Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 34, Cited by 0]

Delhi District Court

Smt. Kusum Lata Jain vs Sh. Kamal Prakash Saxena on 31 March, 2016

In the Court of Sh. Rajinder Kumar : Additional Rent Controller-02, Central District,
                              Tis Hazari Courts, Delhi.

E. No. 1087/14
Unique ID No. 02401C0512822014
In the matter of:

Smt. Kusum Lata Jain
W/o Late Sh. Dhanander Kumar Jain
R/o 6190, Nicholson Road
Ambala Cantt.                                                     ...................... Petitioner

                                           VERSUS
Sh. Kamal Prakash Saxena
S/o Sh. Ram Swaroop Saxena
R/o 3538, Mohalla Jatwara
Darya Ganj, New Delhi
Also At:-
Gyan Art Press
1747-1748, Electrical Market
Bhagirath Palace, Chandni Chowk, Delhi                           .................... Respondent

Date of Institution : 17.10.2014
Date of Arguments : 23.03.2016
Date of Order       : 31.03.2016


ORDER:

1. This order shall decide the question whether the respondent be granted leave to contest the present application under section 25-B (4) & (5) 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 the petitioner is exclusive owner of the property bearing No. 1747-48, Gali Satyawati Lane, Bhagirath Palace, Chandni Chowk, Delhi-110006 including one shop situated at ground floor as shown in red colour in the site plan-I attached with the petition. That the entire property E. No. 1087/14 Page no.1/15 shown in the site plan-II attached with the petition. That the respondent was inducted as a tenant in respect of one shop situated at ground floor by Sh. Dhanander Kumar Jain, son of late Sh. Parkash Chand Jain by virtue of a Rent Note dt. 30.06.1994 @ Rs. 150/- per month. That the property in question is required bonafidely by the petitioner for her family members dependent upon her and specifically for her grand-son, namely Vikas Jain, who is totally dependent upon her. That the family of the petitioner is consisting of her two sons i.e. Sunil Jain and Sudhir Jain and the son of the petitioner Sunil Jain is having two sons, namely Sh. Vikas Jain and Sh. Alok Jain. That the grand-son of the petitioner, namely Sh. Vikas Jain aged about 30 years has completed his Chartered Accountancy in the year 2009, who before completing his C.A., has also jointed the Article with M/s GSA & Associates for a period of more than six months and thereafter after completing his CA, the said Vikas Jain got a job to get experience at K.P.M.G. at Mumbai. Therefore, the grand-son of the petitioner, Sh. Vikas Jain in order to gain the experience alongwith his friends, started a partnership firm under the name and style of M/s VAS & Associates having several branch offices. That there is vast scope for Chartered Accountancy in Delhi as well as NCR and number of clients are in the clients-book of the grand-son of the petitioner. That the grand- son of the petitioner has no place except the property owned by the petitioner in Delhi i.e. property in question. That the mother of the petitioner purchased the residential property bearing No. A-803, Apex Acica Valley, Sector-III, Vaishali, Ghaziabad in June, 2013 and since then the grand-son of the petitioner has been residing at Vaishali.

That the tenanted premises and other portions which are in occupation of other tenants are required bonafidely for the purpose of setting-up the office of grand-son of the petitioner as shown in plan no. III. That the grand-son of the petitioner minimum requires a portion of 1400-1500 sq. ft. for running his independent C.A. Office. The grand-son of the petitioner requires a separate office/ room for himself for discussing/ dealing with his respective clients, one Article Room, one siting room for his clients, one Record Room and one room for his staff and for all such purposes, the grand-son of the petitioner requires minimum 1400-1500 sq. ft. and therefore, the petitioner has chosen the portion as shown in plan as A, B, C, D & E which includes the tenanted shop. That the petitioner is also filing E. No. 1087/14 Page no.2/15 separate eviction petitions on account of the requirement against the other tenants also. That the grand-son of the petitioner would start his office immediately after getting any portion of the property and will join the other portions of the property immediately as and when the same will be vacated as per law. The proposed set-up of the office has already been architected and the site plan thereof is being filed alongwith the present petition which clearly shows that how after obtaining the vacant possession of those premises, the same premises will be converted into as shown in the site plan annexed as site plan no. III. That neither the petitioner nor her grand-son nor the son of the petitioner have any other property either residential or commercial through-out in Delhi or NCR. That at the property purchased by the mother of the petitioner at Vaishali, the petitioner is residing. That the petitioner has thus no other suitable, reasonable and alternative accommodation available with her in Delhi or NCR for accommodating her grand-son for running his aforesaid business to earn the livelihood for herself and the family members dependent upon her.

