Delhi District Court
Daya Nand vs Chandu Lal Verma on 24 September, 2014
IN THE COURT OF SH. SHAILENDER MALIK
SCJCUMRC (N/W) : ROHINI COURTS : DELHI
E No. 04/14
Daya Nand vs Chandu Lal Verma
ORDER
1. By this order I will dispose off the application of respondent/tenant under Section 25B(4) of DRC Act, seeking grant of leave to defend, the present petition filed under Section 14(1)(e) of DRC Act along with another application moved under Section 5 of Limitation Act seeking condonation of delay in moving the above mentioned application under Section 25B(4) of DRC Act.
2. Present petition has been filed under Section 14(1)(e) of DRC Act seeking eviction in respect of shop on the ground floor of the property no. 1456, gali no. 100, Ganesh Pura ,Tri Nagar and was let out for commercial purpose which is being used as a jewellery shop by respondent with monthly rent of Rs. 2420/ excluding other charges. It is stated that above said shop was let out to respondent in 1996 under an oral tenancy. It is stated that above said property having municipal no. 1456, Gali no. 100, Ganesh Pura, Tri Nagar was constructed on a plot of land measuring 165 sq. yards, having purchased by late Bhagwan Singh father of the petitioner herein by a registered sale deed dated 20.07.1954. Said Bhagwan Singh had expired on 14.01.1983 leaving behind 7 sons and 2 daughters including petitioner herein. It is stated that as per family settlement dated 11.05.1990 of the legal heirs of late Bhagwan Singh, property in question including the shop in question fell Page No. 1/18 in the share of petitioner. Petitioner applied for mutation of above said property in question before concerned department of MCD and petitioner has been paying house tax/property tax in respect of property in question. Petitioner thereafter inducted the respondent as tenant in the shop in question and present rate of rent is Rs. 2420/. It is stated that respondent has been habitual defaulter of payment of rent and has been in arrear of rent since 12.05.2011.
3. It is stated that petitioner has 3 daughters and 2 sons, one of his daughter namely Ritu is residing in a property given to her by her mother where she is residing with her family. Another daughter of the petitioner namely Bobby is residing in her matrimonial home at Pataudi whereas third daughter of the petitioner namely Usha is also residing in her matrimonial home at Tri Nagar, Delhi. It is stated that elder son of the petitioner namely Devinder is handicapped and suffering from mental retardation and having permanent disability of 100%. Petitioner is running a business in the name and style f "Tara Digital Studio" on the premises taken on rent. Younger son of the petitioner namely Jitender Verma is doing the business of trading of clothes etc. from his house from which he has not been able to earn sufficient income to maintain is family. It is stated that wife of the petitioner is a chronic heart patient and has already undergone a surgery for stunting in her heart, petitioner himself has undergone operation in his stomach and feel difficulty while climbing the stairs. Since, the elder son of the petitioner is mentally retarded with spastic parasif and because of this he has slipped several times from the stairs. There are 7 members in the family of petitioner including the petitioner and his wife, elder son, younger son his daughterin law and 2 grand children. There are 3 rooms, one kitchen, 1 toilet/bathroom in the suit property in possession of the petitioner.
4. Thus petitioner require one room for himself, one room for elder son, Page No. 2/18 one room for younger son and daughterinlaw and one room for his grand children. Petitioner also require one common drawing room for the entire family and one guest room as his daughters keep visiting the suit property and one pooja room for performing religious ceremonies. It is thus stated that petitioner intends to use the space of the tenanted shop as one of the room so that he along with his wife and elder son can reside there. Tenanted premise is suitable for the requirement of the petitioner. Petitioner had requested the respondent to vacate the tenanted premise as same is required for him, his wife and elder son for their bonafide use however respondent has refused to do so. It is stated that petitioner does not own any other space/property in Delhi/NCR as such present petition has been filed seeking eviction of the tenanted premise for the bonafide own use of the petitioner for use by his family members.
5. After being served with the summons present application was filed seeking grant for leave to defend along with another application under Order 5 of Limitation Act seeking condonation of delay.
