Delhi District Court
Smt. Pushpa Devi vs Sh. Vimal Goel on 3 March, 2015
IN THE COURT OF SHRI NARESH KUMAR LAKA
SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER,
DISTRICT SHAHDARA,
KARKARDOOMA COURTS, DELHI
E No. 69/14
Unique I.D. No. 02402C0237792014
In the matter of:
Smt. Pushpa Devi
.......Petitioner
Vs.
Sh. Vimal Goel
........ Respondent
Dated: 03.03.2015
ORDER
Vide this order, I shall decide an application filed under Section 25 (B) of the Delhi Rent Control Act, 1958 (in short "The Act") seeking leave to defend this case. In brief the facts of the present case are that the present petition has been filed seeking eviction of the shop in question for bona fide requirement on the ground that petitioner is a widow lady and her son is running one of the two shops situated in the property where the shop in question is situated. The second shop is in possession of the respondent which is shown in red colour in the site plan attached with the petition. The petitioner claimed that the shop in question is required for expanding the business of her son to increase E. No. : 69/14 Page No. 1 of 9 Pushpa Devi vs. Vimal Goel the family income. At the same time, the petitioner also claimed that her daughter also requires to provide professional services to her clients as she is also working as Physiotherapist.
2. In the present application seeking leave to defend this case, it is claimed that the respondent is a poor person and running the shop in question since 1951 and the petitioner has filed the present case with mala fide intention despite the fact that the petitioner has other alternative accommodation situated at property no. 77/541, Gali Jain Mandir Shahdara which can be utilized by her. Reply to the said application was taken on record.
3. I have heard Sh. Ashutosh, learned counsel for petitioner and Sh. Piyush Gupta, learned counsel for respondent. File perused.
Reasons for decision
4. There is no dispute on the point of relationship between the parties as landlord and tenant. At the outset, both the counsel narrated the history of enactment of Rent Control Legislation as well as rights/protection of landlord and tenant but the same is not required to be dealt with in present case since this is a fact finding court and not the constitutional court where this court can evaluate the validity of any legislation. Moreover for the submissions on the point of adopting liberal or strict approach on the rights of landlord and tenant, no discussion is required because this court has to weigh the rival claims as per established law.
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5. The learned counsel for the petitioner vehemently argued that a tenant cannot dictate to his landlord as to how he/she has to fulfill his/her requirement. This court agrees with the above said submission but such landlord is not only required to show his mere requirement but the same is required to be bona fide within the meaning of Section 14 (1) (e) of the Act. It is a settled law that a tenant cannot be evicted from the tenanted premises on mere asking by the landlord and the landlord is also required to show that he has "bona fide requirement" to seek eviction. The words "bona fide" implicit in itself that the landlord has genuine requirement to seek eviction.
6. In the case of Liaq Ahmed & Other Vs. Habeeb-Ur- Rehman, (2000) 5 SCC 708, the Hon. Supreme Court lays down the guiding factors for deciding such application seeking leave as under :
"From the scheme of the Act, it is evident that if the tenant discloses the grounds and pleads a cause which prima facie is not baseless, unreal and unfounded, the Controller is obliged to grant him leave to defend his case against the eviction sought by the landlord. The inquiry envisaged for the purpose is a summary inquiry to prima facie find out the existence of reasonable grounds in favour of the tenant. If the tenant brings to the notice of the Controller, such facts as would disentitle the landlord from obtaining an order for recovery of possession, the Controller shall give him leave to contest. The law envisages the disclosure of facts and not the proof of the facts".
7. In the famous case of Precision Steel and Engineering E. No. : 69/14 Page No. 3 of 9 Pushpa Devi vs. Vimal Goel Works and Anr. vs Prem Deva Niranjan Deva Tayal, 1983 SCR (1) 498, the Hon'ble three Judges of the Supreme Court of India has further laid down the scope and nature of enquiry permissible in law while deciding the question of grant or non-grant of leave to defend in the eviction proceedings as under:
"Undoubtedly the procedure prescribed in Chapter IIIA of the Act is materially different in that it is more harsh and weighted against the tenant. But should this procedural conundrum change the entire landscape of law? When a landlord approaches Controller under section 14(1) proviso
(e), is the court to presume every averment in the petition as unchallengeable and truthful? The consequence of refusal to grant leave must stare in the face of the Controller that the landlord gets an order of eviction without batting the eye lid. This consequence itself is sufficient to liberally approach the prayer for leave to contest the petition. While examining the question whether leave to defend ought or ought not to be granted the limited jurisdiction which the Controller enjoys is prescribed within the well defined limits and he cannot get into a sort of a trial by affidavits preferring one set to the other and thus concluding the trial without holding the trial itself. Short circuiting the proceedings need not masquerade as a strict compliance with sub-section (5) of section 25B. The provision is cast in a mandatory form. Statutory duty is cast on the Controller to give leave as the legislature uses the expression 'the Controller shall give' to the tenant leave to contest if the affidavit filed by the tenant discloses such fact as would disentitle the landlord for an order for recovery of possession. The Controller has to look at the affidavit of the tenant seeking leave to contest. 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.E. No. : 69/14 Page No. 4 of 9
Pushpa Devi vs. Vimal Goel Let it be made clear that the statute is not cast in a negative form by enacting that the Controller shall refuse to give to the tenant leave to contest the application unless the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order etc. That is not the mould in which the section is cast. The provision indicates a positive approach and not a negative inhibition. When the language of a statute is plain, the principle that legislature speaks its mind in the plainest language has to be given full effect. No canon of construction permits in the name of illusory intendment defeating the plain unambiguous language expressed to convey the legislative mind. And the legislature had before it order 37, an analogous provision where leave to defend is to be granted and yet avoiding the phraseology of the Code of Civil Procedure, namely, 'substantial defence' and 'vexatious and frivolous defence', the legislature used the plainest language, 'facts disclosed in the affidavit of the tenant'. The language of sub-section S of section 25B 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 the recovery of possession of the premises on the ground mentioned in section 14(1) (e). Section 14(1) starts with a non obstante clause which would necessarily imply that the Controller is precluded from passing an order or decree for recovery of possession of any premises in favour of the landlord against the tenant unless the case is covered by any of the clauses of the proviso. The proviso sets out various enabling provisions on proof of one or the other, the landlord would be entitled to recover possession from the tenant. One such enabling provision is the one enacted in section 14(1) proviso (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 E. No. : 69/14 Page No. 5 of 9 Pushpa Devi vs. Vimal Goel
(ii) possession of the premises is required bona fide 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 conditions in the enabling provision enacted as proviso under which possession is sought. Initial burden is thus on the landlord."
