Delhi District Court
Sh. Suresh Bharija vs Sh. Om Prakash on 23 December, 2014
Page no. 1 of 20
IN THE COURT OF SH. SUMEDH KUMAR SETHI
ACJ-cum-ARC-cum-CCJ (WEST) THC, DELHI
UID No. 02401C0597022012
E No.173/2012 U/s 14(1)(e) of DRC Act
Date of institution: 20.12.2012
Date of Order: 23.12.2014
1. Sh. Suresh Bharija
2. Sh. Rakesh Bharija
Both sons of Late. Sh. Bahadur Chand
R/o S-20, Ajay Enclave,
New Delhi-110018 ....... Petitioners
Versus
Sh. Om Prakash
S/o Sh. Des Raj
R/o Shop No.1, C-8, Ajay Enclave Extension
New Delhi-110018
....Respondent
Order deciding Leave to Defend in Eviction petition
U/sec. 14(1)(e) r/w Section 25-B of DRC Act, 1958
1) Vide this order the Court shall dispose of the application U/s 25B (4 & 5) of DRC
Act of the respondent seeking leave to defend the eviction petition, filed on
29.01.2013.
2) The eviction petition U/sec. 14(1)(e) Section 25B of the Delhi Rent Control Act,
1958 (hereinafter referred to as DRC Act) was filed by the petitioners against the
respondent on 20.12.2012.
FACTS
3)The averments made in the petition are that: 3.1 One shop private no.1 measuring 10' X 14', out of the property bearing no. C8, Ajay Enclave Extension, New Delhi110018, (herein after called E. No. 173/2012 Suresh Bharija Vs Om Prakash Page no. 2 of 20 tenanted premises/shop in question), as shown in red colour in the site plan, was let out to the respondent somewhere in the year 1978 @ Rs. 450/ per month which was increased from time to time by the 10% and now it is Rs. 1500/ per month exclusive of other charges. The tenancy is oral, no rent receipt was received by the respondent.
3.2 The father of the petitioners Sh. Bahadur Chand died on 22.09.1999 leaving behind his widow Smt. Raj Rani, three sons namely Suresh Bharija, Rakesh Bharija and Ramesh Kumar and four daughters namely Smt. Rama Chopra, Smt. Veena Talwar, Ms. Santosh Kumari and Ms. Neelam Kumari as his legal heirs.
3.3 The mother of the petitioners Smt. Raj Rani also expired on 20.05.2002 intestate.
3.4 The sister of the petitioners namely Smt. Rama Chopra, Smt. Veena Talwar, Ms. Santosh Kumari, Ms. Neelam Kumari and one brother Ramesh Kumar relinquished their right in the suit property as well as other property bearing no. S20, Ajay Enclave, New Delhi, by virtue of Relinquishment Deed of 14.09.2005 which was registered before the SubRegistrarII, Janakpuri, Delhi vide Registration No. 25512 Addl. Book No.1, Volume No. 13201 on pages 185 to 188 Regd. on 14.09.2005 in favour of the petitioners and hence by virtue of the abovementioned Relinquishment Deed, the petitioners became the owner of the suit property.
3.5 The petitioners are having two unmarried sisters namely Ms. Santosh Kumari aged about 38 years and Ms. Neelam Kumari aged about 37 years who are residing with them and they are looking after their welfare. In these circumstances, the said sisters are dependent upon the petitioners for the E. No. 173/2012 Suresh Bharija Vs Om Prakash Page no. 3 of 20 purpose of residence as well as financially.
3.6 The tenanted shop is required bonafide by the petitioners for her sisters who are dependent upon them for their business of Beauty Parlour in the suit shop as well as Boutique, in other shop which is occupied by other tenant Sh. Parveen Kumar against whom a similar petition is also filed. 3.7 That by carrying on the said business, the sisters of the petitioners may earn their livelihood independently.
3.8 The suit property is the only suitable premises for carrying on the business by the sisters of the petitioner as the said property is situated on the Main Road and is suitable for the said business.
