Delhi District Court
Suresh Chander Gupta vs Pawan Kumar Goel on 14 October, 2013
In the Court of Sh. Gorakh Nath Pandey
Senior Civil JudgecumRent Controller, New Delhi District
Patiala House Courts, New Delhi
E. No. 03/13 (Old. E No. 3/12)
Unique ID No. 02403C0018192012
In the matter of:
1. Suresh Chander Gupta
S/o Sh. Laxmi Narain Gupta
2. Manju Gupta
W/o Sh. Suresh Chander Gupta
Both R/o M118, Laxmi Nagar,
Near Jagat Ram Park, Delhi110092. ....................Applicants
VERSUS
Pawan Kumar Goel
S/o Sh. Brij Lal Goel
At : R12 & R8, Plot no. 6,
Block 205C, Bengali Market,
New Delhi. ....................Respondent
Date of Institution : 21.02.2012
Date of Arguments: 26.09.2013
Date of Judgment : 14.10.2013
APPLICATION FOR EVICTION OF TENANT UNDER SECTION
14(1)(e) READ WITH SECTION 25B OF THE DELHI RENT
CONTROL ACT, 1958.
E. No. 03/13 Page no. 1 of 25
ORDER :
This order shall decide the question whether the respondent be granted leave to contest the present application for eviction under clause (e) of proviso to subsection (1) of section 14 of the Delhi Rent Control Act, 1958 (Act 59 of 1958)?
2 Brief facts for the decision on the question are that applicants Mr. Suresh Chander Gupta and Smt. Manju Gupta have made an application under clause (e) of proviso to subsection (1) of section 14 of Act 59 of 1958 against respondent Mr. Pawan Kumar Goel for recovery of possession of premises namely, R12 and R8, Plot no. 6, Block205C, Bengali Market, New Delhi as shown in the site plan attached with the application stating that the applicants are the owners and landlords of the premises under the tenancy of the respondent; that the premises comprised of one shop, one room, one kitchen and two tin shades situated at ground floor and have been let out at monthly rent of Rs.165/; that the respondent is an old tenant in respect of the premises bearing no. R12, (double door) for the commercial purpose and premises bearing no. R8 (which is at the back of the aforesaid shop) for residential purpose in the property bearing no. 6, Block 205C, Bengali Market, New Delhi; that presently the premises are being used for Kiryana shop and godown purpose; that the applicants are the owners of the premises in possession of the respondent; that the applicants are having two sons namely, Mr. Sandeep Gupta and Mr. Deepak E. No. 03/13 Page no. 2 of 25 Gupta and both of them are married and residing with the applicants; that both the sons of the applicants are working with the applicant no. 1 and are participating in the business activities of the applicant no. 1 and are totally dependent upon the applicants for the purpose of business and as the family of the applicants has grown up, therefore, the applicants want to settle/establish their both the sons separately and therefore, require the premises to settle their younger son Mr. Deepak Gupta alongwith him to enhance the business; that the shop under the tenancy of the respondent is required bonafiedely by the applicants for their younger son Mr. Deepak Gupta who is dependent upon the applicants for the purpose of business premises and the applicants require the premises in question to enhance the business; that the tenanted premises are located adjacent to the shop of the applicants and therefore, the same is more suitable for the applicants to start a new confectionery/kiryana shop for their younger son Deepak Gupta; that even otherwise the income from the shop of the applicants is insufficient for three families i.e. the families of the applicants, Mr. Deepak Gupta and Mr. Sandeep Gupta; that the applicants are having no other space except the premises to start a separate new business of kiryana for their son Mr. Deepak Gupta. It is further stated in the application that an eviction order be passed against the respondent and in favour of the applicants in respect of the premises shown in colour red in the site plan.
