Delhi District Court
By This Order vs Brahma Nand (1983) 1 Scc on 20 March, 2021
1
IN THE COURT OF DR. SHIRISH AGGARWAL, ACJ-CUM-ARC, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
Miscellaneous Case No. 14/21
Unique Case ID/CNR No.DLCT03-000624-2021
ORDER
1. By this order, the application of the respondent under Order 47 Rule 1 r/w Section 151 Code of Civil Procedure shall be decided. The application has been filed seeking review of order dated 23.10.2020 by which the Ld. Predecessor of this Court dismissed the application for leave to defend filed by the respondent and passed eviction order against the respondent from the shop on the ground floor of property no. 2622, Bank Street, Karol Bagh, New Delhi (hereinafter referred to as the 'tenanted premises').
2. The petitioner had filed the eviction petition stating that he, his brothers and paternal uncles are owners and landlords of the property which he requires for his son Mr. Kanav Khanna so that he can start his independent jewellery business from it. It was stated that he, his son and their other relatives are partners in the firm M/s Khanna Jewellers which was doing its jewellery business from a rented property bearing no. G-3, Ground Floor, NDSE Market, New Delhi. However, on 09.02.2018, eviction order was passed Miscellaneous Case No. 14/21 Page 1 of 33 2 against them. A revision petition was filed before the Hon'ble High Court, which directed that till disposal of the revision petition, Rs. 4 lakhs per month be paid as use and occupation charges. It was stated that as a result of the eviction order, the business from the premises was affected. It was pleaded that in view of the eviction order dated 09.07.2018, the need of the petitioner for the tenanted premises has become more grave and immediate as the petitioner is constrained to relocate his son for establishing, setting up and running his business from a more viable and suitable place. It was stated that the petitioner wants to help his son, who is dependent upon him for accommodation, to relocate, setup, start and establish his independent business from a viable commercial place.
3. It was stated that the tenanted premises is the best and only commercial space available for the petitioner and there is no other alternative suitable accommodation for the stated purpose. On the basis of these assertions, eviction of the respondent was sought under Section 14(1)(e) of the Delhi Rent Control Act.
4. Application for leave to defend was filed by the respondent. Various objections were taken. It is stated that Mr. Kanav Khanna and the petitioner Miscellaneous Case No. 14/21 Page 2 of 33 3 are residing in a farm measuring 5000 bigha at Sultanpur Estate, Mandi Road, Mehrauli and are already running several companies, namely, W.C. Khanna Finance & Investment Company Limited, KRV Buildtech Pvt. Ltd., Neelanchal Leasing Ltd., Bhagwati Jewels Ltd., Mukesh Exports Pvt. Ltd., Vijay Exports Pvt. Ltd., Gypsy Builders Pvt. Ltd., Bhagwati Estates Pvt. Ltd., Liberty Estates Pvt. Ltd., Wazir Chand Khanna Memorial Educational Society, Khanna Jewellers Pvt. Ltd. and Infinix Finance Pvt. Ltd. It is stated that they are running various businesses under HUF from various properties. Details of several properties owned and in occupation of the petitioner and his family members have been disclosed.
5. It is stated that Mr. Kanav Khanna is already running jewellery business from property bearing no. F-39, South Extension, Part-1 which was purchased on 24.05.2014.
6. It is further stated that various shops in the Karol Bagh property of the petitioner and his family have been got vacated from tenants and gradually, a huge jewellery showroom has been opened in the basement and the ground floor and a hotel on the first and second floors.
7. In the reply to the application for leave to defend, the petitioner has Miscellaneous Case No. 14/21 Page 3 of 33 4 stated that the respondent has not been able to point out any property which is vacant and suitable to meet the commercial needs of the petitioner. It is pleaded that the tenanted premises is on the ground floor in a prime location in a market hub of jewellery and is the best and only available commercial accommodation with the petitioner.
8. It is stated that the tenant cannot dictate to the landlord as to how the property belonging to the landlord should be utilized. It is pleaded that when a landlord shows a prima facie case, a presumption is drawn that the requirement of the landlord is bonafide.
9. It is further stated that the landlord need not disclose the alternative properties available with him if the alternative properties are unsuitable for him. It is not denied that the petitioner and his family members are running various businesses from different properties. It is stated that the business of the company Khanna Jewellers Pvt. Ltd. is done from various properties in which the petitioner and his son are Directors and only one of the share holders. However, with regard to Infinix Finance Pvt. Ltd., it is stated that the company has not started any business operations till date. It is submitted that the need of the petitioner is in personal capacity and not of the company. It is Miscellaneous Case No. 14/21 Page 4 of 33 5 stated that Mr. Kanav Khanna needs the premises for starting his independent new business.
