Delhi High Court
Parveen Kumar Wadhwa & Ors vs Ram Mehar Tyagi & Ors on 27 July, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 27th July, 2017.
+ RC.REV. No.134/2016 & CM No.7208/2016 (for stay)
PARVEEN KUMAR WADHWA & ORS ..... Petitioners
Through: Ms. Shalini Kapoor, Ms. Ruhini Dey
& Mr. Dikshant Khanna, Advs.
Versus
RAM MEHAR TYAGI & ORS ..... Respondents
Through: Mr. Gaurav Tyagi R-1(g) in person.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Rent Control Revision Petition under Section 25B(8) of the Delhi
Rent Control Act, 1958 impugns the order (dated 23rd December, 2015 in
E.No.237/2011 of the Court of Additional Rent Controller (ARC) (West),
Tis Hazari Courts, Delhi) of dismissal of the application filed by the
petitioners for leave to defend the petition for eviction filed by the
respondents under Section 14(1)(e) of the Act and the consequent order of
eviction of the petitioners from two shops situated on the ground floor of
property no.WZ-1 / WZ-4A being part of Khasra No.4027/2785/734/2 min
of Village Basai Darapur, New Delhi - 110 015.
2. The petition was entertained and notice thereof issued and vide ad
interim order dated 26th February, 2016 execution of the order of eviction
stayed. Vide subsequent order dated 3rd August, 2016, stay of the order of
eviction was made conditional on deposit by the petitioners of a sum of
Rs.22,000/- per month. Vide yet subsequent order dated 7th December, 2016,
RC.REV.134/2016 Page 1 of 18
the monies so deposited were ordered to be released to the respondents
subject to the final orders in this petition. Vide yet subsequent order dated
14th March, 2017, the petitioners were directed to pay the use and occupation
charges directly to the respondents.
3. The counsels have been heard and the Trial Court record requisitioned
perused.
4. The counsel for the petitioners states that the petitioners are not
disputing that the respondents are the owners of the shops in the tenancy of
the petitioners and that there exists a relationship of landlord and tenant
between the parties. Thus the discussion hereunder would be confined to the
aspects of, whether the petitioners in their application for leave to defend
disclosed any such facts qua the bona fide requirement by the respondents of
the premises in the tenancy of the petitioners and availability of alternate
suitable accommodation to the respondents, which if proved would disentitle
the respondents from an order of eviction under Section 14(1)(e) of the Act.
5. The three respondents, namely Ram Mehar Tyagi, Satish Tyagi and
Dr. Harish Tyagi instituted the petition for eviction pleading (i) that the
premises were let-out, in the year 1982, to the predecessor of the petitioners
/ tenants and the petitioners / tenants were paying a rent of Rs.1,331/- per
month therefor; (ii) that the respondent no.3 Harish Tyagi is a doctor by
profession and has no place to practice medicine and the shop in the tenancy
of the petitioners situated on the main road, at a prime location, is required
by him to set-up his practice of medicine; (iii) that the grandson Gaurav
Tyagi of the respondent no.1 (the respondent no.1 has since died and Gaurav
Tyagi and his other siblings have been impleaded in his place) is an
RC.REV.134/2016 Page 2 of 18
Advocate by profession and also has no place to set-up his office as an
Advocate and is using the Chambers of his friends and colleagues in the
Court and is facing grave hardship and inconvenience; and, (iv) that the
shops in the tenancy of the petitioners are the only commercial space
available to the respondents to cater to their said needs/requirement.
6. The petitioners / tenants sought leave to defend pleading (i) that the
respondents / landlords had not disclosed the accommodation available to
them at the address of which they are shown resident of; (ii) that the
respondent no.3 Dr. Harish Tyagi is a Senior Resident in Kolmet Hospital,
Pusa Road, New Delhi and inspite of being registered as a medical
practitioner since 5th January, 1983, had never practised medicine on his own
and is a whole time Consultant in Kolmet Hospital and not entitled to have
his private practice while in the employment of the Hospital; (iii) that the
respondent / landlords also own property no.WZ-506, Basai Dara Pur, Delhi,
shops on the ground floor whereof had been let-out at a rent of Rs.30,000/-
per month and upper floor whereof was also let-out to another tenant in
2011; (iv) property no.WZ-506, Basai Dara Pur, Delhi is constructed over
land ad measuring 450 sq. yds. and having nine shops on the ground floor;
(v) six of the said shops were still lying vacant with the board of „To-Let‟
with the telephone numbers of the respondents/landlords; (vi) Gaurav Tyagi
aforesaid has his office at 4, DLF Area, near Metro Station, Moti Nagar,
New Delhi but has recently closed the same and opened a Reebok showroom
in place thereof and shifted his office to property No.WZ-505, Basai
Darapur, Delhi; (vii) that the premises in the tenancy of the petitioners /
tenants has roof of asbestos sheets and is in a dilapidated condition and the
petitioners / tenants are using the same for factory purposes and the said
RC.REV.134/2016 Page 3 of 18
premises can by no stretch of imagination be used for opening a clinic or a
lawyer‟s office; (viii) Gaurav Tyagi also has Chamber No.112, Civil Wing,
Tis Hazari Courts, Delhi.
