Delhi District Court
Sh. Mulak Raj vs Sh. Bishambar Dayal & Sons on 9 February, 2016
In the Court of Sh. Rajinder Kumar : Additional Rent Controller-02, Central District,
Tis Hazari Courts, Delhi.
E. No. 1096/14/11
Unique ID No. 02401C0424222011
In the matter of:
1. Sh. Mulak Raj,
S/o Late Sh. Panna Lal
R/o 1226, Second & Third Floor,
Chandni Chowk, Delhi-110006
2. Sh. Deepak Kumar,
S/o Sh. Mulak Raj,
R/o Kh. No. 188-189,
Sultan Pur, M.G. Road,
New Delhi-110030
3. Sh. Mukesh Kumar
S/o Sh. Mulak Raj
R/o C-734, Sushant Lok-I,
Gurgaon, (Haryana)
4. Sh. Sunil Kumar Kamboj,
S/o Sh. Mulak Raj,
R/o C-528, Sushant Lok-I,
Gurgaon, (Haryana)
(Through his General Attorney &
brother Sh. Mukesh Kumar) ................... Petitioners
VERSUS
1. Sh. Bishambar Dayal & Sons
Shop No. 1222, Kachha Bagh,
Chandni Chowk, Delhi-110006
2. Sh. Ashok Kumar,
S/o Late Sh. Panna Lal,
R/o, C-682, New Friends Colony,
Delhi-110064 .................... Respondents
E. No. 1096/14/11 Page no.1/10
Date of Institution : 13.09.2011
Date of Arguments : 02.02.2016
Date of Order : 09.02.2016
ORDER:
1. This order shall decide the question whether the respondents be granted leave to contest the present application under clause (e) of proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as ''Act 59 of 1958'').
2. The brief facts for the decision of the application are that Late Sh. Panna Lal purchase the suit premises from the Government of India and vide Will dt. 18.11.1986, the same devolved in favour of the petitioners and the respondent no.2. That now the petitioners have become the joint owners. That the suit premises are bona-fidely require by the petitioners for carrying out their business activities from it. That in view of the order of Hon'ble Supreme Court, the petitioners were left with no option and to avoid the hammer of sealing, they have closed down the premises E-20, South Extension, Part-I. That the petitioner no.1 is aged about 80 years and residing on the second and third floor of the suit premises which is meant for residential purpose. That the sons of the petitioner no.2 are dependent on their father for business and have no other suitable business accommodation with them in Delhi. That the sons of the petitioner no.3 are dependent on their father for business premises and have no suitable business accommodation with them in Delhi. That the petitioner no.4 alongwith the his family wants to return back in India and to settle in Delhi.
3. By filing leave to defend application alongwith affidavit, it is contended by the respondents that the respondent is a partnership firm of which the defendant is one of the partners. That the second and third floor of the property in dispute is lying vacant which can be used by the petitioner for commercial purposes being in Chandni Chowk. That the sons of the petitioner no.2 Sh. Amit Kamboj and Rahul Kamboj are carrying their business at Gurgaon which is not disclosed by the petitioners. That the sons of petitioner no.3 are not the family members and are living separately and Gaurav Kamboj is living in Australia for the last more than 15 years. That the second son of the petitioner no.3 is carrying on E. No. 1096/14/11 Page no.2/10 separate business from his shop at Chandni Chowk. That none of the sons of the petitioner no.3 dependent upon him for business. That the petitioner no.4 has shifted and settled Australia with his family. That there is no requirement of the petitioner. That accordingly, the application be allowed.
4. The application is contested by the petitioners by way of a written reply supported by affidavit of the petitioner no.1 wherein it is stated that the petitioners are entitled to eviction of the respondents from the premises as the same is required by the petitioner no.1, who is aged about 80 years and residing on the second and third floor of the suit premises which is meant for residential purpose. That the sons of the petitioner no.2 are dependent on their father for business and have no other suitable business accommodation with them in Delhi. That the sons of the petitioner no.3 are dependent on their father for business premises and have no suitable business accommodation with them in Delhi. That the petitioner no.4 alongwith the his family wants to return back in India and to settle in Delhi. That the application for leave to contest and the affidavit whereby no triable issues are raised and is liable to be dismissed and the petitioners are entitled to relief as claimed under section 14 (1) (e) of Act 59 of 1958.