3.9 That the shop no.1 is occupied by the respondent. Shop no.2 is occupied by the petitioner no.1, shop no.3 is occupied by tenant Parveen Kumar and shop no.4 is occupied by the petitioner no. 2 who is carrying on his business in partnership with some other person. Behind these shops the petitioner no.1 is carrying on the business of sale and purchase of automobiles, used to park his vehicles for sale and purchase and therefore, the inner portion is not suitable for the business of the sisters of the petitioners. 3.10 That the petitioners are also occupying being the owners of the property no. S20, Ajay Enclave, New Delhi18. In the said property, the front portion is occupied by the tenant Jasvinder Pal Singh Heera who is carrying on the business of manufacturing of some metal products and rest of the premises is occupied by the petitioners, they are living alongwith their family. This property is not suitable for carrying on the business of Boutique and Parlour because it is situated on the inner portion of the locality and around it, there are industrial units and in these circumstances, it is not suitable for the E. No. 173/2012 Suresh Bharija Vs Om Prakash Page no. 4 of 20 customers of the said business to visit and to come for their stitching and Beauty Parlour work.
4) The respondent has filed application for leave to defend along with affidavit wherein the respondent has raised certain defenses and the same are as under:
4.1 That the respondent/applicant is served with summons from this Court on 17.01.2013.
4.2 That the petitioner has got sufficient accommodation and consists of many shops in premises no. S20, Ajay Enclave, New Delhi18 and the said property and rooms as well as shops are lying vacant in the said property. That the said property is more suitable as same is situated in congested area as well as few yards from the property bearing no. C8, Ajay Enclave Extension, New Delhi.
4.3 That there is one tenant in S20, Ajay Enclave, New Delhi who is occupying many shops and premises can be got vacated from him which is more affluent as well as suitable for the business point of view. 4.4 That the property no. C8, Ajay Enclave Extension, New Delhi has got four shops as well as four rooms/shops inside the property which can very well be utilized for the purpose of shops of Beauty Parlour as well as for Boutique.
4.5 That the petitioners have inducted recently one tenant about three months back who is running a business of Jasmeet Motors and same would have been occupied by the petitioner for their personal use but they have rented out the premises about three months back but the same was rented out again with malafide intention.
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4.6 That out of four shops, the petitioners are having two vacant shops in their possession, besides this as they have mentioned the rooms in the premises but the same were shops, about four shops which can be well be utilized for the boutique as well as Beauty Parlour. The business of Beauty Parlour as well as Boutique is run by lady, the same require privacy hence they are having four shops inside the property they can well be utilized by them for the business purposes.
4.7 That the sisters are not dependent upon the present petitioners and they are financially independent and not part of the family dependent upon the petitioners as required under the Delhi Rent Control Act. 4.8 That the Relinquishment Deed dated 14.09.2005 was executed in favour of the petitioners which clearly shows its contents that they are releasing the property in favour of the petitioners and instead should have claimed their share in the property in case they required the property bonafidely. 4.9 That the petitioner has not placed on record that the sisters are having completed any course of Beauty Parlour or Boutique from any recognized institution.
4.10 The respondent's family is totally dependent on the tenanted shop for the last 40 years for its earnings.
5) The petitioners have filed a reply to the application for Leave to Defend along with counter affidavits and in the counter affidavits the petitioners have denied the defences taken by the respondent. The petitioners further submitted as under:
5.1 That in the property no. S20, Ajay Enclave, New Delhi18, in the front portion there are two shops which are occupied by the tenant and behind the shops, there are two small rooms, bathroom latrine and kitchen beneath the E. No. 173/2012 Suresh Bharija Vs Om Prakash Page no. 6 of 20 stair case and small court yard. In the said petition petitioners alongwith their two sisters and one brother are residing and the said accommodation is also not sufficient for the petitioners to live comfortably and they reserved their right to file the eviction petition against the single tenant who occupied the front portion shops for their bonafide necessity for their living. 5.2 That there are four rooms in C8 in which the petitioner no.1 used to park his autos for sale and also used the same for storage purposes and that portion is not suitable for business to be carried out by the sisters of the petitioners. The inner portion is not a vacant portion and the same is being utilized by the petitioner no.1 for his business purposes.
