SNEH NAGPAL Vs. INDIRA PRIYADARSHI

JUDGEMENT

(1.) It is established principle of law that in order to obtainleave to defend the tenant must make out a primafacie case thereby raising suchpleas and issue which if proved would disentitle the landlord of an order of eviction.The triable issues should be sufficient to grant leave. The test is triable issue and notthe final success. At the same time, while considering the leave applicationextraneous and frivolous defence cannot be considered.

(2.) Keeping this principle in mind we have to see whether the defence raisedby the present petitioner amounted to triable issue or was frivolous and extraneous.Let us have quick glance to the leave affidavit filed by the petitioner. The pleas raisedtherein can be summarised, under following heads, namely, (1) the motive ofseeking eviction was to pressurise the tenant to increase the rent. In this regard herelied on a notice issued by the landlady dated 8/12/1985. Secondly, theneed of the landlady was not bonafide. The first floor of the property bearing No.K-73 (having separate No. K-74), West Patel Nagar was in occupation of anothertenant Mr. Gubux Singh. He vacated the same which was concealed by the landlady.First floor inspite of being vacant had not been occupied by the landlady. Theaccommodatron on the first floor is identical as on the ground floor. If her need bonafide she would have occupied the first floor. Thirdly, landlady possessed anotherhouse bearing No. B-3, Parijat Apartment, Pitam Pura, New Delhi which happenedto be a three room flat alongwith drawing, dining, bath, kitchen on the first floor.Fourthly, the accommodation available with her i.e. Government allotted housebearing No. J-573, Mandir Marg, opposite Kali Bari, Delhi, comprising of two livingrooms with drawing, dining, kitchen, bath, latrine and big balcony, is sufficient toaccommodate her and her family consisting of her son and a daughter. ThatGovernment allotted accommodation is suitable and more convenient because it isnearer to the place of her work. Moi-'over, her son is already settled at Ahmedabad.She is residing with her daughter at Mandir Marg. Finally, she has no intention toshift because after getting it vacated she wants to sell the same for which purposeshe has already contacted number of property dealers. The petition in the presentform is not maintainable because she has sought part eviction.

(3.) The leave was contested by the respondent herein by filing her ownaffidavit staring therein that the tenant (petitioner herein) gother own house in BaljitNagar which she purchased Benami in the name of her uncle Shri Krishan Chand.That the petitioner/tenant in order to vacate the tenanted premises demanded apremium of Rs. 1,50,000.00. This amount was demanded by her through her son Mr.Rajiv Nagpal in writing by sending a note date 6/12/1994. It wasmentioned in the said note that the amount of Rs. 1,50,000.00 be paid by 6/01/1995. The present respondent being a widow lady showed her inability to pay suchhuge amount as she was financially hard pressed. She further testified the enhancedrent claimed at the rate of Rs. 5,000.00 was under compelling circumstances. Thepetitioner herein had not been paying the rent regularly, therefore, in order tothreaten him that in case rent due is not paid she would claim damages at the rateof Rs. 5,000.00 per month. Coupled with this fact, she testified that she had beenpaying Rs. 400.00 per month as rent for the Government accommodation in heroccupation at Mandir Marg. This amount was deducted from her salary. Her salarywas Rs. 2,900.00per month. Paying Rs. 400.00 as rent was a financial crunch. That shewanted to shift to her own house. So far as the vacation of first floor of the premisesin question the same was vacated by Shri Gurbux Singh on 12/06/1996. whereasshe filed the petition in August, 1995, therefore, could not have mentioned this factof vacation of first floor by Shri Gurbux Singh. Shri Gurbux Singh paid rent tillDecember, 1995 by cheque and thereafter in cash till he vacated on 12/06/1996.The accommodation on the first floor of the premises according to her, was also notsufficient to accommodate her whole family. Moreover, the first floor premisesbeing in a damaged state required extensive repairs to make it habitable. Her sonhad gone to Ahmedabad to do M.B.A. and after completing his study had settledin Delhi. Her daughter was studying in University. Therefore, her minimumrequirement was about four rooms, one for herself, one for son, one for her daughterand one for guests. The Government allotted accommodation consisting of tworooms was not sufficient. The first floor vacated in June, 1996 by Shri Gurbux Singhdid not meet her requirement. Therefore, she required the whole house i.e. the firstand the ground floor. As regards the flat allotted by the Society at Parijat Apartment,Pitam Pura, New Delhi, she sold it in 1991 whereas the petition was filed in 1995.In 1991 she did not require accommodation and, therefore, sold the same.