Delhi District Court
Sh. Lokesh Kumar Paliwal vs Smt. Shashi on 23 August, 2016
In the Court of Sh. Rajinder Kumar : Additional Rent Controller-02, Central District,
Tis Hazari Courts, Delhi.
E. No. 120/15
New no. 77970/16
In the matter of:
1. Sh. Lokesh Kumar Paliwal
S/o Late Sh. Om Prakash Paliwal
2. Sh. Ashok Kumar Paliwal
S/o Late Sh. Om Prakash Paliwal
Both R/o 515, Mukim Pura, Delhi-07.
3. Sh. Rakesh Kumar Paliwal
S/o Late Sh. Om Prakash Paliwal
R/o 716, Second Floor, Mukim Pura, Delhi-07. ................... Petitioners
VERSUS
Smt. Shashi
W/o Late Sh. Vijay Kumar,
R/o 515, Second Floor, Mukim Pura, Delhi-07. .....................Respondent
Date of Institution : 05.05.2015
Date of Arguments : 29.07.2016
Date of Order : 23.08.2016
ORDER:
1. This order shall decide the question whether the respondent 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 petitioners are the owners and the landlords of the suit property having purchased the same by virtue of Sale Deed dt. 30.10.1995. That the family of the petitioner no.1 comprises of 7 members and the family of the petitioner no. 2 consist of 4 members and similarly, the family of the petitioner no. 3 comprises of 4 members. That the family of the petitioner no.1 requires at least 3 E120/15 Lokesh Paliwal & Ors. Vs Shashi Page no.1/10 rooms one for himself and one each for his married sons. That the family of the petitioner no. 2 requires at least 2 rooms one for himself and the one for the studies of his two children and similarly, the family of the petitioner no. 3 requires at least 2 rooms one for himself and one for the studies of his children. That the petitioners have been forced to take two rooms on rent @ Rs.6600/- p.m in front of the suit premises since 2007. That the petitioners got possession of one room and a small store on 28.02.2013 from another tenant in Eviction petition no. 171/10. That the petitioners also require at least one common drawing room for the guest/relatives/visitors. That they also need one puja room. That the petitioner require at 10 rooms but as per the site plan the petitioner no. 1 and 2 are only having 5-6 rooms in their possession. That the suit premises are required by the petitioners for their residence and that they do not have any alternative suitable and reasonable accommodation.
3. By filing leave to defend application filed by respondent alongwith affidavit, it is contended by him that the petitioners have no locus-standi to file the petition as they are not the owner of the same. That the suit property was owned by Smt. Kisan Devi, who never executed any will or gift deed. That the petition is bad for non-joinder of necessary parties. That there are five rooms on the ground floor and six rooms on the first floor and that the petitioners are already having 11 rooms in the suit property. That the petitioners are the owners of property no. 1085, Village Poothkhurd, Delhi adjoining flour mill and H.no. 624, which is owned by the petitioners and the same is lying vacant. That accordingly, the application be allowed.
4. The application is contested by the petitioners by way of a written reply supported by affidavits of the petitioners, wherein the contents of the petition are re-iterated and re-affirmed and prayed for the dismissal of the application for the want of triable issues.
5. To the reply of the petitioners, rejoinder affidavit has been filed on behalf of the respondent, 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.
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7. Having drawn my attention on the contents of the application for leave to contest, affidavit of the respondent, affidavit of the petitioner 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 respondent 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 respondent that he has raised several triable issues in his affidavit and if the respondent is allowed to lead evidence on those issues, the petitioners shall be disentitled from recovering the possession of the premises from the respondent. It is further submitted by counsel for the respondent 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 petitioners for their residence and that no other reasonable suitable accommodation is available with them and therefore, the application for eviction be allowed and the application for leave to contest made by the respondent 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 E120/15 Lokesh Paliwal & Ors. Vs Shashi Page no.3/10 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 :
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 E120/15 Lokesh Paliwal & Ors. Vs Shashi Page no.4/10 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:
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 E120/15 Lokesh Paliwal & Ors. Vs Shashi Page no.5/10 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 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 E120/15 Lokesh Paliwal & Ors. Vs Shashi Page no.6/10 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.
8. In the present case, the respondent has sought leave to contest the application for eviction mainly on three grounds i.e. 1)that the petitioners are not the owners/landlords of the suit premises. 2). That the petition is bad for non-joinder of necessary parties and 3). That the petitioners are already having sufficient accommodation available with them.
