Delhi District Court
Mr. Tarun Pahwa vs Mr. Pradeep Makin on 15 May, 2014
IN THE COURT OF NAVEEN K. KASHYAP, COMMERCIAL
CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER
(WEST), TIS HAZARI COURTS, DELHI.
E. No- 53/2013
MR. TARUN PAHWA
S/o Mr. M.L. Pahwa
R/o KU-76, Pitam Pura
Delhi-110034.
.......... Petitioner
VERSUS
MR. PRADEEP MAKIN
Prop. Of Makin Shoe Laces
S/o Late Baldev Raj Makin
25/8, B-11, Gali No. 7,
New Rohtak Road Industrial Area,
Anand Parbat, New Delhi-110005.
......... Respondent
Date of institution : 20.04.2013
The date on which the
undersigned took over
the matter : 01.05.2014
Date of decision : 15.05.2014.
ORDER
1. Present petition is a petition u/s 14 (1) (e) of DRC Act for eviction of the respondent from one hall at ground floor measuring approximate 786 sq. ft. forming part of property no. 25/8, B-11, Gali No. 7, New Rohtak Road Industrial Area, Anand Parbat, New Delhi-05 as shown in red colour in the site plan attached with the petition (hereinafter referred as tenanted suit property), on the ground of bonafide commercial requirement of wife of the petitioner.
Page 1 of 112. The brief facts as stated in the petition are that petitioner tenanted suit property was let out in the year 1977 by the previous owner Sh. Daulat Ram, who had transferred all his rights in favour of the petitioner in the year 1979 and the respondent became a tenant under the petitioner and paid rent to the petitioner. It is stated that wife of the petitioner Mrs. Praveena Pahwa is a M.A. and holding certificate in Jewellery making. That she wants to establish herself in the business of jewellery making and for that purpose, tenanted suit property is required. For such business, petitioner requires one office, working hall, store and two toilets, details of which is given in Annexure-I annexed with the petition. It is further claimed that petitioner does not have any other reasonable suitable accommodation in this regard. It is further stated that father of the petitioner already sold portion of the property as shown in green colour in the site plan annexed with the petition as Annexure- 2 to
5. It is further stated that portion shown in yellow colour in said Annexures 2 to 5 are with the tenants, which respondent has not disputed. In any case it is stated that in view of requirement of petitioner's wife, tenanted suit property is more suitable for her business. It is further stated that petitioner filed an eviction petition bearing no. 25/2010 and the same was withdrawn on technical reasons with liberty to file fresh petition. That respondent succeeded in getting leave to defend in that petition because of non appearance of certain facts.
3. Notice of the eviction petition was sent to the respondent. In response to which the respondent filed his leave to defend application along with affidavit dated 16.05.2013 filed on 16.05.2013 itself.
4. In nut shell, in his leave to defend application along with supporting affidavit, respondent claimed that requirement of the petitioner is not bonafide and that he has not approached the court with clean hands and has suppressed material facts. That earlier, petitioner filed a similar Page 2 of 11 petition U/Sec. 14(1)(e) D.R.C. Act, in which leave to defend was allowed to the present respondent and even the order granting leave to defend was confirmed by the Hon'ble High Court on 21.12.2012 but, such fact is suppressed by the petitioner.
That facts of present case are different from Smt. Satyawati Sharma's vs. U.O.I (supra), as the property is commercial from very beginning in the present case and let out for commercial purpose only.
That the suit property is situated in a congested place as such the proposed office can not be successfully run in the area.
That present petition is filed with a malafide intention to earn "Pugree".
That petitioner did not disclose how much accommodation in the building in his actual possession and how much the petitioner has dealt in the last six years and particularly in last six months. That total area in possession of petitioner or his transferee including other/current tenants is 92X42 ½ sq.ft. out which suit property is only 18 ½X 42 ½ sq. ft. only.
That without sanction from the concerned authority/MCD, the petitioner has built floors including ground floor, and such newly available area including the ground floor was let out repeatedly by the petitioner.
That petitioner not in possession of any title documents of the suit property.
That it is a case of self created scarcity of accommodation. That petitioner is regularly inducting and renewing the lease with other tenants at regular intervals at enhanced rentals. Further, the petitioner has built four floors including the ground floor in a portion immediately next to the premises in question in the year 2005 and thereafter and same is in vacant possession of the petitioner and same was later let out to the various tenants time and again. It is further stated that certain portions have been relet by the petitioner even after withdrawal of the earlier Page 3 of 11 petition. Detail of all such tenants and letting out the premises is given in the leave to defend affidavit.
