Delhi High Court
Ram Saroop & Ors vs Viney Kumar Mahajan on 24 July, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 24th July, 2017
+ RC. REV. 112/2016 & CMs No.5784/2016 & 17873/2016 (both
for stay)
RAM SAROOP & ORS ..... Petitioners
Through: Mr. O.P. Verma, Advs.
Versus
VINEY KUMAR MAHAJAN ..... Respondent
Through: Mr. Mr. R.P. Sharma and Mr.
Vaibhav Mehra, Advs.
AND
+ RC. REV. 130/2016 & CMs No.7021/2016 & 18430/2016 (both
for stay)
M/S SUMITI DASS & SONS ..... Petitioner
Through: Mr. Sumit Singh, Advs.
Versus
VINAY KUMAR MAHAJAN ..... Respondent
Through: Mr. Mr. R.P. Sharma and Mr.
Vaibhav Mehra, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. These Rent Control Revision Petitions under Section 25B(8) of
the Delhi Rent Control Act, 1958 impugn separate but identical orders,
both dated 9th October, 2015, in E No.13/09/08 and E No.14/09/08
respectively of the Court of Additional Rent Controller (ARC), Patiala
House Courts, New Delhi of dismissal of applications filed by the
petitioner in each of the petitions for leave to defend the petitions for
eviction under Section 14(1)(e) of the Act filed by the
respondent/landlord and the consequent order of eviction of the
petitioners from Shop No.17-B and Shop No.18 respectively, Regal
RC. REV. 112/2016 & RC. REV. 130/2016 Page 1 of 10
Building, Connaught Circus, New Delhi wherein the petitioners in both
the petitions are old tenants at rent of Rs.150/- per month and Rs.236.10
per month respectively.
2. RC REV. No.112/2016 came up first before this Court on 17th
February, 2016 when notice thereof was ordered to be issued.
3. RC REV. No.130/2016 came up first before this Court on 26 th
February, 2016 when notice thereof also was ordered to be issued.
4. Vide subsequent orders dated 11th May, 2016 and 18th May, 2016
respectively, the execution of the orders of eviction was stayed. Trial
Court records were requisitioned in both the cases. On 25 th April, 2017,
when RC REV. No.112/2016 came up before this Court, the counsel for
the petitioner stated that connected matter being RC REV. No.130/2016
was listed on 24th July, 2017 and both the matters be taken up together.
The counsels though separate for each of the petitioners have argued the
matter as one only and this common judgment disposing of both the
petitions is being pronounced since the facts on which the petitions for
eviction were filed are the same and the grounds on which leave to
defendant was sought are also similar.
5. The respondent/landlord instituted the petitions for eviction
against each of the petitioners pleading (i) that he was the owner
landlord of the premises in tenancy of each of the petitioner, having
purchased the property in shops wherein each of the petitioners was a
tenant, by virtue of registered Agreement to Sell, General Power of
Attorney and Will all dated 18th May, 1986 in his favour by the previous
owners landlords and relying on Asha M. Jain Vs. Canara Bank 94
(2001) DLT 841; (ii) that the shops in the tenancy of each of the
RC. REV. 112/2016 & RC. REV. 130/2016 Page 2 of 10
petitioners were bona fide required for furtherance of the activities of
running a cinema theatre; (iii) that after evicting each of the petitioners,
the premises in their respective tenancy shall be used for furtherance of
activities of Regal Theatre which include expansion of Regal Theatre
including setting up of such activities as permissible under the
Cinematograph Act, 1951 and the Regulations framed thereunder.