6. While taking up first the application of respondent filed under Section 5 of Limitation Act read with Section 148/151 CPC seeking condonation of delay in filing of the application for leave to defend under Section 25B(4) of DRC Act.
7. It is matter of record that respondent was duly served with the summons in prescribed form through his son on 03.06.2014 whereas present application for leave to defend was filied on 05.07.2014.
8. It is stated in application under Section 5 of Limitation Act read with Section 148/151 CPC that on 17.06.2014 applicant/respondent had called at the o/o his advocate asking him to visit his residence for the discussion of Page No. 3/18 the matter as applicant was not well and unable to move. Clerk of the advocate stated to have received the call and informed him that the advocate is out of station because of summer vacations. Clerk of the advocate also informed that since courts are closed due to summer, so and proceedings can be done only after the vacations i.e. on 01.07.2014. It is stated that applicant/respondent is a senior citizen aged about 80 years and was unable to walk as he has been suffering from underlying Parasitic Etilogy and is under treatment. It is stated that on 30.06.2014 applicant/respondent requested the advocate to visit his residence, on visit of the advocate, respondent stated to have handed over the summons to his advocate. Since, copies of the documents attached with the summons were not legible therefore counsel for the respondent had moved an application under Section 151 CPC on 01.07.2014 seeking the directions for providing the legible copy of the documents. Said application came up for hearing on 04.07.2014 and on 04.07.2014 this court allowed for providing legible copies of the documents to the counsel for the respondent/applicant with the observation that few of the documents as lying on the record are also not legible. It is stated that immediately upon receipt of documents, application for leave to defend was filed on 05.07.2014. Therefore, it is prayed that delay in filing the application the application for leave to defend to be condoned.
9. Reply to this application has been filed on behalf of the petitioner taking an objection that application for condonation of delay in filing of application for leave to defend under Section 25B of DRC Act is not maintainable. It is stated that reading the provision of Section 14(1)(e) along with Section 25B of DRC Act will make it clear that provision of Section 25B are complete code in itself and period of limitation for filing application for leave to defend is mandatory and if tenant fails to apply the application for leave to defend within limitation period, he cannot seek condonation of delay as provisions of Limitation Act do not attract.
Page No. 4/18Similarly, provisions of Section 148 CPC also not applicable. While denying the averrments of the application on merits it is pleaded that facts/story as narrated in the application have no relevance in view of the mandatory provisions of Section 25B of DRC Act. It is stated that respondent was duly served with the summons with legible copies and therefore application moved under Section 151 CPC on 01.07.2014 was nothing but an after thought. While denying all the facts it is however pleaded that even during the summer vacations the court of the RentController always remain open.
10. Having considered the submissions made by ld. Counsel for the respondent, first of all it is necessary to mention on record that despite summer vacations in District Courts in Delhi, Court of Rent Controller/ARC, remains open on all working days. This fact is also not disputed by ld. Counsel for respondent, who has even obtained the details as to which judicial office of Rohini Court was on duty during summer vacations of 2014 as Rent Controller/ARC. It is needless to say that court of R.C./ARC remain functional even during vacations for receiving time bound applications and also for urgent matters. So, one can not take benefit of provisions of Section4 of Limitation Act to say that period of vacations,can not be counted, because court of Rent Controller/ARC was operational and provisions of Limitation Act, can not be applied in proceedings like this under DRC Act.
11. So far as condonation of delay in moving an application u/s 25B of DRC Act seeking leave to defend of eviction petition u/s 14(1)(e) of Act, Delhi High Court in Prithi Pal Singh v. Satpal Singh, 133 (2006) DLT 686, had held that the Court of Additional Rent Controller had no jurisdiction to entertain an application under Section 25B which is filed beyond the period of 15 days and the provisions of the Limitation Act are not applicable. The Page No. 5/18 Court had also referred to the decision of Hon'ble Supreme Court in Prakash H. Jain v. Marie Fernandes, VI (2003) SLT 266=2004 RLR 83 (SC) in support of this view. Matter went to Supreme Court, Apex Court in Prithipal Singh v. Satpal Singh (Dead) through L.Rs., I (2010) CLT 114 (SC)=2009 (14) SCALE 672, observed:
"From a careful perusal of Subsection (4) of Section 25B of the Rent Act, it would be clearly evident that the tenant shall not be permitted to contest the prayer for eviction unless he files an affidavit before the Controller stating the ground on which he seeks to contest the application for eviction and obtains leave from the Controller. This section also clearly indicates that in default of his appearance in compliance with the summons or his obtaining such leave, the statement made by the landlord in the eviction proceeding shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground mentioned in the eviction petition.