5.3 That the sisters have relinquished their share in the property just with a view that it will not create any controversy among the family members and by relinquishment of their shares, it does not mean that they do not require any part of the property for their utilization.
5.4 That for the profession of Beauty Parlour or Boutique, it does not require any qualification or degree and one can start the business with the assistance of the well qualified person, tailor, cutter or having experience in the field etc.
6) No Rejoinder to the reply to the application was filed by the respondent.
7) Arguments were heard on the application under consideration on behalf of both the parties. Material on record has been perused. Submissions considered. REQUIRMENTS
8) In order to succeed in a petition for eviction filed under section 14(1)(e) of the Delhi Rent Control Act the petitioner must establish that:
i.He is the owner and landlord in respect of the tenanted premises.
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ii.That he requires the premises bonafide for himself or for any member of his family dependent upon him.
iii.That he has no other reasonably suitable accommodation
9) The scope of the section has been enlarged in view of the judgment of the Hon'ble Supreme Court titled as Satyawati Sharma v. Union of India: AIR 2008 SUPREME COURT 3148 so as to include premises let out for commercial purposes also within the scope and ambit of a petition under section 14(1)(e) of DRC Act. Moreover, it is also pertinent to mention here that the respondent has not challenged the ownership of the petitioners qua the tenanted premises and has also not denied the landlordtenant relationship. The defences which are taken by respondents are discussed below and the same are as under: DEFENCES
10) Need not Bonafide as the petitioners have alternative accommodation at S20, Ajay Enclave and vacant shops in C8, Ajay Enclave Extention:
10.1 It has been observed in judgment titled as Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors.: 155 (2008) DLT 383 by Hon'ble Delhi High Court as under:
"11)....Thus, the affidavit filed by the tenant was shown to be false by the landlady on the basis of documents placed by it. No Rent Controller is supposed to grant leave to the tenant on the basis of a false affidavit and false averments and assertions. Such affidavit should be outrightly reject ed by the Rent Controller. Only those averments in the affidavit are to be considered by the Rent Controller which have same substance in it and are supported by some material. Mere assertions made by a tenant in E. No. 173/2012 Suresh Bharija Vs Om Prakash Page no. 8 of 20 respect of landlord's ownership of other buildings and in respect of al ternate accommodation are not to be considered sufficient for grant of leave to defend."
10.2 The respondent has contended that the petitioner has got sufficient accommodation and consists of many shops in premises no. S20, Ajay Enclave, New Delhi18 and the said property and rooms as well as shops are lying vacant in the said property. The said property is more suitable as same is situated in congested area as well as few yards from the property bearing no. C8, Ajay Enclave Extension, New Delhi.
10.3 The respondent has also contended that there is one tenant in S20, Ajay Enclave, New Delhi who is occupying many shops and premises can be got vacated from him which is more affluent as well as suitable for the business point of view.
10.4 On the other hand the petitioners have countered that in the property no. S20, Ajay Enclave, New Delhi18, in the front portion there are two shops which are occupied by the tenant and behind the shops, there are two small rooms, bathroom latrine and kitchen beneath the stair case and small court yard. In the said portion, petitioners alongwith their two sisters and one brother are residing and the said accommodation is also not sufficient for the petitioners to live comfortably and they reserved their right to file the eviction petition against the single tenant who occupied the front portion shops for their bonafide necessity for their living.
