Mr. C.S. Prashar & jvir. Sachin Sharma, Advs. v. PRAKASH CHAND JAIN

2009. After his retirement, Shri Ashok Jain will have no other source of income except his pension, to meet his day to day expenses. He further states that his two grandsons are already doing business. One is dealing in motor parts and the other is dealing in handicrafts. Both his grandsons have business experience. He has stated that though his family members have experience in different business fields but due to paucity of accommodation they are unable to earn sufficient income. He has stated that he has possession of one adjoining shop, which, admittedly, measures 6'x 9'. He has stated that the accommodation is still very short for himself and his family members. On this basis he has sought eviction of the tenant/petitioner. The petitioner preferred an application to seek leave to defend. The primary defence set up by the petitioner before the learned ARC and also argued before me is that the need of the respondent landlord is not bonafide and it is a mere desire. It is argued that the petitioner is 85 years of age. He has already secured a shop from another tenant admeasuring 6'x 9' apart from a godown. The respondent landlord has not disclosed what business he wishes to start. It is further argued 2-t that the present is a case where the landlord has set up a need for additional accommodation and in such cases normally the Court should grant leave to defend to the tenant. The learned ARC has rejected the submissions of the petitioner and passed the impugned order. Learned counsel for the petitioner submits that the manner in which the learned ARC has dealt with the issue of grant of leave to defend and examined the aspect as to whether a triable issue is disclosed or not in the petitioner's application seeking leave to defend is perfunctory. In support of this submission, he has sought to place reliance on Inderjeet Kaur vs. Nirpal Singh 2001(1) 1 SCC 706 and in particular paragraph 13 of the said decision where the Supreme Court has commented on the approach to be adopted by the courts while dealing with the issue whether leave to defend should be granted to a tenant or not in a given case. On this aspect he has also placed reliance on M.M. Quasim vs. Manohar Lai. AIR 1981 SC 1113 and in particular to paragraph 18 of the said decision. He has also referred to Santosh Devi Soni vs. Chand Kiran 2000(2) RCJ 579 to submit that where it is a case of additional accommodation set up by the landlord, normally leave should be granted to the tenant to defend the eviction petition. I have considered the aforesaid submissions of the petitioner, the decisions cited before me as well as the impugned order passed by the -> learned ARC. Having considered tine same I am of the view that there is no merit in the petition and the same is liable to be dismisses. As aforesaid the primary issued raised by the petitioner herein is with regard to the availability of one shop admeasuring 6'x9' and a godown admeasuring 14'x 8' with the landlord, which he got evicted from another tenant. Firstly I may state that a godown is a storage area and cannot be equated with a shop. Therefore, the existence and availability of a godown apart from a shop admeasuring 6'x 9'cannot be put forward as a defence by the tenant. The respondent landlord has disclosed that both he and his retiring son would need to do their business. He has disclosed his meager ex gratia income of Rs.1500/- per month. He has also disclosed that he has members in his family viz. his two grandsons who are experienced in doing business. He has also stated that the shop now available to him admeasuring 6'x 9' having 54 sq. fts. The area is not sufficient for him and his son to do business. The area of 54 sq.ft is rather small for any worthwhile business activity which may be done by the respondent and his son. In my view, there is no reason to disbelieve the case set up by the respondent/landlord. It is not that in every case where landlord seeks additional accommodation, as a routine, leave to defend has to be granted. Even in the decisions cited by the petitioner the Supreme Court has stated that "normally" leave to defend should be granted. However, each case has to be examined on its own facts. In my view the learned ARC has rightly concluded that no triable issue arises in the facts of this case. The order has considered the questions raised in the right perspective and It cannot be said that his approach was erroneous. Dismissed. JULY 17, 2009 aj VIPIN SANGHi, J.