6. The petitioners in RC REV. No.112/2016 sought leave to defend
pleading (a) that the tenancy was in the joint name of D.S. Bedi and Ram
Saroop and not in the name of M/s D.S. Bedi Ram Saroop against whom
the petition for eviction was filed; (b) that the respondent, on the basis of
Agreement to Sell, Power of Attorney and Will, even if registered, did
not become the owner of the property; (c) that the respondent did not
bona fide require the premises in the tenancy of the petitioners; (d) that
the shop in the tenancy of the petitioners had not been part of Regal
Theatre though situated in the same building as Regal Theatre; (e) that
besides the shop in the tenancy of the petitioners, there were other shops
also in the said property; (f) that the property had not even been mutated
in the municipal records in the name of the respondent; (g) that the
respondent, in the recent past, had obtained vacant possession of entire
first floor which was occupied by Standard Restaurant for several
decades; (h) that the respondent however did not retain the said
possession or use it for the purposes of Regal Theatre but instead created
a lease in favour of McDonalds who is now in occupation and possession
thereof; (i) that had the property been required by the respondent, it
would not have been let out to McDonalds.
7. As far as the ground urged, of the tenancy being in the individual
RC. REV. 112/2016 & RC. REV. 130/2016 Page 3 of 10
name of D.S. Bedi and Ram Saroop or petition against M/s D.S. Bedi
Ram Saroop being not maintainable is concerned and which is peculiar
to RC REV. No.112/2016, the necessary correction was made before the
ARC and the order of eviction was passed against Ram Saroop,
Manpreet Singh Bedi and Surinder Pal Singh Bedi. The only argument
made during the hearing was that all the legal heirs of D.S. Bedi have not
been impleaded.
8. There is no merit in the aforesaid contention. It is not the case that
Manpreet Singh Bedi and Surinder Pal Singh Bedi who as legal heirs of
D.S. Bedi have preferred this petition do not represent all the legal heirs
of D.S. Bedi. It has been held by the Supreme Court in Surayya Begum
Vs. Mohd Usman (1991) 3 SCC 114 that all the legal heirs of tenant are
not required to be impleaded and the legal heirs on record represent the
other legal heirs as well.
9. The petitioner in RC REV. No.130/2016 sought leave to defend
pleading (i) that the entire building in which shop in the tenancy of the
petitioner is situated is in possession of the respondent; (ii) that the
respondent is running a cinema hall in the said building and earning
crores of rupees; (iii) that his requirement is thus not bona fide; (iv) that
the respondent is not only in the business of running Regal Cinema but
has other businesses also; (v) that there are other shops also in the
building; (vi) that the accommodation already in possession of the
respondent in the building is sufficient for use of the respondent; (vii)
that the respondent has not disclosed as to when the need for the
premises arose.
10. Though replies were filed by the respondent to the applications for
RC. REV. 112/2016 & RC. REV. 130/2016 Page 4 of 10
leave to defendant and to which rejoinders were filed but need to go
therein to is not felt.
11. The counsels for the petitioners/tenants have raised only three
arguments. Firstly, it is contended that Asha M. Jain supra relying
whereon the respondent claims to be the owner stands overruled in Suraj
Lamp & Industries Pvt. Ltd. Vs. State of Haryana (2012) 1 SCC 656
and thus the respondent cannot be said to be the owner. Secondly, it is
argued that the conduct of the respondent of having earlier obtained
possession from Standard Restaurant which was also an old tenant in the
first floor of the property and having let out the same to McDonalds
showed that the respondent had no requirement. Thirdly, it is urged that
a petition for eviction was also filed against tenant of another shop
namely M/s D. Vaish & Sons but which has been withdrawn.
12. I may notice that the third argument aforesaid has no basis in the
application for leave to defend of either of the petitioners/tenants and no
credence can be given thereto.