10. In response to the list of properties disclosed by the respondent, the petitioner has given details of how none of these properties are available for the use by petitioner's son.
11. The respondent filed rejoinder to the reply of the petitioner and denied the averments made in the reply of the petitioner and simultaneously reiterated and reaffirmed the contents of the application.
12. By order dated 23.10.2020, the Ld. Predecessor of the Court held that the questions raised in the application for leave to defend could be decided on the basis of affidavits and documents on record and that no triable issues were raised. It was held that the onus was on the tenant to show facts which disentitled the landlord from obtaining an order of eviction. It was observed by the Ld. Predecessor that if what is disclosed is a legal defence or a legal plea, which did not require to be proved, the same has to be adjudicated immediately and is not to be deferred by granting leave to contest to the tenant.
Miscellaneous Case No. 14/21 Page 5 of 33 6
13. It was observed that the test to determine whether the tenant has raised a triable issue is whether the landlord would fail in his attempt to evict the tenant, if the defence of the tenant as disclosed is established.
14. It was held that a heavy burden lies on the tenant to prove that the requirement of the landlord is not genuine. It was further held that the tenant is required to give all necessary facts and particulars supported by documentary evidence to prove his plea in the affidavit.
15. It was held that the petitioner and his son Mr. Kanav Khanna already being involved in various businesses did not rise to any triable issue since a young businessman who wants to start his own independent business separate from the joint family business cannot be denied from doing so, thereby hampering his independence and future prospects to grow as an individual.
16. With regard to the issue of availability of alternative suitable accommodation, it was held by the Ld. Predecessor that in view of the documentary evidence placed on record by the petitioner, it seems that Mr. Kanav Khanna does not have a property of his own and that no other alternative accommodation is available with the petitioner to relocate his son. Miscellaneous Case No. 14/21 Page 6 of 33 7 It was also held that the landlord is best judge of his requirement.
17. It was held that the judgments relied upon by the respondent are of no help to it considering the factual matrix of the petition and that the respondent has failed to make out a prima facie case by disclosing any fact that would disentitle the landlord from obtaining order of eviction.
18. With these observations, application for leave to defend was dismissed and eviction order was passed.
19. The present application under consideration for review of the eviction order has been filed on the ground that the decisions of the Hon'ble Supreme Court in the cases of Charan Dass Duggal Vs. Brahma Nand (1983) 1 SCC 301 and Precision Steel & Engineering Works & Anr. Vs. Prem Deva Niranjan Deva Tayal 1982 AIR 1518, which lay down the law for deciding application for leave to defend have not been followed. By relying on a decision of the Full Bench of the Hon'ble High Court of Himachal Pradesh in the case of Nalagarh Dehati Cooperative Vs. Beli Ram AIR 1981 HP 1, it has been submitted that since there was a failure of the Court to take into consideration an existing decision of the Hon'ble Supreme Court taking a different or contrary view on a point covered by its judgment would amount to a mistake or error apparent on Miscellaneous Case No. 14/21 Page 7 of 33 8 the fact of the record.
20. It is argued on behalf of the respondent that there was a statutory duty of the Court to grant leave to defend if the affidavit of the respondent raised suspicion on the genuineness of the need of the landlord. It is stated that the likelihood of success or failure of the defence is not determinative of the question of granting leave to defend, but the real question is tenability of the plea which may raise a suspicion on the need of the landlord. It is submitted that the plea raising a doubt in the mind of the Controller is sufficient for grant of leave and the Controller cannot record findings on disputed questions of fact by preferring one set of facts over and above the other.
21. It is stated that the merits of the pleas are not to be gone into. It is pleaded that the initial onus to establish ground of eviction is on the landlord as it is the landlord who is pleading an exception in the form of eviction proceedings. It is stated that it is the landlord who has to establish grounds of eviction.
22. It is stated that the petitioner and his joint Hindu family own many properties, companies and educational society. It is averred that the petitioner had concealed material facts and have sought eviction only on the ground that Miscellaneous Case No. 14/21 Page 8 of 33 9 an eviction order was passed with respect to their tenanted premise G3, Ground Floor, NDSC, Part-1, Delhi, whereas the petitioner had already taken another property in the same market for the business of the firm in which Mr. Kanav Khanna is one of the partners and was admittedly running the business. It is stated that this fact has been concealed by the petitioner. It is stated that Mr. Kanav Khanna is already independently engaged in business.
23. It is averred that the Court has exceeded its jurisdiction by deciding all the issues raised by the respondent by admitting the version of the petitioner, which is beyond the scope of the law laid down by the Hon'ble Supreme Court.