3 The application for eviction was made on 21.2.2012 and on the next E. No. 03/13 Page no. 3 of 25
day summons were directed to be issued against the respondent on the form prescribed in the third schedule of Act 59 of 1958. The summons were served upon the respondent on 21.3.2012 and in response to the summons, served upon the respondent, an application purporting to be under sub section (5) of section 25B of Act 59 of 1958 for grant of leave to defend/contest the eviction application was made on behalf of the respondent on 07.4.2012. The application made on behalf of the respondent has been accompanied by a document purporting to be affidavit comprising of one page containing three paragraphs. It has been stated in the application purporting to be under subsection (5) of section 25B of Act 59 of 1958 that the address of the respondent is shop R1/2, Bengali Market, New Delhi; that the applicants have not come to this court with clean hands and have concealed material facts; that the applicants are owner of several other properties and have other sufficient places for their already established son Deepak Gupta, who is holding bank accounts no. 1804032851 and 3122118708 with the Central Bank of India, 63, Babar Road, New Delhi01 branch and heavy money transactions are taking place in his bank accounts; that Mr. Deepak Gupta is also an income tax payee having PAN AAOPG 2349E and said to be residing at H72, Gouhati Mohalla, Lakshmi Nagar110092 whereas the address reflected in the present application for eviction is M118, Lakshmi Nagar, near Jagat Ram Park, Delhi92; that Mr. Deepak Gupta has income to the tune of many lacs E. No. 03/13 Page no. 4 of 25 per month and is well settled; that there is no bona fide requirement as alleged in the application for eviction to settle the son of the applicants but instead the applicants want to destabilize the respondent who has earned reputation by working hard for the last forty years in the locality as a proprietor of "Gupta Stores" and the said Gupta Stores is the only source of livelihood of the respondent and there is no other source of income; that the entire family of the respondent is dependent upon the income from the shop namely, Gupta Stores and the family of the respondent comprised of his two sons, wife and daughter in law; that in case the respondent is destabilized his entire family would be on road and with no other source of income; that the respondent has never tried to sublet the property or tried to alter the tenanted premises which in intact and the structure can survive for many years to come; that the respondent is about 58 years old and is suffering from sugar and is also a heart patient and had heart attack last year; that the applicants are well settled and they do not need the premises for the settlement of their younger son Deepak; that the respondent has already submitted the rent for the period 01.1.2012 to 31.3.2013 by way of cheque bearing no. 071140 dated 26.3.2012 of Rs.2,838/ drawn on HDFC Bank; that the present application for eviction has been filed with mala fide intention as their is no requirement of the applicants and they would further rent out the premises on much higher market rate as they have lucrative offers in their hands and are known to the respondent.
E. No. 03/13 Page no. 5 of 25 4 The application of the respondent is contested by the applicants by
way of a counter affidavit of the applicant no. 1. In the counter affidavit of the applicant no. 1 it has been stated that the application for leave to contest is not maintainable and liable to be dismissed because the application has not been filed as per the procedure defined in section 25B (4) and (5) of Act 59 of 1958; that the respondent has failed to file the mandatory affidavit disclosing the ground on which the applicants are not entitled for grant of relief claimed under section 14(1)(e) of Act 59 of 1958; that section 25 of Act 59 of 1958 is complete code for disposal of the application under section 14(1)(e) of Act 59 of 1958 and as per section 25B(4) and (5) of Act 59 of 1958 it is mandatory for the tenant to file an affidavit disclosing the ground for grant of leave to defend; that the supporting affidavit filed alongwith the application is false on the face of it because the respondent has disclosed his residential address as the suit premises; that the premises are a shop as mentioned by the respondent and therefore, the same cannot be the residential address of the respondent; that the application for leave to contest is not maintainable and liable to be dismissed as the respondent has failed to disclose any cogent or valid ground on the basis of which he should be allowed to defend the present application for eviction. In other paragraphs of the country affidavit of application no. 1 Mr. Suresh Chander Gupta the defence taken by the respondent in his application for leave to contest are disputed and denied and it is reiterated that the premises are E. No. 03/13 Page no. 6 of 25 required bona fide by the applicants for their son Mr. Deepak Gupta who is dependent on them. In the counter affidavit of the applicant no. 1 it is denied that the applicants are having other property in their possession. 5 A rejoinder to the counter affidavit of the applicant no. 1 is filed by the respondent wherein the objections raised by the applicant no. 1 to the application of the respondent are disputed and denied. 6 The application for leave to defend filed by the respondent was dismissed by my Ld. Predecessor and the eviction order was passed in faovur of the applicant vide order dated 18.10.2012. Aggrieved by the order dated 18.10.2012, the respondent preferred revision before the Hon'ble High Court of Delhi vide RCRev. 33/2013 which was allowed by the Hon'ble High Court of Delhi vide order dated 29.4.2013. Hon'ble High Court of Delhi has set aside the order dated 18.10.2012 passed by my Ld. Predecessor and this court was directed to proceed further in accordance with law after taking on record the leave to defend application by the respondent on record.
