Delhi District Court
Sh. Vijay Kumar Bhasin vs Sh. Ashok Kumar on 17 May, 2019
IN THE COURT OF SH. AJAY NAGAR,
ADDITIONAL RENT CONTROLLER (WEST), TIS HAZARI
COURTS, DELHI.
ARC No. 25981/2016
Sh. Vijay Kumar Bhasin
S/o Late Sh. K.L. Bhasin
R/o F-112, Kirti Nagar
New Delhi-110015. ...Petitioner
VERSUS
Sh. Ashok Kumar
S/o Sh.Sadhu Ram
R/o F-112, Kirti Nagar
New Delhi-110015. ...Respondent
Date of Filing : 24.11.2015
Date of Order : 17.05.2019
ORDER ON LEAVE TO DEFEND
1. Present petition U/Sec. 14 (1) (e) of Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act") has been filed by the petitioner for eviction of the respondent in respect of Shop No.6 (front portion), ad-measuring 180 sq. ft. in F-112, Kirti Nagar, New Delhi as shown in red colour in the site plan attached with the petition (hereinafter referred to as 'tenanted premises') in favour of the petitioner and against the respondent.
2. The case of the petitioner is that family of the petitioner consists of his wife and three married daughters and petitioner being 65 years of age does not have any source of income and no one is there to take care of him and his wife. Hence, he wants to start a business of crockery in the tenanted premises. That petitioner is the ARC No. 25981/16 Vijay Kr. Bhasin Vs. Ashok Kumar owner and landlord of the tenanted premises which is required bonafide for his personal use and for the use of his family. That the petitioner does not have any other reasonably suitable accommodation and wants to establish his own independent business so that he may become financially independent and could lead a secured life.
Lastly, it is prayed that an eviction order may be passed against the respondent in respect of tenanted premises.
3. Notice of this eviction petition was sent to the respondent in the prescribed format which was duly served on the respondent and the leave to defend was filed by the respondent accompanied by the affidavit raising several pleas which will be discussed later on exhaustively.
4. Petitioner filed the reply to leave to defend contradicting the pleas raised by the respondent in the leave to defend which will also be discussed later on.
THE LAW:
It is well settled that burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would dis-entitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in clause
(e) are good enough to grant leave to defend.
It is further well settled that at a stage when the tenant seeks leave to defend, it is enough if he prima-facie makes out a case by disclosing such facts as would dis-entitle the landlord from obtaining an order of eviction. Unless the tenant at that stage itself establishes a strong case as would non-suit the landlord leave to defend should ARC No. 25981/16 Vijay Kr. Bhasin Vs. Ashok Kumar not be granted when it is not the requirement of Section 25 B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act, leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of landlord to recover possession of the premises from a tenant. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to her and her family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction.
It is also well settled at the stage of granting leave to defend, parties rely on affidavits in support of the rival contentions. Assertions and counter assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend where either frivolous, untenable or most unreasonable.
It is also well settled that when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire.
In short and substance wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the rent controller by the statute itself to grant leave. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims.
There appears to be a mistaken belief that unless the tenant at ARC No. 25981/16 Vijay Kr. Bhasin Vs. Ashok Kumar that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action.
5. I have carefully and minutely gone through petition, leave to defend application accompanied by affidavit, reply, documents and material on record.
6. One of the pleas taken by the respondent is that present petition is not maintainable as the tenanted premises was let out to the father of the respondent by the father of the petitioner in the year 1979. That tenanted premises was earlier occupied by Sh. Balraj Sharma against Pagri which was transferred to the father of the respondent Sh. Sadhu Ram after receiving his share of Pagri. That thereafter rent receipt in respect of tenanted premises was issued in favour of father of respondent. Later on, rent receipt was also issued by the petitioner in favour of respondent.
On the other hand, petitioner has replied that the tenanted premises was let out to the father of the respondent by the father of the petitioner way back in the year 1979. That the tenanted premises was previously occupied by one Sh. Balraj Sharma.