24. It is stated that the Court has wrongly applied the judgments relied upon by the petitioner. Reasons have been given in the application under consideration to substantiate this argument.
25. It is stated that the judgments relied upon by the respondent have not been considered and discussed.
26. Reply to the application has been filed by the petitioner. It is stated that there is no error apparent on the face of the record and the application does Miscellaneous Case No. 14/21 Page 9 of 33 10 not fulfill the ingredients of Order 47 of Code of Civil Procedure.
27. It is stated that no grounds for review have been made out and there is no infirmity in the order dated 23.10.2020. It is averred that under the garb of seeking review, the respondent is reagitating and re-arguing the case, which is beyond the domain and scope of the review jurisdiction. It is stated that the respondent is liable for contempt proceeding for imputing allegations on the predecessor of this Court. The following judgments have been relied upon to substantiate that review jurisdiction can be exercised only to correct errors which are self evident and need not be discovered with elaborate arguments and by long process of reasoning:
(i) Irteza Zulfikar Vs. Rites Ltd. WP(C) 9966 of 2017 decide by the Hon'ble High Court of Delhi on 29.09.2020
(ii) State of West Bengal & Ors. Vs. Kamal Sengupta & Ors. (2008) 8 SCC 612
(iii) Haridas Das Vs. Usha Rani Banik & Ors. AIR 2006 SC 1634
(iv) Sudhir Kumar Gupta Vs. Inder Chand Jain AIR 2006 Delhi 346
(v) Dalmia Industries Limited Vs. Jagmohan Gupta 139 (2007) DLT 165
(vi) Aizaz Alam Vs. Union of India & Ors. 130 (2006) DLT 63
(vii) Atma Ram Properties Ltd. Vs. Federal Motors Pvt. Ltd. 2004 (1)) Miscellaneous Case No. 14/21 Page 10 of 33 11 SCALE 345
28. I have heard arguments and carefully gone through the record.
29. It has been argued by the Ld. Counsel for the petitioner that on the grounds stated by the respondent in the application under consideration, the order dated 23.10.2020 cannot be reviewed. It is stated that in the garb of the review petition, the respondent is seeking to reagitate and re-argue the case. However, after carefully going to the record, I am of the view that the order dated 23.10.2020 ought to be reviewed and recalled for the following two reasons:
(i) Failure of the Court to take into consideration the law laid down by the Hon'ble Supreme Court in the cases of Charan Dass Duggal Vs. Brahma Nand 1983 (1) SCC 30 and Precision Steel & Engineering Works Vs. Prem Deva Niranjan Deva Tayal (1982) 3 SCC 270 and taking a view contrary to what has been held in these judgments by evaluating documents, preferring one set of affidavit over the other and giving findings on disputed questions of facts and by not following principles of natural justice - Error apparent on face of the record in view of decision of the Full Bench in the case of the Nalagarh Dehati Miscellaneous Case No. 14/21 Page 11 of 33 12 Cooperative Vs. Beli Ram AIR 1981 HP 1.
(ii) Order dated 23.10.2020 obtained by fraud, concealment and by misleading the Court - Indian Bank Vs. M/s Satyam Fibres India Pvt.
Ltd. 1996 (5) SCC 550.
30. The respondent had relied upon the judgment passed in the case of Charan Dass Duggal Vs. Brahma Nand 1983 (1) SCC 30. This judgment was quoted by it in its rejoinder. This judgment was relied upon by the Full Bench of the Hon'ble Supreme Court in the case of Precision Steel & Engineering Works Vs. Prem Deva Niranjan Deva Tayal (1982) 3 SCC 270. It has been held by the Hon'ble Supreme Court in these cases that while deciding the application for leave to defend, the Controller shall not be evaluating documents and is not to record finding on disputed questions of facts or his preference over one set of affidavit against the other. These judgments of the Hon'ble Supreme Court hold the field and has been repeatedly followed in several decisions of the Hon'ble Supreme Court and Hon'ble Delhi High Court while analyzing the jurisdiction of the Rent Controller to give findings on disputed questions of facts at the stage of deciding application for leave to defend. The following was held in the case of Precision Steel and Engineering Miscellaneous Case No. 14/21 Page 12 of 33 13 Works:
"11. The language of sub-section 5 of Section 25-B casts a statutory duty on the Controller to give to the tenant leave to contest the application, the only pre- condition for exercise of jurisdiction being that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for recovery of possession of the premises on the ground mentioned in section 14(1)(e). Upon a true construction of proviso (e) to section 14(1) it would unmistakably appear that the burden is on the landlord to satisfy the Controller that the premises of which possession is sought is: (i) let for residential purposes : and (ii) possession of the premises is required bonafide by the landlord for occupation as residence for himself or for any member of his family etc. and (iii) that the landlord or the person for whose benefit possession is sought has no other reasonably suitable residential accommodation. This burden, landlord is required to discharge before the Controller gets jurisdiction to make an order for eviction. This necessarily transpires from the language of Section 14(1) which precludes the Controller from making any order or decree for recovery of possession unless the landlord proves to his satisfaction the condition in the enabling provision enacted as proviso under which possession is sought. Initial burden is thus on the landlord".
