Delhi District Court
Sh. Ramesh Sharma vs Sh. Narain Dass on 22 April, 2019
IN THE COURT OF SH. AJAY NAGAR, ADDITIONAL RENT
CONTROLLER (WEST), TIS HAZARI COURTS, DELHI.
ARC No.- 25414/2016
Sh. Ramesh Sharma
S/o Late Sh. Ram Prakash
R/o J-147, Vishnu Garden
New Delhi. ...Petitioner
VERSUS
Sh. Narain Dass
S/o Sh. Pyare Lal
R/o A-53D, Janta Flat
Raghubir Nagar
New Delhi-110027. ...Respondent
Date of Filing : 01.12.2015
Date of Order : 22.04.2019
ORDER ON LEAVE TO DEFEND
1. Present petition U/Sec. 14 (1) (e) of Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act") has been filed by the petitioner for eviction of the respondent in respect of Property No. A- 53D, Janta Flat, Raghubir Nagar, 3 rd Floor, New Delhi as shown in red colour in the site plan attached with the petition (hereinafter referred to as 'tenanted premises') in favour of the petitioner and against the respondent.
2. The case of the petitioner is that the petitioner requires the tenanted premises for himself as well as members of his family for residential purposes. Petitioner has further averred that he is having no alternative accommodation except the tenanted premises. That he is the landlord as well as owner of the tenanted premises. Lastly, ARC No. 25414/16 Ramesh Sharma Vs. Narain Dass Page 1/11 it is prayed that an eviction order may be passed against the respondent in respect of tenanted premises.
3. Notice of this eviction petition was sent to the respondent in the prescribed format which was duly served on the respondent and the leave to defend was filed by the respondent accompanied by the affidavit raising several pleas which will be discussed later on exhaustively.
4. The petitioner filed the reply to leave to defend contradicting the pleas raised by the respondent in the leave to defend which will also be discussed later on.
THE LAW:
It is well settled that 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) are good enough to grant leave to defend.
It is further well settled that at a stage when the tenant seeks 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. Unless the tenant at that stage itself establishes a strong case as would non-suit the landlord leave to defend should not be granted when it is not the requirement of Section 25 B(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 refused where an eviction petition is filed on a mere design or desire of landlord to recover possession of the premises ARC No. 25414/16 Ramesh Sharma Vs. Narain Dass Page 2/11 from a tenant. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to her and her family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction.
It is also well settled 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 where either frivolous, untenable or most unreasonable.
It is also well settled that when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire.
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. 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. In this view a balanced view is to be taken having regard to competing claims.
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 for, 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 ARC No. 25414/16 Ramesh Sharma Vs. Narain Dass Page 3/11 in the action.
5. I have carefully and minutely gone through petition, leave to defend application accompanied by affidavit, reply, documents and material on record.
6. Perusal of the record shows that the petitioner has claimed in his reply to leave to defend that leave to defend has not been filed within the period of 15 days as stipulated by law.
On the other hand, respondent has claimed in his leave to defend that he was served on 02.01.2016 and the leave to defend was filed on 18.01.2016. As such, he has claimed to have filed the leave to defend within the stipulated period of 15 days.
I have perused the record which shows that leave to defend was filed on 18.01.2016 and this fact is not disputed by the petitioner and even date of service is also admitted to be 02.01.2016 by the petitioner. Perusal of record shows that leave to defend was filed on 16th day but record also shows that 17th of January, 2016 was Sunday, due to which leave to defend could not have been filed on 17.01.2016 and could have been filed only on 18.01.2016. Moreover, there is no practice in the District Court in respect of Duty of Additional Rent Controller on Sundays. As such, the respondent could not have been expected to do the things beyond his control and in the present case, Leave to Defend has been filed on 18.01.2016, very next day to the Sunday. As such, plea of the petitioner is without any merit.
7. One of the pleas taken by the respondent is that respondent became owner of the tenanted premises in the year 2006 by virtue of Agreement to Sell between himself and Sh. Pritam Singh Mukhi for ARC No. 25414/16 Ramesh Sharma Vs. Narain Dass Page 4/11 consideration amount.
On the other hand, in reply thereto the petitioner has denied those facts as alleged by the respondent.
Perusal of record shows that no document in respect of such agreement to sale has been placed on record by the respondent between himself and Sh. Pritam Singh Mukhi and he has merely made the vague averment in this regard. On the other hand, petitioner has filed on record copies of registered Agreement to Sale and Purchase and GPA in his favour executed by Sh. Om Prakash. Record also shows that a copy of the judgment has also placed on record decided by the then Ld. ADJ deciding the suit for possession, mesne profits and damages filed by petitioner herein against the respondent herein, wherein Ld. ADJ although dismissed the suit being barred U/Sec. 50 of the D.R.C. Act but held the respondent/tenant in the tenanted premises.
