Delhi District Court
Sh. Arjun Uppal vs M/S. Jain Motor Car Company Pvt. Ltd on 28 August, 2015
In the Court of Sh. Sunil Kumar : Additional Rent Controller02,
Central District, Tis Hazari Courts, Delhi.
E. No. 668/14/10
Unique ID No. 02401C0364332010
In the matter of:
1. Sh. Arjun Uppal,
S/o. Sh. Balvinder Uppal
2. Sh. Balvinder Uppal,
S/o. Late Sh. C.L. Uppal,
Both residents of
29, Shri Ram Road, Civil Lines,
Delhi110 054 .................... Petitioners
VERSUS
M/s. Jain Motor Car Company Pvt. Ltd.,
1646, S.P. Mukerjee Marg,
Delhi110006. .................... Respondent
Date of Institution : 19.08.2010
Date of Arguments : 01.07.2015
Date of Order : 28.08.2015
ORDER:
This order shall decide the question whether the respondent be granted leave to contest the present application under clause (e) of proviso E. No. 668/14/10 Page No. 1 of 25 to subsection (1) of section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as ''Act 59 of 1958'').
Brief facts for the decision on the application are that petitioners have made an application under clause (e) of proviso to sub section (1) of section 14 of the Delhi Rent Control Act, 1958 (Act 59 of 1958) against respondent for recovery of Shop Mpl. bearing no. 1646, Shayama Prasad, Mukherjee Marg, Delhi110006 as shown in grey colour enclosed in red line in the site plan attached with the petition. It is stated in the eviction petition that the premises was let out for nonresidential purpose at the monthly rent of Rs. 314.60 paise p.m. excluding electricity charges. It is stated that both the petitioners are the joint absolute owner of the entire property to the extent of their respective shares which they rely from previous owners. It is stated that petitioner no. 2 is a hotelier and has been running his hotel under the name and style of M/s. New Royal Hotel on the first and upward floor of the property. The petitioner no. 1 is very ambitious to run an independent business on his own as he completed his M.B.A. from abroad. It is stated that the petitioner no. 1 has finally decided to open a plush restaurant on a magnified scale for which he has got prepared the project report. It is further stated that there are about 50 hotels without the facility of any posh restaurant in the area which is an additional asset giving an added strength to the requirement of the petitioner no.1 for the space for the proposed project. Therefore, the petitioners require an E. No. 668/14/10 Page No. 2 of 25 area of approximate 5000 sq. feet to open this restaurant for petitioner no. 1 which they require the entire ground floor to complete the project. It is stated that the petitioner no. 1 has acquired sufficient knowledge and experience by working at the family hotel business and since his return from Australia he has been working for the launching of the project taking advantage of his experience in the trade. However, because of the portions of the ground floor of the property being under the occupancy of the tenants, petitioners have not been able to give it the practical shape. It is stated that the suit premises under the tenancy of the respondent and the other adjoining shops under tenancy of other tenants are most suitable for petitioner no. 1 to set up and run a restaurant as the property in the question is located very near to the Old Delhi Railway Station. It is stated that the strategic location of the property has all the potential to make the project a great success. It is stated that the opening of restaurant by petitioner no. 1 on the ground floor of the property including the suit portion will also get a boost thus proving the project to be mutually inclusive and exclusive. It is stated that the petitioners require the tenancy premises bona fidely for the running of the restaurant by petitioner no. 1 and the petitioners have no other reasonably suitable alternative commercial property for the running of the said business. It is therefore prayed that an eviction order be passed in favour of the petitioners and against the respondent in respect of the tenanted premises i.e. Shop Mpl. bearing no. 1646, Shayama Prasad E. No. 668/14/10 Page No. 3 of 25 Mukherjee Marg, Delhi110 006.
