Delhi District Court
Sh. Mukesh Kumar Garg vs Sh. Surinder Sethi on 7 April, 2018
IN THE COURT OF SH. NAVJEET BUDHIRAJA, ACJ/CCJ/ARC(WEST),
TIS HAZARI COURTS, DELHI
E. No. 26110/16
Date of Institution : 04.06.2015
Date of Decision : 07.04.2018
Sh. Mukesh Kumar Garg
S/o Sh. S.N. Garg
R/o A95, Shivaji Vihar,
New Delhi ........... Petitioner
Versus
Sh. Surinder Sethi
S/o Late Sh. L.D. Sethi
R/o B59, Tagore Garden Extn.,
New Delhi.
Also at :
WZ275C, shop No.3 ,
Shivaji Vihar
Opp. Shivaji Enclave,
New Delhi110027. ...... Respondent
Order on the application under Section 14 (1) (e) of Delhi Rent Control Act, 1958
1. This order is in respect of leave to defend application filed on behalf of respondent in the eviction petition filed on behalf of petitioner u/s 14 (1) (e) of Delhi Rent Control Act, 1958 (DRC Act).
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2. Facts as adumbrated in the petition are as follows: " This petition is in respect of premises WZ275C, Shop no.3, Shivji Vihar, New Delhi110027 (hereinafter referred to as tenanted shop) which was let out to the respondent for commercial purposes at the rate of Rs.2500/ per month w.e.f. 01.08.2003 vide rent agreement dated 05.08.2013. The tenanted shop is required for the son of the petitioner who was aged about 19 years at the time of filing the petition and who has started his tour and travel business but has no shop for doing the same. The son of the petitioner is dependent upon him and since there is no alternative premises available, the present petition has been filed against the respondent. "
3. Leave to contest the present petition was filed on behalf of the respondent, the contents of which in brief is as follows:
"That the requirement cited by the petitioner is for additional accommodation as son of the petitioner is already running his business in the name of Gaurav Travels from D472, Raghubir Nagar, New Delhi. Petitioner has also sold 1 or 2 properties before filing of the present petition. That the respondent is in the same business of Tours and Travels and is running the same in the name of M/s Sethi Tours and Travels. The petitioner with malafide intention has endeavored to evict the respondent in order to sabotage his goodwill and reputation. That the petitioner has concealed as to how many properties are owned by him and his family members in Delhi which is a mandatory requirement of law. The said premises is a four storey building which is entirely in possession of the petitioner. The first, second and third floor of the premises are lying vacant under the lock and key of the petitioner. That the petitioner is also the owner of one shop which is adjacent to the tenanted shop and which E.No. 26110/16 Page no. 2 of 11 is also lying locked. That the petition has been filed on fallacious grounds which is not at all bonafide and thus respondent is entitled to leave to defend for adjudication of all the triable issues".
4. Reply to the abovesaid leave to defend application was also filed on behalf of petitioner wherein the petitioner countered the majority of the objections but tendered explanations with regard to some of the objections raised by the respondent which are as follows:
" That the premises bearing no.D472, Raghubir Nagar New Delhi is owned by the petitioner but the petitioner has been running a chemist shop from there for last 25 years and earning his livelihood. That the said shop is situated at a congested market place where no vehicle can be parked and thus the same is not suitable for running a Tour and Travel business. The location of the tenanted shop is best suited for running the said business."
5. Rejoinder to the reply was also filed on behalf of the respondent wherein the averments made in the leave to defend application were reprised and the contentions of the petitioner were denied.
6. Thereafter, arguments on leave to defend application were heard. Ld. Counsel for respondent ambitiously clamoured for the grant of leave to defend reprising the grounds raised in the leave to defend application. The arguments raised would be discussed in the following part of the order. Ld. Counsel for the petitioner also addressed the arguments alluding to the averments made in the petition as well as reply to leave to defend application.