That the petitioner earlier sent a legal notice dated 19.05.2005 to the respondent for enhancement of rent from Rs. 436/- to Rs. 2,500/- which shows that the intention of the petitioner is not bonafide.
That so called let out properties by the petitioner are shown as self occupied property in property tax returned in the MCD atleast till 2010.
That it is common knowledge that the land comprising in locality in which the suit property is situated has already been acquired by the UOI/DDA which is clear from the public notice in major Newspaper on 12.12.1998.
5. In his reply coupled with counter affidavit dated 29.05.2013, the petitioner denied the allegations made by the respondent and reaffirmed his stand taken in the main petition.
6. Further, thereafter respondent filed rejoinder to the leave to defend application along with rejoinder affidavit to counter affidavit, dated 26.08.2013, in which in nut-shell he reaffirmed his stand taken in leave to defend application.
7. I have heard Ld. Counsels for the parties at length. Further, I have gone through the record including the lengthy written submissions filed by the parties and the record of previous leave to defend application filed by the petitioner. Before proceeding further, this Tribunal has to point out that leave to defend application along with affidavit herewith filed by the respondent suffered from prolixity. In fact at many places, the respondent has himself stated "at the cost of repeatition". No difference is kept between the facts, the law and the judgments passed by Hon'ble Higher Courts, in the leave to defend application along with its affidavit. The leave to defend application is a combination of factual ground as well as Page 4 of 11 written arguments plus repeatition of both. Although, it is the quality of submissions and not quantity which matters. Be it as it may, this Tribunal is proceeding further to decide the present leave to defend application on merits.
THE LAW:
8. Before proceeding further it would be worthwhile to state that Chapter IIIA Of Delhi Rent Control Act deals with summary trial of certain applications expressly stating that every application by a landlord for recovery of possession on the ground specified in clause (e) of the proviso to sub- section (1) of Section 14 of the Act, or under Section 14A or 14B or 14C or 14D shall be dealt with in accordance with the special provisions prescribed in Section 25B of the Act. The provisions in Chap. IIIA confer a real, effective and immediate right to obtain possession by confining the trial only to such cases where the tenant has such a defence as would disentitle the landlord from obtaining an order for eviction under s.l4(1)(e) or under s. 14A. Chap. IIIA seeks to strike a balance between the competing needs of a landlord and a tenant and has therefore provided that the tenant shall have a right to apply for leave to contest. As per the broad scheme of this Chapter a tenant is precluded from contesting an application filed for eviction on the grounds mentioned in the aforementioned provisions unless he obtains leave from the Controller to contest the eviction petition. In default of obtaining leave to defend or leave is refused to him an order of eviction follows. It appears recourse to summary trial is adopted having due regard to nature of the grounds on which the eviction is sought with a view to avoid delay so that the landlord should not be deprived or denied of his right to immediate possession of premises for his bona fide use.The defence must also be bonafide and if true, must result in the dismissal of landlord's application. Defences of negative character which are intended to put the landlord to Page 5 of 11 proof or are vague, or are raised mala fide only to gain time and protract the proceedings, are not of the kind which will entitle the tenant to the grant of leave. The Controller cannot set down the application for hearing without making an order in terms of sub-s. (5) of s. 25B. The trial must be confined only to such grounds as would disentitle the landlord to any relief.
09. But at the same time, it is well settled and accepted position in law that no one shall be subjected to suffer a civil consequence like eviction from a premises resulting in hardship to him without providing adequate and effective opportunity to disprove the case against him and establish his case as pleaded.
10. Further as is evident from Section 25B(4)&(5) of the Act, burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in clause (e) of the proviso to Section 14(1) of the Act, then the same are good enough to grant leave to defend.
11. A landlord, who bona fidely requires a premises for his residence and occupation should not suffer for long waiting for eviction of a tenant. At the same time, a tenant cannot be thrown out from a premises summarily even though prima facie he is able to say that the claim of the landlord is not bona fide or untenable and as such not entitled to obtain an order of eviction. Hence the approach has to be cautious and judicious in granting or refusing leave to defend to a tenant to contest an eviction petition within the broad scheme of Chapter IIIA and in particular having regard to the clear terms and language of Section 25B(5) of DRC Act .