It is stated in the affidavit, filed by the respondent, alongwith the application for leave to defend that the present petition is not maintainable in law as the same does not satisfy necessary ingredient of Section 14 (1) (e) DRC Act. That the allegations made by the petitioners in their petition that the premises in suit is required by the petitioner no.1 bonafide are false to the knowledge of the petitioners as same are an after thought and have been concocted with the sole purpose of evicting the respondent who is an old tenant paying a rent @ Rs. 315/- per month and thereafter to either dispose / sell the same or to re-let the said premises at a higher rent. That the since the last over 11 years the petitioners have been pressing the respondent/ tenant to exorbitantly increase the rate of rent so as to match the prevalent rate of rent in the area and the respondent, however, refused to enhance the rent as demanded by the petitioner. That the respondent was not agreeable to increase the rate of rent, the petitioners offered the respondent to self the premises under its tenancy. The petitioner demanded a sum of Rs. 60.00 lakhs as sale consideration which price did not commensurate with the market price of the premises at the relevant time when the offer was made by the petitioners to respondent/ tenant in the month of September, 2008. That the respondent was agreeable to offer a price of Rs. 45.00 lakhs to the petitioners. The parties could not, however, agree to the price at which the property in suit could be sold to the respondent. On account of the failure of the negotiations for sale of the property in suit, the petitioners as an after thought have come out with a false story of alleged personal bonafide necessity for petitioner no.1 who is the son of petitioner no.2. That the malafides of the petitioners are exposed from the E. No. 668/14/10 Page No. 4 of 25 fact that from time to time they have been letting out various portions of the property in question bearing door no. 1635, 1635A, 1640-45 and 1648, S.P. Mukherjee Marg, New Delhi-110006 and in this behalf, it is submitted that on the right side of the property in suit, just next to the shop under the tenancy of M/s Seth & Sons/ Shri. Virender Jain, there is one shop bearing door no. 1648 which not only has an areas nearly equal to the premises under the tenancy of respondent but is a better located shop having a very appropriate access. The said shop bearing door no. 1648 has a better and cleaner front as compared to the tenanted premises in as much as in the front of the tenanted premises tea staff is being run and also hawkers are permanently stationed for the last over 20 years and the said persons are adamant not to vacate the pavement in front of the premises in suit. That the aforesaid shop bearing door no. 1648, S.P. Mukherjee Marg, Delhi-110006 is more suitable for the alleged personal requirement of the petitioners as the said shop abide the property in which Frontier Hotel runs on the first floor. Frontier Hotel does not have full fledged kitchen and does not provide meals to its guest. The said shop has a better potential to attract the guests of Frontier Hotel and is a more suitable premises for the alleged need of the petitioners, which is any event is denied. That besides the above, the shop bearing door no. 1645 which is adjacent to the ingress point of the hotel run by petitioner no.2 is suitable to serve the alleged requirement of the petitioner, which is any event is denied. That the petitioners have deliberately targeted the answering respondent and also M/s Seth & Co. as they being old tenants have not acceded to the illegal demands of the petitioners to exorbitantly increase the rent and have also not agreed to pay the house tax to the petitioners though it was demanded several times. The respondent is paying rent @ Rs. 315/- per month. Had the intentions of the petitioners E. No. 668/14/10 Page No. 5 of 25 being bonafide, they would have better sought eviction of the tenants on the left side of the property as the lift as well as the stairs leading the first floor exist on the said side. Further, there is also a public road on the left of the property and as such the left side of the property is open from two sides and more suitable for a restaurant. The petitioners have selectively targeted the answering respondent whose premises is in the middle of the property only because of the refusal of the respondent to concede to the illegal demand of the petitioners to purchase the same at an exorbitant price of Rs. 60.00 lakhs or to increase the rent so as to meet the current market rate of rent. That the petitioners have from time to time been letting out premises bearing door no. 1648 to various persons. The said shop after it was vacated by the existing tenant was let out to India Bulls Ltd. in the year 2004. India Bulls Ltd. vacated the said shop somewhere in July/ August, 2006. After the said shop was vacated by India Bulls Ltd., it was lying vacant for some time as the petitioners were looking for a tenant. In the month of February, 2009, the said