Delhi High Court
Jai Bhagwan & Anr. vs Raghubir Saran on 24 September, 2012
Author: M.L. Mehta
Bench: M.L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ R.C.REV. 51/2012
Date of Decision: 24.09.2012
JAI BHAGWAN & ANR. ...... Petitioner
Through: Mr.Inder Bir Singh, Adv.
Versus
RAGHUBIR SARAN ...... Respondent
Through: Mr.Ch.Ranjit Singh, Adv.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This revision petition under Section 25-B(8) of the Delhi Rent Control Act (for short the 'Act') is directed against the order dated 29.11.2011 of the Sr.Civil Judge-cum-Rent Controller (North) whereby the leave to defend application filed by the petitioners, was dismissed.
2. The petitioners are the tenants in respect of one shop in property No. 502, Main Market, Sabzi Mandi, Delhi under the respondent. His eviction is sought from the suit shop on the ground of bona fide requirement of the same by the respondent for himself and for his grandsons Vijay and Gaurav, who were stated to be dependent upon him. The case of the respondent is that he was doing the business along with his son Pawan Kumar in a tenanted shop at Main road, Sabzi Mandi. He vacated the said shop in the month of February, 2008 and RC Rev. 51/2012 Page 1 of 6 after vacating the said shop, he suffered business losses and his son Pawan expired on 27.05.2008. His grandsons Vijay and Gaurav, who are the sons of his deceased son Pawan are without any work because of non-availability of the suitable space and thus, are dependent upon him.
3. The petitioners filed leave to defend application, which came to be dismissed by the learned Rent Controller vide the impugned order. The same is under challenge in the instant revision petition.
4. I have heard learned counsel for the parties and perused the records. The submission of the learned counsel for the petitioners is that the projected requirement of the suit shop by the respondent for himself and for his grandsons Vijay and Gaurav is fanciful and mala fide. It is alleged that the respondent is not having cordial relations with his grandsons and had rather filed a case against them and their mother in May, 2009. It was also his case that the respondent is aged person more than 75 years old and is leading the retired life after closing his business during lifetime of his son Pawan, and does not intend to carry any business at this age. It was also submitted that the respondent has been residing along with his second son Sanjay and his family, and further that both Sanjay and his wife are employed and well-settled, getting handsome salaries. It was also submitted that his son Pawan Kumar was a serious asthmatic patient and had died because of this disease and not because of loss in the business. It was also submitted that both his grandsons Vijay and Gaurav are residing RC Rev. 51/2012 Page 2 of 6 separately with their mother and are well-settled in their businesses and earning handsome amounts. The petitioners have given the specific details of the businesses as also the earnings of Gaurav and Vijay.
5. In reply to the leave to defend application, the respondent controverted the pleas of the petitioners. While admitting that the respondent has filed a suit against his grandsons and their mother, it was averred that there was some dispute between the respondent and his daughter-in-law, but the same has now been resolved and the suit has been withdrawn.
6. Having heard the counsel for the petitioners and on perusal of the record, it would be seen that there was nothing on record to show that the respondent had suffered any loss in the business due to closure of his shop at Sabzi Mandi. It is undisputed that a suit for recovery was filed by the respondent against his grandsons Gaurav and Vijay and also their mother. From the averments of the plaint filed by the respondent against his grandsons Gaurav and Vijay and their mother, it would be seen that the respondent had alleged his grandsons Gaurav and Vijay and also their mother to be the tenants occupying ground, first and second floors of his house 3542, Gali Chajju Lohar, Sabzi Mandi in terms of the rent deed dated 23.07.2005. He had alleged that they have not paid the rent since 01.05.2008 i.e. after the death of their father. When this plea was taken in leave to defend application filed on 18.12.2010, the respondent withdrew the suit on 21.02.2011. It was submitted by the learned counsel for the respondent that no plea was RC Rev. 51/2012 Page 3 of 6 taken by the petitioners in the leave to defend application about the litigation between the respondent and his grandsons and now the same could not be taken. This was entirely misconceived submission of the learned counsel for the respondent. It was rather the concealment of this fact by the respondent that he had any such litigation with the grandsons and their mother. Instead of making a fair disclosure, the respondent projected the requirement of the suit shop for his grandsons as well, and when it was pointed out by the petitioners, he immediately chose to withdraw that suit. This was all triable issue as to whether the respondent had cordial relations with his grandsons, and that the later genuinely needed the suit shop to settle their businesses.
7. There is no dispute that the grandfather had a moral duty as also obligation to help grandsons to set up their businesses, but that would certainly require to be tested that the projected requirements was genuine and authentic and not mere wish or desire. Further, the petitioners have stated about the details of the businesses as also the incomes of the grandsons Gaurav and Vijay to which, there is only a vague denial by the respondent. Undisputedly, the grandsons or their mother are not living with the respondent, but in the other premises along with their families. This all would require to be tested as to whether they are really dependent upon the respondent for setting up of their businesses.
8. Further, the respondent is undisputedly aged about 75 years and is living with his son Sanjay. In the backdrop of all this, it would also RC Rev. 51/2012 Page 4 of 6 be required to be examined and tested as to whether the respondent genuinely and sincerely intended to set up any business of his own and was capable of doing so independently since his son Sanjay and his wife are already employed and settled in their services.
9. The petitioners have raised prima facie triable issues and is thus, entitled to seek leave to defend to enable him to prove his defences. In a case like this, he cannot be thrown out at the threshold, and he needs the protection till the adjudication of the case by trial. The learned ARC has straight proceeded to accept whatever has been stated by the respondent, observing that after the death of his son Pawan Kumar, the grandsons became dependent upon the respondent. He seems to have overlooked the fact that for entitling the respondent to seek eviction of the tenant on the ground of bona fide requirement of his grandsons, it was required to be seen as to whether the grandsons were dependent upon the respondent and had no other reasonably suitable accommodation. Mere relationship of grandfather and grandsons, per se, does not entitle the former to claim dependency of the latter. The petitioners have succeeded in raising triable issues, requiring the respondent to establish his bona fide requirement of the suit premises by leading evidence. Dismissal of the leave to defend application has led to gross injustice to the petitioner at the threshold. This calls for interference by this court. Consequently, the impugned order is set aside and the leave to defend is granted to the petitioners. The parties RC Rev. 51/2012 Page 5 of 6 are directed to appear before the ARC on 16.10.2012 for further proceedings.
10. Petition stands disposed accordingly.
M.L. MEHTA, J.
SEPTEMBER 24, 2012/akb RC Rev. 51/2012 Page 6 of 6