7 Pursuant to the order of the Hon'ble High Court of Delhi dated 29.4.2013, I have heard the argument on behalf of the parties with respect to the leave to defend application and considered the relevant materials on record.
8 Having drawn my attention on the contents of the application for eviction, the application for leave to contest the application for eviction, the E. No. 03/13 Page no. 7 of 25 documents filed by the respondent alongwith his application, the affidavit filed alongwith the application and the law laid down by the Hon'ble High Court of Delhi vide judgments in RC Rev. 436/2012, RC Rev. 304/2012, RC Rev. 183/2012, RC Rev. 563/12, RC Rev. 107/12, RC Rev. 240/11 and RC Rev. 102/12, RC Rev. 442/12, it is submitted by counsel for the respondent that the premises are not required by the applicants for their bona fide need as Mr. Deepak, the son of the applicants, is already settled and has been earning very well and residing separately from the applicants and thus is not dependent upon the applicants. It is further submitted by counsel for the respondents that the affidavit filed by the respondent alongwith the application for leave to contest is correct. It is further submitted by counsel for the respondent that as per the documents of the applicants Mr. Deepak Gupta has not been residing with the applicants and instead he has been residing at H72, Gouhati Mohalla, Lakshmi Nagar, Delhi92. It is further submitted by counsel for the respondent that since the respondent has raised triable points by way of his affidavit the decision on which in favour of the respondent may disentitle the applicants from recovering the possession of the premises, therefore, the application for leave to contest be allowed and leave be granted in favour of the respondent to contest the application for eviction.
9 Contrary to the submissions to the respondent, having drawn my attention on the contents of the application for eviction, the application to E. No. 03/13 Page no. 8 of 25 contest the eviction application, affidavit filed alongwith the application of the respondent, counter affidavit of the applicant no. 1 and the law laid down in Satyawati Sharma (Dead) by LRs v. Union of India and another, AIR 2008 SC 3148, Surender Singh Vs Jasbir Singh 2010 LE (Del) 436, Raj Kumar Prasad Vs Inder Wati 2012 (188) DLT 479, Rajiv Singh Sindhwani Vs Kishan Chand Saini 2012(190) DLT 756, Ravinder Singh Vs Deepesh Khorana 2012 LE (DHC) 2027 and Babaji Medicos Vs Prem Prakash 2012 LE (DHC) 1531, it is submitted by counsel for the applicants that the applicants are entitled to an order of eviction in their favour and against the respondent as the respondent failed to show the court that there are triable points between the parties. It is also submitted by counsel for the applicants that the son of the applicants is unemployed and dependent on the applicants. It is also submitted by counsel for the applicants that the premises are required bona fide by the applicants for their son Mr. Deepak Gupta who is dependent on them and the applicants have no other reasonably suitable accommodation to answer their necessity. It is further submitted by counsel for the applicants that since the respondent has failed to raise any triable issue, therefore, the request of the respondent for granting leave to contest the application for eviction be declined and an eviction order be passed.
10 I have considered the rival submissions made on behalf of the parties.
E. No. 03/13 Page no. 9 of 25 I have also considered the relevant provisions of law alongwith legal authorities relied by the parties.
11 As already mentioned, the present application for eviction has been made under clause (e) of proviso to subsection (1) of section 14 of Act 59 of 1958 which enables a landlord, who is also owner of a premises, to recover the possession of the premises on the ground that the premises are required bona fide by such landlord for himself or for any member of his family dependent on him having no other reasonably suitable accommodation. The relevant section is reproduced 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 the landlord for occupation as a residence for himself or for any member of his family E. No. 03/13 Page no. 10 of 25 dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation :
Explanation. For the purpose of this clause, "premises let for residential purposes" include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes;
12 A landlord/land lady will be entitled to an order of eviction U/s. 14(1)(e) if he/she is able to show that (1)the premises in question were let out for residential purpose, (2)he/she is the landlord/land lady and owner of the suit premises, (3)the premises required bona fide by him/her for occupation as residence for himself/herself or any member of his family dependent upon him/her for residence and for any person for whom the premises are held, and (4)the landlord/land lady or such person has no other suitable residential accommodation.