shop has been let out by the petitioners to M/s. Laxmi Transport Co. The above acts of the petitioners in re-letting a substantial portion of the property in suit suitable for the alleged need of the petitioner no.1 shows the malafide intentions of the petitioners. That the premises in suit is required by the petitioners for running a restaurant. The running of a hotel by the petitioner no.2 on the first floor has been falsely alleged to be a ground for running a restaurant in the premises. It is relevant to state that the New Royal Hotel being run on the first floor of the property does not have a restaurant nor does it provide food to its guests. Had the alleged intentions of the petitioners bonafide, the petitioners in the normal course and as a prudent businessmen would first open the restaurant within the hotel premises on the first floor. That sufficient space is available on the first and second floor of the property E. No. 668/14/10 Page No. 6 of 25 where the petitioner no.1 can set up a restaurant as alleged by the petitioners. The accommodation available on the first and second floor is much more than the premises for which the petitioners are seeking the eviction. The petitioners have deliberately not filed with the petition the plan of the first and second floor of the entire property in question. That it is learnt that the petitioner is also seeking ejectment of the tenant of shop no. 1647 also which is next to the premises under the tenancy of the respondent. The total area of the premises in suit coupled with the shop no. 1647 would be 2750 sq.ft. Approx. In this behalf, it is submitted that the two shops will constitute an area which will be far more excessive than the alleged requirement of the petitioner no.1. In this behalf, it is submitted that the area of S.P. Mukherjee Marg is such which attracts customers belonging to either low strata or are such shopkeepers who just visit the area for purchasing the goods. Such like visitors hardly prefer to sit in restaurant like the one sought to be projected by the petitioners. The restaurant business is not a profitable venture in the area. Many a restaurants which were opened in the area have been closed in recent past because of poor returns. It is submitted that in the building next to the property in question where Frontier Hotel is being run on the first floor, a restaurant by the name of Metro Plaza was opened on the ground floor in shop no. 1651. The said restaurant was closed after the owner unsuccessfully tried to run it for nearly one year. It is thus submitted that the area doest not have any potential for restaurant business. That keeping into account the nature of the persons visiting or residing in locality and the area in which the suit premises is situated, the customer prefers to eat cheap fast food such as "Channa Bhatura", Dahi Bhalla, Matar Kulcha, Potato Chat, Pakora, etc. The deponent submits that most of the eateries, which call themselves as restaurants are run in very small shops having an area of nearly 200 sq.ft. Or E. No. 668/14/10 Page No. 7 of 25 so. While the premises in suit has an area of nearly 1400 sq.ft., the following eateries/ restaurants are run in the vicinity of the premises in suit in a much small area. The details thereof are given as under:- Sheesh Mahal,740, Church Mission Road (15X30), Rajendra Restaurant, 729 Church Mission Road, (14X35), Khalsa Hindu Hotel, 711 Church Mission Road,18X15, Pandit Hotel, 686,Church Mission Road (12X15), Bhram Bhoj Bhandar, 684 Fatehpuri (10X15), Kake De Hatti, 656 Fatehpuri (25X20), Gol Hatti, 9 Fatehpuri (20X10), Ashoka Bhoj,183 Fatehpuri (15X35), Inderpuri Bhoaj, 185 Fatehpuri (12X35). That this Hon'ble Court will take judicial notice of the fact that popular restaurants in the area which had been running in an area for a long time have been closed by their owners on account of poor returns. As an example, it is submitted that two important restaurants namely Carlton and Khyber which were run in the area of Kashmere Gate, Delhi which is very close to the property in suit have been closed in such like conditions.That the respondent denies that the petitioner no.1 has completed his MBA from Australia or that he is unemployed or that he intends to open a restaurant in the tenanted premises. It is not the case of the petitioners that the petitioner no.1 has attained any qualification for running a restaurant such as diploma in hotel management or such like credentials. The petitioner no.1 who has returned from Australia has modern thoughts and he has openly expressed to the deponent that he has no intentions to settle his business in an old and congested locality like S.P. Marg and that he would either join some multinational corporation or look for a job and career opportunity inf foreign shores. It is denied that the petitioner no.1 has came back to India with the ambition to start his independent business. The requirement of alleged area of 5000 sq.ft. To open restaurant is a fabricated requirement. The allegations of there being 50 hotels in the area are vague and lack in material particulars.