3. By filing leave to defend application alongwith the affidavit, it is contended by the respondent that the petitioner has completely failed to state the bona-fide need of the premises by the grand-son of the petitioner. That the respondent have been carrying on the business for the last several years which is the only place for earning the livelihood. That the petitioner cannot evict the respondent on the ground of alleged requirement for business purposes. That the petition is pre-mature and is not maintainable. That the petition is without the cause of action. That the requirement of the petitioner are not bona-fide. The petitioner cannot claim eviction on the basis of her and her grand-son's whim, fancy or desire. That the petition is based on concocted and fabricated story. That the petition is bad for non-joinder of the necessary parties. That the petition is barred u/s 14(6) DRC Act. That the petitioner ceases to be the owner/ landlady on account or family settlement whereby she has given the entire property to her two grand-sons. That the petitioner has not filed a correct site plan of the tenanted premises as the site plan no.1 is merely a sketch. That Sh. Vikas Jain has been well established as a C.A. independently as well as partner of M/s VAS Associates and permanently settled in Ambala Cantt. That the petitioner has not deliberately disclosed as to from where Sh. Vikas Jain and his schooling, graduation and where he had E. No. 1087/14 Page no.3/15 been residing at that time. That Sh. Vikas Jain is permanently settled in Ambala Cantt. and has been handling the business of the firm from there. That the petitioner has not disclosed the financial status of Sh. Vikas Jain, who has been a C.A. for the last 5 years. That the claim of the petitioner is not genuine and bona-fide. That the petitioner has not produced the partnership deed of M/s VAS & Associates. The grand-son of the petitioner is having reasonable sufficient accommodation available to him to carry on his independent profession. That the grand-son of the petitioner has no time or requirement to settle in Delhi. That in any case, the accommodation at Vaishali is also reasonable suitable. That the suit premises is situated in a narrow lane and there is hardly any space left even for walking. That the petition has not been signed, filed and verified by Smt. Kusum Lata Jain and her signatures were forged by her children. That there is no record or proof to show that Sh. Dhanander Kumar Jain was adopted son of Smt. Kiran Mala. That accordingly, the application be allowed.

4. The application is contested by the petitioner by way of a written reply supported by affidavit of the petitioner wherein it is stated that the petitioner is entitled to eviction of the respondent from the premises as the same is required by the petitioner for her grand-son namely Sh. Vikas Jain for running his business and that they are having no other alternative and suitable accommodation available with her in Delhi or NCR. That the application for leave to contest and the affidavit whereby no triable issues are raised and is liable to be dismissed and the petitioner is entitled to relief as claimed under section 14 (1)

(e) of Act 59 of 1958.

5. To the reply of the petitioner, rejoinder 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.

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 E. No. 1087/14 Page no.4/15 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 petitioner not for bona fide reasons but due to malafide reasons as the petitioner does not require the premises bona-fide for her grand-son as he is already settled at Ambala Cantt. It is also submitted by Ld. counsel for the respondent that they have raised several triable issues in their affidavit and if the respondent is allowed to lead evidence on those issues, the petitioner shall be disentitled from recovering the possession of the premises from the respondent. It is further submitted by Ld. 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, documents filed on behalf of the petitioner in support of the application for eviction, it is submitted by Ld. counsel for the petitioner that she is the owner and landlord of the premises and require premises bona-fidely for her grand-son Sh. Vikas Jain for running his business to earn the livelihood. It is further submitted by counsel for the petitioner that no other reasonably suitable accommodation is available with the petitioner 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 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 E. No. 1087/14 Page no.5/15 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 affidavit and assertions and counter­assertions on affidavit 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 and provide his own case. Summary procedure does not clothe an authority E. No. 1087/14 Page no.6/15 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 affidavit 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 affidavit. 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 affidavit against the other set of affidavit.

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 as would disentitle the landlord from recovering possession etc. The E. No. 1087/14 Page no.7/15 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 affidavits 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 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 E. No. 1087/14 Page no.8/15 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 have sought leave to contest the application for eviction mainly on three grounds, namely, (1) that there is no bona-fide requirement of the petitioner. (2) that the petitioner is not the owner/landlady of the suit premises and (3) that the grand-son of the petitioner is having sufficient accommodation available with him.

In the application for leave to contest, the respondent has not disputed the fact that he was not the tenant under the petitioner and also that the rent was being paid to her but at page no. 15 of the affidavit annexed with the leave to defend application, it is stated that the petitioner ceases to be the owner/landlady of the suit premises on account of family settlement.

It was held by the Hon'ble High Court of Delhi in Bharat Bhushan Vij Vs. Arti Teckchandani 153(2008) DLT 247 that it is not the domain of the tenant to challenge Will of the deceased landlord. It was further held therein that if the landlord is able to show that there is testameant in his/her favour he/ she is deemed to have discharged his/her burden of proving ownership under the Act.

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 raising a triable issue.