10.5 It has also been submitted on behalf of the respondent that the property no. C8, Ajay Enclave Extension, New Delhi has got four shops as well as four rooms/shops inside the property which can very well be utilized for the purpose E. No. 173/2012 Suresh Bharija Vs Om Prakash Page no. 9 of 20 of shops of Beauty Parlour as well as for Boutique and out of four shops, the petitioners are having two vacant shops in their possession, besides this as they have mentioned the rooms in the premises but the same were shops, about four shops which can be well be utilized for the boutique as well as Beauty Parlour. The business of Beauty Parlour as well as Boutique is run by lady, the same require privacy hence they are having four shops inside the property they can well be utilized by them for the business purposes.
10.6 The petitioners have again countered that there are four rooms in C8 in which the petitioner no.1 used to park his autos for sale and also used the same for storage purposes and that portion is not suitable for business to be carried out by the sisters of the petitioners. The inner portion is not a vacant portion and the same is being utilized by the petitioner no.1 for his business purposes. 10.7 There is not a single thing on record to show that the petitioners are not residing at the property bearing no. S20, Ajay Enclave, New Delhi18. There is also nothing to show that various shops/ rooms in both the properties are vacant, except for bald averments of the respondent which cannot be accepted. On the other hand the petitioners have come out clean and listed out the portions available with them in their petition alongwith their use and suitability qua their requirement to aver that only the shop in question caters to their bonafide requirement. There is nothing on record to counter the submissions of the petitioners. Thus, mere bald averments of the respondent to this effect do not give rise to a triable issue.
10.8 Moreover, in the judgment titled as Ragavendra Kumar v. Firm Prem Machinary: AIR 2000 SUPREME COURT 534 the Hon'ble Supreme Court held that it is settled position of law that the landlord is best judge of his E. No. 173/2012 Suresh Bharija Vs Om Prakash Page no. 10 of 20 requirement for residential or business purpose and he has got complete freedom in the matter. Moreover, as has been held in a plethora of cases, neither the Court nor the tenant cannot dictate terms to the landlord regarding the suitability of the premises.
10.9 Thus, the petitioners cannot be dictated to occupy other portions of the premises where they have stated that they are carrying on their business. The petitioners have complete liberty to decide which premises is most suitable for their sister's business and neither the Court nor the tenants can dictate terms to the contrary to the petitioners. Moreover, the respondent has contradicted him self by saying on one hand that the shops at S20, Ajay Enclave are more suit able for business being busy congested commercial area and on the other hand saying that the internal shops of property no. C8 are more suitable as the busi ness can be carried out therein in privacy.
10.10 It has been held in the case of Krishan Lal vs R N Bakshi decided by our own Hon'ble High Court on 19 May, 2010 that:
"8. It is settled law that it is not for a tenant to dictate the terms to the landlord as to how and in what manner he should adjust himself, without calling upon the tenant to vacate a tenanted premises. While deciding the question of bonafides of requirement of landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted. When the landlord shows a prima facie case, a presumption that the requirement of the landlord is bonafide, is available to be drawn. It is also settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has E. No. 173/2012 Suresh Bharija Vs Om Prakash Page no. 11 of 20 got complete freedom in the matter and it is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. The tenant cannot compel a landlord to live in a particular fashion and method until and unless the requirement shown is totally mala fide or not genuine."
10.11 Thus, the respondent cannot dictate what premises would be suitable for the petitioners for their sisters' business and what would not. The same has to be judged solely by the petitioners as per their family. 10.12 Accordingly, this defence raised by the respondent as regards bonafide requirement and as regards alternate accommodation is a sham defence and it does not raise any triable issue.
11) Sisters of the petitioners are not dependent on the petitioners and they have relinquished their share :
11.1 The respondent has contended that the sisters are not dependent upon the present petitioners and they are financially independent and not part of the family dependent upon the petitioners as required under the Delhi Rent Control Act. The Relinquishment Deed dated 14.09.2005 was executed in favour of the petitioners which clearly shows its contents that they are releasing the property in favour of the petitioners and instead should have claimed their share in the property in case they required the property bonafidely. 11.2 The petitioners have countered that the sisters have relinquished their share in the property just with a view that it will not create any controversy among the family members and by relinquishment of their shares, it does not mean that they do not require any part of the property for their utilization.
