RC.REV./51/2014 of VIJAY Vs AVINASH KUMAR

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 28.1.2014

+ R.C.REV.51/2014, CM No.1623/2014

VIJAY

..... Petitioner

Through: Mr. Arun K. Yadav, Adv.

versus

AVINASH KUMAR ..... Respondent

Through: None.

% MR. JUSTICE NAJMI WAZIRI (Open Court)

The petitioner has impugned an order dated 15[th] November, 2013 whereby his leave to defend application was dismissed and an eviction order was passed against him with respect to the suit shop at the ground floor of property No.WZ-853, Rani Bagh, Shakur Basti, Delhi-34, on an eviction application filed by the respondent-landlord under Section 14(1)(e) of the Delhi Rent Control Act. The petitioner contends that triable issues were raised in the application, which upon consideration ought to have been allowed. The triable issues contended were that: i) there was no bonafide need of the suit shop, since two shops having got vacated by the landlord were re-let out two to three years ago; ii) there was sufficient accommodation available with the landlord just at walking distance where the landlord could park six or seven cars if he so

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wanted; iii) the petitioner wanted the suit shop for parking of car which had not even been purchased, therefore, the eviction petition was baseless and he could not be evicted yet and finally; iv) that the suit shop was the only place from where the petitioner-tenant was earning his livelihood.

The bonafide need was claimed on the ground that the son of the petitioner intended to purchase car for his own use and also for the use of his family which included his wife and two sons, therefore there was need of parking space on the ground. After considering the contentions of the parties, the Court concluded that no triable issue has been raised by the respondent to grant him leave to defend; no material has been disclosed nor any document filed or any evidence indicated prima facie to falsify the claim of the petitioner for granting the leave to defend. The Court reasoned that the suitability of parking space of vehicle for family use is to be decided by the landlord. It cannot be case that when vehicle is being used for the family it may be parked at another property although such parking space may be at walking distance. It is settled law that the suitability of accommodation is the prerogative of the landlord and that “convenience and the safety of the landlord and his family members would be relevant factors” Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta, AIR 1999 SC 2507). The landlord had submitted

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that the suit shop being in the rear portion of the property could be most suitable for parking of the car and he being the best judge of the use for which the accommodation was required it would not be open for the Court to re-examine the landlord’s judgment.

This Court is of the view that re-letting out of two shops two to three years ago would have no bearing upon the present case. landlord’s bonafide need have to be considered in presenti i.e. in the present on the date when the eviction petition was filed. In the period of two to three years since the re-letting out of two shops much would be transpired to bring about change in circumstances for need of additional space. The Trial Court rightly observed that the bonafide need for space required for parking of car to be purchased by the son, for his own use and also for his family, was justified. The parking of car in the suit shop being in the rear of the premises would be logical. The comparative hardship of the petitioner in having to vacate the suit shop from where he is stated to be earning his livelihood cannot be ground for denial of eviction. The Supreme Court has held that: “The Courts are required to adopt reasonable and balanced approach while interpreting the legislations starting with an assumption that an equal treatment has been meted out to both sections of society. In spite of the overall balance

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tilting in favour of the tenants, while interpreting such of the provisions to take care of the interest of the landlords, Courts should not hesitate in leaning in favour of the landlords. Such provisions are engrafted in rent control legislations to take care of those situations where the landlord too is week, feeble and feel humble.” (Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta (supra)). The said judgment also held that along with other accommodation garage is bare necessity for comfortable living. This Court is of the opinion that it would be most impractical and inconvenient to expect one to park his family car at the distance from the residence and trudge the distance with his wife and family and such luggage as may be, whether in rain, winter or summer, whether in the day or in the night, or in medical emergencies when parking space is available right in the residential building itself; and all this trouble and inconvenience is expected to be borne by the landlord, only so that the tenant is not evicted from the tenanted premises. Nothing could be more odd and unpersuasive. The other parking space would be most inconvenient and unsuitable.

Counsel for the petitioner has argued the same points which were contended in the leave to defend. Each of those arguments has been duly considered and not found favour in the impugned order for the reasons

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discussed hereinabove. The conclusions arrived at by the Trial Court and the reasons therefor are plausible in law, cogent and indeed correct.

In view of the aforesaid, this Court is not persuaded by the arguments advanced by the counsel for the petitioner. The impugned order does not warrant the interference of this Court in its revisionary jurisdiction. The petition is devoid of any merit accordingly, it is dismissed.

JANUARY 28, 2014/ak

NAJMI WAZIRI (JUDGE)

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