In the application for leave to contest, the respondent has not disputed the fact that she was not the tenant under the petitioners but the ownership of the petitioner is denied by stating that the property in question was owned by Smt. Kisan Devi, who never executed any will or gift deed in respect of the suit premises.
It is replied by the petitioners in their affidavits by stating that immediately after the suit property was purchased by the petitioners from its predecessor vide registered sale deed dt. 25.10.1995, the respondent's father in law late Sh. Tulsi Ram started paying the rent to him till his death in the year 2002. The petitioners already placed on record the copies of certain rent receipts pertaining to the year 1996 to 2014. Accordingly, it is clear that the respondent is tenant in the suit premises.
It was held by the Hon'ble High Court of Delhi in Rajender Kumar & Ors. Vs Leela Wati & Ors 155 (2008) DELHI LAW TIMES 383 that where the tenant denies the ownership of landlord, he is obliged to disclose who was the owner/landlord and further that the landlord is not supposed to prove absolute ownership as required under TPA. It was further held therein by the Hon'ble High Court of Delhi that the landlord is required to show only that he is more than tenant.
It was held by the Hon'ble Apex Court in Rita Lal Vs. Raj Kumar Singh AIR 2002 SC 3341 that the tenant having been inducted by the landlord so long as he remains in possession cannot deny the title of his landlord in view of the rule of estoppel contained in Section 116 Indian Evidence Act. It was further held that the plea raised in the affidavit seeking leave to defend does not amount to E120/15 Lokesh Paliwal & Ors. Vs Shashi Page no.7/10 raising a triable issue.
It was held by the Hon'ble High Court of Delhi in Sri Ram Pasricha Vs. Jaganath & Ors. AIR 1976 SC 2335 that in a suit for eviction-the tenant is estopped from questioning the title of the landlord.
In Lado Vs. Nannu Ram 2015 (4) CLJ 364 Del. it was held by the Hon'ble High Court of Delhi that mere denial of ownership of the landlord does mean that every case must be sent for trial involving years. It was further held that mere denial of ownership is no denial at all and it has to be something more.
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, it seems that the petitioners are the owners/landlord and there exists relationship of landlord and tenant between the parties.
So far as the question of the petition being bad for non-joinder of the necessary parties is concerned, it is stated in the application by the respondent that after death of Sh. Tulsi Ram the tenancy devolved upon all the LR's, who became the tenants and were not joined as necessary parties in this petition.
As per the petitioners, it was only the husband of the respondent, Sh. Vijay Kumar, who alongwith his family was residing with his father at the time of his death in 2002 and he alone started paying rent against receipts duly counter-signed and kept paying the rent till his death in 2012. Accordingly, the plea of the respondent that the petition was bad for non-joinder of necessary parties, is not a triable issue.
9. According to the respondent there are triable points regarding the bonafide necessity of the petitioners. It is also contended on behalf of the respondent that the petitioners are already in occupation of 11 rooms in the property but have demolished one room on the first floor and made a garden on the same. That the petitioenrs are also the owners of property no. 1085, Village Pooth Khurd, Delhi and the same is lying vacant.
E120/15 Lokesh Paliwal & Ors. Vs Shashi Page no.8/10 It is replied by the petitioners in their counter affidavit that he has not demolished any room on the first floor and made a garden and that because of the scarcity of accommodation, they cannot even think of the garden. It is also clarified by the petitioners that the property at Village Pooth khurd was an ancestral and has not been partitioned yet and that the same was lying in a dilapidated condition without any electricity connection and that the same cannot said to be suitable alternative accommodation in comparison to the property in the heart of Delhi.
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 by the petitioners for their residence and that they do not have any alternative suitable and reasonable accommodation. For the sake of arguments, if the property at Village Pooth Khurdh is accepted to be the alternate accommodation available with the petitioner, the same is not suitable. The petitioners have already taken on rent two rooms in front of the suit premises. Accordingly, the property at village which is at the distance of a couple of kilometer cannot be stated to be the alternate accommodation.
10. In the considered opinion of the court, the contentions of the respondent are without merit and cannot be sustained as the petitioners are the owner and landlord of the premises. In so far as the question of necessity is concerned, the law is well settled that 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.
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 respondent. 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 her discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession E120/15 Lokesh Paliwal & Ors. Vs Shashi Page no.9/10 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 respondent, the petitioners are found entitled to recover the possession of premises, i.e H.no. 515, Mukim Pura, Sabzi Mandi, Delhi-07 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 23rd August 2016 Central/Tis Hazari Courts
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