Delhi District Court
Smt. Sadhna Tyagi vs Mohd. Farukh on 7 January, 2019
IN THE COURT OF SUDHIR KUMAR SIROHI, ACJ/CCJ/ARC SHAHDARA,
KARKARDOOMA COURTS,DELHI.
ARC. No. 150/18
Smt. Sadhna Tyagi
W/o Sh. Sandeep Tyagi
R/o X/4035, Gali no. 15,
Shanti Mohalla, Gandhi Nagar, Delhi 110031.
(Through her General Power of Attorney/husband
Sh. Sandeep Tyagi) ..... petitioner
VERSUS
Mohd. Farukh
S/o Chhiddu
R/o X/4104, (also known as X/4104A),
Gali no. 15, Shanti Mohalla,
Gandhi Nagar, Delhi 110031 .....respondent
Date of institution : 10.04.2018 Date of order : 07.01.2019 ORDER ON LEAVE TO DEFEND THE FACTS:
1. The present petition U/Sec. 14 (1) (e) of Delhi Rent Control Act, 1958 has been filed by the petitioner against the respondent. Petitioner averred that petitioner is the owner/landlady of the property bearing house No. X/4104 (also known as X/4104A), forming part of plot no. X/4104, Gali no. 15, Shanti Mohalla, Gandhi Nagar, Delhi 110031. The property bearing house no. X/4104 (also known as X/4104A), Gali no. 15, Shanti Mohalla, Gandhi Nagar, Delhi 110031, which is a single storey building measuring about 55 sq. yards, (hereinafter referred to as ARC. No. 150/18 Smt. Sadhna Tyagi Vs. Mohd. Farukh Page 1/14 tenanted premises) was let out to respondent by its erstwhile owner namely Late Sh. Raj Kumar and the tenanted premises had been purchased by petitioner from its owner, Late Sh. Raj Kumar vide registered sale deed dt. 02.03.2010 registered no. 3229 in additional Book no. 1 vol. no. 4464 on pages 126 to 131.
2. It is further averred that the respondent had filed a suit for injunction against the petitioner herein and other persons, titled as "Mohd. Farukh Vs. Vishal & Anr." bearing civil suit no. 272 of 2011, in which he has admitted the factum of ownership of petitioner over the tenanted premises and tendered entire arrears of rent to petitioner at the rate of Rs. 550/ p.m. The same suit was finally disposed off by the court of Sh. Nipun Awasthi, Ld. A.C.J., East District, karkardooma Courts, Delhi. The said shop is required bonafide by the petitioner for her husband, Sh. Sandeep Tyagi, who has no place to run his business and wants to open his own independent shop cumgodown for his business. The husband of the petitioner has no other personal, reasonable, suitable commercial premises at his disposal to carry on his business. In the absence of any proper place to start his business, petitioner being the wife of Sh. Sandeep Tyagi is duty bound to settle and help her husband.
3. It is also averred that earlier, husband of the petitioner was doing the business of export surplus of cloths under the name and style of M/S kailash Fabrics from the premises, i.e. X/S3445, Gali no. 1, opp. Gali no. 12, Shanti Mohall, Delhi but due to heavy financial losses, the same shop was closed about 78 years back and since then, he is supplying the material from door to door as he has no place to store or display the material. Moreover, he has no place for storage or godown for keeping the goods. To carry on his business, he requires a proper place for display and storage of goods. He is totally dependent on ARC. No. 150/18 Smt. Sadhna Tyagi Vs. Mohd. Farukh Page 2/14 petitioner but due to lack of space, he is running his business at the petitioner's house and due to the same, lot of problems are coming in his way, as a result whereof he is unable to boost his business.
4. It is further averred that besides the tenanted premises, petitioner is having other property bearing no. X/4035, Gali no. 15, Shanti Mohalla, Gandhi Nagar, Delhi 110031, which is a three storey building. On the ground floor, there are three shops which are under occupation of tenants on the first floor also, there are three shops cumoffices which are under occupation of tenants and on the second floor, petitioner is residing with her family. It is submitted that rental income from the abovesaid shops is the only source of income of petitioner and her family.
5. It is further averred that tenanted shop is open towards the main road which connects three roads and where business activities are flourishing and footfall of customers is more than the property where petitioner is residing. The tenanted premises is situated in the vicinity where the commercial activities are more and goods for business. Thus, the tenanted premises which is in occupation and possession of the respondent is best suitable premises to open a shop and godown purpose for husband of petitioner.