7. The respondents / landlords, in their reply to the application for leave
to defend, pleaded that i) respondent No.1 Ram Mehar Tyagi is residing in
property No.WZ-505, Basai Darapur, Delhi; the respondents no.2 and 3 viz.
Satish Tyagi and Dr. Harish Tyagi are residing in property No.E-10,
Mansarover Garden, New Delhi, as disclosed in the petition for eviction also;
ii) both the aforesaid premises are situated in residential localities where no
commercial activities can be carried on; iii) on the contrary, the premises in
the tenancy of the petitioners / tenants are located in a commercial area; iv)
that the requirement of the respondents / landlords, on account of which the
petition for eviction had been filed, was for commercial purposes; v) that the
respondent no.3 Dr. Harish Tyagi is serving with Kolmet Hospital on
freelance basis and is not on the pay roll of the said hospital; he is merely a
consultant and wants to start his own practice; that there is no restriction by
the Kolmet Hospital or otherwise on the respondent no.3 Dr. Harish Tyagi
from so setting up his practice; vi) property No.WZ-506, Basai Darapur,
Delhi is a joint family property of the respondents / landlords and is situated
in an industrial village and does not even have a proper approach road and
the same cannot be used for opening any clinic; no ambulance or car can
easily approach the said property; vii) the ground floor of the said property
had not been let out at a rent of Rs.30,000/-; viii) the respondents / landlords
have also not let out the first floor of the said property as alleged and no such
person as claimed was in possession of the said property; ix) property
No.WZ-506, Basai Darapur, Delhi is constructed over 450 sq. yds. of land
RC.REV.134/2016 Page 4 of 18
and the construction thereof is very old with two halls on the ground floor,
two halls on the first floor and two halls on the second floor and all the said
halls are under occupation of various old tenants; x) no boards of „To Let‟
with phone numbers of the respondents / landlords have been put up on the
said property and the petitioners / tenants have created and fabricated
photographs in this regard; xi) Gaurav Tyagi, Advocate has got nothing to do
with property No.WZ-506, Basai Darapur, Delhi; xii) Gaurav Tyagi,
Advocate never had his office at 4, DLF Area, Near Metro Station, Moti
Nagar, New Delhi and is also not having his office in property No.WZ-505,
Basai Darapur, Delhi; xiii) from shop No.4, DLF Area, near Metro Station,
Moti Nagar, New Delhi business in the name and style of Moti Nagar Shoes
Store is being run since the year 1958 by the family members of respondents
no.1&2 viz. Ram Mehar Tyagi and Satish Tyagi and the said shop is on rent
with the said family members and landlord thereof has already filed a
petition for eviction against Moti Nagar Shoes Store on the ground of bona
fide requirement and which petition is also pending adjudication; xiv)
Gaurav Tyagi aforesaid has no connection with the business of Moti Nagar
Shoes Store and had / has no title to the shop from where the said business is
being carried on, to set up his office therein; xv) the shops in the tenancy of
the petitioners / tenants were not let out for use as factory and were let out
for carrying on trading business and are not situated in a commercial area
and are most suitable for opening of a clinic by the respondent No.3 Dr.
Harish Tyagi and for setting up of law office by Gaurav Tyagi, Advocate
aforesaid; xvi) chamber No.112, Civil Wing, Tis Hazari Courts, Delhi does
not belong to Gaurav Tyagi Advocate; xvii) property No.WZ-505, Basai
Darapur, Delhi is a residential HUF property where all family members are
RC.REV.134/2016 Page 5 of 18
residing in different portions and the same cannot be used for commercial
purposes; and, xviii) chamber No.112, Civil Wing, Tis Hazari Courts, Delhi
belongs to Sh. Rajinder Kumar Bedi, Advocate.