E. No. 668/14/10 Page No. 8 of 25No alleged requirement of 5000 sq.ft. Was ever pleaded in the eviction petition no. 105/2009 entitled "Arjun Uppal & anr. Vs. Jain Motor Car Co. Pvt. Ltd." which has since been withdrawn by the petitioner. As stated above, present petitioner has been filed on similar grounds by improvising upon the earlier eviction petition and an attempt to fill up the lacunas left therein. The petitioners as an after thought have contrived a false and baseless story of the alleged requirement of petitioner no.1 for running a restaurant in the property in suit. The said allegations are false and incorrect. That the petitioner no.1 is learnt to have already joined some reputed organization and is serving them. The said fact has been deliberately concealed by the petitioners. Petitioner no.1 has never been seen in the premises in question nor has he ever attended the hotel business of his father
- petitioner no.2 being run on the first and second floor of the property in question. That the petitioner no.1 has got no experience in restaurant business.. No averments have been made in the petition that the petitioner no.1 has served in any hotel or restaurant on account of which he may have acquired any experience in the business of restaurant. Merely because the petitioner no.2 runs a hotel, which has got no kitchen, it cannot be said that the petitioner no.1 has an experience in the restaurant business. That admittedly, the petitioners have not applied to any authorities for grant of necessary license and registration with the concerned authorities for running a restaurant. That the premises in suit is not required by the petitioners as alleged. Without prejudice to the above submissions, the deponent submits that the alleged project report is inadmissible at this stage. Without admitting the authenticity and correctness of the alleged report, the respondent seeks to bring out the following facts which will show that the alleged project report is a bogus document obtained fraudulently and is prepared only to help the E. No. 668/14/10 Page No. 9 of 25 petitioner. The contentions raised above by the deponent can be established only by leading evidence. Parking is a big constraint in the area where the premises is situated. Without parking no sch restaurant (as projected in the Project Report, hereinafter called the "Projected Restaurant") can work. The projected restaurant is not for the passers by. The huge parking as mentioned on page 1 of the proposal is a parking of the Railways and not for general public. The proposed project report talks about 4000 persons every day in the hotels in the vicinity. In this regard, it is stated that the people staying in the hotel of petitioner no.2 and other nearby hotels are all those who want accommodation at a very moderate rate and have no spending capacity/ concept. They come in the morning, do their work and leave either late at night or next day. They do not brother event to take their two meals in the day. That only Dhabas and small time cheaper joints work in the area. There were few expensive joints which have sine been closed like Carlton and Khyber which were just opposite Kashmere Gate area. A well established Goverdhan Restaurant in Sought Delhi opened a branch in the adjoining area, also mentioned in the petitioner's project report under the head competition on page 25, on similar pattern but has since been closed as at did not had enough customers. As mentioned in the project report that the area is densely populated is wrong as the entire area is now buzzing with commercial activities and also declared commercial by MCD. There is hardly any person living in or around this area. There are no captive residents in the nearby area. The area is congested and with heavy traffic including very slow moving traffic of rickshaw and hand pulled "Thelas" nobody can expect customers. The other requirements of restaurant are sanitation, ventilation, kitchen space, urinals, etc. which are not there in the shops. There is a Mandir at the back side common wall, and that will have objections to E. No. 668/14/10 Page No. 10 of 25 serving non-vegetarian food and drinks next to the mandir. While the petitioner has given the financial projections from page 5 to 22 of the project report which needs to be looked into and verified. On page 20, on "calculation of Breakeven Point" the petitioner has written the break even point at utilized capacity is 88.64%. However, in the project report itself the profitability of project in no calculated beyond 80% of the installed capacity. The targeted crowd is of Indian businessmen who actually travels from small towns to buy their goods. The do not have the buying capacity or the concept for hi-fi dining. There are no foreigners visiting this area as stated. Very fact, that the hotels in the vicinity do not have restaurants speaks volumes that there is no demand other than the Dhabas and small time food joints. On page 25 of the report under the head competition, the petitioner has given the names of some of the restaurant in the area to support his contention. Some of them like Goverdhan Restaurant have already closed as they had no business. Some of them like Dominos serve only door delivery, some are very old and have a brand image like Moti Mahal and Kareems, some are in and around Metro where there is a lot of foot fall and where there is no parking problem like restaurants in Darya Ganj. None of these have any comparison with the proposed project which is devoid of merits. The project report mentions about restaurants at Darya Ganj, which are about 3 Kms away from this area. The petitioner has deliberately not mentioned Oberoi Maidens which is in the near vicinity within 1 KM from the site in Civil Lines with no problems of parking, with very good ambience and of good status matching the proposed plan and is one of the