Record also shows that respondent himself has admitted that he is a tenant in the tenanted premises in the present case. However, he has disputed the ownership of petitioner on the ground that he became the owner of the tenanted premises after purchase from Sh. Pritam Singh Mukhi but as mentioned above, no document has been placed on record in this regard.
8. In case titled as Jiwan Lal Vs. Gurdial Kaur & Ors. 1995 RLR 162 a Bench of Hon'ble High Court of Delhi while dealing with the concept of ownership in a pending eviction petition under Section 14(1)(e) of the DRC Act had noted as follows:
"There is a tendency on the part of tenants to deny ownership in cases under Section 14(1)(e). To test the substance of such a plea on the part of the tenants the Courts have insisted that they should state who else is the owner of the premises if not the petitioner. In the ARC No. 25414/16 Ramesh Sharma Vs. Narain Dass Page 5/11 present case it is not said as to who else is the owner. Further these cases under Section 14(1)(e) are not title cases involving disputes of title to the property. Ownership is not to be proved in absolute terms. The respondent does not claim the owner of the premises."
Further, in the case titled as Smt. Shanti Sharma & Ors. Vs Smt Ved Prabha & ors 1987 AIR 2028, the Hon'ble Supreme Court observed :-
"That the meaning of term 'owner' is vis a vis the tenant i.e. the owner should be something more than the tenant."
It is well settled proposition of law that the petitioner/ landlord is not required to prove his ownership in absolute terms. It is sufficient if he is able to prove or show that he is something more than a tenant. In my view, in the present case the petitioner has been able to prove that he is something more than a tenant. Moreover, the respondent has not been able to show or prove that he purchased the tenanted premises from Sh. Pritam Singh Mukhi. As such, ingredients in respect of landlordship and ownership are proved by the petitioner.
9. Next plea of the respondent is that petitioner has filed the present petition without permission of the competent authority under Slum Act.
On the other hand, petitioner has contended that application for permission before the Slum Authority has already been filed.
Perusal of record shows that the permission as claimed by the respondent has been filed by the petitioner on 20.04.2019 by filing the judgment/ order of Competent Authority (Slum), Delhi.
In my view, the Ld. Counsel does not have any force in this ARC No. 25414/16 Ramesh Sharma Vs. Narain Dass Page 6/11 submission and it has already been settled by the cantena of Judgments passed by the hon'ble Apex Court and Hon'ble Delhi High Court that no such permission is required when the eviction petition is filed under chapter III A of Delhi Rent Act, 1958. Reliance can be placed on cases titled as Sarwan Singh & Another Vs. Kasturi Lal 1977 AIR 265 and Ravi Dutt Sharma Vs Rattan Lal Bhargava 1984 AIR 967. As such, in my view the present eviction petition is maintainable even when no prior permission was sought from competent authority under the Slum Clearance Act. As such this contention of the respondent does not have any force. Moreover, it is well settled proposition of law that such permission is not required for filing the eviction petition U/Sec. 14(1)(e) of the D.R.C. Act.
10. One of the pleas taken by the respondent is that petitioner has filed a wrong site plan. On the other hand, petitioner has denied this fact.
In the case titled as R.K. Bhatnagar vs. Sushila Bhargava AIR 1987 Delhi 363; the Hon'ble High Court of Delhi observed as under:-
"He has not filed any site plan wither to show that the site plan filed by the respondent- landlady is incorrect in any way. Hence, I see no reasons to doubt the veracity of the facts stated by the respondent in her affidavit. Likewise, I assume that the site plan filed by her showing the entire accommodation in her occupation is correct."
It is well settled proposition of law that in case of filing the wrong site plan by the petitioner, respondent always has the opportunity and right to file the correct site plan but in the present case, no site plan has been filed by the respondent, which shows that the respondent has raised the vague plea.
ARC No. 25414/16 Ramesh Sharma Vs. Narain Dass Page 7/1111. The next contention of the respondent is that the property in which the petitioner currently residing is in his name and is spread in the area of 80-100 sq. yds. On the other hand, in reply thereto, petitioner has reiterated that he is having no property except the tenanted premises.
Perusal of record shows that the respondent has not given the details of the property of 80-100 sq. yds., which may be alternative reasonably suitable residential accommodation for the use by the petitioner and his family. The respondent has not produced any document in respect of ownership of petitioner regarding the property wherein the petitioner is residing. On the other hand, petitioner has specifically mentioned in his petition that it belongs to her mother. As such, the respondent has merely made a vague plea.
12. The next contention of the respondent is that the petitioner is the property dealer having multiple properties in his name. On the other hand, petitioner has denied this fact.
