J U D G M E N T

MANMEET PRITAM SINGH ARORA, J (ORAL):

CM APPL. 11822/2023 (for restoration)

1. This is an application filed by the Petitioner, tenant, seeking recall of the order dated 22.02.2023, whereby the present eviction petition was dismissed in default for non-prosecution and the interim order dated

02.09.2020 was vacated.

2. In this application, the Petitioner seeks restoration of the revision petition as well as the interim order dated 02.09.2020.

3. For the reasons stated in the application, the same is allowed and the revision petition is restored to its original number.

RC.REV. 181/2020 & CM APPL. 11823/2023 (for stay)

4. This petition has been filed by the tenant assailing the order dated 17.02.2020 passed by the ACJ acting as Additional Rent Controller, South East District, Saket Courts, Delhi (‘Trial Court’) in Eviction petition No.

66/18, whereby the tenant’s application seeking leave to defend was dismissedandanevictionorderwaspassedinfavourofthelandlordinrespect of a Shop, admeasuring 8ft. x 10ft., built up in premises bearing property No. 337-C/26, Batla House main Road, Okhla, Jamia Nagar, New Delhi-110025 (‘tenanted premises’).

5. As per the site plan of the ground floor of property bearing no. 337- C/26, Batla House main Road, Okhla, Jamia Nagar, New Delhi-110025 (‘subject property’) filed with the eviction petition, there are three (3) shops including the tenanted premises, ad-measuring 8ft. x 10ft. each, facing the main road and a hall, ad-measuring 33ft. x 26ft. 6 inches, in the rear portion (markedingreencolour).Foreaseofreferencethetenantedpremises,marked in red colour is being referred to as ‘Shop No. 2’; the shop adjoining the tenanted premises is being referred to as ‘Shop No. 1’, and the shop, marked in blue colour, is being referred to as ‘Shop No. 3’.

ArgumentsofthePetitioner

6. ThelearnedcounselforthePetitionerstatesthattheRespondentherein hassuitablealternateaccommodationavailablewithhimandthismaterialfact has not been duly considered by the Trial court in its impugned order.

7. Firstly,heplacesrelianceonthesiteplanofthegroundfloorofsubject property, wherein the tenanted premises are located, and states that on the ground floor itself there is a Shop No.3, ad-measuring 8 ft. x 10ft. (marked in blue colour) and a hall ad-measuring 33 ft. x 26 ft. 6 inches (marked in green colour), which were vacant and thus, available with the landlord at the time of filing of the eviction petition and therefore, the plea of bona fide need for the tenanted premises is not genuine.

7.1. He states that it has also come on record that during the pendency of the eviction petition, the said Shop No.3 along with the hall has been let out by the landlord. He states that, however, this material fact has not been considered by the Trial Court in its impugned order.

7.2. He,however,fairlystatesthat theassertionthatinthesubject property, the Shop No.3 delineated in blue colour and the hall in green colour are available to the landlord herein for his son’s need were not pleaded in the leave to defend application and the pleadings thereto.

8. Secondly, he states that in the application seeking leave to defend, the Petitioner herein had enlisted the following four (4) alternate properties available with the landlord:

i. Z-326/2, Okhla Main Road, Near Tikona Park, Jamia Nagar, New Delhi. (‘Property No. Z-326/2 near Tikona Park’)

ii. 259/2, Noor Nagar, Jamia Nagar, New Delhi. (‘Property No. 259/2 at Noor Nagar’)

iii. All Friends Apartment, Plot No. 32, Street No.11, West Zakir Nagar, New Delhi. (‘All Friends Apartment’)

iv. Approx 100 Bigha Land on road in Ghosipur Village, Hapur Road, Meerut (UP). (‘Meerut’)

8.1.1. He states that he is not pressing the availability of property at Meerut since it is not within the territory of Delhi.

8.1.2. He states that he, however, specifically disputes that the Property No. 259/2 at Noor Nagar, is unavailable for the use of the landlord. He states that the landlord has sought to explain the unsuitability of