SH. ANIL WADHWA & ANR. vs SH. M.M.L. KAPUR
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 09.10.2023
+ RC.REV. 207/2023 & CM APPL. 37971/2023
SH. ANIL WADHWA & ANR. ….. PETITIONERS
VERSUS
SH. M.M.L. KAPUR ….. RESPONDENT
Advocates who appeared in this case:
For the Petitioner : Mr. Rajiv Raheja, Adv.
For the Respondent : Mr. Jai Sahai Endlaw, Mr. Rajbir Singh and Mr. Subhoday Banerjee, Advs.
CORAM:
HON’BLE MS JUSTICE TARA VITASTA GANJU
[Physical Hearing/Hybrid Hearing (as per request)]
TARA VITASTA GANJU, J.:
CM Appl. 37971/2023 [Application seeking interim relief]
1. The present Application has been filed by the Petitioners/tenants seeking interim reliefs of a stay on the execution of the Impugned Eviction Order dated 25.01.2023 passed by the learned Additional Rent Controller, West Tis Hazari Court, Delhi [hereinafter referred to as Impugned Order]. The premises in issue is one shop admeasuring about 10’6″ x 13″ situated on the Ground floor of premises bearing No. J-38, Rajouri Garden, New Delhi – 110027 [hereinafter referred to as the demised Premises].
2. By way of the Impugned Order, the learned Trial Court has dismissed the Leave to Defend/Contest Application filed by the Petitioner/tenant.
3. The Respondent/landlord has filed the present Application for stay of the execution proceedings initiated by the Respondent/landlord.
4. Arguments in the Application were heard, and orders were reserved on 18.09.2023. The parties sought and were granted three days time to file their respective submissions.
4.1 Both parties have since filed their written submissions.
4.2 The record shows that the present Petition has been filed after the expiry of the statutory period to execute the Impugned Order has already lapsed.
5. It is submitted by the learned Counsel for the Petitioners/tenants that the next date fixed before the Trial Court in the Execution Petition filed by the Respondent/landlord is 24.10.2023 for appointment of a Bailiff and in the event, a stay is not granted, the Petition will become infructuous.
6. Learned Counsel for the Petitioners/tenants, has contended as follows:-
(i) The Respondent/landlord does not have a bona fide requirement for the demised Premises as he is a citizen of the United States of America and he does not live in India anymore.
(ii) There is a suitable alternate accommodation available as the entire building on the ground floor, first floor and second floor are available with the Respondent/landlord. The Respondent/landlord has concealed the fact that he is in possession of 2 more shops in the same premises i.e. Shop No.4 and 5, which can also be seen from the site plan filed by the Respondent/landlord. The ground of concealment alone raises a triable issue and the grant of Leave to Defend/Contest to the Petitioners/tenants is only justifiable;
(iii) The bonafide need as expressed by the Respondent/landlord is not genuine. The Respondent/landlord is admittedly unable to live without constant care as he is suffering from various old age ailments. As the children of the Respondent/landlord reside abroad, the bonafide need as expressed by the Respondent/landlord is not genuine.
(iv) The requirement for demised Premises as set forth in the Eviction Petition was for the use of Respondent/Landlord and his wife. Unfortunately, the wife of the Respondent/landlord expired during the pendency of the Eviction Petition. With these changed circumstances, the Respondent/landlord has now ample space available within the demised Premises as can be seen from the site plan filed by the Respondent/landlord.
(v) The Respondent/landlord has concealed that he is in possession of two more shops i.e., Shop No.4 and 5 in the same property, as per the site plan annexed at the page number 54 of the Written Submissions filed by the Petitioners/tenants. It is thus contended that the present case is a case of additional accommodation and the Courts have held that in case of additional accommodation, the tenant is entitled to grant of Leave to Defend/Contest to a tenant.
6.1 It is, therefore, contended that since the Petitioners/tenants has raised triable issues, Application for Leave to Defend/Contest ought to have been allowed by the Trial Court and the Impugned Order has been wrongly passed.
7. Learned Counsel for the Respondent/landlord, has contended as follows:
(i) The Respondent/landlord is a senior citizen aged 86 years and although resides with his daughter in California, USA but frequently visits Delhi, and part of his family and friends also reside in Delhi.
(ii) There is no concealment by the Respondent/landlord that the premises which are being described as Shop Nos. 4 and 5 are two small portions admeasuring 30 sq. ft. and 42 sq. ft. which were previously occupied by the Petitioners/tenants but have since been vacated. One of them has a height of only 7ft. and the area is under the staircase. After both areas were vacated by the tenants, the spaces were amalgamated and are at present being used as a storage by the Respondent/landlord. Therefore, these spaces are not habitable.
(iii) The building in which the demised Premises is situated, comprises of ground floor, first floor and second floor but does not have any lift. Due to the Respondent/landlords old age and ailments, the Respondent/landlord uses a walker/wheelchair to move around and the Respondent/landlord is unable to climb stairs.
(iv) The ground floor in its present condition does not have a kitchen, drawing or dining room. Further, the washroom/WC has access only through verandah and is not connected to the two rooms situated on the ground floor. Moreover, there is no separate entrance for second room and since the shops are situated in the front of the ground floor, there is always a constant disturbance in the rooms and it is not possible to have a comfortable residence therefrom.
(v) A foreign citizen is permitted to proceed under the provisions of Section 14(1)(e) of the Delhi Rent Control Act, 1958;
(vi) The averment made by the Respondent/landlord is that the requirement for the subject premises would arise whenever he visits India and that even a temporary need for the Respondent/landlord has been held by Judgments of this Court as a bona fide need. Reliance in this regard is placed on S.P. Kapoor v. Kamal Mahavir Prasad Muraka and others1and Sarwan Dass Bange v. Ram Prakash2;
(vii) It is contended that the judgments passed by the Courts do not lay down that in every case of additional accommodation sought by the landlord, Leave to Defend/Contest must necessarily is to be granted. The Trial Court is required to examine if the defence is that such eviction by summary procedure is inappropriate and only then leave to defend/contest is granted;
(viii) It is a settled law that the landlord is the best judge of his requirements, and the suitability of the demised Premises has to be seen as on the date of the filing of the Eviction Petition.
8. After hearing arguments made on behalf of the Petitioner/tenant and the Respondent/landlord, this Court is of the considered opinion that a decision in this interim application will tantamount to deciding the present Petition at the interim stage.
9. In view of the aforegoing circumstances, list this Application and the Petition for final disposal on 13.10.2023.
10. In the event, the parties wish to file any additional submissions and/or judgments, they may do so before the next date of hearing.
11. Parties will act based on the digitally signed copy of the order.
(TARA VITASTA GANJU)
JUDGE
OCTOBER 09, 2023 /ha/yg
1 2002 (64) DRJ 103
2MANU/DE/0204/2010
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RC.REV. 207/2023 Page 6 of 6