Ld. Counsel for petitioner has filed certain case laws in support of E.No. 26110/16 Page no. 3 of 11 his contention. The same are as under:
(i) Jai Gopa & Ors. v. Vikas Bansal, 236 (2017) DLT 382.
(ii) Subhash Jain v. Ravi Sehgal, passed by Hon'ble Delhi High Court in RC. Rev. No. 292/2013.
(iii) Bhupinder Singh Bawa v. Asha Devi, 214 (2014) DLT 745.
(iv) Pawan @ Amit @ Tinku v. State NCT of Delih, 214 (2014) DLT 749 (DB).
(v) Neelam Chopra v. Panna Lal , passed by Ms. Kiran Gupta, Ld. Senior Civil Judge in E.No. 26/14 on 25.02.2015.
(vi) Prem Chand Sharma & Ors. v. Ram Gopal, passed by Hon'ble Delhi High Court in RC. Rev. 363/2014, decided on 18.02.2016.
(vii) Harish Chand v. Mukesh Kumar and Others, passed by Hon'ble Delhi High Court in RC. Rev. no. 22/2015, decided on 05.02.2015.
(viii) Rameshwar Dayal v. Saroj Bala Rathore and Others, passed by Hon'ble Delhi High Court in Rc. Rev. 458 of 2015, decided on 31.08.2015.
(ix) Lahorian Di Hatti v. Shyam Lal Mehar Chand Jain HUF, 214 (2014) DLT 431.
Ld. Counsel for respondent has filed certain case laws in support of his contention. The same are as under:
(i) Sh. Vinay Kumar Jain v. Sudeep Kumar Jain, passed by Hon'ble Delhi High Court in RC Rev. No. 306/2011.
(ii) Khem Chand & Ors. v. Arjun Jain & Ors. passed by Hon'ble Delhi High Court in RC Rev. No. 442/2012.
(iii) Vijay Kumar Ahluwalia & Ors. v. Bishan Chand Maheshwari & Anr. in Civil Appeal no. 1546 of 2017.
(iv) A.K. k. Nambiar v. Union of India & Anr., passed by Hon'ble E.No. 26110/16 Page no. 4 of 11 Supreme Court of India, decided on 28.10.1969.
7. In order to succeed in a petition for eviction filed under section 14(1)
(e) of the Delhi Rent Control Act, the petitioner must establish that:
(i) He is the owner and landlord in respect of the tenanted premises.
(ii) That he requires the premises bonafide for himself or for any member of his family dependent upon him.
(iii) That he has no other reasonably suitable accommodation.
The ingredients are taken up for consideration one by one.
8. (a) Petitioner is the owner and landlord in respect of the tenanted premises.
As regards the relationship of landlord and tenant between the parties is concerned there has not been any challenge on behalf of respondent. The respondent has no where denied the petitioner to be the owner/landlord of the tenanted shop. Thus, no further deliberation is required qua this aspect.
8. (b) That the tenanted premises is bonafidely required by the petitioner for himself as the owner or for any member of his family dependent upon him.
and
8. (c) The petitioner or the landlord has no other reasonably suitable residential accommodation.
E.No. 26110/16 Page no. 5 of 11 Both the ingredients are taken up together as they are interlinked.
Before delving into the above noted second aspect of the petitioner, let me reproduce the law governing consideration of leave to defend application. It is well settled that at this stage, it is only the averments of the affidavit of the leave to defend application and reply thereto, if any, which are to be considered. If the averments in the affidavit disclose such facts which would ultimately disentitle the landlord from recovery of possession that by itself, makes it obligatory upon the controller to grant leave to defend to the tenant. It is also trite that at the stage of consideration of leave to defend application, the tenant is only required to make a prima facie case and not to make out a strong case. The leave to defend application cannot be refused where eviction petition is filed with bonafide requirement. If the tenant is able to raise the triable issue, he would be entitled to grant of leave to defend by the controller. This is primarily because the rival contentions, cannot be decided by way of affidavits only and require reliable material for proof.