13. As far as the first of the aforesaid arguments is concerned, though
certainly Asha M. Jain supra overruled by Suraj Lamp & Industries
Pvt. Ltd. supra but the learned ARC also in concluding the respondent to
be the owner did not rely upon the said judgment. Again, though
undoubtedly documents like Agreement to Sell, Power of Attorney and
Will with respect to a property are not documents of title to property but
Supreme Court in Shanti Sharma Vs. Ved Prabha (1987) 4 SCC 193
has held that the requirement of „ownership‟ in Section 14(1)(e) of the
Act is not of „absolute ownership‟ but of "something more than a
tenant". In the present case, though the petitioners/tenants have
RC. REV. 112/2016 & RC. REV. 130/2016 Page 5 of 10
contended that the documents of Agreement to Sell etc. do not create
ownership but otherwise in their applications for leave to defend have
admitted that it is the respondent who obtained possession from Standard
Restaurant, tenant on the first floor; that it is the respondent who has let
out the first floor to McDonalds; that it is the respondent who is running
the business of Regal Cinema/Regal Theatre; that the respondent besides
the Regal Theatre also has number of other Theatres in Jammu,
Faridabad and Delhi. It is also not the case of the petitioners/tenants that
besides the respondent, any other person has been claiming to be the
owner or controverting the claim of the respondent to rent of the
premises. In the said state of affairs, the respondent certainly satisfies
the test of ownership within the meaning of Section 14(1)(e) of the Act.
14. As far as the plea of Standard Restaurant is concerned, the same is
bereft of all particulars whatsoever. The petitioners/tenants, in their
applications for leave to defend, have not pleaded the month or even the
year in which Standard Restaurant shifted from the premises and when in
its place McDonalds was inducted. Requirement keeps on changing from
time to time and without the petitioners/tenants disclosing facts to show
that a premises available at the time of requirement was not put to self
use, the same cannot constitute a ground of eviction. Being a resident of
Delhi and in proximity of Connaught Place area and my memory being
of Standard Restaurant having shut down more than a decade back,
during the hearing, I have asked from the counsel for the
petitioners/tenants, when did Standard Restaurant on the first floor of the
building shut down.
15. The counsel for the petitioners/tenants vaguely states that it shut
RC. REV. 112/2016 & RC. REV. 130/2016 Page 6 of 10
down 4-5 years ago.
16. The counsel for the respondent/landlords states that it was 20
years ago.
17. The counsel for the petitioners/tenants could not rebut.
18. If leave to defend were to be granted on such vague pleas, the
same would defeat the legislative intent of inserting Section 25B in the
Rent Act as summary procedure for dealing with petitions for eviction on
the ground of requirement of the premises by the landlord for his own
use. A tenant, to be entitled to leave to defend has to disclose facts
which would disentitle the landlord from obtaining an order of eviction
under Section 14(1)(e) of the Act. It is only such facts which when
proved would so disentitle the landlord which can entitle the tenant to
leave to defend. Evidence in proof of such facts has to be confined to
the pleas and cannot be beyond the pleas. If the tenant is unable to make
specific pleas, the Court cannot grant leave to defend on the premise that
he will improve his case during trial. Leave to defend is not to be
granted to allow to the tenant time to improve his case.
19. Supreme Court in Baldev Singh Bajwa Vs. Monish Saini
(2005) 12 SCC 778, in the context of summary procedure under the
East Punjab Urban Rent Restriction Act, 1949 held that a heavy
burden lies on the tenant and the tenant is called upon to give all the
necessary facts and particulars supported by documentary evidence, if
available, to support his plea in the affidavit itself so that the
Controller will be in a position to adjudicate and decide the question
of genuine or bona fide requirement of the landlord. A mere assertion
on the part of the tenant was held to be not sufficient. Similarly, in
RC. REV. 112/2016 & RC. REV. 130/2016 Page 7 of 10
Rajender Kumar Sharma Vs. Leela Wati (2008) 155 DLT 383 it was
held that Section 25B was inserted as a special provision for eviction
of the tenants in respect of specified category of cases as provided
therein; where a landlord seeks eviction on the basis of bona fide
necessity, a summary procedure is provided and the tenant has to seek
leave to defend disclosing such facts which disentitle the landlord
from seeking eviction; where a tenant, in leave to defend, pleads
preposterous propositions and makes such averments which are
palpably false and the landlord in his reply to leave to defend is able to
show the said falsity, the Controller is not precluded from considering
the falsity of such facts on the basis of material placed by the landlord
before it. Again, in Ramesh Chand Vs. Uganti Devi (2009) 157 DLT
450, it was held that mere assertions do not raise any triable issue and
if these bald assertions were entertained, then every tenant would get
away with leave to defend, defeating the intent of legislature. It was
further held that only in those cases leave to defend can be granted
where Controller finds some substance in the issues raised by the
tenant. I have also taken the same view in Sarwan Das Bange Vs.