8. The learned ARC, in the impugned order, has found / observed / held
that i) no rejoinder had been filed by the petitioners/tenants to the reply of
the respondents/landlords to the leave to defend application; ii) the
petitioners / tenants cannot dictate to the respondents / landlords to use
residential premises for commercial requirement; iii) the fact that the
respondents / landlords are rich and having several properties does not make
their requirement mala fide; iv) the respondents / landlords have absolute
discretion to decide, which of their properties they want to use for their clinic
/ law office and the respondents / landlords had given cogent reasons for
property No.WZ-506, Basai Darapur, Delhi being not suitable for the subject
requirement owing to having no proper approach road; v) once that was so,
the letting out, even if any by the respondents / landlords of any portion of
the property No.WZ-506, Basai Darapur, Delhi could not deprive them from
seeking eviction of the petitioners/tenants from shops in their tenancy; vi) the
disclosure by the petitioners / tenants in their leave to defend application of
other properties thus did not disentitle the respondents / landlords from
obtaining an order of eviction under Section 14(1)(e) of the Act; vii) it is the
right of every person to excel in life and if the respondents / landlords are of
the opinion that they would be better off in life by the respondent no.3 Dr.
Harish Tyagi setting up his private clinic and by Gaurav Tyagi having his
law office from the premises in the tenancy of the petitioners / tenants,
neither the petitioners / tenants nor the Court could ask the respondents /
landlords to give up their said dreams of excelling in life and to establish
RC.REV.134/2016 Page 6 of 18
their clinic / law office from a joint property; viii) the respondents / landlords
had also placed documents on record to show that respondent no.3 Harish
Tyagi is merely a consultant at Kolmet Hospital; ix) even if it were to be
held that the respondent No.3 Harish Tyagi was in full time employment of
Kolmet Hospital, nothing in law can stop him from giving up his service and
setting up his own clinic; x) the plea of the petitioners / tenants of Gaurav
Tyagi having Chamber No.112, Civil Wing, Tis Hazari Courts, Delhi
available to him was evidently false and it has been held by this Court in
Rajender Kumar Sharma Vs. Leela Wati 155 (2008) DLT 383 that where
the landlord shows the affidavit filed by the tenant in support of an
application for leave to defend to be false, on the basis of such false
averments leave to defend cannot be granted and that mere assertions by the
tenant in respect of landlord‟s ownership of other buildings and in respect of
alternate accommodation are not to be considered sufficient for grant of
leave to defend; xi) judicial notice can also be taken of the fact that a
chamber in a Court is small and does not fulfil the need for a full fledged law
office; xii) that it was not open to the petitioners as tenants to interfere with
the choice of the respondents / landlords of the suitability of the property for
setting up of a medical clinic / law office. Needless to state, the learned
ARC has supported his findings / reasons aforesaid with plethora of case
law.
9. The counsel for the petitioners argued that the learned ARC erred in
refusing leave to defend when the petitioners / tenants had disclosed a
number of other properties available to the respondents / landlords and which
would fulfil the requirement claimed by the respondents / landlords. It is
contended that thus triable issues arise. It is yet further contended that the
RC.REV.134/2016 Page 7 of 18
respondents/landlords concealed all the said properties from the petition for
eviction and that the petitioners / tenants disclosed the same in the
application for leave to defend; the explanation furnished by the respondents
/ landlords therefor was not sufficient and proper to deny leave to defend to
the petitioners / tenants.
10. The counsel for the petitioners / tenants has in Court handed over a
tabulation with respect to each of the properties along with reference to the
pages and paragraphs of the leave to defend application and the reply thereto.
11. It is argued that the respondents/ landlords in the petition for eviction
did not disclose properties No.WZ-505, Basai Darapur, Delhi and E-10,
Mansarover Garden, New Delhi and did not disclose the accommodation
therein.
12. The respondents / landlords, in the petition for eviction, have disclosed
themselves to be resident of aforesaid two properties. It is thus not as if the
respondents / landlords can be said to have concealed the said properties
from the petition for eviction. Further, on the petitioners / tenants in the leave
to defend application pleading the said properties as alternate suitable
accommodation available to the respondents / landlords for the requirement
pleaded, the respondents / landlords did not deny possession of the said
properties but explained that they were both residential properties being used
for residential purpose. I have during the hearing also enquired from the
counsel for the petitioners / tenants, whether the petitioners / tenants admit
the respondents / landlords to be residing in the said properties. The counsel
for the petitioners / tenants has fairly admitted that the respondents /
landlords are residing in the said two properties. Once the requirement
RC.REV.134/2016 Page 8 of 18
pleading which the eviction of the petitioners / tenants was sought is of
accommodation for setting up of a medical clinic / law office, in my opinion,
there was no need for the respondents / landlords to, in the petition for
eviction, disclose details of the residential accommodation available to them.