Though, it is also a settled law that landlord is the best judge of his preferences and choices as also he would utilize his premises and that neither the tenant nor this Court can dictate him terms, but at the same time, it is also settled principle of law that it is not on the mere asking of the landlord that tenant will be thrown out of the premises at the threshold. It is not the subjective decision of the landlord alone which would entitle him straight away to eviction order against the tenant, but the objective assessment by the controller of the bonafide requirement of the landlord.
E.No. 26110/16 Page no. 6 of 11
It is an admitted case of the petitioner that the son of the
petitioner has already started his tour and travel business. But
surprisingly petitioner has omitted to mention the place from where his son has been carrying out the said business. It is the plea of the respondent that the son of the petitioner has been carrying on his business from D472, Raghubir Nagar, New Delhi. To give teeth to this plea, respondent has also filed copy of the visiting cards of Gaurav Travels bearing the said address. The said visiting card has nowhere been disputed by the petitioner.
It was infact conceded during the arguments of leave to defend application by Ld. Counsel for petitioner that the son of the petitioner has been using the said shop for his business but it is contended that now the son of the petitioner wants his separate shop and otherwise also due to congestion in the said area there is no enough parking space which would certainly affect the business being carried on by the son of the petitioner.
In my opinion since the petitioner has failed to give further details as to since when the son of the petitioner has been running the business of tour and travel, number of persons visiting him for the said purpose, the exact width of the road which as per the petitioner is not enough for parking area, leave to defend application filed on behalf of respondent cannot be summarily rejected. Petitioner has also not specified the measurement of the said shop and there are no detail whether the son of the petitioner has been occupying any portion of the said shop which may be insufficient for him. Since, petitioner has not expostulated the E.No. 26110/16 Page no. 7 of 11 visiting card of Gaurav Travels showing the address of the said shop, it was incumbent upon the petitioner to have furnished the abovesaid information.
Petitioner has though admitted himself to be the owner of the entire building i.e. B472, Raghubir Nagar but he has not come clean as to the status of the other shops on the upper floors. Respondent has specifically claimed that there are other shops on all the floors of B472, Raghubir Nagar but except for a simple denial, petitioner has failed to reveal as to who are in occupation of all the other shops at B472, Raghubir Nagar.
In the judgment of Vijay Kumar Ahluwalia & Ors. Vs. Bishan Chand Maheshwari & Anr., 327 (2017) DLT 538, it has held as under:
"21. It is a settled principal of law that while considering the grant to leave to contest the eviction proceedings under the Rent Laws, the Authority/Court is not expected to examine the merits and demerits of the grounds raised in the application for grant of leave to contest and if the Authority/Court finds that the grounds raised prima-facie disclose a defence which, if accepted, may result in non-suiting the landlord from claiming eviction, the tenant is entitled to obtain leave to contest the eviction proceedings on merits. In this case, we find that the appellants-tenant have made out such grounds and are, therefore, entitled for grant of leave to contest the eviction proceedings filed by respondent no.1 against them on merits".
As regards the contention of Ld. Counsel for respondent that petitioner is also the owner of one shop adjacent to the tenanted shop, since the petitioner has denied the same and no material is placed on record by the respondent to prove the ownership of the E.No. 26110/16 Page no. 8 of 11 said shop in the name of the petitioner, this ground of defence is out rightly rejected.
Further, as regards other contention of the Ld. Counsel for respondent that the bonafide requirement cited by the petitioner is nothing but self induced in order to mar the reputation of the respondent who is also in the business of tours and travels, this is not sustainable at all. Respondent cannot restrain the son of the petitioner from carrying on the business of tours and travels. Son of the petitioner has all the liberties to enter into any business of his choice and merely because the son of the petitioner and the respondent are in the same business, the bonafide of the petitioner cannot be doubted.