best Hotels with Heritage Tag. However, one can hardly see their restaurant having many customers. The present petition is without any cause of action and not maintainable against the answering respondent either on facts or law. It is stated further E. No. 668/14/10 Page No. 11 of 25 that the petitioners have sought the eviction of the old tenant like the respondent on the basis of invented need for restaurant by the petitioner no.1 who is stated to be an MBA from University of LA TROB Melbourne, Australia. It is stated that if petitioner no.1 could not get a job in India after doing a Management course from University of LA TROB Melbourne, which fact is otherwise denied, this fact alone is sufficient to allow the leave to contest to the respondent as the sole motive of the petitioner no.1 is not to search for a job but to evict the deponent. It is also not the case of the petitioners that the petitioner no.1 obtained a degree or diploma in Hotel Management and has attained any qualification for running a restaurant. The accommodation available on the first and second floor is much more than the premises for which the petitioners are seeking the eviction. The petitioners have deliberately not filed with the petition the plan of the entire building floors of the property in question. The project report so filed on record by the petitioners is meant to raise funds from a financial institution or bank and is not feasible in view of preliminary objections sated above. The project report is self created by petitioner no.1 as might have done by him during his final semester of MBA which is mandatory to complete the MBA and has nothing to do with the reality. These are dummy project reports which are prepared and always dumped afterwards. Otherwise also such kind of project reports can be easily procured which appears to be the case in hand. The deponent states that the petitioners filed the earlier eviction petition bearing no. 105 of 2009 against the respondent, without any thought and without any cause of action. It was only after any thought and without any cause of action. It was only after the respondent filed its application seeking leave to contest, that the petitioners became wise and decided to file the project report as an after thought in the said eviction petition. While the petitioners application for E. No. 668/14/10 Page No. 12 of 25 producing the alleged project report which is a procured and manipulated document was still pending, the petitioners chose to withdraw the earlier eviction petitioner bearing E case no. 105 of 2009. the late production of the project report itself raised doubts about the authenticity and credibility of the documents. The petitioners having became wiser, have tried to cover up the lacunas left behind by them while filing the earlier eviction petitioner and by filing the procured project report alongwith the petitioner itself. The deponent states that the date put by the petitioners in the project report needs analysis, authentication and verification as the figures and the facts are fake, manipulated and this along shall disentitle the petitioners to get any relief against the respondent. The project report is a procured fabricated document. The deponent submits that the plan filed by the petitioner with the petition is incorrect. The petitioners have included in the plan and shown as a part of the tenanted premises an area of 11ft. X 11ft. At the back side of the shop shown as an extension in the plan filed with the petition, which belongs to the Municipal Corporation of Delhi and held by the respondent on Teh Bazari Basis. The deponent submits that he is instructed to say that the aforesaid facts if proved shall disentitle the petitioners to seek the eviction of the respondent. The deponent craves leave of this Hon'ble Court that it may kindly be granted the liberty to lead evidence in order to prove the above facts and for the said purposes, leave to contest the eviction petitioner many be granted in its favour.
The application of the respondent is contested by the petitioners by way of a written reply supported by affidavit of the petitioners wherein preliminary objections are taken to the effect that the petitioners are entitled to eviction of the respondent from the premises as E. No. 668/14/10 Page No. 13 of 25 they required the premises for their bonafide commercial use; that the respondent has made frivolous, baseless and irrelevant averments in its application for leave to contest and the affidavit whereby no triable issues are raised; that the petitioners are entitled to relief as claimed under section 14 (1) (e) of Act 59 of 1958 and the application seeking leave to contest be dismissed.
To the reply of the petitioner a rejoinder has been filed on behalf of the respondent wherein the contention raised by way of the application for leave to defend have been reiterated.
I have heard counsel for the parties and gone through the material on record carefully.
On behalf of petitioners, reliance is placed upon the case laws titled as Sarla Ahuja Vs. United India Insurance Company Limited [1998(2)RCR(SC), Dattatraya Laxman Kamble Vs. Adbul Rasul Moulali Kotkunde & Anr. AIR 1999 SC 22226, Satyawati Sharma (Dead) by LRs. Vs. Union of India (UOI) and Anr. CIVIL APPEAL NOs. 1897 AND 1898 of 2003, N.R. Narayan Swamy B. Francis Jagan 2001 (2 )RCR (RENT) 170, Madho Ram Garg Vs. Baldev Singh Bath and Anr. C. Rev. No. 2045 Of 2007 * D/D 2904.2008, Sait Nagjee Purushotham & Co. Ltd. Vs. Vimalabai Prabhulal and Ors. C.A. No. 1113/2003, Smt. Viran Wali Vs. Sh. Kuldeep Rai 2010 (2) RCR 87, Parikshant Suri & Ors. Vs. Ashok Kohli and Another 2009 (2) RCR 87, Royal Nepal Airlines Corporation Vs. Shrishti Properties Pvt Ltd. 184 (2011) DLT 362, Ram Babu Agarwal Vs. Jas Kishan Das (2010) E. No. 668/14/10 Page No. 14 of 25 1 SCC 164, Tarsem Lal Vs Pritam Dass Khullar 2005 (2) RCR 215.