At this stage, we may also note that in Subsection (4) of Section 25B of the Rent Act read with Third Schedule, it has been made clear by the Legislature that if the summons of the proceeding is received by the tenant, he has to appear and ask for leave to contest the eviction proceeding within 15 days from the date of service of notice upon the tenant and if he fails to do so, automatically, an order of eviction in favour of the landlord on the ground of bona fide requirement shall be made.
Subsection (5) of Section 25B of the Act clearly says that the Controller shall give to the tenant leave to contest the eviction proceeding if the affidavit filed by the tenant discloses such facts as would itself disentitle the landlord from obtaining an order for recovery of possession of the premises on the ground specified in Clause (e) of the proviso to Section 14(1) or under Section 14A."
Court further observed:
"There is another aspect of this matter. It is difficult to understand how an application for leave to contest having been rejected, may be on the ground of delay, could be allowed when it is not disputed by the tenant respondent that no application for condonation of delay could be entertained by the Rent Controller as the provisions of the Limitation Act, 1963 could not be attracted."
12. Above mentioned judgment has been relied upon in many judgments of High Court, like Ramesh tuli v. Sharda kapoor 153 (2008) DLT 302 it Page No. 6/18 was held that in petition filed under section 14(1)(e) of DRC Act, in case of delay in filing of application under section 25B for grant of leave to defend, in view of decision Prithi Pal Singh case, 133 (2006) DLT 686, Court of Additional Rent Controller had no jurisdiction to entertain application under section 25B which is filed beyond period of 15 days. Provisions of Limitation Act not applicable. Reference can also be given of judgments reported in 172 (2010) DLT 1, 20 (1981) DLT 75, 155 (2008) DLT 336.
13. Thus in view of the judgments discussed above and the fact that court of RC/ARC remain functional even during the vacations on working days, I find that application for condonation of delay in the present case is not maintainable, also on the ground that the grounds taken in the application, on the face of it also not make out any case for condonation of delay because when an application under Section 151 CPC was moved for providing legible copy of the documents this court in its order dated 04.07.2014 specifically mentioned that though copy of the documents are being provided however even the one of the documents lying on the judicial record are also not legible moreover it was made clear as to which documents were not legible. Thus for the above said reasons the application is liable to be dismissed.
14. Having so held, application for leave to defend is liable for dismissal on technical ground of not filed within prescribed period. Still, in the interest of justice let us examine the application for leave to defend on merits.
15. In the affidavit annexed with the application for grant of leave to defend, respondent has sought the leave on the ground that petitioner has deliberately concealed the material facts, petitioner on the face of it has not been able to show bona fide need and necessity, false facts have been stated to get the eviction order and to dispossess the respondent from the tenanted Page No. 7/18 premises. Petitioner had not disclosed about the existence of another property at Budh Vihar, Delhi, however in the petition petitioner has stated that he has no intention of shifting to this property, this fact in itself clearly create a tribal issue as petitioner has alternate accommodation available and still petitioner fails to state specifically that he cannot shift to said property. It is stated that petitioner had let out the tenanted premises in 1996 and circumstances as used to prevail at the time of commencement of tenancy, are still existing and petitioner has failed to specify any change in the circumstances having taken place, necessitating the need of petitioner much less to be "bona fide". It is stated that petitioner is guilty of latches and delay. It is stated that petitioner had not disclosed that initially premises was let out for rent of Rs. 1300/ per month which were regularly enhanced and rent was increased up to Rs. 2420/. It is stated that petitioner had taken a loan of Rs. 3 lacs in January 2012 with interest @ 18%. Initially, petitioner had paid the interest upon adjusting the rent amount but thereafter kept on delaying the payment of interest, citing financial constraints. Now, when the respondent demanded the principle amount with interest present eviction petition has been filed only to pressurize the respondent.
