Kusum Tyagi v. Satish Gupta

1. This petition is filed under Section 25-B(8) of the Delhi Rent Control Act, 1958 (in short ‘the Act’) impugning the order of the Additional Rent Controller dated 26.5.2012 by which the leave to defend application has been granted to the respondent/tenant.

2. One surprising fact is that today we are in September 2014 ie more than two years and three months after passing of the impugned order, but the petitioner has not even commenced leading her evidence. I may note that in Delhi eviction petitions are decided in about one and a half years or so and if the petitioner was sincere by now the main eviction petition itself would have been decided after completion of evidence. 2014:DHC:4547

3. The only aspect with respect to the issue of grant of leave to defend is that the petitioner/landlady claimed the suit/tenanted shop for carrying on business, however, respondent/tenant pleaded that an adjoining shop in November 2011 was let out to one Mr. Pawan Radhey. The Additional Rent Controller in para-4 of the impugned order notes that the respondent/tenant has placed on record the photographs as well as visiting card of the occupier of the second shop Mr. Pawan Radhey and who is carrying on business in the name of Shri Radhey Traders from the adjoining shop.

4. Therefore, there is clearly a bonafide disputed question of fact which requires trial as to whether or not the need of the petitioner is bonafide because the eviction petition is filed in the year 2012 and if the adjoining shop was let out in November 2011 to Sh. Pawan Radhey, then really the petitioner/landlady would not be requiring the premises for her bonafide need as was projected. Paras 2 and 4 of the impugned order dealing with this aspect read as under:- “2. In the leave to contest application, the relationship is not disputed but it is claimed that the adjoining shop was lying vacant since 2009 to November, 2011 and has been let out by the petitioner in November, 2011 to one Pawan Radhey at a monthly rent of Rs.5,000/- and there is no bonafide requirement. It is also mentioned that one of the daughters is already married and three out of remaining four are employed for handsome salary and there is no bonafide requirement. It is also mentioned that property no.WZ-89, is fetching rent of more than Rs.40,000/- Per Month and therefore, there is no bonafide requirement. x x x x x

4. I have heard the submissions. Respondent has placed on record photographs as well as visiting card of the occupier of the second shop in the property. The same shows that one Pawan Radhey is running his business in the name of Shri Radhey Traders from that shop. The same prima facie shows that it is not in possession of Praveen Tyagi as alleged by the petitioner. Further though the petitioner in reply to leave to contest claims that the second shop is fetching rent @ Rs.2,100/- but petition says that it is fetching Rs.5,000/- Per Month as rent. Further the petitioner has misrepresented the court that all the five daughters are of marriageable age though admittedly one of them is already married and further the income of the second daughter was also concealed. In these circumstances, I am inclined to grant leave to contest to the respondent. The application therefore, is allowed.”

5. In view of the above, I do not find any error in the impugned order granting leave to defend to exercise my extraordinary jurisdiction under Article 227 of the Constitution of India. I may note that the petition is filed under Section 25-B(8) of the Act, but no petition lies under Section 25-B(8) with respect to grant of leave to defend, and Section 25-B(8) of the Act applies only when an application for leave to defend is rejected and hence this petition is treated as one under Article 227 of the Constitution of India.

6. Dismissed.

SEPTEMBER 10, 2014 VALMIKI J. MEHTA, J. ib