On behalf of respondent, reliance is placed upon the case laws titled as Santosh Devi Soni Vs. Chand Kiran 1 (2001) 1 SCC, Inderjeet Kaur Vs. Nirpal Singh (2001) 1 SCC 706, Manoj Kumar Vs. Bihari Lal (Dead) by LRs (2001) 4 SCC 655, Liaq Ahmed & Others Vs. Habeeb-Ur-Rehman (2000) 5 SCC 708, Precision Steel & Engineering Works Vs. Prem Deva Niranjan Deva Tayal AIR 1982 SC 1518, S.S. Puri Vs. S.P. Malhotra 95 (2002) DLT 399, Tarun Pahwa Vs. Pradeep Mehin 2013 (1) CLJ 801 Del., Canara Bank Vs. T.T. Ltd. RCR No. 312/13 dated 30.09.2014.
I have given my thoughtful consideration to the submissions made on behalf of the parties.
The present petition for eviction is under clause (e) of proviso to subsection (1) of section 14 of Act 59 of 1958 which reads as under :
14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: * * *
(e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation :
Explanation. For the purpose of this clause, "premises let for residential purposes" include any premises which having been let for use as a residence E. No. 668/14/10 Page No. 15 of 25 are, without the consent of the landlord, used incidentally for commercial or other purposes;
* * * As per the law laid down by the Hon'ble Supreme Court in Satyawati Sharma v. Union of India and another, 148 (2008) DLT 705 (SC) clause (e) of proviso to subsection (1) of section 14 of Act 59 of 1958 is also applicable to the premises let out for purpose other than residential purpose The Hon'ble Supreme Court in Charan Dass Duggal v. Brahma Nand, (1983)1 SCC 301 while dealing with the question in the matter of granting leave to contest the eviction petition filed on the ground of personal requirement, in para 5 has stated thus:
5. What should be the approach when leave to defend is sought?
There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would nonsuit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought, 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 (see Santosh Kumar v. Bhai Mool Singh). At the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counterassertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively. If as it appears in this case, the landlord is staying at Pathankot, that a house is purchased, may be in the name of his sons and daughters, but there may not be an apparent need to return to E. No. 668/14/10 Page No. 16 of 25 Delhi in his old age, a triable issue would come into existence and that was sufficient in our opinion to grant leave to defend in this case.
In the same judgment, in para 7 it is further observed:
7. The genesis of our procedural laws is to be traced to principles of natural justice, the principal amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and provide his own case. Summary procedure does not clothe an authority with power to enjoy summary dismissal. Undoubtedly wholly frivolous defence may not entitle a person leave to defend. But equally a triable issue raised, enjoins a duty to grant leave. Maybe in the end the defence may fail. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party by cross examination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refuse to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through crossexamination of witnesses who have filed their affidavits. Burden is on the landlord to prove his requirements and his assertion is required to be tested more so when it is shown that for long he is staying outside Delhi, that he has a building albeit standing in the names of his sons and daughters where he is staying and at which place he receives his normal correspondence. If in such a situation one can say that a triable issue is not raised, one is at a loss to find out where, when and in what circumstances such an issue would arise. We are, therefore, satisfied that this is a case in which triable issues were raised and both the learned Rent Controller and the High Court were in error in refusing to grant the leave.
Further in Precision Steel and Engineering Works v. Prem Deva Niranjan Deva Tayal, AIR 1982 SC 1518 the Hon'ble Supreme Court having discussed the relevant provisions of Act 59 of 1958 held as follows:
E. No. 668/14/10 Page No. 17 of 25The Controller has to confine himself to the affidavit filed by the tenant under subsec. (4) and the reply if any On perusing the affidavit filed by the tenant and the reply if any filed by landlord the Controller has to pose to himself the only question, `Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in cl. (e) of the proviso to Section 14 (1)?' The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against the other set of affidavits. That is not the jurisdiction conferred on the Controller by subsec. (5) because the Controller while examining the question whether there is a proper case for granting leave to contest the application has to confine himself to the affidavit filed by the tenant disclosing such facts as would prima facie and not on contest disentitle the landlord from obtaining an order for recovery of possession. At the stage when affidavit is filed under subsec. (4) by the tenant and the same is being examined for the purpose of subsec. (5) the Controller has to confine himself only to the averments in the affidavit and the reply if any and that become manifestly clear from the language of sub sec. (5) that the Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from recovering possession etc. The jurisdiction to grant leave to contest or refuse the same is to be exercised on the basis of the affidavit filed by the tenant. That alone at that stage is the relevant document and one must confine to the averments in the affidavit. If the averments in the affidavit disclose such facts which, if ultimately proved to the satisfaction of the Court, would disentitle the landlord from recovering possession, that by itself makes it obligatory upon the Controller to grant leave. It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. It is distinctly possible that a tenant may fail to make good the defence raised by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown.