16. It is further stated that petitioner has failed to place on record any medical document regarding the fact that his elder son is mentally retarded with Spastic Parasif or regarding any advise of the Doctor. Petitioner has also failed to file the original documents moreover petitioner has not spent even a single penny for the maintenance of tenanted shop whereas respondent has incurred 350000/ (approx.) on the maintenance/renovation of the tenanted shop. It is stated that petitioner is very rich and is stated of having other properties in Delhi/NCR which have not been disclosed in the present petition. Petitioner is owner of the property no. 1335/90, Talab Road, Tri Nagar, Delhi, which petitioner has deliberately concealed. It is stated that petitioner has filed forged and fabricated documents and has failed to Page No. 8/18 disclose the purpose for which the petitioner bonafidely required the premise in question. It is stated that respondent is an old person suffering from many ailments and dependent on his source of livelihood on the tenanted premise.
17. Reply to the present application though has not been filed however the application has been opposed by ld. Counsel for petitioner on the ground that respondent has failed to raise any tribal issue or facts which may lead to dismissal of the petition. It is submitted that on behalf of the respondent certain pleas have been taken without support of any documents and asserted that petitioner has alternate accommodation available or other property in Delhi, but such plea is not supported with any specific details and documents. It is submitted that respondent only with the view to create a false defense has stated such facts in the application. Whereas, petitioner in his petition had specifically mentioned about the bonafide need and necessity of tenanted premises situated at the ground floor of the property on account of the fact that his elder son is mentally retarded, moreover the wife of the petitioner is heart patient and he himself is also suffering from many ailments. In the cumulative reasons as mentioned in the petition it has been specifically stated that tenanted premises on the ground floor of the property is required bonafide and for own use of the petitioner and his family.
18. Ld. Counsel for the petitioner in support of his submissions has relied upon judgments of Delhi High Court in Pritpal Singh vs Satpal Singh 2013 legal eagle 1063, Everest Corrugating Industries and ors. Vs Sidheshwar Dayal 2012 legal eagle 1503, Smt Sudesh Kumar Soni vs Prbha Khanna 2008 (2 RCR 534), Viran Wali Vs. Kuldeep 174 (2010 DLT 328), Bishna Dass and ors. Vs. Majhar Ali Shah 183 (2011 DLT 686) and Navneet Lal Vs. Deepak Sawhney 2010 (2 RCR 582).
Page No. 9/1819. On the other hand ld. Counsel for the respondent submits that respondent in a summary proceedings within the meaning of Section 25B of DRC Act has been able to establish "tribal issue" and also such facts which may ultimately lead to dismissal of the petition. He submits that petitioner has alternative accommodation available with him which petitioner and his family intentionally not using, and this fact by itself amounts to tribal issue. It is further submitted that it is mentioned in the petition that there is another property at Budh Vihar however petitioner and his family has no willingness to shift in that property whereas respondent is an old man and dependent for his livelihood on tenanted premises. It is submitted that grounds taken in the petition are only moonshined, with the intention to just get the eviction order against the respondent. Moreover, on the face of if, from the facts it would be clear that evidence are required to be taken in the course of trial, when respondent has alleged that petitioner had taken a loan of Rs. 3 lacs, payments of which were earlier being adjusted in payment of rent, however, petitioner specifically stopped making payment of interest and has also not paid the principal amount and this is also a tribal issue. Ld. Counsel for the respondent has relied upon the judgment in Accebeen Steel Pvt. Ltd. and Ors. Vs. Jai Shree Khanna in RC Rev. 290/12 decided on 23.07.2012, Santosh Devi Soni Vs. Chand Kiran (2001) 1 SSC 255, Deena Nath Vs. Puran Lal MANU/SC/0361/2001, Yogender Singh Vs. Kotak Mahindra Bank Ltd. and Ors. 2013 IX AD (Delhi) 583, Bharat Glass and Plywood Company Vs. Sushan Pal Soni RC. Rev. 46/13 decided on 21.03.2014 and Deepak Gupta Vs. Sushma Aggarwal RC. Rev. 180/13 decided on 24.07.2013.