In my view, no law prohibits the property dealer to file the eviction petition U/Sec. 14(1)(e) of the D.R.C. Act. Moreover, no details have been given by the respondent in respect of multiple properties in the name of petitioner. As such, this is also a vague plea.
13. Another contention raised by the respondent is that tenanted premises is the only source of income for respondent.
In the case titled as Raj Kumar Khanna vs. Parduman Singh passed in RC Rev. No. 548/2012 and C.M. No. 18936/2012 on 04.10.2013; the Hon'ble High court of Delhi observed as under:-
"17. In the case of Mohd. Ayub vs. Mukesh Chand (2012) 2 SCC 155 it was observed that the hardship appellants ARC No. 25414/16 Ramesh Sharma Vs. Narain Dass Page 8/11 would suffer by not occupying their own premises would be far greater than the hardship the respondent would suffer by having moved out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be sole determinative factor."
In my view this plea of the respondent certainly attracts the sympathy of this court but it is well settled that in deciding the present eviction proceeding, this kind of plea need not be weighed by the court.
14. One of the pleas is that the motive of the petitioner is to blackmail the respondent and extract money from the respondent. It is also claimed to have been filed without any lawful reasons.
On the other hand, petitioner has denied the allegations and reiterated that grounds taken by the petitioner are correct and true.
In my considered view, the apprehension of the respondent is baseless as there is always Sec. 19 on the statute for the rescue of respondent in case petitioner does not occupy the tenanted premises after eviction.
"19. Recovery of possession for occupation and re-entry. -
(1) Where a landlord recovers possession of any premises from the tenant in pursuance of an order made under clause (c) of the proviso to sub-section (1) of section 14 [or under sections 14A, 14B, 14C, 148 and 21], the landlord shall not, except with the permission of the Controller, obtained in the prescribed manner, re-let the whole or any part of the premises within three years from the date of obtaining such possession, and in granting such permission, the Controller may direct the landlord to put such evicted tenant in possession of the premises.
(2) Where a landlord recovers possession of any ARC No. 25414/16 Ramesh Sharma Vs. Narain Dass Page 9/11 premises as aforesaid and the premises are not occupied by the landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied are, at any time within three years from the date of obtaining possession, re-let to any person other than the evicted tenant without obtaining the permission of the Controller under sub-section (1) or the possession of such premises is transferred to another person for reasons which do not appear to the Controller to be bona fide, the Controller may, on an application made on him in this behalf by such evicted tenant within such time as may be prescribed, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit."
In the case titled as Ramesh Kumar & Ors. vs. Smt. Neelam Dawar & Ors. Passed in RC (Rev.) 44/2014, C.M. Application 1313-14/2014, the Hon'ble High Court of Delhi inter-alia observed as under:-
"The tenant's apprehension that upon eviction the tenanted premises would be let out at a higher rent was found to be baseless and prematured since such contigency has been taken care of U/Sec. 19 of the Act."
15. As such, statute clearly lays down that the petitioner/ landlord has to occupy the vacated tenanted premises within two months and the landlord cannot re-let to any person other than the evicted tenant within three years from the date of obtaining possession and in case he does so, the evicted tenant may approach the Rent Controller seeking direction to the landlord to put the tenant in possession of the premises.
16. In my considered view, the apprehension of the respondent no.1/tenant does not have any merit at all as Section 19 of DRC Act is always there for rescue of respondent no.1/tenant in case ARC No. 25414/16 Ramesh Sharma Vs. Narain Dass Page 10/11 petitioner does not occupy the tenanted shop within two months and in case petitioner re-let it to another tenant within three years. As such, this issue also can not be treated as triable issue.
CONCLUSION:
17. In view of the above discussion, I find no triable issue in the leave to defend application of the respondent which could dis-entitle the petitioner to obtain an eviction order in his favour. The application for leave to defend filed by the respondent is thus, dismissed.
18. Hence, as a consequence thereof, an eviction order is passed U/s. 14 (1) (e) of DRC Act in favour of petitioner and against the respondent in respect of the tenanted premises i.e. Property No. A-53D, Janta Flat, Raghubir Nagar, 3rd Floor, New Delhi as shown in red colour in the site plan attached with the petition which is marked as Mark- P1 (Put by the court for the purpose of identification).
19. However, this order shall not be operative before the expiry of six months from today keeping in view Sec. 14(7) of D.R.C. Act.
20. File be consigned to the Record Room after due compliance.
Digitally signedAnnounced in the open Court AJAY by AJAY NAGAR on 22nd April, 2019. Date:
NAGAR 2019.04.22 16:30:02 +0530 (This order contains 11 pages) (AJAY NAGAR) Additional Rent Controller, West District, THC, Delhi.ARC No. 25414/16 Ramesh Sharma Vs. Narain Dass Page 11/11