13 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 subsection (1) of section 14 of Act 59 of 1958 is also E. No. 03/13 Page no. 11 of 25 applicable to the premises let out for purpose other than residential purpose. 14 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:
"What should be the approach when leave to defend is sought? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would nonsuit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action (see Santosh Kumar v. Bhai Mool Singh). At the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and 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 of personal E. No. 03/13 Page no. 12 of 25 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: "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 E. No. 03/13 Page no. 13 of 25 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 crossexamination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refuse to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through crossexamination of witnesses who have filed their affidavits. Burden is on the landlord to prove his requirements and his assertion is required to be tested more so when it is shown that for long he is staying outside Delhi, that he has a building albeit standing in the names of his sons and daughters where he is staying and at which place he receives his normal correspondence. If in such a situation one can say that a triable issue is not raised, one is at a loss to find out where, when and in what circumstances such an issue would arise. We are, E. No. 03/13 Page no. 14 of 25 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."
15 Further in Precision Steel and Engineering Works v. Prem Deva Niranjan Deva Tayal, AIR 1982 SC 1518 the Hon'ble Supreme Court having discussed the relevant provisions of Act 59 of 1958 held as follows: "The Controller has to confine himself to the affidavit filed by the tenant under subsec. (4) and the reply if any On perusing the affidavit filed by the tenant and the reply if any filed by landlord the Controller has to pose to himself the only question, `Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in cl. (e) of the proviso to Section 14 (1)?' The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against the other set of affidavits. That is not the jurisdiction conferred on the Controller by subsec. (5) because the Controller while examining the question whether there is a proper case for granting leave to contest the application has to confine himself to the affidavit filed by the tenant disclosing such facts as would prima facie and not on E. No. 03/13 Page no. 15 of 25 contest disentitle the landlord from obtaining an order for recovery of possession. At the stage when affidavit is filed under subsec.(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 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 E. No. 03/13 Page no. 16 of 25 materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown."
16 In Sarwan Dass Bange v. Ram Prakash, 2010 IV AD (Delhi) 252, it has been observed by the Hon'ble Delhi High Court as follows:
"The Controller has not discussed as to how the pleas raised by the respondent/tenant in the application for leave to defend are such which if established by adducing evidence would disentitle the petitioner/landlord of an order of eviction under Section 14 (1)(e) of the Act. Ordinarily, when a tenant approaches an advocate for drafting a leave to defend application, the advocate, using his legal acumen would dispute each and every plea of the landlord in the eviction petition. However, merely because the tenant so disputes and controverts the pleas of the landlord does not imply that the provisions of summary procedure introduced in the Act with respect to ground of eviction on the ground of requirement is to be set at naught. The Controller is required to sift/comb through the application for leave to defend and the affidavit filed therewith and to see whether the tenant has given E. No. 03/13 Page no. 17 of 25 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 of fact arising; the test is to examine the pleas of facts and then to determine the impact thereof."
17 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.
18 As regards the question of the petitioners being owner/landlord and the relationship of landlord and tenant between the parties, the same is not challenged by the respondent and the status of the applicants as owner/landlord and the respondent being tenant remained undisputed. The E. No. 03/13 Page no. 18 of 25 identity of the premises in question is also not disputed by the respondent as disclosed in the site plan filed by the petitioners on record. In the present case, the respondent has sought leave to contest the application for eviction only on the grounds, namely the need of the petitioners is not bona fide as the son of the petitioners Mr. Deepak Gupta is well established and the availability of the suitable alternative accommodation with the petitioners. 19 According to the respondent, there is triable point regarding the bona fide necessity of the petitioners and the petitioners have alternative accommodation available. It is also contended on behalf of the respondent that the need of the petitioners is not bona fide and the only motive of the petitioner is to have vacated the premises and let out the same at higher rent. 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. The law is also well settled that if a person wants to start a new business, his decision cannot be challenged on the ground that such person has no experience in respect of the business he wants to commence. It should be remembered that the law requires that the tenant in order to succeed in the leave to defend application must show some facts which casts a serious doubt as to the genuineness of the need of the landlord and so the landlord has reasonably suitable accommodation.
