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High Court Of Delhi|17 December, 2012


M.L. MEHTA, J. (Oral)
1. This petition, u/S 25-B (8) of the Delhi Rent Control Act (for short “the Act”), assails the order dated 21.09.2011, passed by the court of the Ld. ARC, Karkardooma Court, Delhi, by which the leave to defend application filed by the petitioner was dismissed and an eviction order was passed.
2. The petitioner is a tenant with respect to a shop forming part of property bearing no. T-336, Gali No. 9, Gautam Puri, Delhi-110053 (hereinafter referred to as “the tenanted shop”). The tenanted shop was let-out to the petitioner for non-residential purposes at a monthly rent of Rs. 440/-. The respondent landlady filed an eviction petition u/S 14 (1) (e) of the Act on the ground that she requires the tenanted shop for her husband who has retired from Delhi Jal Board in the year 2008 and who wants to run his shop for their livelihood. It was submitted that the husband of the respondent is suffering from illness and is under continuous treatment and that his pension is not sufficient to meet the medical expenses. The respondent is in possession of two shops, of which one shop is run by her mentally retarded son with the help of his uncle and she no longer has any relations them. The other shop is being occupied by the petitioner. Thus the tenanted shop was bonafidely required by her.
3. The petitioner filed a leave to defend application u/S 25 B (4) of the Act wherein he brought about various issues. The same was dismissed by the Ld. ARC vide order dated 21.09.2011. The said order is under challenge in the present petition.
4. Before adverting to the submissions made by the learned counsels for the parties, I must reiterate that the power of this Court under Section 25–B (8) Act are not as wide as those of Appellate Court, and in case it is found that the impugned order is according to law and does not suffer from any jurisdictional error, this Court must refrain from interfering with the same. The power under this provision is limited and supervisory in nature. Only when it is evident that the Rent Controller has committed grave illegality or came to a conclusion which was not possible, based on the material produced, should this Court interfere in the orders passed by the Rent Controller.
5. In light of the above principles of law, I have heard the counsels for the parties and examined the records.
6. The submissions which are made by the learned counsel for the petitioner before me are the same which were made by him before the ARC and which have been adequately dealt with by him in the impugned order. It was his submission that the tenanted shop is not required by the respondent for herself or for her husband or for her son, inasmuch as she is already in possession of one shop where her son is running business along with his father. The case of the respondent in this regard is that her son is mentally retarded and he is running a shop with the assistance of his uncle and that her husband is a retired Chowkidar from Delhi Jal Board and is suffering from ailments and his meager pension is not sufficient enough for the medical expenses as also for the livelihood and so he wants to set up his own business in the tenanted shop.
7. There is no dispute that the son of the petitioner is mentally retarded and he has two sons who are also mentally retarded and that he is doing his business in one of the shops. There is also no dispute that husband of the respondent is a retired Chowkidar from Delhi Jal Board and is getting pension, which according to the respondent is about Rs.4,000/- per month. This was also the plea of the respondent that they are paying Rs.6500/- annually for the medical treatment card and that they are also incurring further expenses on the treatment of the illness of her husband. The pleas of the petitioner that there is no proof of illness or that of the medical expenses or that the husband of the respondent intended to start a business of his own, are vague and irrelevant. It is common knowledge that old age has its own problems and also diseases. There is no bar for a retired person to set up his independent business not only to make some income for livelihood, but also for his self esteem and also to keep him busy for sometimes. Taking as is submitted that he has been working with his mentally retarded son, still he is entitled to set up his own business, at least for his self esteem.
8. Likewise plea that what business was sought to be set up by the husband of the respondent, is also irrelevant in that it is not required to be disclosed by the respondent as to what business he would be setting up in the tenanted shop after its vacation. If the need is found to be bonafide, he is entitled to take his own decision in due course of time depending upon the finances that may be available with the family.
9. It was the submission of learned counsel for the petitioner that the petitioner is also an aged person of 76 years and evicting him from the tenanted shop will cause him hardships. It is also settled proposition that this plea cannot be a ground for allowing leave to defend application as the comparative hardships caused to the petitioner due to eviction cannot be the deciding factor while considering his leave to defend application. The Apex Court in the case of Mohd. Ayub Vs. Mukesh Chand, (2012) 2 SCC 155 held thus:
“18……In our opinion, the hardship the appellants would suffer by not occupying their own premises would be far greater than the hardship the respondent would suffer by having to move out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that the respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be the sole determinative factor.”
10. Lastly, it was submitted by the learned counsel for the petitioner that the petitioner has paid a sum of Rs.25,000/- as security to the respondent, which she was liable to refund. In this regard, he referred to the Civil Suit that was filed by the respondent against the petitioner and his son vide Suit No. 50A/2002/419/02. This was entirely a misleading submission that was made by the learned counsel for the petitioner. A look at the said suit would evidently show that an advance of Rs.25,000/- was stated having been paid by the son of the petitioner to the erstwhile owner Ashok Kumar Jain and not to the respondent. On being controverted with these, the learned counsel fairly conceded that the money was not paid to the respondent and that the respondent never took the liability to pay the same to the petitioner. In any case, this is entirely extraneous to the considerations governing leave to defend application.
11. In view of my above discussion, I do not see any illegality or infirmity in the impugned order of the learned ARC.
12. The petition stands dismissed.
DECEMBER 17, 2012 awanish/rmm
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High Court Of Delhi

17 December, 2012
  • Mehta