Delhi High Court
Chaman Lal vs Batuk Prasad Jaitly on 2 January, 2014
Author: Manmohan Singh
Bench: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment pronounced on: January 02, 2014
+ RC. Rev. No.171/2011 & C.M. No.9591/2011
CHAMAN LAL ..... Petitioner
Through Mr.Harpreet Singh, Adv. with
Mr.Rajesh Gupta, Adv.
versus
BATUK PRASAD JAITLY ..... Respondent
Through Mr.Gaurav Dubey, Adv.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The petitioner Chaman Lal (respondent in the eviction petition) has challenged the order dated 30th November, 2010 passed in the eviction petition bearing No.E-35/2010 in the present revision petition filed under Section 25-B(8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as Act).
2. The grounds on which the eviction petition was filed by the respondent are as under:
"(i) The petitioner is the owner of the suit shop having purchased the same through a registered sale deed dated 28.05.2003.
(ii) The suit shop was let out to the respondent for commercial purposes and is bonafide required by the petitioner for his own requirements.
(iii) The petitioner is running a Saree business in the name and style of M/s Mallika Collections as its sole proprietor in RC. Rev. No.171/2011 Page 1 of 16 premises no.874/110, Gali Jutewali, Nai Sarak, Delhi-110 006.
This business is being run from the first floor and above of the said property. The ground floor of this property is owned and occupied by other persons.
(iv) The business of the petitioner is expanding and the existing premises are not catering to the full requirements of the petitioner. The size of the existing premises is about 28'x11'on the first floor. Most of the customers visiting the petitioner are females above the age of 40 years. Many other shopkeepers are running their Saree business from ground floor in the same locality and are fetching better and higher business than the petitioner. The customers are generally hesitant to go to the first floor for purchase of Sarees. In case the petitioner is able to run the business from the ground floor, his business would grow mani-folds. Since business premises are situated on the first floor, the petitioner per force is to hire 4-5 extra salesmen to stand on the ground and to persuade the customers to visit first floor premises of the petitioner. In this manner the petitioner is to incur extra expenditure for sale of Sarees.
(v) The suit shop is just two buildings away from the present business premises of the petitioner. The suit shop is required urgently and bonafide by the petitioner for the purposes of shifting his business to the ground floor. The petitioner presently has no office premises. In the event to shifting his business to the ground floor, the petitioner would be able to maintain his office in property bearing no.874/110, Gali Jutewali, Nai Sarak, Delhi-110 006. The petitioner by shifting to the suit shop and by bringing his business on the ground floor would be able to compete in the market.
(vi) The family of the petitioner is consisting of the petitioner himself, his wife, two sons aged around 18 years and 15 years and his mother. The sons are studying in Happy School, Daryaganj, Delhi in 12th and 10 standard respectively. The petitioner is leading an upper middle class standard life. The household expenses and the expense to run the business are quite high and therefore, to maintain such expenses, it is necessary for the petitioner to bring his business on the ground floor.
RC. Rev. No.171/2011 Page 2 of 16(vi) The petitioner has no other suitable, alternative commercial premises for the purposes of his business on the ground floor. The suit shop is most suitable for the business of the petitioner since the same is situated in the market known for Saree business and there are number of saree shops around the suit premises. The suit shop is situated on the main road whereas the present business premises of the petitioner in property no.874/110, Gali Jutewali, Nai Sarak, Delhi is situated inside the street."
3. Upon service, the petitioner filed an application for leave to defend/affidavit. In the said affidavit/application, the petitioner, inter alia, raised the plea that the respondent has concealed material facts from the Court as the suit property is not a single storey and the respondent has not filed the complete plan of the first floor of the suit property i.e. V-884, Nai Sarak, Delhi. It is also stated that the first floor of the property was completely with the respondent consisting of 3 shops, 2 stores and Khotha, the accommodation which is concealed by the respondent.
