The burden is on the landlord to establish his case affirmatively, and a wholly frivolous and totally untenable defense may not entitle a tenant to leave to defend, but when a triable issue is raised, the duty is placed on the Rent Controller by the statute itself to grant leave.

Mukta Gupta, J.

1. Aggrieved by the order dated 27th April, 2013 declining to grant leave to defend to the petitioner in an eviction petition filed by the respondent under Section 14(1)(e) read with Section 25B of the Delhi Rent Control Act, 1958 (in short the DRC Act) the petitioner prefers the present petition.

2. In the eviction petition, the respondent pleaded that the respondent was the owner of premises No. 79 (Village Bhadola) Delhi wherein 7 shops had been carved out on the ground floor bearing Shop Nos. T-9/1 to T-9/7. The tenanted shop is shop in the said property which was let out to the petitioner vide rent agreement dated 11th July, 1997 on a monthly rent of Rs. 2000/- excluding house-tax, electricity and water charges. The said tenanted shop was let out for commercial purposes. Now the respondent wants to start her own business of fruits and vegetables as the biggest fruits and vegetable market of Delhi was situated near the tenanted shop. It is further contended that the respondent has other shops also which have been let out, however the monthly income from the said shop was not sufficient to fulfill the basic needs of the respondent hence the shop was required for a bona-fide purpose.

3. Petitioner being served with summons under Schedule 3 of the DRC Act filed the leave to defend within the prescribed period. In the leave to defend it was stated that the respondent was harassing the petitioner to enhance the rent to Rs. 6000/- per month and was also demanding unlawful pagdi of Rs. One lakh. Initially the rent of tenanted shop was Rs. 500/- per month where after the petitioner filed a civil suit against the respondent in which a compromise was arrived at and the rent was enhanced to Rs. 2000/- per month. Now the respondent has again started harassing the petitioner for increase of rent to Rs. 6000/- per month. The petitioner contended that respondent owns 7 shops in the building No. T-9 on the ground floor. Shop No. T-9/1 was the tenanted premises at a monthly rent of Rs. 2000/- whereas shop No. T-9/2, T-9/4 and T-9/5 were in possession of Ram Parvesh, Mukesh Sahu and Ashok Sahu at the monthly rent of Rs. 2500/-. Shop No. T-9/3 was lying locked and was in the possession of the respondent and shops No. T-9/6 and T-9/7 were in possession of Papple @ Uma Shankar at the monthly rent of Rs. 5500/-. Thus shop No. T-9/3 is lying vacant under the lock and key of the respondent and she could sell fruits and vegetables from the said shop. It is further stated that the respondent being 70 years old was not capable of starting business of selling fruits and vegetables and she was earning a sum of Rs. 63,000/- per month as rental income from her properties.

4. In the reply to leave to defend application the respondent admitted that she owned 7 shops on the ground floor and also that the first floor of the premises has been let out for residential purposes to various persons from where she was earning a rent of approximately Rs. 11,000/-. The fact that shop No. T-9/3 was lying vacant and was in possession of the respondent was denied and it was stated that the said shop was on rent and not in possession of the respondent.

5. On the basis of rival contentions of the parties since jural relationship of landlord tenant and ownership of the respondent in the suit shop was admitted the only two objections were with regard to bona-fide need of respondent and alternate accommodation being available with her. The bona-fide need of the respondent was contested by the petitioner on the ground that the respondent has sufficient rental income of Rs. 63,000/- per month and being 70 years old and leading a retired life, the respondent at this age cannot be said to have the requirement of starting a new business for herself. Refuting the bona-fide requirement it is contended that the bona-fide requirement should be reasonable and not a mere fanciful desire or whim of the landlord. Reliance is placed on Raghunath G. Panhale (dead) by