20. First ground for grant of leave, taken on behalf of the respondent is that petitioner has deliberately concealed material facts and filed the present petition with concocted facts only to get eviction order and petitioner has no Page No. 10/18 bonafide requirement of tenanted premises and petitioner having disclosed about the existence of another property at Buddh Vihar, has still not expressed his intention of shifting there. Thus, alternate property being available with petitioner is in itself a "tribal issue".
21. I have considered the above said ground in the light of submissions made by ld. counsel for the respondent as well as upon perusing the averrments of the petition. First of all, it is required to mention here that on reading the petition as a whole it is nowhere stated in the petition that petitioner has any other property available at Buddh Vihar, as stated in the application of the respondent rather in para 18(a)(xiv) of petition. It is specifically stated the petitioner does not own any other space/property anywhere in Delhi/NCR. So far as, the proeprty in question being property having municipal no. 1456, gali no. 100, Ganesh Pura, Tri Nagar, Delhi at the ground floor of which the tenanted shop in question is situated, petitioner has stated in the petition that said property was constructed on a plot of 165 sq. yards purchased by his father Late Bhagwan Singh vide registered sale deed dated 20.07.1954 and after his death since Late Bhagwan Singh left behind 7 sons and 2 daughters including petitioner, under a family property settlement dated 11.05.1990, property in question including tenanted shop fell into share of petitioner. Moreover, petitioner himself inducted the respondent as tenant in the shop and property has been mutated in the name of the petitioner, in the record of municipal authorities. Reading the petition as a whole would indicate that petitioner has mentioned that he has 2 sons out of which the elder son Jitendra Verma is mentally retarded with Spastic Parasif and his wife is a heart patient and he himself is suffering from different ailments and has undergone operation for his stomach and feels difficulty in climbing the stairs. While elaborating the requirement of him and other family members of having one room at ground floor and therefore, seeking the eviction of tenanted premises for bonafide personal use and Page No. 11/18 necessity, petitioner has filed the present petition.
22. Evidently, it is nowhere seriously disputed in the application for leave to defend that elder son of the petitioner is mentally disturbed or that the wife of the petitioner is heart patient beside petitioner himself suffering from different ailments, though on behalf of respondent a technical objection have been taken that documents regarding the mental problem of son and heart difficulty of wife have not been placed on record, but, that objection is also to my mind is incorrect because ld. Counsel for the petitioner has rightly drawn my attention to medical documents including assessment report of Institute of Human Behavior and Allied Sciences (IHBAS), OPD ticket and disability certificate of Bhagwan Mahavir Hospital clearly indicating that the son of the petitioner is suffering from mental retardation. Similarly, petitioner has also placed on record the medical documents of GB Pant Hospital and of other hospitals regarding heart problem of wife of the petitioner. These documents clearly corroborates the facts as stated in the petition.
23. In this regard it would be appropriate here to refer the observation of Hon'ble Supreme Court, in Shiv Swaroop Gupta Vs Dr. Mahesh Chand Gupta (1999) 6 SSC 222, wherein while explaining the scope of "bonafide requirement" within the meaning of Section 14 (1)(e) of DRC Act, it was observed as :
".....Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretense or pretext to evict a tenant, on the part of the landlord claiming to occupy the Page No. 12/18 premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its determination by the Court....."
24. Thus, it would be clear by reading the above mentioned judgment and some other judgments on the subject that precisely Rent Controller is required to examine firstly that the requirement as projected in the petition is not mere moon shine or ingenuine with ulterior motive of only getting eviction order. Thus, the first test is to see that whether requirement of landlord is really a requirement or a desire and if that being a requirement whether same is bonafide and genuine or not. Keeping that criteria in the mind, if we examine the facts as stated in the petition I do not find that when petitioner is seeking the eviction of tenanted shop of ground floor of the property, wherein petitioner is living with his family, for his own use because of the medical difficulties of him and other family members, and such medical difficulties have been duly established on the record by different documents, such requirement of tenanted premises, to my mind appears to be bonafide.