4. It was also stated that the respondent owns other two properties bearing Nos.874/110 & 883, Nai Sarak, Delhi and the said properties are new constructions after removing the old construction. The said two properties are owned by the respondent alongwith his wife. Not only that, the respondent has also sold the ground floor of the said building consisting of two shops. It was stated that the shop adjacent to the shop of the respondent is also a wholesale saree shop in the name of M/s Giri Lal Prem Chand Sarees Pvt. Ltd. whereas the shops adjacent to the shop of the petitioner are all of books and stationeries. Admittedly, the respondent is doing business in the shop measuring 28'x11' feet having a floor area of 308 sq. feet besides one more room. Whereas the petitioner's shop is only having a floor area of 33 sq. feet which is also irregular in shape. Thus, the RC. Rev. No.171/2011 Page 3 of 16 said shop is not suitable for the business of the respondent who is already carrying on business in a shop having floor area of 308 feet. Therefore, the respondent does not require the suit shop for his bonafide need.
5. In reply to the application for leave to defend, it was admitted by the respondent that property No.874/110 was purchased by the respondent and is measuring 60 sq. yards on first floor and second floor and 130 sq. yards on third floor. The respondent has no concern with the remaining portion of the said property.
6. In the eviction petition, one of the main grounds raised by the respondent was that the tenanted premises is two buildings away from the business premises of the respondent who required the tenanted premises for the purpose of shifting the business to the ground floor in order to compete in the market as most of the customers visiting the respondent are female above the age of 40 years and the ground floor is therefore convenient to him. The suit shop is most suitable for the business of the respondent since the same is situated in the market known as saree business and there are number of saree shops around the tenanted premises.
7. It is settled law that the High Court would have jurisdiction to interfere if it is of the opinion that there has been a gross illegality or material irregularity which has been committed or the Controller has acted in excess of his jurisdiction or has not exercised the jurisdiction vested in him. But at the same time, the finding of fact arrived at by the Controller would not be interfered with by the High Court unless it can be shown that finding has been arrived at by misreading or omitting relevant evidence and this has resulted in gross injustice.
RC. Rev. No.171/2011 Page 4 of 168. The revisional jurisdiction exercisable by the High Court under Section 25-B (8) is not so limited as under Section 115 CPC nor so wide as that of an Appellate Court. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of 'whether it is according to law'. For that limited purpose it may enter into reappraisal of evidence, that is, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached that conclusion on the material available. Ignoring the weight of evidence, proceeding on wrong premise of law or deriving such conclusion for the established facts as betray the lack of reason and/or objectivity would render the finding of the Controller 'not according to law' calling for an interference under proviso to sub-sec. (8) of S.25-B of the Act.
9. In view of scope of interference by the High Court as mentioned above, it is to be examined whether the present matter falls within the preview and jurisdiction of the interference or not.
10. Proviso (e) to Section 14(1) is a special provision which was enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bonafide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso
(e) of the Section 14 (1) are :
a) The said premises are bonafide required by the landlord either for himself or for his family member.
b) The landlord or the family member has no other reasonable suitable accommodation.RC. Rev. No.171/2011 Page 5 of 16
It is necessary that in order to set the relief from court, these twin conditions are to be satisfied conjunctively in order to attract the provisions of Section 14 (1)(e). In the absence of even one of the said ingredients makes the said provision inapplicable.
11. The question arose what constitutes a "reasonably suitable accommodation". The wordings reasonably suitable accommodation are to be interpreted by looking at from the common man's perspective as to what in the given circumstances can be said a reasonably suitable accommodation. It is essentially a question of fact. In some cases it may not be a reasonably suitable accommodation as the same may be an inconvenient for the landlord to adjust or fit or put him to hardship but in other type of cases, it may act as a reasonable suitable accommodation. But one thing is clear that the landlord's desire or merely choice of particular premises cannot be allowed at the stage of considering the application of leave to defend that an existing accommodation is not reasonably suitable accommodation and the same cannot be said to be a sole ground to determine a reasonably suitable accommodation. Similarly, the tenant cannot insist that the particular place can be reasonably suitable accommodation to the landlord when as a matter of fact it is not.