"...On perusing the affidavit filed by the tenant and the reply if any filed by landlord the Controller has to pose to himself the only question: Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in Clause (e) of the proviso to section 14(1). The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against other set of affidavits. That is not the Miscellaneous Case No. 14/21 Page 13 of 33 14 jurisdiction conferred on the Controller by sub-sec. 5 because the Controller while examining the question whether there is a proper case for granting leave to contest the application has to confine himself to the affidavit filed by the tenant disclosing such facts as would prima facie and not on contest disentitle the landlord from obtaining an order for recovery of possession. At the stage when affidavit is filed under sub-section (4) by the tenant and the same is being examined for the purposes of sub-section (5) the Controller has to confine himself only to the averments in the affidavit and the reply if any and that becomes manifestly clear from the language of sub-section (5) that the Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from recovering possession etc. The jurisdiction to grant leave to contest or refuse the same is to be exercised on the basis of the affidavit filed by the tenant. That alone at stage is the relevant document and one must confine to the averments in the affidavit. If the averments in the affidavit disclose such facts which, if ultimately proved to the satisfaction of the Court, would disentitle the landlord from recovering possession, that by itself makes it obligatory upon the Controller to grant leave. It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. It is distinctly possible that a tenant may fail to make good the defence raise by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown."
"Coupled with this is the fact that the justice delivery system in this country worshipped and ardently eulogised is an adversary system the basic postulate of Miscellaneous Case No. 14/21 Page 14 of 33 15 which was noticed by this Court in Sangram Singh v. Election Tribunal, Kotah & Anr.(1) as under :
"Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties, not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done on both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."
"Add to this the harshness of the procedure prescribed under section 25B. The Controller is the final arbiter of facts. Once leave is refused, no appeal is provided against the order refusing leave (see sub-section (8) of Miscellaneous Case No. 14/21 Page 15 of 33 16 section 25B). A revision petition may be filed to the High Court but realistically no one should be in doubt about the narrow constricted jurisdiction of the High Court while interfering with findings of facts in exercise of revisional jurisdiction. Compared to the normal procedure certainly the procedure is a harsh one and that considerably adds to the responsibility of the Controller at the time of deciding the application for leave to contest the petition. Wisdom, sagacity and the consequence of refusal to grant leave coupled with limited scope of enquiry being confined to facts disclosed in affidavit of the tenant should guide the approach of the Controller.
21. Since Sangram Singh the ever widening horizon of fair procedure while rendering administrative decision as set out in Maneka Gandhi should guide the approach of the Court while examining the encroachment, fetters and restrictions in the procedure normally followed in Courts. Speedy trial is the demand of the day but in the name of speedy trial a landlord whose right of re-entry was sought to be fettered by a welfare legislation with its social orientation in favour of a class of people unable to have its own roof over the head-the tenant should not be exposed to the vagaries of augmenting that right which even when Rent Restriction Act was not in force had to be enforced through the machinery of law with normal trial and appeal.
22. What then follows. The Controller has to confine himself indisputably to the condition prescribed for exercise of jurisdiction in sub-section (5) of section 25B. In other words, he must confine himself to the affidavit filed by the tenant. If the affidavit discloses such facts- no proof is needed at the stage, which would disentitle the plaintiff from seeking possession, Miscellaneous Case No. 14/21 Page 16 of 33 17 the mere disclosure of such facts must be held sufficient to grant leave because the statute says "on disclosure of such facts the Controller shall grant leave".
"The Controller is not a Court but he has the trappings of a Court, and he must conform to the rules of natural justice. It must therefore follow as a necessary corollary that the Controller has the duty to hear the parties on the question whether leave to contest should or should not be granted under sub-s. (5) of s. 25B of the Act".
31. These two decisions of the Hon'ble Supreme Court do not even find mention in the order dated 23.10.2020 which is sought to be reviewed. In the case of Selection Committee for Admission Vs. M.P. Nagaraj AIR 1972 Mys 44, the following was held:
"Article 141 of the Constitution provides that the law declared by the Court shall be binding on all courts within the territory of India. Hence, where there is a decision of the Supreme Court bearing on a point and where a Court has taken a view on that point, which is not consistent with the law laid down by the Supreme Court, it needs no elaborate argument to point to the error and there could reasonably be no two opinions entertained about such error".