8. From the perusal of the petition as a whole, it is clear that the petitioner is seeking eviction for the sole ground of expansion of business of her son. It is the established position of law that in cases where the premises is required for expansion of business, generally leave should be granted to the tenant to defend the case. Reliance in this regard can be placed on the cases of (1) Sanjay Chug vs. Opender Nath Ahuja & Anr. [207 (2014) DLT 271] (2) Opender Nath Ahuja & Anr. vs. Sanjay Chug (3) Prit Pal Singh vs. Ramesh Kumar Dora [2014 iv AD (Delhi) 2014] (4) Kanchan Kapoor vs. Sarwan Kumar [216 (2015) DLT 136] (5) Chaman lal vs. Batuk Prasad Jaitly [2014 (1) RCR (Rent) 18].
9. Apart from the aforesaid legal preposition, the most crucial issue which has been raised by tenant/respondent in this case is on the point of the availability of the space on the back side of the shop of the son of the petitioner which is claimed by the petitioner to be a room on the one hand and which is alleged to be a godown by the tenant on the E. No. : 69/14 Page No. 6 of 9 Pushpa Devi vs. Vimal Goel other hand. In the present application, respondent also disclosed specifically that there is an internal entry from the shop of son of the petitioner to the said godown/room and in this regard, even the respondent had also placed on record a site plan. But from the perusal of the reply of the corresponding para of the present application, it is clear that the landlord/petitioner has not specifically disputed the nature and usage of the said portion nor there is any specific denial about having any internal entry. In this case, the case of the petitioner is not that her son is not having any accommodation to start his own business but in fact the case is that the son of the petitioner wants to expand his business and for the said purpose, the matter requires evidence and trial as to why the space available to the back side of the shop of the son of the petitioner cannot be used for expanding the said business/shop of the son of the petitioner.
10. The petitioner also gave a reference about requirement of her daughter who is a physiotherapist but the said requirement is stated in a very vague manner and there is no specific disclosures as to how the said shop in question will be used for providing professional services to the clients of her daughter.
11. Moreover the claim of the petitioner is itself contradictory since the requirement for seeking eviction is shown at one place for expanding the business of her son and at another place it is claimed for providing the professional services by her daughter. It appears that both the said requirements cannot run together from the limited space of the E. No. : 69/14 Page No. 7 of 9 Pushpa Devi vs. Vimal Goel shop in question. On this ground also, the tenant is entitled for grant of leave.
12. Counsel for petitioner heavily relied on the recent case of "Anil Bajaj vs. Vinod Ahuja (Civil Appeal no. 5513/14 decided on 08.05.2014 by Hon. Supreme Court of India) but on perusal of facts of the said cited case and facts of the present case, it is clear that the same are distinguishable inasmuch as there was no requirement for expansion of the business in the said cited case and the bona fide requirement of the petitioner was acceded towards his rights for choosing the property which were more suitable to him than the other available properties. However in the present case the ground of eviction is primarily the expansion of the business and in this regard the tenant raised an issue about availability of back side portion of the shop of son of the petitioner.
13. I also find support from the recent case of Sanjay Chug vs. Opender Nath Ahuja & Anr. [207 (2014) DLT 271] decided by Hon. High Court of Delhi relied by counsel for the respondent wherein it was held :
"Admittedly, respondents had in their possession of commercial accommodation from where their two sons were operating business, their need projected would be nothing but that an additional accommodation for setting up new business by one of son or expanding existing business
- If leave to defend was refused, an opportunity to test requirement as averred by landlord was denied which was not scheme of Act - Petitioner had been able to raise prima E. No. : 69/14 Page No. 8 of 9 Pushpa Devi vs. Vimal Goel facie triable issues which were ignored by Trial Court - Petitioner who was operating business for last many decades and was tenant since more than 62 years could not be evicted without trial or without considering affidavit filed alongwith Application for leave to defend in view of settled law on this aspect - There was no dispute that Respondent was entitled to have expansion of her business and could also seek additional accommodation for same, but, then, it was necessary to know that space available was either insufficient or not suitable for doing business - It was triable issue, which was seen to have been raised by Petitioner, and projected requirement of Respondents was required to be tested by Controller."
Conclusion
14. In the light of above discussion, I am of the considered opinion that the respondent succeeded in raising triable issues in this case. Resultantly, the present application is allowed to defend this case. Respondent is directed to file written statement within 30 days with advance copy to the counsel for petitioner.
15. Put up on 23.04.2015 for filing of WS and replication.
Announced in the open court on 03.03.2015 (Naresh Kumar Laka) Senior Civil Judge-cum-Rent Controller, Shahdara District, Delhi.
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