12. Therefore, it has to be seen from the eyes of common person's prudence. The question should be asked as to whether in the particular case a person has a reasonably suitable accommodation or not to reside or to carry on business. If the answer comes in affirmative, then no matter what the landlord says in order to evict the tenant that the provisions of Section 14 (1) (e) of the Act does not get attracted. If the answer comes in negative, then no matter what the tenant states to refute the reasonableness and RC. Rev. No.171/2011 Page 6 of 16 suitability of the accommodation, the eviction has to follow. Thus, there cannot be any straight jacket formula to determine what can be reasonably suitable accommodation available with the landlord and it cannot certainly depend upon the demands of the landlord.
13. Where there is a doubtful case whether a particular accommodation can or cannot act as reasonably suitable accommodation in such cases too, the court seized of the eviction proceedings should postpone the decision making of reasonableness and suitability of accommodation as a fact finding to the trial rather than to evict the tenant by granting the leave to defend.
14. While deciding the leave to defend, the controller is not expected to examine the success or failure of the plea raised but has to examine merely a tenable case. The controller is estopped in view of settled law from recording a finding as to disputed questions of fact. All the above stated propositions of law has been laid down in the case of Charan Dass Duggal vs. Brahma Nand, (1983) 1 SCC 301 speaking through Hon'ble Desai, J. observed 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 non-suit 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 counter- assertions 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 RC. Rev. No.171/2011 Page 7 of 16 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 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 cross- examination 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 RC. Rev. No.171/2011 Page 8 of 16 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." (Emphasis Supplied)
15. Again in the case of Precision Steel and Engineering Works and Anr. vs Prem Deva Niranjan Deva Tayal, 1983SCR(1)498, the Hon'ble three judges of the Supreme Court speaking through Hon'ble Justice Desai (as his lordship then was) has clearly laid down the scope and nature of enquiry permissible in law while deciding the question of grant or non grant of the leave to defend in the eviction proceedings approving the view of Charan Dass (supra). In the words of Hon'ble Justice Desai, it was observed thus:
"Undoubtedly the procedure prescribed in Chapter IIIA of the Act is materially different in that it is more harsh and weighted against the tenant. But should this procedural conundrum change the entire landscape of law ? When a landlord approaches Controller under section 14(1) proviso (e), is the court to presume every averment in the petition as unchallengeable and truthful ? The consequence of refusal to grant leave must stare in the face of the Controller that the landlord gets an order of eviction without batting the eye lid. This consequence itself is sufficient to liberally approach the prayer for leave to contest the petition. While examining the question whether leave to defend ought or ought not to be granted the limited jurisdiction which the Controller enjoys is prescribed within the well defined limits and he cannot get into a sort of a trial by affidavits preferring one set to the other and thus concluding the trial without holding the trial itself. Short circuiting the proceedings need not masquerade as a strict compliance with sub-section (5) of section 25B. The provision is cast in a mandatory form. Statutory duty is cast on the Controller to give leave as the legislature uses the expression 'the Controller shall give' to RC. Rev. No.171/2011 Page 9 of 16 the tenant leave to contest if the affidavit filed by the tenant discloses such fact as would disentitle the landlord for an order for recovery of possession. The Controller has to look at the affidavit of the tenant seeking leave to contest. Browsing through the affidavit if there emerges averment - of facts which on a trial, if believed, would non-suit the landlord, leave ought to be granted. Let it be made clear that the statute is not cast in a negative form by enacting that the Controller shall refuse to give to the tenant leave to contest the application unless the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order etc. That is not the mould in which the section is cast. The provision indicates a positive approach and not a negative inhibition. When the language of a statute is plain, the principle that legislature speaks its mind in the plainest language has to be given full effect. No canon of construction permits in the name of illusory intendment defeating the plain unambiguous language expressed to convey the legislative mind. And the legislature had before it order 37, an analogous provision where leave to defend is to be granted and yet avoiding the phraseology of the Code of Civil Procedure, namely, 'substantial defence' and 'vexatious and frivolous defence', the legislature