32. The test laid down by the Hon'ble Supreme Court in the case of Tungabhandra Industries Ltd. Vs. Govt. of Andhra Pra-desh, AIR 1964 SC 1372 was applied that where without any elaborate argument one could point Miscellaneous Case No. 14/21 Page 17 of 33 18 to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made.
33. Relying upon decisions of the Hon'ble High Court, the predecessor of the Court took a view contrary to what has been held by the Hon'ble Supreme Court in the aforementioned decisions. Infact, even the decisions of the Hon'ble High Court referred to by the Ld. Predecessor of the Court have been incorrectly applied to the facts of the present case. Also, the other judgments relied upon by the respondent have not been discussed in the order. Only the title and citations of the judgments have been mentioned and thereafter, it is stated that none of them apply to the facts of the present case. No reasons for reaching this conclusion have been disclosed. The judgment in the case of Charan Dass Duggal has not even been mentioned in the order.
34. Also, the judgments of the petitioner referred to in order dated 23.10.2020 while holding that the Controller is competent to decide the issues raised in the case on the basis of the affidavits of the parties are per incuriam the decisions of the Hon'ble Supreme Court in the cases of Precisions Steel & Engineering Works and Charan Dass Duggal, except for the decision in the Miscellaneous Case No. 14/21 Page 18 of 33 19 case of Swaran Dass Benerjee Vs. Ram Prakash 167 (2010) DLT 80. However, even in this decision, a view contrary to what has been held by the Hon'ble Supreme Court in the aforementioned two decisions was not taken. This decision of the Hon'ble High Court was based on the decision of the Hon'ble Supreme Court in the case of Baldev Singh Bajwa Vs. Monish Saini (2005) 12 SCC 778. The case of Baldev Singh Bajwa was not in the context of Delhi Rent Control Act. It was passed in view of the peculiar provisions of the East Punjab Rent Restriction Act which provides for a jail term if the landlord does not use the property for a purpose for which eviction was sought. In this context, the Hon'ble Supreme Court held that the conditions and restrictions imposed on landlord make it improbable for the landlord to seek ejectment unless the need is indeed bonafide. It was held that no unscrupulous landlord in all probability, under this section, will approach the Court for ejectment of tenant considering the onerous conditions imposed on him. It was in these circumstances that the Hon'ble Supreme Court held that a heavy burden lies on the tenant to prove that the requirement is not genuine. On the other hand, the judgment in the case of Precision Steel and Engineering Works was passed in the context of Delhi Rent Control Act and it was held by the Hon'ble Supreme Court that the burden is on the landlord to satisfy the Controller that Miscellaneous Case No. 14/21 Page 19 of 33 20 the premises of which possession is sought is required by him bonafide and that there is no alternative suitable accommodation available. It was held that this burden, the landlord is required to discharge before the Controller gets jurisdiction to pass an eviction order. It was observed that this initial burden on the landlord is in no way diluted or discharged or shifted to the tenant merely because of a different procedure prescribed under Chapter III A of the Act.
35. In the application for leave to defend, the respondent listed several properties which as per the respondent are available for doing of business by Mr. Kanav Khanna, son of the petitioner. In the reply to the application, the petitioner denied the availability of these properties. For few of these properties, it was stated that these have been rented out on 27.10.2017 vide different rent agreements. In the rejoinder, the respondent stated that these rent agreements have been fabricated. It was pointed out that these documents are neither registered nor stamped. It is pertinent to mention here that the three rent agreements are for a period of six years and are unregistered documents. The two rent agreements executed in favour of M/s Neelanchal Leasing Limited provide a monthly rate of rent of Rs. 9 lakhs (Rs. 3 lakhs + Rs. 6 lakhs). Despite such high amounts of rental, even the property which is subject matter of the lease has not been described. The area Miscellaneous Case No. 14/21 Page 20 of 33 21 of the properties and the number of floors being rented out have not been disclosed. It is stated in these agreements executed in favour of M/s Neelanchal Leasing Limited that the entire property has been rented out for running a guest house. This is contrary to the assertion of the petitioner that there is a jewellery business being run from the ground floor of the property. For these reasons, the assertion of the respondent that the rent deeds are fabricated cannot be rejected at the threshold.
36. It is also the case of the respondent as stated in the rejoinder that the property at Vishal Enclave has been vacated and put on sale, which establishes that there is no bonafide requirement of the petitioner. The contents of the rejoinder have not even been mentioned in the order dated 23.10.2020.