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11.3 In a recent judgment titled Pawan Kumar Vs Sant Lal R.C.Rev 303/2012 decided on 6.8.2012 it has been held by Honorable Mr Justice M.L.Mehta as under: "16. Further, submissions of learned counsel for the petitioner that Dr. Ankit was not financially dependent upon his father and so the tenanted premises could not be got vacated for his requirement, is also only noted for rejection. It is trite that the landlord is entitled to help his son, establish his business. In Labhu Lal Vs. Sandhya Gupta 2011(1) RCR, (Rent) 231 (Delhi), it has been held by this Court that the children are very much dependant on the landlord for the purpose of setting up their business and such a requirement is a bonafide one. The right of the landlord for possession of his property for setting up a business for his son has been also recognized by the Apex Court in Ram Babu Aggarwal Vs. Jay Kishan Das 2009(2) RCR 455. The moral duty of a father to help establish his son was also recognized by the Apex Court in Joginder Pal Singh Vs. Naval Kishore Behal AIR 2002 SC 2256 in the following words:
"24........Keeping in view the social or socioreligious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord. If the requirement is of actual user of the premises by a person other than the landlord himself the Court shall with circumspection inquire: (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close interrelation or identify nexus between such person and the landlord so as to satisfy the requirement of the E. No. 173/2012 Suresh Bharija Vs Om Prakash Page no. 13 of 20 first query. Applying the overlaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent."
11.4 There is not even an iota of doubt that the unmarried and married sisters of the petitioners are closely connected with them, especially in view of the death of their parents. Thus, even if they have released their share in the property in question in favour of the petitioners, then also it does not absolve the petitioners from their moral duty to provide for the living of their unmarried sisters. There is nothing malafide in trying to do the same. 11.5 In this regard it has been held by the Honorable High Court of Delhi in Inderjeet Singh vs Harish Chandra Bhutani: in R.C.REV. 98/2010 decided on 06.07.2012 that:
"6. On the perusal of record, it is evident that the Ld. ARC has opined that the son of the petitioner is financially independent on the basis of his credit card statements. In my opinion such an observation was patently erroneous. Holding a credit card is a common practice and not a yard stick to the financial status of a person. In any case, this issue is irrelevant to the current proceedings due to the fact that even if the son of the petitioner is carrying on his business still as a father the petitioner is obliged to make efforts for setting up a business in a suitable place for his son. Such a requirement is quite reasonable and justified and cannot be termed as malafide. It is not the case of the respondent that the petitioner is in possession of any alternate accommodation from where his son could carry his business. If a person is owner of a commercial property, but is forced to pay rent towards a tenanted premises, then his E. No. 173/2012 Suresh Bharija Vs Om Prakash Page no. 14 of 20 requirement for possession of his property is bonafide and must be recognized. The respondent has failed to show as to how the son of the petitioner is not dependent on him for the requirement of the premises for carrying his business. I find no merit in this plea taken up by the respondent and admitted by the ARC. Such unfounded pleas cannot become a reason for denying the petitioner the right to use his property for setting up a shop for his son. In Labhu Lal Vs. Sandhya Gupta 2011(1) RCR,(Rent) 231 (Delhi), it has been held by this Court that the children are very much dependant on the landlord for the purpose of setting up their business and such a requirement is a bonafide one. The right of the landlord for possession of his property for setting up a business for his son has been also recognized by the Apex Court in Ram Babu Aggarwal Vs. Jay Kishan Das 2009(2) RCR 455.
7. Regarding the bald plea of the respondent that there is discrepancy in the amount of rent payable for the tenanted premises and the payer of the rent, it is sufficient to say that these minor discrepancies are not fatal to the case of the petitioner and not patently germane to the case. It is immaterial that who pays the rent for the tenanted shop being used by the petitioner's son. The fact of bonafide requirement and lack of any other accommodation for business purposes has been amply established by the petitioner. His son is in fact carrying out his business from a tenanted accommodation; he has no other alternate suitable accommodation. In this view of the matter, this submission of the tenant is clearly without force."