used the plainest language, 'facts disclosed in the affidavit of the tenant'. The language of sub-section S of section 25B casts a statutory duty on the Controller to give to the tenant leave to contest the application, the only pre-condition for exercise of jurisdiction being that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of 13; possession of the premises on the ground mentioned in section 14(1) (e). Section 14(1) starts with a non obstante clause which would necessarily imply that the Controller is precluded from passing an order or decree for recovery of possession of any premises in favour of the landlord against the tenant unless the case is covered by any of the clauses of the proviso. The proviso sets out various enabling provisions on proof of one or the other, the landlord would be entitled to recover possession from the tenant. One such enabling provision is the one enacted in section 14(1) proviso
(e). Upon a true construction of proviso (e) to section 14(1) it RC. Rev. No.171/2011 Page 10 of 16 would unmistakably appear that the burden is on the landlord to satisfy the Controller that the premises of which possession is sought is; (i) let for residential purposes; and (ii) possession of the premises is required bona Fide by the landlord for occupation as residence for himself or for any member of his family etc. and (iii) that the landlord or the person for whose benefit possession is sought has no other reasonably suitable residential accommodation. This burden, landlord is required to discharge before the Controller gets jurisdiction to make an order for eviction. This necessarily transpires from the language of section 14(1) which precludes the Controller from making any order or decree for recovery of possession unless the landlord proves to his satisfaction the conditions in the enabling provision enacted as proviso under which possession is sought. Initial burden is thus on the landlord." (Emphasis Supplied) "But what happens if the tenant appears pursuant to the summons issued under sub-sec. 2 of section 25B, files an affidavit stating the grounds on which he seeks to contest the application. As a corollary it would transpire that the facts pleaded by the landlord are disputed and controverted.
How is the Controller thereafter to proceed in the matter. It would be open to the landlord to contest the application of the tenant seeking leave to contest and for that purpose he can file an affidavit in reply but production and admission and evaluation of documents at that stage has no place. The Controller has to confine himself to the affidavit filed by the tenant under sub-section 4 and the reply, if any. On persuing 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 Clause (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 other set of affidavits. That is not the jurisdiction conferred on the Controller by sub-sec. S because the Controller while examining the question whether there is a proper case for RC. Rev. No.171/2011 Page 11 of 16 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- section (4) by the tenant and the same is being examined for the purposes of sub-section (5) the Controller has to confine himself only to the averments in the affidavit and the reply if any and that becomes manifestly clear from the language of sub-section (S) 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 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" (Emphasis Supplied)
16. As I have earlier mentioned, the reasonableness and suitability of the available accommodation is a question of fact, it has to be decided on case to case basis by controller by examining the tenability of the pleas of the parties rather than just believing the stand of either side. Therefore, no reasonableness and suitability is to be decided from the glasses of man of ordinary prudence as what should be reasonable and suitable in the given circumstances.
RC. Rev. No.171/2011 Page 12 of 1617. Applying these tests for examining the reasonableness and suitability of the accommodation to the present case, it is the admitted position that the respondent is already operating his saree business from the shop having floor area of 308 sq. ft. beside another room at Kotha from the first floor but in the eviction petition, it is mentioned by him that he wishes to shift at the ground floor i.e. tenanted shop which has only area of 33 sq. ft. which is also irregular shape. The said fact has been admitted by the respondent.
18. The respondent has not denied the fact that the tenanted premises is only having a floor area of 33 sq. feet and he is already having a shop which contains area of 308 sq. feet. However, he still stressed that even tenanted premises which is 33 sq. feet approximately and irregular in shape, is required for bonafide need.
19. In the leave to defend application, the petitioner stated that the suit property is not suitable for the purpose of business of the respondent as the shop where the respondent is running the business of sarees is in wholesale saree market whereas the shop under the tenancy of the petitioner is situated in the book market and is much smaller in size than the shop of the respondent and cannot be used for saree shop by the respondent.