From the law laid down by the Hon'ble Supreme Court it can be discerned that while deciding the question of the grant of leave to contest under the provisions of section 25B of Act 59 of 1958, the Rent Controller E. No. 668/14/10 Page No. 18 of 25 should see the affidavit filed by the tenant and the counter affidavit filed by the landlord. From the decisions of the Hon'ble Supreme Court it is also clear that while deciding the question of the grant of leave, the Controller is not required to conduct a full fledged trial and should only see that if the affidavit of the tenant raise any triable point the decision on which may disentitle the landlord from recovering possession of the premises. At the time of the decision on the question of leave, the Controller is not required to seek the proof of the defence of the tenant.
In Sarwan Dass Bange v. Ram Prakash, 2010 IV AD (Delhi) 252 it has been observed by the Hon'ble Delhi High Court as follows: The Controller has not discussed as to how the pleas raised by the respondent/tenant in the application for leave to defend are such which if established by adducing evidence would disentitle the petitioner/landlord of an order of eviction under Section 14 (1)(e) of the Act. Ordinarily, when a tenant approaches an advocate for drafting a leave to defend application, the advocate, using his legal acumen would dispute each and every plea of the landlord in the eviction petition. However, merely because the tenant so disputes and controverts the pleas of the landlord does not imply that the provisions of summary procedure introduced in the Act with respect to ground of eviction on the ground of requirement is to be set at naught. The Controller is required to sift/comb through the application for leave to defend and the affidavit filed therewith and to see whether the tenant has given any facts/particulars which require to be established by evidence and which if established would disentitle the landlord from an order of eviction. The test is not of the tenant having controverted/denied the claim of the landlord and thus disputed questions of fact arising; the test is to examine the pleas of facts and then to determine the impact thereof.
E. No. 668/14/10 Page No. 19 of 25In the present case the respondent has sought leave to contest the applicatiIn the application for leave to contest the respondent has not disputed the fact that the petitioners are the landlord of the premises and the rent is being paid to them. Therefore, this court is of the considered view that for the purpose of clause (e) of proviso to subsection (1) of section 14 of Act 59 of 1958 the petitioners are the owner of the premises.
According to the respondent there is triable point regarding the bona fide necessity of the petitioner. It is contended on behalf of the respondent that it is the desire of the petitioner to hold the property by hook or crook and not the bonafide requirement of the premises for petitioner no.
1 for opening of his projected plush restaurant. It is also contended on behalf of the respondent that the petitioner no.1 can start his projected restaurant from the other portion in the entire suit property and no commercial premises is required by the petitioner no.1 for fulfilling his project of a restaurant. Therefore, the petitioner no.1 has reasonable, suitable, sufficient accommodation available for his alleged bonafide need.
In the considered opinion of the court this contention of the respondent is without merit and cannot be sustained, as the petitioner no.1 is the owner and landlord of the premises. The law is well settled that in so far as the question of necessity is concerned the landlord is the best judge of his necessity and tenant cannot dictate the terms to the landlord that what to E. No. 668/14/10 Page No. 20 of 25 do and what not to do.
The petitioner no.1 is a MBA by profession and want to start his independence business by establishing plush restaurant in his own property. Therefore, in view of the court he has every right to run his affairs in the manner he wants to run including to start a restaurant as per choice and interest. The law is also well settled that if a person wants to start a new occupation/profession, his decision cannot be challenged on the ground that such person has no experience in respect of the business he wants to commence. In the absence of any substantial material brought before the court or pointed out by the respondent in his affidavit it cannot be said that the present application for eviction is actuated by mala fide and has not been made with bona fide intention. Merely stating in the affidavit that the application for eviction has been made with mala fide intention is not sufficient to sustain the contention of the respondent. The court is satisfied that there is no triable point between the parties on this aspect of the case.