37. With regard to the property at Beadon Pura, it is stated in the reply to the application for leave to defend that this property is the registered office of Infinix Private Limited. It is the own case of the petitioner that this company has not started any business operation till date. As such, this property should also be available for the stated requirement of Mr. Kanav Khanna. Besides this property being the registered office of Infinix Private Limited, it is the claim of Miscellaneous Case No. 14/21 Page 21 of 33 22 the petitioner that the ground, first and second floors of this property are used as godown and for staff accommodation. If the need of the petitioner is so "grave and immediate" that the petitioner is "constrained to relocate his son", then the petitioner and his family can also relocate its godown and staff so that Mr. Kanav Khanna can be successful in his endeavors of starting a new business.
38. The respondent had also questioned the requirement of the petitioner and his son being bonafide. The Ld. Predecessor of the Court in its order dated 23.10.2020 has stated that eviction order cannot be denied on the ground of bonafide need to a young businessman who wants to start his new and independent business. There is no dispute regarding this. However, the claim of the petitioner as made in the eviction petition that because of the eviction order being passed against them with regard to property bearing no. G-3, Ground Floor, NDSE Market, New Delhi, the need of the petitioner for the tenanted premises is more "grave and immediate" as the petitioner is "constrain to relocate" his son for "establishing, setting up and running his business" from a "more viable and suitable place", is prima facie not believable. There is no gainsaying the fact that a rich and established businessman can seek eviction of a tenant on the ground of bonafide need for Miscellaneous Case No. 14/21 Page 22 of 33 23 starting a new business. However, the seemingly false claims as made by the petitioner despite the fact that he and his son are already running several varied businesses from several highly expensive commercial properties, that the need for the tenanted premises is grave and immediate and that he is "constrained" to "relocate" his son creates doubt on the genuineness and bonafide of petitioner's case.
39. There is no doubt that an established businessman can chose to start a new business. However, in the facts of the present case, various questions arise to which answers could be found after parties are allowed to lead evidence. If the petitioner's son wanted to start a new business independently, why was the property bearing no. F-39, South Extension, Part-1, which was purchased recently on 24.05.2014 not utilized for this purpose? Even the properties in Karol Bagh and in Vishal Enclave, which as per the petitioner were rented out on 27.10.2017, were not utilized for the stated requirement. On one hand, the petitioner claims that his son wants to start his independent jewellery business and on the other hand, not very long before filing of the present case, the petitioner and his family have been renting out alternative suitable properties to their own companies. Soon after that, the petitioner's son desires to start his independent business. The question arises as to since Miscellaneous Case No. 14/21 Page 23 of 33 24 when the petitioner's son wanted to start his independent jewellery business. There has been no disclosure by the petitioner in this regard.
40. Even though the petitioner claims that a ground floor property is more lucrative for starting a jewellery business, the petitioner and his family have themselves been running jewellery business from other floors of different properties. For example as per the site plan filed by the petitioner of the property bearing no. F-39, South Extension, the first floor is also being used for running jewellery showroom.
41. Despite these doubts, the respondent was denied a proper opportunity of contesting the case. Law of procedure are grounded on principle of natural justice which requires that no one should be condemned unheard. As has been held by the Hon'ble Supreme Court in Sangram Singh Vs. Election Tribunal which was quoted in the case of Precision Steel and Engineering Works, proceedings that effect lives and property of people should not continue in their absence and they should not be precluded from participating in them.
42. This court is of the view that the landlord being the best judge of his requirement and that the tenant cannot dictate to the landlord on the choice of Miscellaneous Case No. 14/21 Page 24 of 33 25 property is not an absolute principle of law. The court is required to check the bonafide of the alleged requirement of petitioner for seeking possession of the tenanted premises. In this context, reliance is placed upon the decision of the Hon'ble High Court in the case of Khem Chand & Ors. vs Arjun Jain & Ors. Rev. No.442/2012 dated 13 September, 2013. The Hon'ble High Court of Delhi held the following in this case:
"39. It is true that there are other cases where in the appropriate facts the courts have held that the landlord is the best judge to decide his convenience. The said are the line of the cases where the landlord is put to the extreme hardship by tenant's insistence that he should adjust to inconvenient premises by squeezing his needs. The facts of the present case are entirely different where the landlord is enjoying the property with in the same location though as a tenant coupled with another property lying vacant within the same location though on the different floor owned by the landlord himself where the business can be carried out as per the market conditions and thereafter the landlord is seeking to vacate the third property in the same location on the basis of bonafide need and non availability of the alternative accommodation which raises the doubt on the need of the landlord as not felt need but fanciful desire. ... It is not the thumb rule that in every case the landlord always is the best judge and the court is helpless by not scrutinizing the stand of the tenant while testing the reasonableness and suitability of the alternative accommodation. Actually it depends upon the case to case basis. The courts have otherwise also held consistently that even though the landlord is the best judge to decide his needs and he cannot be Miscellaneous Case No. 14/21 Page 25 of 33 26 compelled by the tenant to accommodate at the place which is lesser in any way than the place which is sought to be evicted, still the court would examine the reasonableness and suitability of the existing accommodation by weighing what is available with the landlord vis-à-vis the plea of the tenant.
