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Smt Poonam Bangia vs Harbhagwan Dass Chandiramani on 22 July, 2021

Author: Najmi Waziri

Bench: Najmi Waziri

                              $~15 (1)
                              *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                              +    RC.REV. 16/2021 & CM APPL. 2959/2021
                                   SMT POONAM BANGIA                   ..... Petitioner
                                               Through: Mr. Namit Bangia, Adv.

                                                      versus

                                   HARBHAGWAN DASS CHANDIRAMANI ..... Respondent
                                              Through: Mr. S.N. Choudhri, Adv.

                                     CORAM:
                                    HON'BLE MR. JUSTICE NAJMI WAZIRI
                                                  ORDER

% 22.07.2021 The hearing has been conducted through video conferencing.

1. On 28.01.2021, it was recorded inter alia as under:

"....

1. The possession of the erstwhile tenanted premises is stated to have been taken over by the landlord through execution proceedings. The learned counsel for the respondent submits that nothing remains in this petition as it has become infructuous.

...."

2. The impugned eviction order of the learned Rent Controller passed on 01.02.2020 ended a six-decade old tenancy. Through execution proceedings, possession of the tenanted premises was handed over to the respondent-landlord a year later, on 28th January 2021.

3. The learned counsel for the respondent submits that nothing survives in this petition therefore it may be dismissed. He relies upon the decision of the Supreme Court in N.C. Daga v. Inder Mohan Singh Rana, AIR Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:23.08.2021 18:39:35 2003 Supreme Court 587, which in similar circumstances had held, inter alia, as under:

"...

"....... Leave granted.

Challenge in this appeal is to judgment of the Delhi High Court upholding decision of the Additional Rent Controller, Delhi (in short 'the Rent Controller') declining leave to the present appellant to contest in a proceeding under the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act'). Brief reference to the factual aspects would suffice. The respondent-landlord filed a petition for eviction on several grounds; primarily on the ground of personal requirements. Before the Rent Controller an application was moved under Section 25-B of the Act by the appellant-tenant for grant of leave to defend said eviction petition filed under Section 14(1), proviso (e) of the Act, by the present respondent-landlord. On 10.9.1999 landlord had filed the eviction petition alleging that he wanted the premises for his personal use, since the accommodation available to him was not suitable and he does not own any other property in Delhi. Tenant resisted the eviction petition on many grounds. It was contended that there was no relationship of landlord and tenant between the parties, and in any event the premises were let out for residential/commercial purposes as mentioned in the Lease Agreement executed between the parties on 1st September, 1971, and, therefore, he is entitled to grant of leave to defend. Additionally, it was stated that the petition was mala fide and an abuse of process of law, barred by res judicata as earlier petitions filed by one Smt. Tejinder Kaur Rana on the ground of bona fide requirement, and another petition filed by the mother of the landlord were dismissed. Reply to the application for grant of leave to defend was filed by the landlord, where he denied the allegations made, though he admitted that earlier petitions had been filed. It was, however, contended that the principles of res judicata were not applicable, and there was no bar on filing fresh petition for eviction on the ground of bona fide Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:23.08.2021 18:39:35 requirement in the changed circumstances. Rejoinder was filed by the tenant. The Rent Controller held that there was prima facie material to show that the applicant was the landlord and the owner of the premises. Coming to the plea taken that the premises were let out for commercial purposes it was noticed that the paragraph 7 of the lease-deed on which reliance was placed did not indicate that the premises were let out for residential cum commercial purposes. On the contrary, what the said paragraph indicated was availability of option to use the premises for commercial purposes after requisite formalities were observed. It was held that before leave to defend is granted, the respondent must show that some triable issues which disentitled the applicant from getting the order of eviction against the respondent and at the same time entitled the respondent to leave to defend existed. The onus is prima facie on the respondent and if he fails, the eviction follows. The respondent has failed to make out a case for grant of leave to defend. Accordingly, eviction order was passed under Section 14(1)(e) of the Act, but it was directed that the applicant will not be entitled to execute eviction order before the expiry of six months in terms of Section 14(7) of the Act. The revision before the High Court of Delhi was also dismissed. It was, inter alia, observed that the tenant had not filed any document to support the plea in regard to the commercial use of the premises. It was further held that no prima facie case was made out by the tenant.

In support of the appeal Mr. Jaspal Singh, learned senior counsel submitted that a bare reading of Section 7 of the Lease Agreement made the position clear that the premises were let out for residential and commercial purposes, and, therefore, the courts below were not justified in refusing leave to contest. The jurisdiction to grant leave or refuse the same is to be exercised on the basis of the affidavit filed by the tenant. Even if it is conceded for the sake of argument that clause (7) did not make out a case for commercial user, yet the fact that for more than two decades the tenant was carrying on commercial activities in the tenanted premises clearly made out a case of consent.