Ram Prakash (2010) 167 DLT 80.
20. Supreme Court in Busching Schmitz Private Limited Vs. P.T.
Menghani (1977) 2 SCC 835 held that Controller‟s power to give
leave to contest is cribbed by the condition 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 specified in Section 14(1)(e) of the Act; disclosure of facts is a
sine qua non for grant of leave. It was further held in Kewal Singh Vs.
RC. REV. 112/2016 & RC. REV. 130/2016 Page 8 of 10
Lajwanti (1980) 1 SCC 290 that it is a salutary provision in order to
prevent frivolous pleas taken by the tenants to avoid eviction. In
Precision Steel & Engineering Works Vs. Prem Deva Niranjan Deva
Tayal (1982) 3 SCC 270 it was further expanded that while browsing
through the affidavit, if there emerges averment of facts which on a
trial, if believed, would non-suit the landlord, leave ought to be
granted; however leave to contest should not be granted unless the
affidavit discloses such facts. Ultimately in Prithipal Singh Vs. Satpal
Singh (2010) 2 SCC 15 it was held that the dominant object of
insertion of Section 25B is to provide a speedy, expeditious and
effective remedy for a class of landlords contemplated inter alia by
Section 14(1)(e) and for avoiding unusual dilatory process provided
otherwise by the Rent Act and the application of Order XXXVII Rule
4 of the Code of Civil Procedure, 1908 (CPC) to Section 25B in force
till prior thereto, was held to be bad.
21. I am afraid making of vague pleas in the application for leave to
defend and affidavit accompanying the same, without giving any
particulars, cannot be said to be disclosing facts which would disentitle
the landlord from obtaining an order of eviction under Section 14(1)(e)
of the Act.
22. I may notice that the respondent/landlord in his reply to leave to
defend has pleaded that the first floor where Standard Restaurant was
functioning is a separate property not part of the Regal Cinema.
23. That brings me to another argument urged at this stage, of
sanctioned plan having not been placed on record.
24. Again, judicial notice can be taken of and it was in news that
RC. REV. 112/2016 & RC. REV. 130/2016 Page 9 of 10
Regal Cinema, after running/operating continuously for 84 years, shut
down on 31st March, 2017 to return as a multiplex. Therefrom, it cannot
be said that the requirement pleading which eviction of the petitioners
has been sought is false. In this context, it may also be noticed that even
if the first floor where Standard Restaurant was situated was part of
Regal Cinema and even if the Standard Restaurant had vacated the
premises 4-5 years ago, as today stated by the counsel for the
petitioners/tenants, even then at that time there was no plan for
renovation/re-development of Regal Theatre and pleading which the
petitions for eviction of the petitioners/tenants have been filed.
25. For this reason also, it cannot be said that the orders of the learned
ARC requires any interference in exercise of powers under Section
25B(8) of the Act.
26. No other ground has been urged.
27. There is no merit in the petitions, which are dismissed.
28. No costs.
29. The Trial Court file requisitioned in this Court be returned
forthwith.
RAJIV SAHAI ENDLAW, J.
JULY 24, 2017 bs ..
(Corrected and released on 4th October, 2017) RC. REV. 112/2016 & RC. REV. 130/2016 Page 10 of 10