
(i) In Ram Babu Agarwal vs. Jay Kishan Das, MANU/SC/1719/2009: (2010) 1 SCC 164, it was observed:
"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:
"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 Gurcharan Lal Kumar vs. Srimati Satyawati & Ors., MANU/DE/1078/2013 : 2013 (2) RCR (Rent) 120 it was observed:
"Merely because the exact nature of business has not been described would not take away their bonafide need to carry out RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 13 of 20 pages 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.
(iv) In Raj Kumar Khaitan & Ors. vs. Bibi Zubaida Khatun & Anr., MANU/SC/0411/1995 : AIR 1995 SC 576, it was observed:
"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 nobody would bind the landlords to start the same business in the premises after it was vacated. Even, after having gone through the pleadings and documents placed on record, it appears to the Court that it is not a triable issue".
(v) Kharati Ram Khanna & Sons. vs. Krishna Luthra, MANU/DE/2576/2010 : 2010 (172) DLT 551, wherein it was observed:
"the requirement of the landlord to settle down her two sons separately and independently was found to be genuine and bonafide."
(vi) In Labhu Lal vs. Sandhya Gupta, MANU/DE/2522/2010 : 2010 (173) DLT 318, it was observed:
"the landlord's son and daughter in law are dependent for accommodation on respondent the requirement of the landlord's son and daughter in law for expanding clinic being run in premises in question is genuine".
15.12 In the light of the aforesaid judgments, it is apparent that the petitioner's wife need not have a prior experience in the business of kiryana store. Even, if the petitioner has sufficient means, he has every right to set up independent bussiness for his unemployed son Sh. Hemant Chopra and for his wife. The need of tenanted shop by petitioner for starting kiryana business of his son and wife is genuine and bona fide.
RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 14 of 20 pages 15.13 Lastly, the respondent has alleged that there are 5 shops at the property in question out of which two are with the respondent, one shop is with another tenant, remaining two shops are in possession of petitioner. It has been alleged that the two shops were converted into a room only on 17.03.2015, which is being used by petitioner's bhabhi Ms. Krishnawati, to conceal available additional accommodation of said two shops. The petitioner has, per contra, claimed that the extent of accommodation available with the petitioner and his family members has been clearly described in the eviction petition supported by the site plan and the allegation of the respondent is false and frivolous.
15.14 The petitioner has filed a site plan of the property in question wherein only two shops are shown which are admittedly in the possession of respondent and another tenant, namely, Sh. Manmohan Singh and Sh. Harpreet. Except the bald averment of the respondent, there is nothing on record to suggest that the rooms adjacent to the tenanted shop were two shops prior to 17.03.2015. The respondent has not filed any photograph on record to show that the said room was being used as shop. The entire application for leave to defend is bereft of the details of the business, if any, was being carried out in the said shops. Thus, the plea of respondent regarding conversion of two shops into a room seems to be palpably false and is not substantiated with any document, accordingly, is liable to be rejected.
15.15 Admittedly, the two shops converted into a room is in possession of petitioner's bhabhi Smt. Krishnawati. The family RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 15 of 20 pages of petitioner's bhabhi is in occupation of three rooms on the ground floor of the property in question as shown in green color in the site plan. Though, the respondent has alleged that the petitioner has not filed correct and complete plan of the property in question, the respondent has not preferred to file any contrary site plan on record.
15.16 In the case titled as V. S. Sachdeva Vs. M. L. Grover, 67 (1997) DLT 737, the Hon'ble Delhi High Court has observed as under:
"if, the tenant failed to file any site plan, then the site plan filed by the landlord should be accepted"
15.17 In the absence of any contrary site plan of the respondents, the court will presume that the petitioner's bhabhi is in occupation of only three rooms on the ground floor of the property in question. The petitioner's bhabhi, being a widow lady, requires one bed room. The three married sons of petitioner's bhabhi also require three separate bed rooms. The minimum requirement of family of petitioner's bhabhi is of 4 bed rooms, one drawing room, dinning room, Pooja Room, Guest Room, Store etc. At present, the petitioner's bhabhi and her family members are in occupation of only three rooms. Thus, by no stretch of imagination, it can be said that the petitioner's bhabhi has sufficient residential accommodation. The family of the petitioner's bhabhi, has grossly inadequate available residential accommodation, even if it is presumed that petitioner has converted two shop into a room, he would not be unjustified in doing so and the need of tenanted shop cannot be said to have become mala fide on this sole ground.
RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 16 of 20 pages 15.18 The requirement of tenanted shop by the petitioner for the purpose of starting kiryana shop of his wife and son cannot be brushed aside as mere desire or fanciful requirement. Therefore, judged from any angle, the requirement of the petitioner for the tenanted shop cannot be termed malafide or with oblique motives. The respondent has not been able to show that the petitioner has any other reasonable, suitable accommodation available with him to start the business.
16. OTHER DEFENCES The additional defences which have been raised by the respondent, in the application for leave to defend, are discussed herein below:-
16.1 That the petitioner wants to sell out the property in question.
16.1.1 The respondent has alleged that the petitioner along with his family members approached one property dealer of the area who is running his office in the name of Asiad Properties to sell the property in question at higher price after eviction of the tenants. The said contention has denied by the petitioner in his reply to leave to defend application.
16.1.2 It is held by Hon'ble High Court of Delhi in Vinod Kumar Bhalla Vs. Sh. Nanak Singh 1982 (2) RCR (Rent) 715 that in all applications for leave to defend the common defence raised by almost all the tenants, is that the landlord wanted to enhance the rent or to sell the property after getting it vacated.
It was observed by the High Court that such types of allegations are without any foundation and that after an order of eviction is RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 17 of 20 pages passed under section 14 (1)(e), the tenant is granted six months time to vacate the premises and the landlord is required to occupy the same within two months and the landlord is further dis-entitle for re-letting or alienating the whole or any part of the premises within three years from the date of obtaining possession from the tenant. Thus, the landlord is not in a position either to sell or re-let the tenanted premises for a period of three years and if a landlord does sell or re-let the premises within the said period then the tenant may proceed against the landlord for restoration of the possession under section 19 of the Act.
16.1.3 A similar observation was made in judgment titled as Krishna Chopra & Anr. Vs. Smt. Raksha, 2000 Rajdhani Law Reporter 83.
16.1.4 Thus, on the basis of the above said case-law the contention of the respondent is rejected as the same is a mere assertion without any substance. Moreover the contention of the respondent is not tenable because protection / remedy is available / provided for the tenant under the DRC Act itself as he can file petition for repossession if the premises is transferred by the landlord after evicting the tenant, but certainly the leave cannot be granted solely on this ground.
Thus, this defence raised by the respondent is a sham defense and it does not raise any triable issue.
16.2 That the tenanted shop is only source of livelihood of respondent.
16.2.1 The respondent has averred that he is an old aged person of 65 years and the tenanted shop is the only livelihood RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 18 of 20 pages of him and six members in his family. The said contention has also been denied by the petitioner in his reply to the leave to defend application.
16.2.2 There is no provision in the DRC Act to evaluate comparative hardships and comparative need between landlord and tenant for deciding eviction petition. (Harbhajan Dass Vs Tilak Raj Mehta 1980 RCJ 780 Delhi). Even in case titled as P.S. Pareed Kaka & Ors. Vs. Shafree Ahmad Saheb AIR 2004 SC 2049, the Hon'ble Apex Court held that comparative hardship of tenant is of little consequence.
Thus, this defence raised by the respondent does not raise any triable issue.
CONCLUSION In the light of aforesaid discussion, the Court is of the opinion that the pleas taken by the respondent have failed to raise any triable issue. The contents of the application for leave to defend have failed to rebut the presumption of bonafide qua the requirement of the petitioner. The application for leave to defend filed by the respondent is accordingly dismissed.
Consequently, eviction order is passed in favour of the petitioner and against the respondent. Respondent is directed to hand over vacant and peaceful possession of the tenanted shop, i.e. a shop situated at ground floor of the property bearing no. 70A, Baldev Park, Delhi - 51 as shown in red colour in the Site Plan which is annexed along with the petition.
Further, the petitioner shall not be entitled to obtain the possession of the aforesaid tenanted shop from the RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 19 of 20 pages respondent before expiry of period of six months from the date of passing of this order as prescribed u/s 14 (7) of the DRC Act. The eviction petition under Section 14 (1) (e) r/w section 25-B DRC Act is accordingly disposed off. No order as to costs.
File be consigned to Record Room.
Announced in the open court (Shuchi Laler)
Dated: 20.07.2016 SCJ/RC (Shahdara)
Karkardooma Courts, Delhi
RC/ARC No. 794/16 Sh. Krishan Lal Vs. Sh. Ramesh Mehta Page 20 of 20 pages