In case titled as Jiwan Lal Vs. Gurdial Kaur & Ors. 1995 RLR 162 a Bench of Hon'ble High Court of Delhi while dealing with the concept of ownership in a pending eviction petition under Section 14(1)(e) of the DRC Act had noted as follows:
ARC No. 25981/16 Vijay Kr. Bhasin Vs. Ashok Kumar "There is a tendency on the part of tenants to deny ownership in cases under Section 14(1)(e). To test the substance of such a plea on the part of the tenants the Courts have insisted that they should state who else is the owner of the premises if not the petitioner. In the present case it is not said as to who else is the owner. Further these cases under Section 14(1)(e) are not title cases involving disputes of title to the property. Ownership is not to be proved in absolute terms. The respondent does not claim the owner of the premises."
Further, in the case titled as Smt. Shanti Sharma & Ors. Vs Smt Ved Prabha & ors 1987 AIR 2028, the Hon'ble Supreme Court observed :-
"That the meaning of term 'owner' is vis a vis the tenant i.e. the owner should be something more than the tenant."
It is well settled proposition of law that the petitioner/ landlord is not required to prove his ownership in absolute terms. It is sufficient if he is able to prove or show that he is something more than a tenant.
Perusal of record shows that in his leave to defend itself respondent has admitted the landlordship of the petitioner in respect of tenanted premises as he himself has stated that rent receipts were issued in the name of his father as tenant and thereafter in his name. As such, this plea is not a triable issue.
7. Another plea of the respondent is that the respondent paid a Rs. 10,000/- to the petitioner for extension of tenanted premises.
On the other hand, the petitioner has denied that in the year 1991 the respondent paid a sum of Rs. 10,000/- to the petitioner for extending the area of the tenanted premises by covering the area where the electricity meters of building were installed by shifting the same to their respective areas. It is also denied that respondent was allowed by the petitioner to lay the roof (lenturn) of the tenanted ARC No. 25981/16 Vijay Kr. Bhasin Vs. Ashok Kumar premises afresh on the respondent's costs.
It is manifestly clear that it is not a triable issue.
8. One of the pleas of he respondent is that the alleged business of crockery as proposed by the petitioner is prohibited in the mixed land use.
On the other hand, petitioner has replied that crockery business is not prohibited in the mixed land use where the tenanted premises is situated, as per the bye-laws of the authority concerned and the respondent has failed to file any documentary evidence to substantiate his claim.
In the case titled as Sudesh Kumar Soni & Ors. Vs. Prabha Khanna & Ors. 153 (2008) DLT 652 it was observed that:-
"24. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself.
25. Suitability has to be seen from the convenience of the landlord and his family members and on the basis of the circumstances including their profession, vocation, style of living, habits and background. Landlord is the best judge of his residential requirement".
In the case titled as Ragavendra Kumar Vs Firm Prem Machinery AIR 2000 SC 534, it was observed as under:-
"It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter, (See: Prativa Devi (Smt.) v. T.K Krishnan, [1996] 5 SCC 353. In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted."
ARC No. 25981/16 Vijay Kr. Bhasin Vs. Ashok Kumar In the case titled as Sarla Ahuja Vs United India Insurance Co. Ltd. AIR 1999 SC 100 , the Hon'ble Supreme Court has held that:
"The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
In my considered view, the landlord is the best judge of his requirement and the tenant can not dictate the terms to the landlord to use the tenanted premises in a particular manner. However, no reliable or relevant documents have been placed on record by the respondent to substantiate his plea. As such, it is not a triable issue.
9. Next plea of the respondent is that there are two other shops adjacent to the tenanted premises in possession of petitioner and in one of these two shops, one is being run by the petitioner for travel business and his wife is also running business under the name and style of Uma Communications at Shop No. 6A, F-112, Kirti Nagar, New Delhi. Moreover, site plan is also incorrect. Hence, the site plan has been filed by the respondent also.
