Om Parkash v. Anita

1. For the reasons stated in the application, delay of 30 days in refiling the petition is condoned. C.M. stands disposed of. + RC. REV. No.305/2014 and C.M.No.15210/2014 (stay)

2. This is a petition under Section 25-B(8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as ‘the Act’) against the impugned order dated 15.4.2014 by which the Additional Rent Controller has granted 2014:DHC:4658 leave to defend. No petition is maintainable under Section 25-B(8) of the Act and actually this petition ought to have been filed under Article 227 of the Constitution of India and therefore at the request of the counsel for the petitioner, this petition is treated as a petition under Article 227 of the Constitution of India.

3. A reading of the impugned order shows that the respondent/tenant in the leave to defend application gave details of three properties being fourth floor in the building adjoining to the tenanted premises, three floors in a 75 sq yds property at 118 Bazar Lane, Bhogal and the third property is situated at Govindpuri which were said/pleaded to be alternative suitable premises for the landlord.

4. As regards this aspect, the Additional Rent Controller in para 7 of the impugned order has given the following observations:- “7. As far as the question of alternate accommodation is concerned, even though, the petitioner has admitted owning 4th floor in the adjoining building, the same is stated to be not suitable for his wife, as she is suffering from various ailments, documents as regards which have been placed on record. However, qua Church Lane property, the petitioner has not made any specific admission/denial on affidavit with respect to his ownership of the said property. Again, as far as Govindpuri premises is concerned, the petitioner has contended that it is not ‘fit’ for residential purposes without disclosing any specific reasons as to why the same is not suitable for habitation.”

5. I asked the counsel for the petitioner that where is the reply to the leave to defend application, and to which it is conveniently stated that the copy of the reply to the leave to defend application was not available and hence the same was not filed in this Court. In my opinion, the non-filing must be in view of the observations of the Additional Rent Controller that there is no specific explanation given by the petitioner/landlord with respect to the two alternative properties and consequently the leave to defend application was allowed. In fact I would like to add that the son of the petitioner can surely stay in the adjoining property on the fourth floor and residence in different floor is immaterial as the tenanted premises are also on the different floor being the ground floor than where the family of the petitioner resides.

6. In view of the aforesaid facts, it is clear that the leave to defend has rightly been allowed by the impugned order. The petitioner, is not seriously prejudiced, as in any case, he will have complete liberty during the course of trial to prove his case.

7. Dismissed as no case is made out for exercise of my extraordinary and discretionary jurisdiction under Article 227 of the Constitution of India.

SEPTEMBER 15, 2014/Ne VALMIKI J. MEHTA, J.