12. At the stage of seeking leave to defend ,it is enough if he prima facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. It would not be a right Page 6 of 11 approach to say that 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 25B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act. Leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of a landlord to recover possession of the premises from a tenant under clause (e) of the proviso to sub-section (1) of Section 14, when as a matter of fact the requirement may not be bona fide. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to him and his family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction. At the stage of granting leave to defend parties rely on affidavits in support of the rival contentions. Assertions and counter assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend were either frivolous, untenable or most unreasonable. The ground under clause (e) of the proviso to sub-section (1) of Section 14 enables a landlord to recover possession of the tenanted premises on the ground of his bona fide requirement. This being an enabling provision, essentially the burden is on the landlord to establish his case affirmatively. In short and substance, wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the Rent Controller by the statute itself to grant leave. At the stage of granting leave the real test should be whether facts disclosed in the affidavit filed seeking leave to defend prima facie show that the landlord would be disentitled from obtaining an order of eviction and not whether at the end defence may fail. It is well to remember that when a Page 7 of 11 leave to defend is refused, serious consequences of eviction shall follow and the party seeking leave is denied an opportunity to test the truth of the averments made in the eviction petition by cross-examination. It may also be noticed that even in cases where leave is granted provisions are made in this very Chapter for expeditious disposal of eviction petitions. Section 25B(6) states that where leave is granted to a tenant to contest the eviction application, the Controller shall commence the hearing of the application as early as practicable. Section 25B(7) speaks of the procedure to be followed in such cases. Section 25B(8) bars the appeals against an order of recovery of possession except a provision of revision to the High Court. Thus a combined effect of Section 25B(6), (7) and (8) would lead to expeditious disposal of eviction petitions so that a landlord need not wait and suffer for long time. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship.
13. Further it is immaterial at this stage that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. It is distinctly possible that a tenant may fail to make good the defence raised by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown. In this view a balanced view is to be taken having regard to competing claims.
14. Further 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 Page 8 of 11 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.
15. Further it is held time and again by Hon'ble supreme Court that the genesis of our procedural laws is to be traced to principles of natural justice, the principal amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and provide his own case. Summary procedure does not clothe an authority with power to enjoy summary dismissal. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the 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.
THE FINDINGS:
16. With this background, this tribunal turns to the facts of the case in hand. At this stage this tribunal has to focus its attention to the scope and content of Section 25B(5). The respondent has raised many other Page 9 of 11 issues in the leave to defend application which have been stated to be triable issues.
17. In the present case, it is pertinent to note that earlier also petitioner filed a petition U/Sec. 14(1)(e) of D.R.C. Act on the ground of setting a unit for manufacturing of artificial jewellery for his wife. In that petition vide order 23.11.2011, the leave to defend Application of the present respondent was allowed. And in fact, the revision petition filed by the petitioner against such order before the Hon'ble High Court was also disallowed vide order dated 21.12.2012. Thereafter the present petitioner withdrew the previous petition on technical ground and filed the present petition. Although, filing a fresh petition on the ground of bonafide need is not barred in law but in the facts and circumstances of present case, previous such petition is relevant at this stage to decide, as also argued by Ld. Counsel for respondent, whether need of the petitioner is bonafide or otherwise. Further, the Ld. Counsel for the respondent has rightly pointed out in the regard to the legal notice dated 19.05.2005 issued by the petitioner side. In this legal notice, the petitioner has demanded increase of rent to Rs. 22,500/- per month instead of present meager amount of Rs. 435/- only per month. Needless to say that petition U/Sec. 14(1)(e) of D.R.C. Act can be allowed only if need is bonafide and not malafide. Further, in the present leave to defend application coupled with supporting affidavit, the respondent has raised the triable issue, whether there is alternative accommodation or not in possession of the petitioner to start such alleged business of his wife. Even in his written arguments, out of 400 sq. yds. area the petitioner has explained only about 200 sq. yds. plus 88 sq. yds. in possession of respondent and not rest of the area. Further, in the facts and circumstances of the present case and in view of issues raised by the respondent, whether the locaility where the suit premises is situated, is suitable or not for the alleged business in question also becomes a matter of trial.
Page 10 of 1118. Thus, having regard to the facts stated and grounds raised in the affidavit filed by the respondent seeking leave to defend, it is not possible to take a view that no triable issue arose for consideration. The facts stated in the affidavit of the respondent in support of his application seeking leave to defend, prima facie, do disclose that the Petitioner would be disentitled to obtain an order for the recovery of possession of the premises from the respondent as the defence does not appear to be frivolous or untenable on the face of it. In my view the facts are disputed and the correctness or otherwise of the assertions made by each side required to be examined.
19. Thus, leave to defend is granted to the respondent to contest the petition.
Announced in the open court on 15/05/2014.
(This order contains 11 pages) (Naveen Kr. Kashyap) Commercial Civil Judge-cum Additional Rent Controller, West District, Tis Hazari Courts, Delhi.
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