20. It has been argued by the respondent that the first floor of the property is not suitable to the respondent as the availability of the said space cannot be said to be reasonably convenient premises to him which is more than nine times bigger than the tenanted premises. Thus becoming an unreasonably suitable accommodation as a disputed question of fact on which the finding cannot be arrived at by giving a preference to the one set of facts over the other. It is to be tested in trial as to whether the small place of 33 sq. ft. is more convenient to him which is in irregular shop or the space available is RC. Rev. No.171/2011 Page 13 of 16 suitable for his convenience. The respondent has also denied the fact that at the first floor, there are other saree shops. The availability of the first floor of the property where business can be conveniently carried out lawfully itself is a good ground to doubt the non availability of the reasonable sufficient accommodation when the respondent is already carrying on his business.
21. All these facts clearly casts doubts on the stands of the respondent, bonafides of the need of the respondent and the conclusion that there is no availability of the alternative reasonably suitable accommodation which cannot be arrived at least in the summarily manner warranting the leave to defend.
22. It also prima facie appears from the conduct of the respondent that he required an alternate accommodation for carrying out his business of saree shop. The said requirement pleaded by the respondent clearly demonstrated that respondent is presently in occupation of a shop and is running his business therefrom. Such being the case, i.e. of alternative accommodation, it is a settled law that the leave to defend should not be refused. In this regard petitioner relies upon decision of the Apex Court in Santosh Devi Soni v. Chand Kiran, (2001) 1 SCC 255.
23. The learned Rent Controller lost sight of the fact that the respondent is doing the business of sale of wholesale saree from the shop which though is located on the first floor but is located at a place which is a wholesale saree market. The shop accordingly from where respondent is presently running his business is not only convenient but is reasonably located to carry out the said business. The suit shop on the other hand is located at a place which is RC. Rev. No.171/2011 Page 14 of 16 a wholesale book market and is not suitable for running a saree shop both on account of its location and size.
24. Therefore, the said ground raised by the petitioner is a triable issue in nature. The learned Rent Controller ought to have considered the ground raised by the petitioner in the leave to defend application in this regard. Thus, the order suffers from error in law apparent on the face of the record which has resulted in miscarriage of justice as there was hardly any plausible ground shown by the respondent who required to shift his business of sarees from its existing place which is having an area of 308 sq. feet to the shop which is having area of 33 sq. feet in size as there is a force in the submission of the learned counsel for the petitioner that the size of the shop under tenancy is so small that only one person can stand inside the same. The said mitigating factor i.e. the size of the tenanted shop has been completely lost sight by the learned Rent Controller while rejecting the leave to defend application filed by the petitioner.
25. The learned Controller legally erred in not testing the case of both the parties on the objective standards which is the requirement of the law for examining the reasonableness and suitableness of the alternative accommodation.
26. Admittedly the respondent is in possession of reasonable accommodation from where he can do business. With regard to the projected requirement, it would be required to be tested objectively by the Controller. It is necessary to bear in mind that when leave to defend is refused, the party seeking leave to defend would miss an opportunity to test the truth of the averments of the opposite party by cross-examination.
RC. Rev. No.171/2011 Page 15 of 1627. In my view as per discussion, the petitioner has been able to raise prima facie, triable issues, which seem to have been ignored by the learned ARC and eviction order could not be passed at the stage of application for leave to defend, the petitioner cannot be thrown out of the tenanted premises at the threshold without adjudication by way of evidence and not merely on the affidavits of the parties. I feel that the impugned order is suffering from infirmity. Thus, the impugned order is liable to be set aside. The petition is allowed and the leave to contest is granted to the petitioner and four weeks time is granted to file written statement. The parties shall appear before the learned ARC on 10th February, 2014 who will decide the matter expeditiously if possible within the period of twelve months from today.
(MANMOHAN SINGH) JUDGE JANUARY 02, 2014 RC. Rev. No.171/2011 Page 16 of 16