...42. The Supreme Court in the case of M.M. Quasim Vs. Manohar lal, AIR 1981 SC 1113 which is a three bench decision passed by the court speaking through Hon'ble Desai, J. (as His Lordship then was) has categorically flawed this approach of mechanically stating that the landlord is the best judge without applying a judicious approach in the matter."
43. In the case of M.M. Quasim Vs. Manohar Lal Sharma & Ors. 1981 AIR 1113, the Hon'ble Supreme Court held the following:-
"It would, however, be a bald statement unsupported by the Rent Act to say that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in possession which he would not occupy and try to seek to remove the tenant. This approach would put a premium on the landlord's greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the market rate."
44. The very purpose of creation of machinery of Rent Controllers and Additional Rent Controllers, is that the plea of the landlord is to be tested on the anvil of bonafide. The ground on which the landlord is seeking eviction of Miscellaneous Case No. 14/21 Page 26 of 33 27 tenant has thus been put to test and this itself implies that the grounds urged have to be carefully scrutinized rather than being accepted on face value.
45. The aforesaid decisions makes it incumbent for the court to analyse the alleged requirement of the landlord and assess if it is natural, real, sincere and honest. It has already been explained hereinabove that there are doubts on the claims made by the petitioner.
46. In the case of Liaq Ahmed and Ors. Vs Habeeb-Ur-Rehman (2000) 5 SCC 708, the Hon'ble Supreme Court held that the rent control legislations seek to strike a balance between the rights of the landlord and requirements of the tenant. It was held that the purpose of the legislation should not be nullified by giving hyper technical or liberal construction to the language of the statute which instead of advancing the object of the Act may result in its frustration. It was observed that Rent Acts have primarily been enacted to give protection to the tenants and with paramount object of essentially safeguarding their interest and their benefit. It was held that a rational approach should be followed in interpreting the law relating to control of tenants.
47. The prime question to be answered while deciding an eviction petition on the ground of bonafide need is that whether the tenanted premises is Miscellaneous Case No. 14/21 Page 27 of 33 28 required bonafide by the landlord for his use and whether he has no alternative suitable accommodation for his requirement. If on such vague pleas as is taken in the present eviction petition, tenant protected by the Delhi Rent Control Act is allowed to be evicted, it would frustrate the very purpose of the enactment of the beneficial legislation, since every landlord can take such a plea that he wants his property for business or residence without giving any further details and this plea would, if the case of the petitioner's contention is accepted, would be judicially inscrutable.
48. In the various decisions of the Hon'ble High Court relied upon by the petitioner and quoted in the order dated 23.10.2020, no view contrary to what was held by the Hon'ble Supreme Court in Precision Steel & Engineering was taken. In the various judgments relied upon by the petitioner and referred to in the order dated 23.10.2020, it was held that questions which can be decided on the basis of affidavits and documents and do not require trial can be decided by the Controller. It was held that if the defence or plea is only legal and not required to be proved, it can be adjudicated immediately. However, in the present case, as has been explained hereinabove, the various disputed questions were not merely legal questions and were questions of fact, which could have been decided only after giving an opportunity to the parties for Miscellaneous Case No. 14/21 Page 28 of 33 29 leading evidence.