In response, counsel for the respondent-landlord submitted that the whole case built up by the tenant centered round clause (7) and the plea of implied consent has been raised for the first time before this court. Such plea was even not raised before the High Court. In any event, according to him, the matter has become infructuous because the possession has been taken pursuant to execution of the order passed by the Rent Controller.

In view of the admitted position that pursuant to the order passed by the Rent Controller, possession has been taken on execution of the order permitting eviction, and absence of specific stand regarding implied consent it is, however, not necessary to go into the finer details and to examine the rival stand in the background of legal position as it would amount to rendering decision on a purely academic question. The appeal is, therefore, dismissed, without any order as to costs..." .

(emphasis supplied)

4. The facts narrated in the afore-cited case are akin to the present case. A joint tenancy was created in 1958 in favour of one Pyare Lal and his son for a shop, two rooms, a toilet and a verandah in the rear side, on the ground floor of property bearing no. F-30 Central Market, Kirti Nagar, New Delhi - 15. After the demise of Pyare Lal, his daughter Champa Rani inherited the tenancy. The petitioner is her widowed daughter-in-law. The latter has been residing in the premises since 1984. At some stage, her predecessors-in-interest had constructed a bathroom and a kitchen in the rear side of the building.

5. The landlord claims ownership on the basis of his deceased father's Will dated 29.5.1994. He was about 75 years old and his wife of 71 years, when the eviction petition was filed. The latter Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:23.08.2021 18:39:35 suffers from cardiological ailments - three stents have been put in her heart. The landlord too has age-related knee problems. Supporting medical documents have been filed. They live on third floor (top floor) of building no.12/11 East Patel Nagar, New Delhi. It does not have a lift facility. They have difficulty in climbing the stairs, nor is it medically advisable for them to do so. They need to shift to a ground floor residence. Their unmarried daughter needs space to start a business enterprise. She is dependent on her father for such space. The landlord owns the tenanted premises including the first floor of the building. It has no second floor. His son carries-out his business from the first floor of the building. The son, the daughter in-law, their two children, the daughter are dependent upon him for accommodation. It has two bed rooms, a drawing room, a dining room, a toilet and a kitchen. The said accommodation is neither suitable nor sufficient for his and the needs of this dependents.

6. The other shop on the ground floor of the said property no. F-30 Central Market, Kirti Nagar, New Delhi - 15, was long rented-out, to one Dr. Jagan Nath Khurana who has since passed away, his legal heirs continue to occupy that shop. It is not available for the petitioner's occupation and use. In any case it is not suitable for either the landlord, his wife and their daughter because this other shop does not have residential rooms, dining room, kitchen, washrooms, etc. for their needs.

7. The tenant's contentions in the application for leave to defend were found untenable; they did not raise any triable issue, therefore it was dismissed and the eviction order ensued. The learned Rent Controller found that: i) the landlord had his father's Will to maintain the eviction petition (Bharat Bhushan Vij vs Aarti Tekchandani 153 (2008) DLT 247); ii) the tenant has not denied that she was residing in the premises as a tenant, she is obliged to disclose as to who was the landlord, if not the eviction-petitioner himself (Rajender Kumar vs Leela Wati 155 (2008 DLT 383); iii) the landlord's daughter did not require proof of experience to start a new business (Ram Babu Agarwal vs Jay Kishan Das 2010 AIR SC 721); iv) the tenant's bald statement doubting the correctness site plan of the premises filed by the landlord, is not sufficient to disregard it, the tenant should have filed his own site-plan (Mukesh Kimar vs Rishi Prakash RCR 34/09, date of decision 6.10.2009)

v); to determine the sufficiency and suitability of the required premises for his bonafide need, is the prerogative of the landlord and the tenant cannot dictate terms in this regard (Yashpal Juneja vs Satish Kumar Civil Revision No.3248/2008 date of decision 30.50.2008)

8. The learned Rent Controller, found that the landlord had proven his bona fide requirement and that he had no alternate accommodation. The tenancy lasted for six decades. The landlord has received possession of the tenanted premises though execution proceedings. In N C Daga (supra) the Supreme Court has held that Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:23.08.2021 18:39:35 where possession had been taken on execution of the order permitting eviction, the issues raised by the tenant remained purely academic and it was not necessary to go into the finer details. Same is the position in the present case as well. Therefore, in view of the N C Daga principle, the petition is dismissed.

9. The order be uploaded on the website forthwith.

NAJMI WAZIRI, J JULY 22, 2021 AB Signature Not Verified Digitally signed By:KAMLESH KUMAR Signing Date:23.08.2021 18:39:35