5. To the reply of the petitioners, affidavit has been filed on behalf of the respondents wherein the contentions raised by way of the application for leave to defend have been reiterated and re-affirmed.
6. I have heard counsel for the parties and gone through the material on record carefully.
7. Having drawn my attention on the contents of the application for leave to contest, affidavit of the respondents, affidavits of the petitioners and law laid down in Khem Chand & Ors. Vs. Arjun Jain & Ors. 202 (2013) DLT 613 and Tarun Pahwa Vs. Pradeep Makin 2013 (1) CLJ 801 Del., it is submitted by counsel for the respondents that the present application for eviction has been made by the petitioners not for bona fide reasons but due to malafide reasons as none of the petitioners require the premises bona fide for themselves as they already have sufficient accommodation available with them. It is also submitted by counsel for the respondents that he has raised several triable issues in his affidavit and if the E. No. 1096/14/11 Page no.3/10 respondents are allowed to lead evidence on those issues, the petitioners shall be disentitled from recovering the possession of the premises from the respondents. It is further submitted by counsel for the respondents that the application for leave to contest be allowed.
Per-contra, having drawn my attention on the application for eviction, affidavit of the petitioner no.1, documents filed on behalf of the petitioners in support of the application for eviction, it is submitted by Ld. counsel for the petitioners that they are the owner and landlord of the premises and require premises bona-fidely for the petitioner no.1, who is aged about 80 years and residing on the second and third floor of the suit premises which is meant for residential purpose. That the sons of the petitioner no.2 are dependent on their father for business and have no other suitable business accommodation with them in Delhi. That the sons of the petitioner no.3 also are dependent on their father for business premises and have no suitable business accommodation with them in Delhi. That the petitioner no.4 alongwith the his family wants to return back in India and to settle in Delhi. It is further submitted by counsel for the petitioners that no other reasonably suitable accommodation is available with the petitioners and therefore, the application for eviction be allowed and the application for leave to contest made by the respondents be dismissed.
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 sub-section (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 t he 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 :
E. No. 1096/14/11 Page no.4/10 Explanation. For the purpose of this clause, "premises let for residential purposes"
include any premises which having been let for use as a residence 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 sub-section (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 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 E. No. 1096/14/11 Page no.5/10 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:
The 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 sub sec. (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 subsec. (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 E. No. 1096/14/11 Page no.6/10 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 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 High Court of Delhi 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. 1096/14/11 Page no.7/10
8. In the present case, the respondents have sought leave to contest the application for eviction mainly on two grounds, namely, (1) that the petitioners are having sufficient accommodation available with them (2) that the requirement of the petitioners are not bona-fide.
In the application for leave to contest, the respondents have not disputed the fact that they were not the tenants under the petitioners and also that the petitioners were not the landlord/Owner of the premises and the rent is being paid. Therefore, in the light of the pleadings of the parties and other material placed before this court, in so far as the purpose of clause (e) of sub-section (1) of section 14 of Act 59 of 1958 is concerned, the petitioners are found to be the owner of the premises and it is also found that there exists relationship of landlord and tenant between the parties. It is also pertinent to mention here that the respondent no.2, 3 & 4 were advocates by profession.