49. Despite there been several disputed questions of facts as has been illustrated hereinabove, without giving reasoning, the Ld. Predecessor of this Court held that the questions raised by the respondent can be decided without the necessity of leading evidence and only on the basis of affidavits and documents. In paragraph no. 26 of the order, it is stated that "In view of the above documentary evidence on record", it seems that Mr. Kanav Khanna and his father do not have any other alternate accommodation for re-location of Mr. Kanav Khanna. It is pertinent to mention here that "the above documentary evidence" are only the documents of the petitioner, authenticity of which has been disputed. The respondent may not have filed documents in support of its each and every averment. However, the revelations made by the respondent about the several properties and businesses of the petitioner's family have been admitted by the petitioner and therefore, it cannot be said that the respondent has been making allegations baselessly. What is more glaring is that the Court proceeded to analyze the documents and assertions of both the parties to decide which of the two are correct, which per se is not permissible in view of the decision of the Full Bench of the Hon'ble Supreme Court in the case of Precision Steel & Engineering and of the Hon'ble Supreme Court in Miscellaneous Case No. 14/21 Page 29 of 33 30 the case of Charan Dass Duggal. Whether the requirement for tenanted premises is indeed bonafide and whether the petitioner does not have alternative suitable accommodation for the stated purpose can be determined only after an opportunity is granted to the respondent for leading evidence. At the stage when the application for leave to defend is to be decided, the Court is not required to check proof of the defence raised by the tenant. As has been observed by the Full Bench of the Hon'ble Supreme Court in the case of Precision Steel and Engineering Works, wisdom, sagacity and the consequences of refusal to grant leave coupled with limited scope of enquiry being confined to facts disclosed in affidavits of the tenant should guide the approach of the Controller. Since the decision dated 23.10.2020 was not confined only to the affidavits of the parties and case was decided at the threshold despite there being disputed questions of facts, it is apparent on the face of record that principle of natural justice and decisions of Hon'ble Supreme Court was not followed. As such, in view of the decision in the case of Nalagarh Dehati Cooperative Vs. Beli Ram, since there was failure of the Court to take into consideration the existing decision of the Hon'ble Supreme Court, there is a mistake and error apparent on the face of the record. The decision of the Hon'ble Supreme Court in the case of Anil Kumar Jain Vs. Miscellaneous Case No. 14/21 Page 30 of 33 31 Union of India referred to in the case of Dalmia Industries Limited Vs. Jagmohan Gupta 139 (2007) DLT 165 relied upon by the petitioner, does not apply to the facts of this case, since in the present case, the respondent has relied upon the Hon'ble Supreme Court decision in the case of Charan Dass Duggal which was quoted in the rejoinder. Therefore, it cannot be said that the judgments unnoticed in the order dated 23.10.2020 were not referred to before the Court which passed the eviction order.
50. Moreover, it cannot be said that the issues decided in the order dated 23.10.2020 have been reagitated and re-argued in the application under consideration for review because the issues raised by the respondent and its judgments were not even considered and decided in the order dated 23.10.2020. It does not require a long process of reasoning to discover that the decisions of the Hon'ble Supreme Court which hold the field on the law for deciding applications for leave to defend were not followed. It is self-evident that the Court exceeded its jurisdiction by giving findings on disputed questions of facts.
51. Also, a fraud has been played on the Court by the petitioner by making false claims that his son who is already involved in several varied businesses, Miscellaneous Case No. 14/21 Page 31 of 33 32 needs relocation and that the need for the property is grave and immediate. It is appalling that despite the petitioner and his family owning several prime properties and businesses, he got an eviction order without batting the eye lid. Since the eviction order was obtained by fraud and by misleading the Court, it ought to be reviewed and recalled. In the case of Indian Bank Vs. M/s Satyam Fibres India Pvt. Ltd. 1996 (5) SCC 550, the following was held:
"In Smith Vs. East Elloe Rural District Council (1956) AC 736, the House of Lords held that the effect of fraud would normally be to vitiate any act or order. Order obtained by fraud practised upon the Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order".
52. There is no gainsaying the fact that if the eviction order is not tenable, a revision petition is to be preferred and the review jurisdiction has narrow scope. However, in this case since eviction order was obtained by misleading the Court and playing fraud for shunting out the defence altogether without an opportunity of proving it at trial, I am constrained to review it since the aforementioned decisions of the Hon'ble Supreme Court in the case of Precision Steel and Engineering Works and Charan Dass Duggal have not been followed and as such there is an error apparent on the face of record. Miscellaneous Case No. 14/21 Page 32 of 33 33 Accordingly, the application under Order 47 Rule 1 r/w Section 151 of Code of Civil Procedure is allowed.
53. As has already been explained hereinabove, triable issues have been raised by the respondent and there are sufficient grounds which entitle the respondent to have leave to defend and contest the present eviction petition u/s 14 (1) (e) Delhi Rent Control Act of the petitioner.
54. In these circumstances, the application of the respondent under Section 25-B of Delhi Rent Control Act for seeking leave to defend is also allowed. Let the written statement be filed within 30 days from today after supplying advance copy to the petitioner. Replication be filed within two weeks from receiving copy of the written statement after supplying advance copy to the respondent.
55. To come up for petitioner's evidence on 05.05.2021. Advance copy of evidence by way of affidavit be supplied to the respondent at least 15 days Digitally signed prior to the next date of hearing. SHIRISH by SHIRISH AGGARWAL AGGARWAL Date: 2021.03.22 16:43:06 +0530 SHIRISH AGGARWAL ACJ-cum-ARC, Central District, Tis Hazari Courts, Delhi (Announced in open court on 20.03.2021) Miscellaneous Case No. 14/21 Page 33 of 33