The plea of the respondent that the petitioners are having many other properties in their possession in the form of alternate accommodation is of no relevance as landlord sues for additional accommodation in the same building by seeking the eviction from the suit property being situated at ground floor for meeting out the requirement of additional accommodation for his restaurant, which he is planning to open in the suit property since last so many years, therefore, the requirement of E. No. 668/14/10 Page No. 21 of 25 the petitioner could not be met from one shop at ground floor which is under his occupation and the same is kept unused for opening of restaurant.
Further owning other alleged properties by the petitioners elsewhere either in Delhi or outside are not material in the present case as the requirement of the petitioner is of a tenanted portion on the ground floor in the suit property. Further, nothing has been brought on record by the respondent about any ownership or existence of any commercial building / alternative accommodation with the petitioners in Delhi.
The other plea of the respondent that the petitioners have not taken any permission from the Civic authorities regarding starting of restaurant. This plea is also not tenable in view of the settled preposition of law that permissions can only be applied for and obtained after possession of the premises is taken over by the landlord. Therefore, obtaining civic permission prior to the filing of eviction petition is not an essential pre requisite. In the case in hand also, the petitioners are not required to obtain and file civic permissions and licences required for establishing a restaurant in the suit premises before obtaining possession.
The another plea of the respondent that for making structural changes, no permission from slum department or MCD are obtained by the petitioners. In this regard, it is pertinent to mention here that in eviction petition no. E542/14/10 filed by petitioner against tenant Seth and Sons wherein it is already held that no permission is required by the petitioners E. No. 668/14/10 Page No. 22 of 25 for making changes in the suit premises under the respective laws before obtaining the possession of the suit premises. Therefore, there is no triable point on this aspect.
The another plea of the respondent is that project report filed by the petitioner no.1 is false and fabricated only to obtain the eviction is found to be of no relevance as in view of the law that landlord is not required to file a project report of the business that he intend to start.
Reliance is placed on case law Ram Babu Aggarwal Vs. Jai Kishan Dass 2010 (1) SCC 164.
The another plea of the respondent that petitioner no.1 is having no experience to start and run the restaurant is also of no use as in view of the law that one can start a new business even if of no experience.
Reliance is placed on case law Ram Babu Aggarwal Vs. Jai Kishan Dass 2010 (1) SCC 164. Further, it is no part of the Court to examine whether business to be set up would be useful or not.
The another plea of the respondent is that there is no parking space available in front of the suit property, therefore, in absence of the parking space, the restaurant would not run properly. To this, it is already observed in eviction petition no. E542/14/10 filed by petitioner against tenant Seth and Sons from the pleadings of the parties that there are two huge parking lots, one of railway and other belonging to MCD within a E. No. 668/14/10 Page No. 23 of 25 radius of 200 sq. yards of the said premises. Therefore, this plea of the respondent is not tenable in view of the availability of two general parkings within the vicinity as well as in light of law that tenant cannot dictate the terms to the landlord.
The last plea of the respondent is that the suit is barred by resjudicata is not tenable, as the ground for bonafide requirement is a recurring cause and subsequent eviction petition even withdrawal of the earlier eviction petition on the same ground without permission of the Court cannot be barred by the principles of resjudicata.
As per the provisions of section 25B of Act 59 of 1958 a tenant shall be entitled to leave to contest the petition for eviction if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the grounds specified in clause (e) of proviso to subsection (1) of section 14 of Act 59 of 1958.
Even if there is any issue the same is insignificant and does not entitle the respondent from seeking leave to contest the application for eviction.
In view of above discussion having gone through the contents of the affidavit and counter affidavit of the parties and the documents filed by them, this court is of the considered view that there is no triable issue between the parties which entitles the respondent for leave to contest the E. No. 668/14/10 Page No. 24 of 25 present application for eviction. The application for leave to contest is without merit and the same is dismissed.
As an off shoot of the dismissal of the application for leave to contest made by the respondent, the petitioner is found entitled to recover the possession of the premises Shop Mpl. bearing no. 1646, Shayama Prasad, New Delhi Marg, Delhi110006 as shown in grey colour enclosed in red line in the site plan attached with the petition for eviction. The application for eviction is allowed. In the facts and circumstances of the case there shall be no order as to costs. File be sent to records.
In view of the provisions of subsection (7) of section 14 of Act 59 of 1958 this order for recovery of possession of premises shall not be executed before the expiration of a period of six months from this date.
Announced in the open court (Sunil Kumar)
on this 28th day of August, 2015 ARC02/Central/Tis Hazari Courts
28.08.2015
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