It was also 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.

E. No. 1087/14 Page no.9/15

The Hon'ble High Court of Delhi in Rajender Kumar & Ors. Vs Leela Wati & Ors 155 (2008) DELHI LAW TIMES 383 held 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 is contended by the petitioner that in a petition u/s 14 (1)(e) DRC Act, she is supposed to show prima-facie that she is the owner/landlady of the suit premises. It is further contended by the petitioner that the respondent, being the tenant cannot be permitted to deny or challenge the title of the landlord.

It is contended by the petitioner that the respondent has not challenged by Will dt. 30.06.1994 and that the same was also not challenged by any of the LR's of the tenantator.

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.

Hence, the contention of the respondent that the petitioner is not the owner of the suit premises is not acceptable as he has failed to show the title better than the petitioner.

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 petitioner is the owner/landlady and there exists relationship of landlord and tenant between the parties.

9. The respondent relied upon Sudhakar Singh Vs. Sunil Batra & Ors. 192(2012) DLT 491, Hotel Corporation of India Vs. Sudesh Kumar Julka & Ors. 192(2012) DLT 493, Hindustan Zinc Ltd. Vs. Lt. Col. Satya Pal & Anr. 194 (2012) DLT 244, Sukhdevraj Dev Sharma Vs. Kuljeet Singh Jass 1995 (2012) DLT 56, New Delhi Television Ltd. Vs. ICC Development Ltd. & anr. 195 (2012) DLT 61 (DB), Jawahar Lal E. No. 1087/14 Page no.10/15 Vs. Ravinder Kumar Khanna 195 (2012) DLT 239, Rakesh Kumar Vs. Pawan Khanna 195(2012) DLT 341, Prahlad Rai Mittal Vs. Rita Devi 196(2013) DLT 703, Jagdish Lal Khorna Vs. Hemant Arora 196(2013) DLT 49 (CN), Ganga Dass Vs. D.N. Singhal & Anr. 196(2013) DLT 73A(CN), Sanjay Chug Vs. Opender Nath Ahuja & Anr. 207(2014) DLT 271, Gurbachan Singh Sachdeva Vs. Gurbachan Singh Puri 207(2014) DLT 641, Deepak Gupta Vs. Sushma Aggarwal 202(2013) DLT 121, School Management ITL Public School Vs. Jay Prakash & Anr. 202(2013) DLT 138, Subhash Jain Vs. Ravi Sehgal 209(2014) DLT 423, Rampat Vs. Ganga Devi 217(2015) DLT 568, Khem Chand & Ors. Vs. Arjun Jain & Ors. 202(2013) DLT 613, S.K. Seth & Sons Vs. Vijay Bhalla 191(2012) DLT 722, Harcharan Singh Vs. Neeraj Sahu & Anr. 190(2012) DLT 625, Aggarwal Papers Vs. Mukesh Kumar 194(2012) DLT 605, Ramesh Chand Aggarwal Vs. Munshi Lal RC Rev. 25/2013 and CM No. 865/ 2013 (Stay) decided by the Hon'ble High Court of Delhi on 21.08.2014, Kusum Lata Vs. Shyam Mohan Sharma RCR No. 240/2010 decided by the Hon'ble High Court of Delhi on 19.09.2011, Lakshman Singh Kothari Vs. Rup Kanwar AIR 1961 SC 1378 (V 48 C 258) & Raj Bahadur Baweja Vs. Narender Singh Sahni & Ors. 60(1995) DLT 310.

10. According to the respondent there are triable points regarding the bona-fide necessity of the petitioner. It is also contended on behalf of the respondent that the petitioner cannot claim eviction on the basis of her and her grand-son's whim, fancy or desire and that the petition is based on a fabricated story. It is also contended that the grand- son of the petitioner, who is already settled in Ambala is having sufficient accommodation and further that he is having no intention to come to Delhi.

It was held by the Hon'ble Apex Court in Ram Babu Agarwal Vs. Jay Kishan Das 2010 AIR (SC) 721 that a person can start a new business even if he has no experience in new business.

It was also held by the Hon'ble High Court of Delhi in Rajender Kumar Sharma and Ors. Vs. Leela Wati and Ors. 155(2008) DLT 383 that the leave to defend not to be granted to the tenant on the basis of false affidavit and false averments and assertions. It was further held that only those averments in the affidavit are to be considered by the Rent Controller which have some substance in it and are supported by some material.

E. No. 1087/14 Page no.11/15

The Hon'ble High Court of Delhi in Rajesh Jain & Ors. Vs. Qazi Shamim Ahmed & Ors. 2015 (3) CLJ 122 Del. held that a tenant cannot dictate to the landlord as to how he should manage his affairs so as not to result in eviction of tenant.