On the other hand, petitioner in his reply submits that the ARC No. 25981/16 Vijay Kr. Bhasin Vs. Ashok Kumar tenanted premises is bonafidely required by the petitioner for his wife to start her crockery business and the petitioner has no other reasonably suitable alternative accommodation for business of the petitioner. Moreover, the petitioner has denied that he has two other shops adjacent to the tenanted premises, which are in power and possession of the petitioner or that in one of the shops petitioner is running his travel business in the name and style of M/s Bhasin Travels & Couriers Company. Furthermore, the business under the name and style of M/s Bhasin Travel and Couriers Co. got shut in the year 2008 and the shop which was being run by the wife of the petitioner, the property under the name and style of Uma Communication got shut in the year 2010. As such, as on date, the petitioner does not have any other reasonably suitable commercial accommodation.
10. One of the pleas of the respondent is that the respondent wants to re-let the tenanted premises at the higher rate of rent by taking huge amount of pagri.
On the other hand, the petitioner has denied this fact.
11. It is expedient to reproduce Sec. 19 of the D.R.C. Act, which is as under:-
"19. Recovery of possession for occupation and re-entry. -
(1) Where a landlord recovers possession of any premises from the tenant in pursuance of an order made under clause (c) of the proviso to sub-section (1) of section 14 [or under sections 14A, 14B, 14C, 148 and 21], the landlord shall not, except with the permission of the Controller, obtained in the prescribed manner, re-let the whole or any part of the premises within three years from the date of obtaining such possession, and in granting such permission, the Controller may direct the landlord to put such evicted tenant in possession of the ARC No. 25981/16 Vijay Kr. Bhasin Vs. Ashok Kumar premises.
(2) Where a landlord recovers possession of any premises as aforesaid and the premises are not occupied by the landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied are, at any time within three years from the date of obtaining possession, re-let to any person other than the evicted tenant without obtaining the permission of the Controller under sub-section (1) or the possession of such premises is transferred to another person for reasons which do not appear to the Controller to be bona fide, the Controller may, on an application made on him in this behalf by such evicted tenant within such time as may be prescribed, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit."
In the case titled as Ramesh Kumar & Ors. vs. Smt. Neelam Dawar & Ors. Passed in RC (Rev.) 44/2014, C.M. Application 1313-14/2014, the Hon'ble High Court of Delhi inter-alia observed as under:-
"The tenant's apprehension that upon eviction the tenanted premises would be let out at a higher rent was found to be baseless and prematured since such contigency has been taken care of U/Sec. 19 of the Act."
In my considered view, landlord is entitled to expand or start his business from his own property even when he is already running a business. As far as, re-letting of a tenanted premises on the higher rate of rent is concerned, in my view, Section 19 of DRC Act is always there on the statute in case the petitioner does not use the tenanted premises. Although, the respondent has disputed the site plan filed by the petitioner yet, respondent has filed his own site plan. Hence, matter ends here in respect of plea of wrong site plan by the petitioner.
ARC No. 25981/16 Vijay Kr. Bhasin Vs. Ashok Kumar In view of observations made by Hon'ble Supreme Court; it is well settled that a person is not supposed to remain unemployed till the disposal of the eviction petition. Furthermore, this Court is of the opinion that there is nothing malafide if the petitioner wants to expand his business. Rather, the said requirement seems to be bonafide as he wants to earn his livelihood and the tenant cannot stop the landlord/family member of landlord from starting any business for livelihood. The bonafide requirement of a landlord does not become malafide just because he wants to run business for his livelihood from his own property. The consequent hardship to tenant from eviction order could also not convert otherwise bonafide requirement into malafide requirement. In my view, it is a right of every person to excel in his/her life and a person is not supposed to be remained in same position. As such, it is not a triable issue.
12. The next plea of the respondent is that in the year 2014 petitioner offered him to purchase the tenanted premises to which respondent agreed for Rs. 10,50,000/- and out of which a sum of Rs.7,00,000/- was paid by the respondent to the petitioner on different occasions leaving a balance of Rs. 3,50,000/- which was agreed to be paid by the respondent at the time of execution and registration of transfer documents in his favour but the petitioner did not keep his promise.
On the other hand, in his reply the petitioner has stated that he avoided the same on one pretext or other as no transaction as mentioned by the respondent happened between the petition and respondent. However, the respondent has not filed any documents on record in this regard.