25. So far as, availability of alternate accommodation/place as claimed by the respondent in the application for leave to defend, respondent himself has failed to specify with necessary details about the existence of any other property alternatively available with petitioner. It is one thing to simply say that petitioner has alternate accommodation available and it is separate thing to establish that fact. When some one simply states in the application that there is alternate accommodation available with petitioner, a Rent Controller will not simply find it to be a tribal issue. Only those facts which have been established by preponderance of probabilities, if not completely proved, showing alternate accommodation available or facts which may ultimately Page No. 13/18 lead to dismissal of petition, can be termed as "tribal issue". Such expression must not be used loosely rather required to be established with necessary details and specifications. Ld. Counsel for the respondent though tried to convince this court by pointing out different facts that these are tribal issues and thus required evidence , but, to my mind simply challenging the facts stated in the petition, without necessary details and documentary evidence, do not amount to tribal issue.
26. Ld. Counsel for the respondent has relied upon a judgment of Hon'ble High Court in Accebeen Steel Pvt. Ltd. Case (Supra). Without disputing the ratio laid down in that judgment, as it was held by Hon'ble High Court in that case that leave to defend is to be granted to tenant in case of any tribal issue raised which can be adjudicated only by taking evidence and where a prima facie case is made out by tenant which disentitle the petitioner from getting any order of eviction. That is the established law but the facts in that case are distinguishable from the facts of the present case as in that case it was noted by the Hon'ble High Court that trial court/ARC overlooked the fact of additional accommodation lying vacant at the first floor of the property and found the plea that such place is occupied by the brother of the landlord was concocted. It is in those circumstances, Hon'ble High Court while dismissing the order of ARC held that concoction regarding additional accommodation which was otherwise lying vacant, is a tribal issue, warranting for grant of leave. In the present case ld. Counsel for the tenant/respondent has not specified as to which of the ground taken in the present petition are false/concocted or not bonafide.
27. Ld. Counsel for the respondent has also relied upon judgment of Hon'ble High Court in Bharat Glass and Plywood (Supra), in that case also while reiterating the legal proposition regarding grant of leave to Page No. 14/18 defend, Hon'ble High Court granted leave to tenant, holding that disputed question of facts require evidence and must not be decided without taking evidence. It was inter alia observed that term bonafide refers to a state of mind and requirement is more than a mere desire, therefore, duty is cast upon landlord to disclose true facts in the eviction petition. ARC must not take the projected necessity as stated in the petition to be a gospel truth. Again without disputing the ratio laid down in that case rather following the proposition as pronounced in that case, I find that if the need and necessity as projected by the landlord in the petition cannot be blindly accepted, the bald assertion or facts without necessary details, stated by tenant in his application for leave can also not be considered to be gospel truth.
28. What I understand from the observation of the Hon'ble High Court that court of ARC has to scrutinize the claim and necessity of petitioner as well as the defense and the facts stated by the tenant in the application for leave, while coming to the conclusion whether any tribal issue has been made out or not. In the present case as stated above this is not seriously disputed that elder son and wife of petitioner are suffering from serious medical difficulties and the nature of their medical problem inherently require an accommodation at ground floor. Respondent on the other hand has failed to specify which other property or space was available with landlord which can suitably fulfil the necessity of landlord. Having failed to do so I find mere challenging or denying the facts as stated in the petition, by in itself do not make out a tribal issue.
29. Ld. Counsel for the respondent has also relied upon a judgment of Hon'ble High Court in Deepak Gupta Vs. Sushma Aggarwal (Supra). Again upon going through this judgment it would be clear that legal proposition with regard to grant of leave to defend in an eviction matter Page No. 15/18 under Section 14(1)(e) of DRC Act, is one thing , applicability of that legal proposition in the facts of a particular case is another thing. Any precedent of superior court can advantageously be relied upon when it applies squarely on the legal and factual aspects, to the facts of any particular case. In the above mentioned case while reiterating the legal proposition as discussed above, it was also observed that when leave to defend is sought, tenant must make out such prima facie case by raising such plea that tribal issue would emerge, which in the opinion of court should be sufficient to grant leave. That being the requirement from tenant, in the present case I find respondent has failed to raise a tribal issue.