Now the question arises whether limited leave to defend can be granted. This was answered in affirmative in the judgment of Tagore Education Society Regd. v. Kamla Tandon & Anr., RCR 31/2009 & CM 6929/2009 wherein it was held that :
"17. The relevant portion of Division Bench's judgment of this Court in Chatar Sain Goel (supra) are reproduced hereinbelow for ready reference : 3. As observed above, the learned Rent Controller granted permission to defend only on the plea that the landlord was not in occupation of reasonably suitable accommodation. 4. Feeling aggrieved, the tenant has filed the present revision petition. This came up for hearing before a learned Single Judge who has referred the same to a larger Bench because of divergent opinions in this Court on the question whether restricted leave can be granted and also because the question raised is of general importance. That is how the matter has come before us.
E.No. 26110/16 Page no. 9 of 11 "5. Section 37 of the Act controls the procedure to be followed by the Controller in disposing of the applications under the Act. Subsection(1) lays down that no order which prejudicially affects any person shall be made by the Controller under the Act without giving him a reasonable opportunity of showing cause against the order proposed to be made and until his objection, if any, and any evidence he may produce in support of the same has been considered by the Controller. Sub section (2) provides that subject to the rules that may be made under the Act, the Controller shall while holding an inquiry in any proceeding before him, follow as far as may be, the practice and procedure of a court of Small Causes, including the recording of evidence. Subsection (3) deals with award of costs, etc. By the amending Act No. 18 of 1976, the Act was amended and, inter alia, a new chapter, IIIA, containing Sections 25A, 25B and 25C was added. This chapter provides for summary trial of certain applications. Section 25B provides special procedure for the disposal of applications under Clause (e) of the Proviso to sub section (1) of Section 14. It is apparent that the purpose of introducing the provisions contained in Section 25B was to provide for speedy trial of such applications. Keeping in view this legislative intent, we find no difficulty in holding that leave could be restricted to one or more points if other points raised by the tenant were found to be without substance. It would avoid unnecessary delay in the disposal of these applications which was the intent of the legislature in incorporating these provisions.
xxxxx xxxxx xxxxx Learned counsel for the petitioner also referred to a single Bench decision of this Court in Smt. Kundan Kaur v. Sh. K.P. Verma, (1978) 2 Ren C.R. 282. At page 290, the learned Judge has observed as under : "There can be no doubt that so far as the Controller is concerned, once leave to defend the eviction petition is granted by him, the tenant cannot be restricted to particular pleas." These observations, in our view, were in the nature of obiter. It may be mentioned that the application of the tenant for permission to grant leave to defend had been E.No. 26110/16 Page no. 10 of 11 dismissed and an order of eviction had been passed. The tenant had come up in revision against that order. In the revision leave to defend was allowed but restricted to certain points. When the High Court could restrict leave to defend to one or more points there appears to be no reason why the Controller could not put similar restrictions. In any case, we are not inclined to accept the view taken in that case. 9. For these reasons we hold that leave to defend restricted to one or more points, when other points are without substance, can be granted."
Judgments relied upon by the petitioner mainly pertain to first and second ingredient of section 14 (1) (e) of DRC Act which have already been decided in favour of the petitioner.
9. Thus, having regard to the above discussion, it is held that the respondent has not been able to raise any triable issue as far as the bonafide requirement of the petitioner is concerned. However, as regards availability of suitable alternative accommodation, in the light of the above discussion, respondent has been able to raise triable issue which requires evidence to be led by both the sides.
10. Conclusion Respondent has been able to raise triable issue to a limited extent of questioning the stand of the petitioner regarding availability/nonavailability of any other suitable alternative accommodation. Thus, the leave is granted to this extent. Respondent is directed to file written Statement within 30 days from this order.
Announced in the open Court (Navjeet Budhiraja) On this 7 th day of April, 2018 ACJ/CCJ/ARC(West) E.No. 26110/16 Page no. 11 of 11