In my view, this plea of the respondent does not have any force as no cogent and reliable documents have been placed on ARC No. 25981/16 Vijay Kr. Bhasin Vs. Ashok Kumar record by the respondent showing existence of such transactions between the parties. Moreover, respondent himself has admitted that no document in respect of such transaction was ever executed or registered. As such, this plea of the respondent does not have any force.
13. That one of the pleas of the respondent is that the tenanted premises is only source of income for the entire family of the respondent and in case leave to defend is not granted, the respondent and his family would suffer irreparable loss and injury which can not be compensated.
On the other hand, petitioner has replied that respondent and his brother has their separate shops in which they are carrying on their business and are not dependent on the tenanted premises.
In the case titled as Raj Kumar Khanna vs. Parduman Singh passed in RC Rev. No. 548/2012 and C.M. No. 18936/2012 on 04.10.2013; the Hon'ble High court of Delhi observed as under:-
"17. In the case of Mohd. Ayub vs. Mukesh Chand (2012) 2 SCC 155 it was observed that the hardship appellants would suffer by not occupying their own premises would be far greater than the hardship the respondent would suffer by having moved out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be sole determinative factor."
In my considered view, this plea of the respondent certainly draws the sympathy of this court towards the respondent but it is also well settled that this kind of pleas are not to be weighed while deciding the leave to defend application filed U/S 14(1)(e) of DRC Act.
ARC No. 25981/16 Vijay Kr. Bhasin Vs. Ashok Kumar
14. One of the pleas of the respondent is that petitioner has not disclosed and has concealed the material facts with regard to extent of accommodation available with him.
On the other hand, petitioner has replied that he has not concealed the material facts with regard to the extent of accommodation available to him.
In my view, this contention of the respondent does not have any force as respondent has not disclosed the details of properties in possession of petitioner and his family.
15. That site plan filed by the petitioner is not correct site plan.
On the other hand, petitioner has replied that the amended site plan filed by the respondent, is incorrect.
As discussed earlier, since, the respondent has filed his own site plan, this plea has become superfluous and it is not a triable issue.
16. Next plea of the respondent is that the petition is founded on weak foundation and the petitioner has concealed the material facts.
On the other hand, petitioner has replied that he has not concealed the facts from the court and the petitioner is entitled to equitable relief.
Perusal of record shows that the respondent has not disclosed what material facts have been concealed by the petitioner. As such, it is a bald and vague plea and it is not a triable issue.
17. Next plea of the respondent is that there is no bonafide but malafide on the part of petitioner as the petitioner wants to harass the respondent with ulterior object.
On the other hand, petitioner has replied that plea taken by the ARC No. 25981/16 Vijay Kr. Bhasin Vs. Ashok Kumar respondent is incorrect.
In my considered view, this plea of the respondent does not have any force as every landlord has been given the rights to go for the remedy under DRC Act and the respondent can not stop them from taking recourse of law and it is certainly not a triable issue.
CONCLUSION:
18. In view of the above discussion, I find no triable issue in the leave to defend application of the respondent which could dis-entitle the petitioner to obtain an eviction order in his favour. The application for leave to defend filed by the respondent is thus, dismissed.
19. Hence, as a consequence thereof, an eviction order is passed U/s. 14 (1) (e) of DRC Act in favour of petitioner and against the respondent in respect of the tenanted premises i.e. Shop No.6 (front portion), ad-measuring 180 sq. ft. in F-112, Kirti Nagar, New Delhi as shown in red colour in the site plan attached with the petition which is marked as Mark- P1 (Put by the court for the purpose of identification).
20. However, this order shall not be operative before the expiry of six months from today keeping in view Sec. 14(7) of D.R.C. Act.
21. File be consigned to the Record Room after due compliance.
Announced in the open Court Digitally signed
on 17th May, 2019. AJAY by AJAY NAGAR
Date:
(This order contains ... pages)
NAGAR 2019.05.17
17:08:10 +0530
(AJAY NAGAR)
Additional Rent Controller,
West District, THC, Delhi.
ARC No. 25981/16 Vijay Kr. Bhasin Vs. Ashok Kumar