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 petitioner in the case in hand, the suit premises is required for her grand-son for running his independent C.A. Office to earn the livelihood for herself and the family members dependent upon her and that she is having no other suitable, reasonable and alternative accommodation available with her in Delhi or NCR.

11. So far as the contention of the respondent that grand-son of the petitioner is having sufficient accommodation available with him as mentioned in para 8 (vii) (page 28) of the leave to defend application. It is mentioned therein that the grand-son of the petitioner was having sufficient accommodation to carry on his independent profession even in Delhi-NCR from the properties at Swasthaya Vihar, Faridabad and Vaishali.

In Gulshan Rai Monga Vs. Sanjay Malhotra & Ors. 2015(1) CLJ 31 (NOC) Del. the Hon'ble High Court of Delhi held that where a landlord made a categorical statement that he has alternative house or shop, which were neither vacant nor suitable, but the suit premises was suitable for his need or business purpose, court would not interfere because landlord is the best judge or his requirement for residential or business purpose.

It is pertinent to mention here that in response to the said contentions, in the counter-affidavit filed by the petitioner, it is denied that the accommodation shown in Faridabad or Ludhiana were useable or capable of being used by Vikas Jain. That the said accommodation were not situated at Delhi and also not owned by the petitioner or her grand-son. It is further denied that the grand-son of the petitioner was having any reasonable sufficient accommodation available to him to carry on his independent profession in Delhi-NCR. It was further clarified in the counter-affidavit filed by the petitioner that the flat at Vaishali was the residential property and the same cannot be used for office by C.A. Hence, on the basis of the contents of the petition, leave to defend application and the counter-affidavit filed by the parties, the respondent has failed to state as E. No. 1087/14 Page no.12/15 to what were the properties possessed/ occupied or belonging to the petitioner or her family members suffice to meet the requirement of the grand-son of the petitioner in Delhi. It need not be mentioned here that the walled city, which is the central point of all type of the commercial activities is the best suitable for each and every professional to which C.A. is not an exception.

So far as the contention of the respondent that the petitioner has not disclosed the financial status of Sh. Vikas Jain, who has been C.A. for the last 5 years is concerned, it becomes pertinent to mention here that in para 8 (v) (page 17) of the affidavit annexed with the leave to defend application itself, it is mentioned that the Sh. Vikas Jain (who is the grand-son of the petitioner) has been well-established as C.A. independently as well as partner of M/s VAS & Associates and is permanently settled in Ambala Cantt. As per the respondent himself, the grand-son of the petitioner has been well-established as C.A. Therefore, no need to disclose the financial status of the grand-son of the petitioner is left.

It is also contended by the petitioner that the petition has not been signed, filed and verified by Smt. Kusum Lata Jain and her signatures have been forged by her children.

Admittedly, the petitioner is aged more than 80 years. It need not be mentioned here that there is always possibility of variations in the signatures being put by a such an old person. The petition is being represented by a counsel and even on 04.03.2015 the petitioner herself has appeared before the court and the said order was not challenged by the respondent. The respondent cannot be permitted to make it a triable issue to go on trial for years which in fact is no issue at all. In view of above, it cannot be termed as a triable issue.

For the sake of arguments, if the story of the respondent is admitted to be correct in this regard, even then one thing is clear that the petitioner and her grand-son are not having any property which can be used for the office of C.A. except the suit premises. It need not be mentioned here that every person, who is having any concern with any legal profession/ professional, knows the importance of an office within the commercial market of a city like Delhi.

E. No. 1087/14 Page no.13/15

12. So far as the contention of the respondent that the suit premises, which is situated in a narrow lane and there is hardly any space left even for walking is concerned, it need not be mentioned here that this fact is itself is indicative that the said area was the commercial market which is the best suitable for a professional to set up his office and also for a bright future.

13. In the considered opinion of the court, the contentions of the respondent are without merit and cannot be sustained as the petitioner is the owner and landlord of the premises. The law is well settled that in so far as the question of necessity is concerned, 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.

The petitioner has pleaded the bonafide requirement of the suit premises on the grounds that same is required. That the petitioner is not having any other alternate accommodation except the suit premises.

In the absence of any substantial material brought before the court or pointed out by the respondent in their 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 affidavit 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 him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession 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.

E. No. 1087/14 Page no.14/15

As an off shoot of the dismissal of the application for leave to contest made by the respondent, the petitioner is found entitled to recover the possession of premises i.e. one shop situated at ground floor forming part of property bearing No. 1747-48, Gali Satyawati Lane, Bhagirath Palace, Chandni Chowk, Delhi-110006, 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. 

Announced in the open court                                        (Rajinder Kumar)
on this 31th March. 2016                                    Additional Rent Controller-02
                                                              Central/Tis Hazari Courts




E. No. 1087/14                                                        Page no.15/15