30. Another ground taken in the application for leave to defend, is that the circumstance have not changed since 1996 when the tenanted shop was let out by the petitioner to the respondent that itself indicate that the requirement and need of petitioner is not bonafide. Relief as sought by the petitioner/landlord is barred by latches and delay, which is itself a tribal issue.
31. On carefully examining this plea no doubt the medical difficulties with the family members of petitioner and petitioner might be existing even during 1996, when the premises was let out to the respondent but that does not mean that petitioner is completely barred from raising those difficulties for seeking eviction of the tenanted shop of ground floor for own residential use. No doubt it is established law that the requirement put forth by the landlord must be genuine and bonafide. At the same time it is also a further proposition of law that tenant cannot dictate to landlord as to how and in what manner landlord should use his own property. In this regard ld. Counsel for the petitioner has rightly relied upon the judgment of Delhi High Court in Viran Wali Vs Kuldeep Rai Kochar (Supra).
Page No. 16/1832. In this context, reliance can also be placed on judgment of Hon'ble High Court in Smt Sudesh Kumari Soni Vs Smt Prabha Khanna 2008 (2) Rent Control Reporter 534, wherein it was held that Rent Controller should not proceed eviction petition on the ground of bonafide requirement, with the assumption that requirement is not bonafide, it was further held that it is very natural and consistent that landlord require more space for affording atleast basic standard of living, with sense of decency and it is not for tenant to dictate the terms to landlord as to how else he can adjust himself. Suitability has to be seen from the convenience of landlord and his family members, on the basis of circumstances including their professions, vocation, style of living, habits and background.
33. Thus, by stating that since the situation as prevailing at the time of commencement of tenancy has not changed and therefore, petitioner is barred from seeking space at ground floor for own residential use of petitioner and his family members who are suffering medical difficulties, to my mind is a harsh assertion than a tribal issue. Rent Controller is required the examine the facts realistically rather than technically.
34. Another ground taken on behalf of the respondent for grant of leave is that petitioner has taken a loan of Rs. 3 lacs in January 2012 from the tenant/respondent with interest @ 18% per annum. Interest to be paid by the petitioner was being adjusted earlier in the payment of rent of tenanted shop and when subsequently respondent demanded the principle amount with interest, in order to pressurize him landlord has filed the present petition.
35. Again, the plea is without any documentary evidence placed on record. Merely, claiming to have given money to the landlord on interest, by Page No. 17/18 itself does not make out a tribal issue in an eviction matter where prime and foremost consideration is to examine whether the requirement of landlord is bonafide or not. Asserting some new facts only to create a dispute, that too without any documentary basis, cannot amount to a lawful tribal issue.
36. Another ground taken on behalf of the respondent that respondent has spent about Rs. 350000/ on the maintenance/renovation of the tenanted shop and landlord has not spent any amount for the maintenance. This fact again is not supported by any documentary evidence to show the failure of the landlord to spend money for maintenance as and when required, tenant had spent the sum instead of landlord. Merely, asserting or disputing certain facts is not sufficient for grant of leave to defend in absence of another documentary evidence or specific details as to when and how and for what purpose the amount of Rs. 350000/ was spent on the alleged maintenance/renovation. There was a legal remedy available with the tenant to enforce by judicial procedure for renovation or maintenance as and when required in the tenanted premises. But that legal recourse was never adopted, therefore, I find that such plea is only a legal after thought rather than a real one.
37. Thus, for the reasons stated above I find that application for leave to defend is even liable to be dismissed on the facts.
38. Consequently, application stands dismissed on the facts as stated above.
Announced in open court on 24th September 2014 SH. SHAILENDER MALIK (SCJRC, ROHINI COURTS, DELHI) Page No. 18/18