6. It is further averred that petitioner approached respondent number of times with a request to evict the shop in question as the same is required by petitioner for the abovesaid purpose and also showed the bonafide requirement of the petitioner for the said shop but the respondent inspite of realizing the bonafide need of the petitioner, avoided the issue on one pretext or the other, hence the petitioner has filed the present eviction petition.ARC. No. 150/18 Smt. Sadhna Tyagi Vs. Mohd. Farukh Page 3/14
7. Notice of this eviction petition was sent to the respondent in the prescribed format which was duly served on the respondent. In response to which the respondent had filed leave to defend application within limitation period.
8. Respondent in leave to defend application averred that the petition has filed the present petition with malafide intention only to harass and for wrongful need. Respondent has further averred that the husband of the petitioner is working with relatives printing press and he does not require the premises in question. Respondent further averred that the petitioner has more vacant shops cumoffices in premises bearing no. X/4305, Gali no. 15, Shanti Mohalla, Gandhi Nagar, Delhi31 and petitioner wants to sell the tenanted premises. Respondent further averred that the building is four storey building and not three storey as mentioned by the petitioner. Moreover, there are three shops on the ground floor, three shopscumoffices on the first floor but the petitioner mention other shops cumoffices in the building.
9. Reply of leave to defend was filed by the petitioner in which he denied the averments in leave to defend.
10. Ld. counsel for the petitioner has filed the following judgments:
(a) Anil Bajaj Vs. Vinod Ahuja Air 2014 SC 2294 and
(b) Sarla Ahuja Vs. United Insurance Pvt. Ltd. 1998 (8) SCC 119
11. Ld. counsel for the respondent has filed the following judgments:
(a) Giri Raj Vs. Sheela Devi 2014 (2) CLJ 154 Del and ARC. No. 150/18 Smt. Sadhna Tyagi Vs. Mohd. Farukh Page 4/14
(b) Vinod Kumar & Anr. Vs. Ajay Kumar Singhal 2016 (3) CLJ 239 Del.
12. I have heard Ld. Counsels for the parties at length and gone through the records and judgments.
The Law:
13. Before proceeding further it would be worthwhile to note that Chapter IIIA of Delhi Rent Control Act deals with summary trial of certain Applications expressly stating that every application by a landlord for recovery of possession on the ground specified in clause (e) of the proviso to sub section (1) of Section 14 of the Act, or under Section 14A or 14B or 14C or 14D shall be dealt with in accordance with the special provisions prescribed in Section 25B of the Act. The provisions in Chap. IIIA confer a real, effective and immediate right to obtain possession by confining the trial only to such cases, where the tenant has such a defence as would disentitle the landlord from obtaining an order for eviction under s.l4(1)(e) or under Sec. 14A. Chap. IIIA seeks to strike a balance between the competing needs of a landlord and a tenant and has therefore provided that the tenant shall have a right to apply for leave to contest. As per the broad scheme of this Chapter a tenant is precluded from contesting an application filed for eviction on the grounds mentioned in the aforementioned provisions unless he obtains leave from the Controller to contest the eviction petition. In default of obtaining leave to defend or leave is refused to him an order of eviction follows. It appears recourse to summary trial is adopted having due regard to nature of the grounds on which the eviction is sought with a view to avoid delay so that the landlord should not be deprived or denied of his right to immediate possession of premises for his bona fide use.The defence must also be bonafide and if true, must result in the dismissal of landlord's application. Defences of negative ARC. No. 150/18 Smt. Sadhna Tyagi Vs. Mohd. Farukh Page 5/14 character which are intended to put the landlord to proof or are vague, or are raised mala fide only to gain time and protract the proceedings, are not of the kind which will entitle the tenant to the grant of leave. The Controller cannot set down the application for hearing without making an order in terms of subs. (5) of s. 25B. The trial must be confined only to such grounds as would disentitle the landlord to any relief.
14. But at the same time, it is well settled and accepted position in law that no one shall be subjected to suffer a civil consequence like eviction from a premises resulting in hardship to him without providing adequate and effective opportunity to disprove the case against him and establish his case as pleaded.
15. Further, as is evident from Section 25B(4)&(5) of the Act, burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in clause (e) of the proviso to Section 14(1) of the Act, then the same are good enough to grant leave to defend.