11.6 Thus, it is for the respondent to show that the sisters of the petitioners are E. No. 173/2012 Suresh Bharija Vs Om Prakash Page no. 15 of 20 not dependent on them and there is nothing pertinent on record to show the same.
11.7 Thus, this defence raised by the respondent does not raise any triable issue.
12) Recently inducted tenant 12.1 The respondent contended that the petitioners have inducted recently one tenant about three months back who is running a business of Jasmeet Motors and same could have been occupied by the petitioner for their personal use but they have rented out the premises about three months back but the same was rented out again with malafide intention.
12.2 However, these are nothing but bald averments. As stated earlier, the petitioners have already given details of occupation of each and every portion of the premises that belong to them. There is nothing on record to show that any such premises has been let out recently. Moreover, the tenant cannot dicate that the particular portion of the premises would be more suitable for the business that the petitioners' sisters want to carry out.
12.3 It is settled law that leave to defend cannot be granted on raising just any triable issue but the issue should be such that, if proved, it should disentitle the land lord from the relief of eviction.
12.4 For the reasons already given above, there is nothing in this defence that would disentitle the petitioners herein from the relief of eviction. 12.5 Hence, this defence does not raise any triable issue.
13) The petitioners' sisters are not qualified for the proposed business of beauty parlour or boutique E. No. 173/2012 Suresh Bharija Vs Om Prakash Page no. 16 of 20 13.1 The respondent has contended that the petitioner has not placed on record that the sisters are having completed any course of Beauty Parlour or Boutique from any recognized institution.
13.2 The petitioners have countered that for the profession of Beauty Parlour or Boutique, it does not require any qualification or degree and one can start the business with the assistance of the well qualified person, tailor, cutter or having experience in the field etc. 13.3 It has been held in the case of Manika Rani Ghosh & Ors. vs Dhar winder Kaur: 197 (2013) DLT 18 that:
"8. I subscribe to the view taken by the Ld. RC in deciding the eviction petition. It is often contended by the tenants that the landlord has no prior business experience, capacity or that the suit premises are not suitable for the business proposed by the landlord. For instance, similar contentions were raised by the tenants before this Court in the case of Shashi Kant Jain v. Tilak Raj Salooja & Anr., R. C. Rev. 167/2010 and have been refut ed. Such allegations whereby the tenant tries to raise questions regard ing the age of the landlord or lack of business experience or suitability of the suit shop for the business proposed by the landlord and which are invariably vague do not consist a triable issue. The tenants/petitioners made assertions before the Ld. RC regarding the landlady possessing al ternative properties, but were unable to furnish sufficient documentary evidence to substantiate the allegations. There is no dispute that the busi ness cannot be profitably carried from the residential premises and thus, the plea that the landlady could start the business form her residence is untenable. Moreover, it is not for this Court to examine the viability of the E. No. 173/2012 Suresh Bharija Vs Om Prakash Page no. 17 of 20 business at the suit premises or assess if it may be a profitable venture for the landlady."
13.4 Thus, it is clear that the qualifications or the experience of the petitioners' sisters is wholly irrelevant for the purpose of deciding this case. Moreover, it has been rightly pointed out on behalf of the petitioners that such business can also be carried out with the help of employees and the petitioners' sisters do not need any personal expertize in carrying on the same. 13.5 Hence, this defence is a sham defence and does not raise any triable issue.
14) Sole source of earning for the respondent :
14.1 The respondent has stated that his entire family is dependent upon the tenanted shop for their livelihood for the last 40 years. In this regard, in the judgment titled as Sarwan Dass Bange Vs. Ram Prakash: 167 (2010) DLT 80 the Hon'ble High Court of Delhi referring to the judgment of Baldev Singh Bajwa v. Monish Saini: (2005) 12 SCC 778 observed in para 17 as under:
"..It was held that the legislative intent is of expeditious disposal of the application for ejectment of tenant filed on the ground of requirement by the landlord of the premises for his own occupation; a special category of landlords requiring the premises for their own use has been created; if there is any breach by the landlord, the tenant is given a right of restoration of possession; the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only..."