20 The respondent/tenant cannot dictate the terms to the landlord as dealt in the case of Sarla Ahuja v. United India Insurance Company Ltd., E. No. 03/13 Page no. 19 of 25 AIR 1999 SC 100 (which are equally apposite to the present case.) As further held; ".....The crux of the ground envisaged in Clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
21 It is settled law that the landlord is the best judge of his requirement and has complete freedom in the manner of the beneficial enjoyment of his E. No. 03/13 Page no. 20 of 25 property once it is shown that the requirement of the landlord is bona fide. The petitioners is the owner and landlord of the premises and in the present case has specifically pleaded that they need the premises for use of their son Mr. Deepak Gupta who is dependent upon them. The petitioners have two married sons who are residing and working with the petitioner no. 1 while participating in the business activities of petitioner no. 1. It is further contended that both the sons are totally dependent upon the petitioners for the purpose of business as the petitioners want to settle both their sons separately, they require the premises in question for their younger son Deepak Gupta to start business. It is further mentioned that the shop in question is adjacent to the shop of the petitioner no. 1 and is therefore more suitable for the petitioners to start business. It is further mentioned that there is no other suitable alternative accommodation with the petitioners as required. The respondent in the leave to defend application contended that the petitioners have concealed the material facts and claimed that the petitioners are owners of several other properties and further claimed that Deepak Gupta is well settled operating bank accounts and having PAN number as stated in the application for leave to contest the petition. The respondent has further denied the bonafide requirement of the petitioners. 22 Admittedly, the petitioners have two sons carrying on business together adjacent to the property in question. Both of the sons are married and the family has grown up. The respondent has failed to bring to the E. No. 03/13 Page no. 21 of 25 notice any other suitable alternative accommodation with the petitioners and simply denied the requirement of the petitioners claiming Mr. Deepak Gupta is well settled. The application of the respondent is vague and do not specify the availability of any other alternative suitable accommodation and the assertion in this respect is merely bald and vague. The respondent has further failed to bring to notice of this court that Deepak Gupta is working or doing any business independently and is therefore well settled. It is not the case of the petitioners at all that Mr. Deepak Gupta is sitting at home and has no earning. Merely having the PAN number and operating the bank account does not show that Mr. Deepak Gupta is well settled and established. There is no denial at all that Mr. Deepak Gupta is working with petitioner no. 1 at his shop. As the petitioner no. 1 wants to settle and start independent business for his son Deepak Gupta and consequently require the property in question, the need of the petitioners cannot be considered to be malafide. Admittedly, there is no other commercial property of the petitioners except the property in question where such business can be started. Moreover, the property in question being adjacent to the petitioners shop, can be considered as more suitable and the need of the petitioners cannot be considered to be malafide. Having the saving bank account transactions and PAN number does not raise any triable issue regarding the question of availability of any other suitable accommodation with the petitioners as well as the claim of the petitioners being bona fide. In the E. No. 03/13 Page no. 22 of 25 absence of any substantial material brought before the court or pointed out by the respondent in his 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 respondent has not been able to show any circumstance which casts any doubt as to the genuineness of the requirement of the petitioner except by disputing the same. The mere dispute raised by the respondent does not show as to how the need of the petitioner is not genuine. In the facts and circumstances of the case, legal pronouncements and aforementioned discussions, this court is satisfied that the need of the petitioner is bona fide and appears to be sincere and honest and not a mere pretext to evict the respondent/tenant. The tenanted accommodation is the most suitable to meet the requirement of the petitioners to set up business as claimed. Moreover the respondent failed to bring to the notice of this court any alternative accommodation with the petitioner which would disentitle him from claiming the premises for his own bona fide use. There is no triable issue between the parties on this aspect of the case. The judgments relied by the respondent is not helpful and applicable in the facts and circumstances of this case. Rather the judgments relied by the petitioners are squarely applicable.
23 As per the provisions of section 25B of Act 59 of 1958 a tenant shall E. No. 03/13 Page no. 23 of 25
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 subsection (1) of section14 of Act 59 of 1958. In the present case, as I have already indicated, the petitioners are seeking recovery of possession of the premises only for use of their son Mr. Deepak Gupta to start an independent business. In the considered opinion of the court there is no triable issue on this aspect of the matter. 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 discussions, having gone through the contents of the affidavit and counter affidavit of the parties and the documents filed by them, 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.
24 In view of my above discussion, the respondent is found not entitled to obtain the leave to contest the present application for eviction of tenant. The application for leave to contest the application for eviction is dismissed. As an off shoot of the dismissal of the application for leave to contest made by the respondent, the applicants are found entitled to recover the possession of the premises bearing no. R12 and R8, Plot no. 6, E. No. 03/13 Page no. 24 of 25 Block205C, Bengali Market, New Delhi as shown in colour red 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.
25 In view of the provisions of subsection (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. 26 File be consigned to record room.
Announced in the open court on this 14th day of October, 2013 ( GORAKH NATH PANDEY) Senior Civil JudgecumRent Controller New Delhi E. No. 03/13 Page no. 25 of 25