16. At the stage of seeking leave to defend, it is enough if he prima facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. It would not be a right approach to say that unless the tenant at that stage itself establishes a strong case as would nonsuit the landlord, leave to defend should not be granted when it is not the requirement of Section 25B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act. Leave to defend cannot be ARC. No. 150/18 Smt. Sadhna Tyagi Vs. Mohd. Farukh Page 6/14 refused where an eviction petition is filed on a mere design or desire of a landlord to recover possession of the premises from a tenant under clause (e) of the proviso to subsection (1) of Section 14, when as a matter of fact the requirement may not be bona fide. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to him and his family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction. At the stage of granting leave to defend, parties rely on affidavits in support of the rival contentions. Assertions and counter assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend were either frivolous, untenable or most unreasonable. The ground under clause (e) of the proviso to subsection (1) of Section 14 enables a landlord to recover possession of the tenanted premises on the ground of his bona fide requirement. This being an enabling provision, essentially the burden is on the landlord to establish his case affirmatively. In short and substance, wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the Rent Controller by the statute itself to grant leave. At the stage of granting leave the real test should be whether facts disclosed in the affidavit filed seeking leave to defend prima facie show that the landlord would be disentitled from obtaining an order of eviction and not whether at the end defence may fail. It is well to remember that when a leave to defend is refused, serious consequences of eviction shall follow and the party seeking leave is denied an opportunity to test the truth of the averments made in the eviction petition by crossexamination. It may also be noticed that even in cases where leave is granted provisions are made in this very Chapter ARC. No. 150/18 Smt. Sadhna Tyagi Vs. Mohd. Farukh Page 7/14 for expeditious disposal of eviction petitions. Section 25B(6) states that where leave is granted to a tenant to contest the eviction application, the Controller shall commence the hearing of the application as early as practicable. Section 25B(7) speaks of the procedure to be followed in such cases. Section 25B(8) bars the appeals against an order of recovery of possession except a provision of revision to the High Court. Thus a combined effect of Section 25B(6), (7) and (8) would lead to expeditious disposal of eviction petitions so that a landlord need not wait and suffer for long time. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship.
17. Further, it is immaterial at this stage 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. In this view a balanced view is to be taken having regard to competing claims.
18. Further, it is held time and again by Hon'ble Supreme Court that 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. 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 ARC. No. 150/18 Smt. Sadhna Tyagi Vs. Mohd. Farukh Page 8/14 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.
19. In order to suceed in the cases U/Sec. 14(1)(e) of D.R.C. Act, the petitioner is required to prove the following ingredients:
(a). Ownership in respect of tenanted premises;
(b). Relationship of landlord and tenant between the parties;
(c). Petitioner bonafidely requires the tenanted premises;
(d). Petitioner does not have any other alternative accommodation with him/her.
The Findings:
20. With this background, this court turns to the facts of the case in hand. The respondents has raised many issues in the leave to defend application which have been stated to be triable issues. At this stage, it would be appropriate to note that each individual petition decision depends on the peculiar facts, circumstances and material placed on record in that particular petition.
Ownership and relationship of landlord and tenant:
21. The respondent has not denied the landlord tenant relationship and even in the para 2nd of leave to defend he has admitted that he paid the rent of Rs. 41250/ for the period of March 2010 to May 2016. The meaning of word owner ARC. No. 150/18 Smt. Sadhna Tyagi Vs. Mohd. Farukh Page 9/14 vis a vis the tenant is that the owner should be sometime more than the tenant (Milk Food Ltd. V. Kiran Khanna, 51 (1993) DLT 141 (Delhi). Accordingly, the landlord and tenant relationship between the petitioner and respondent and the ownership of the petitioner has been established. The property was purchased on 26.02.2010 by petitioner and petition was filed on 10.04.2018 so bar of Section 14 (6) DRC Act is not applicable.
Bonafide Requirement as well as alternative accommodation:
22. The respondent has taken the plea that the husband of the petitioner is working with his relatives printing press. Petitioner in his reply to leave to defend has denied the said fact. Respondent has not filed any documentary proof to show that husband of the petitioner is working in printing press, moreover, neither the address nor the name of the printing press has been mentioned by the respondent, therefore, it is bare statement of the respondent without any proof, accordingly, it does not raise a triable issue.