14.2 Thus, it is clear that the special summary procedure provided for u/s 25B E. No. 173/2012 Suresh Bharija Vs Om Prakash Page no. 18 of 20 of the DRC Act is an exception to the general intent to the Act. The intention of the legislature is to provide an expeditious remedy to landlords who seek eviction on the ground of bonafide requirement under the stringent conditions imposed in the special procedure. Thus, the mere bald averment of the respondent to the effect that the tenanted premises is their sole source of earning cannot disentitle the petitioners from relief that they are entitled to get after fulfilling the stringent requirements provided for in the special procedure. Thus, this submission of the respondent is found to be untenable. 14.3 Moreover, it is held by the Hon'ble High Court of Delhi in a case tiled as Hari Shanker Vs. Madan Mohan Gupta: 111 (2004) DLT 534 that:
"Summary procedure in Section 25B of Delhi Rent Control Act, 1958 cannot be defeated by merely making frivolous and vague allegations which can never be substantiated."
14.4 Thus, on the basis of the aforesaid legal propositions the contention of the respondent is rejected as the same is a mere assertion without any substance.
14.5 Thus, this defence raised by the respondent is a sham defense and it does not raise any triable issue.
CONCLUSION
15) It is well settled that leave to defend is granted to the tenant in case any triable issue is raised by him, which can be adjudicated by consideration of additional evidence. The mere existence of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it will disentitle the landlord from obtaining the eviction order.
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16) In the judgment titled as Sarwan Dass Bange Vs. Ram Prakash (supra) the Hon'ble High Court of Delhi referring to the judgment of Baldev Singh Bajwa v. Monish Saini (2005) 12 SCC 778 observed in para 17 as under:
"...the landlord who evicts a tenant on the ground of own requirement is not only prohibited from letting out the premises or disposing of the same but also required to use the same for his own residence only. It was held that these restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the Court for ejectment of tenant unless his need is bona fide no unscrupulous landlord in all probability, under this Section, would approach the Court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that this inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the Court his requirement shall be presumed to be genuine and bona fide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine.." (emphasis supplied)
17) The whole purpose and import of summary procedure under Section 25B of the Act would otherwise be defeated. The prayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclosed a prima facie case i.e. such facts which disentitles the landlord from obtaining an order of eviction, the Court cannot mechanically and in routine manner grant leave to defend. In the light of the aforesaid facts, circumstances and legal propositions, all the pleas taken by the respondent has failed to raise any triable issues regarding the ownership of the petitioners or the land lordtenant E. No. 173/2012 Suresh Bharija Vs Om Prakash Page no. 20 of 20 relationship; the bonafide requirement of the landlord; or the availability of any alternative suitable accommodation. The contents of the application for leave to defend have failed to rebut the presumption of bonafide qua the requirement of the petitioners. The application for leave to defend filed by the respondent is thus rejected.
18) As a consequence thereof, an eviction order is passed U/s. 14 (1) (e), DRC Act against the respondents regarding the tenanted premises i.e One shop private no.1 measuring 10' X 14', out of the property bearing no. C8, Ajay Enclave Extension, New Delhi110018, as shown in red colour in the site plan
19) However, in light of Section 14 (7) DRCA, the aforesaid eviction order shall not be executable for a period of six months from today.
20) The parties are left to bear their own costs.
21) File be consigned to Record Room after due compliance.
Announced in the open Court on 23rd day of December, 2014 (SUMEDH KUMAR SETHI) ACJ/ARC/CCJ(West)/23.12.2014 E. No. 173/2012 Suresh Bharija Vs Om Prakash