The respondents also relied upon Sudhakar Singh Vs. Sunil Batra 192 (2012) Delhi Law Times 491, Arjun Uppal & Anr. vs. Seth & Sons Pvt. Ltd. 193 (2012) Delhi Law Times 115, Hindustan Zinc Ltd. Vs. Lt. Col. Satya Pal Wadhwa & Anr. 194 (2012) Delhi Law Times 244, Jawahar Lal Vs. Ravinder Kumar Khanna & Anr. 195 (2012) Delhi Law Times 239, Prahlad Rai Mittal Vs. Rita Devi 196 (2013) Delhi Law Times 703, Jagdish Lal Khorana Vs. Hemant Arora, Copal Dass, Ram Avtar & Devi Chand 196 (2013) Delhi Law Times 49 (CN), Ganga Dass Vs. D.N. Singhal & Anr. 196 (2013) Delhi Law Times 73A (CN), Deepak Gupta Vs. Sushma Aggarwal 202 (2013) Delhi Law Times 121, Rampat Vs. Ganga Devi 217 (2015) Delhi Law Times 568, Nitin Garg Vs. Naresh Kumar Arora & Anr. in CM(M) 1164/2009 dt. 23.10.2009 of the Hon'ble High Court of Delhi, S.K. Seth & Sons Vs. Vijay Bhalla 191 (2012) Delhi Law Times 722, Harcharan Singh Vs. Neeraj Sahu & Anr. 190 (2012) Delhi Law Times 625, Ramesh Chand Agarwal Vs. Munshi Lal RC. Rev.25/2013 and C.M. No.865/2013 (stay) decided on 21.08.2014 by the Hon'ble High Court of Delhi.
9. According to the respondents there are triable points regarding the bonafide necessity of the petitioners. It is also contended on behalf of the respondents that none of the sons of the petitioners are depdendent upon them and the petitioners are already having E. No. 1096/14/11 Page no.8/10 sufficient accommodation available with them.
It is well settled law that it is the petitioner himself/ herself, who is the best person to explain as to what is his/ her bona-fide necessity. As per the petitioners, in the case in hand, the suit premises is required by the petitioner no.1, who is aged about 80 years and residing on the second and third floor of the suit premises. That the sons of the petitioner no.2 & 3 are dependent on their father for business and they have no suitable business accommodation with them in Delhi. That the petitioner no. 4 alongwith his family intend to come back to India and further to settle down in Delhi.
So far as the contention of the respondents that the petitioners are having sufficient accommodation available with them and that the requirement of the petitioners are not bona-fide, the petitioners have already disclosed about the availability of the premises with them alongwith details of the persons for whom the premises were required bona-fide. It is already mentioned by the petitioners that the petitioner no.1 alongwith petitioner no.4 and the respondent no.2 jointly were carrying on the business under the name and style M/s Panna Lal Roshan Lal Jewellers Pvt. Ltd. and that the said business was closed down because of the directions of Hon'ble Apex Court to the MCD. The respondents have failed to show which were the properties available with the petitioners to meet out their requirements including those of the dependent sons and also that of the petitioner no.4.
10. In the considered opinion of the court, the contentions of the respondents are without merit and cannot be sustained as the petitioners are 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 he has got complete freedom in the matter. Therefore, a tenant cannot dictate the terms to the landlord regarding his necessity.
The petitioners have pleaded the bonafide requirement of the suit premises on the grounds that same is required by the petitioner no.1, who is aged about 80 years and residing on the second and third floor of the suit premises, for the sons of the petitioner no.2, sons of petitioner no.3, who are dependent upon the respondent no.2 & 3 respectively and also for the petitioner no.4, who alongwith his family wants to return back in India and to settle in Delhi. That the petitioners are not having any other alternate accommodation except the suit premises.
E. No. 1096/14/11 Page no.9/10 The petitioner no. 4, who intends to come back to India and further to settle down in Delhi cannot be left at the mercy of the respondents.
In the absence of any substantial material brought before the court or pointed out by the respondent in the 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 affidavits that the application for eviction has been made with mala fide intention is not sufficient to sustain the contention of the respondents. The court is satisfied that there is no triable point between the parties.
As per the provisions of section 25-B 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 sub-section (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 and the documents filed by the parties, 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 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 respondents, the petitioners are found entitled to recover the possession of premises, i.e. 1222, Ground Floor, Kachha Bagh, Chandni Chowk, Delhi-110006, as shown in red colour in the site plan annexed with the application for eviction. The application for eviction is allowed. In the facts and circumstances of the case there shall be no order as to costs.
In view of the provisions of sub-section (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.
(Rajinder Kumar)
Announced in the open court Additional Rent Controller-02/
on this 9th February 2016 Central/Tis Hazari Courts
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