23. The respondent has further averred that the petitioner has more vacant shop cum offices in the premises bearing no. X/4305, Gali no. 15, Shanti Mohalla, Gandhi Nagar, Delhi31 and the building is four storey building and not three storey as mentioned by petitoner. The petitoner in his petition himself has mentioned that the petitioner is having another property bearing no. X/4305, Gali no. 15, Shanti Mohalla, Gandhi Nagar, Delhi31 which is three storey building consisting of ground floor having three shops under occupation of tenants, on the first floor there are three shops cum offices which are under occupation of tenants and on the second floor the petitioner is residing with her family. The respondent has filed the site plan of the basement, ground floor, first floor, second floor and third floor of the property bearing no. X/4305, Gali no. 15, ARC. No. 150/18 Smt. Sadhna Tyagi Vs. Mohd. Farukh Page 10/14 Shanti Mohalla, Gandhi Nagar, Delhi31 but he has only mentioned shops on the ground floor and they are three in number. The site plan of the respondent is given identification mark R1 at the time of this order. On the first floor, second and third floor, the respondent has mentioned only halls and rooms but no shops or office has been mentioned on first, second and third floor as per site plan of the respondent. The petitoner in his reply to leave to defend has mentioned has denied the fact that they are more vacant shopscumoffices in the property bearing no. X/4305, Gali no. 15, Shanti Mohalla, Gandhi Nagar, Delhi31. It is admitted position that there are three shops on the ground floor and the petitoner has mentioned in the petition itself that all the three shops on the ground floor are under tenancy of tenants. Respondent in the leave to defend also not averred that any of the shop on the ground floor is vacant. Petitioner's husband wants to open a shop and godown of clothes in the tenanted premises and it is well settled law that a shop on a first and second floor can not attract the same number of customers and earned the same business as a shop on ground floor would do as held in the judgment of Dhanna Lal Vs. Kalawati Bai 2002 Law Suit (SC) 614. It is the admitted position that the tenanted premises is open towards main road which connects to three roads. Therefore, the tenanted premises being property on ground floor can fetch more customers than the property on upper floors. Therefore, even if for the sake of arguments it is considered that the petitioner is having vacant space on upper floors then the same is not suitable alternative accommodation and in the whole leave to defend the respondent has nowhere mentioned that except the tenanted premises the petitoner has any vacant shop on the ground floor. In addition to this even the respondent has not mentioned in the leave to defend which office cum shop on the upper floors are vacant nor showed vacant shop cum office in the site plan Mark R1, therefore, this defence of respondent does not raise any triable issue.
ARC. No. 150/18 Smt. Sadhna Tyagi Vs. Mohd. Farukh Page 11/14Respondent has also taken defence that the petitioner wants to sell the said tenanted premises, in such situation, the remedy of Section 19 of DRC Act is always available to the respondent. Accordingly, this plea also does not raise a triable issue.
24. The fact remains that the petitioner is the best judge of his own requirements as also held by the Hon'ble Supreme Court time and again. It was held in Pavitra Devi (Smt.) vs. T.V. Krishnan (1996) 35 SCC 353; that the landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own. Moreover, in the judgment titled as Ragavendra Kumar v. Firm Prem Machinary [AIR 2000 S.C.534] the Hon'ble Supreme Court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter.
25. Furthermore, In the judgment tiled as "Sarla Ahuja v. United India Insurance Co. Ltd." [AIR 1999 S.C. 100] it was held:
"...The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the ARC. No. 150/18 Smt. Sadhna Tyagi Vs. Mohd. Farukh Page 12/14 landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself...."
26. As such, I hold that the requirement of the petitioner to run shopcum godwon of clothes for her husband is bonafide requirement and there is no reason for the court to find any malafide intention behind the same on this account. Moreover, respondent have also failed to show that the petitioner has other suitable accommodation for her bonafide requirement.
27. Therefore, in view of above mentioned position of law, the present contention of the respondent does not raise any triable issue of such a nature that would disentitle the landlord from obtaining an order for the recovery of possession of the suit premises.
Conclusion:
28. In view of the above discussion, I am of the considered opinion that no purpose would be served, even if, the petitioner is compelled to appear in the witness box. The position would be no different than it is today. For this reason also, I find no triable issue in the leave to defend application of the respondents.
29. Thus, if the court is satisfied that though in the pleadings, an issue is raised but that is not a triable issue, then the court is justified in refusing the leave to defend. The defence, which is practically a Moonshine, sham or illusory ARC. No. 150/18 Smt. Sadhna Tyagi Vs. Mohd. Farukh Page 13/14 cannot be held to be raising a triable issue, as the whole purpose behind enacting a provision for granting leave to defend, and not permitting a contest unless leave was granted, would stand defeated.
30. In the facts and circumstances of the case noticed herein above, it is clear that the respondent has failed to raise any triable issues.
31. For the foregoing reasons, the application seeking leave to defend is hereby dismissed and as a necessary consequence thereof an eviction order is passed in favour of the petitioner and against the respondent for his eviction from X/4104, Gali no. 15, Shanti Mohalla, Gandhi Nagar, Delhi 110031, as shown in red in site plan filed with the petition, which is marked as Mark P 1 (put by the court for the purpose of identification). However, in the light of Section 14 (7) of the DRC Act, the aforesaid eviction order shall not be executable for a period of six months from the date of this order. The parties are left to bear their own costs. File be consigned to the Record Room after due compliance.
Announced in open Court (SUDHIR KUMAR SIROHI)
today on 07.01.2019 ACJ/CCJ/ARC/Shahdara
Karkardooma Courts/Delhi
Digitally signed
by SUDHIR
KUMAR SIROHI
SUDHIR Location:
Shahdara,
KUMAR ACJ/ARC/CCJ
KKD Courts,
SIROHI Delhi
Date:
2019.01.07
16:08:31 +0530
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