13. Supreme Court, in Sarla Ahuja Vs. United India Insurance Company
Ltd. (1998) 8 SCC 119, held that 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 is bona fide; it is not for the tenant to dictate
terms to the landlord as to how else the landlord 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. In
Ragavendra Kumar Vs. Firm Prem Machinery & Co. (2000) 1 SCC 679,
after noticing that though the landlord had admitted that there were a number
of shops and houses belonging to him but had made a categorical statement
that his said houses and shops were not vacant and the premises, with respect
to which petition for eviction was filed, was suitable for his business
purposes, it was held to be settled proposition of law that the landlord is the
best judge of his requirement for residential or business purposes and he has
got complete freedom in the matter. Accordingly, it was held that the
landlord having wanted eviction of the tenant from the subject premises for
starting his business as it was suitable, could not be faulted. Again, in P.S.
Pareed Kaka Vs. Shafee Ahmed Saheb (2004) 5 SCC 241 it was held that if
the landlord chooses to use a particular property for residential purpose, the
tenant cannot say that he cannot do so and should continue to use the
premises for commercial purposes. In Sait Nagjee Purushotham & Co. Ltd.
RC.REV.134/2016 Page 9 of 18
Vs. Vimalabai Prabhulal (2005) 8 SCC 252 it was held that the fact that a
landlord is already having one premises did not prevent the landlord from
seeking eviction of tenant from another premises as it is always the
prerogative of the landlord that if he requires the premises in question for his
bona fide use for expansion of business, this is no ground to say that the
landlord is already having his business at another place and therefore it is not
genuine need. The same ratio is also to be found in Anil Bajaj Vs. Vinod
Ahuja (2014) 15 SCC 610 where it was held that the fact that the landlord is
doing business from various other premises cannot foreclose his right to seek
eviction from the tenanted premises so long as he intends to use the said
tenanted premises for his own business.
14. This Court in Girdhari Lal Goomer Vs. P.P. Gambhir 2011 SCC
OnLine Del 832 (SLP(C) No.10938/2011 whereagainst was dismissed on
29th April, 2011) also held that the requirement of the landlord for
commercial use cannot be denied for the reason of availability of residential
property. Similarly, in Kanta Sachdeva Vs. A.D. Choudhary 2012 SCC
OnLine Del 5320 (SLP(C) No.989/2013 whereagainst was dismissed on 24th
January, 2013) also, the plea of the tenant of availability of other premises
was held to be not entitling the tenant to leave to defend; it was reasoned that
the said other properties were residential, while the requirement was for
commercial use. In Ram Kishore Patel @ R K Patel Vs. Dr. Jaswant Singh
2014 SCC OnLine Del 2492 also, the tenant was held to be not entitled to
leave to defend the petition for eviction for use of the premises for clinic
purpose, on the plea of it being possible to set up the clinic at home. With
the same ratio, in Naveen Arora Vs. Suresh Chand 2014 SCC OnLine Del
2625 also, leave to defend was declined. Recently, in Vinod Kumar
RC.REV.134/2016 Page 10 of 18
Aggarwal Vs. Ritu 2016 SCC OnLine Del 5720 also, the plea of it being
open to fulfil the commercial requirement from the space available in
residence was held to be not entitling the tenant to leave to defend.
15. The choice of the landlord in this regard is supreme. Judicial notice
can be taken of the fact that setting up of a clinic / law office at residence,
even if accommodation therefor is available in residence, lead to disturbance
of peace and tranquillity and privacy of residents and if the landlord whose
requirement for accommodation for clinic / law office is not disputed does
not want to set up the same at his residence, the said choice of the landlord
has to be respected. In this state of law, it cannot be said that the petitioners /
tenants were entitled to leave to defend for the reason of having disclosed the
said two properties. Leave to defend has to be granted only where disputed
facts which can be adjudicated only by examination and cross-examination
of witnesses arise. If the facts as disclosed by the tenant in the application
for leave to defend though disputed by the landlords even if correct and
believed, would not disentitle the landlords from obtaining an order of
eviction under Section 14(1)(e) of the Act, leave to defend cannot be
granted.
16. The next property in the tabulation handed over by the counsel for the
petitioners / tenants is, property No.WZ-506, Basai Darapur, Delhi which is
also not disputed by the respondents / landlords. The explanation of the
respondents / landlords, for the same being not alternate suitable
accommodation is, that the property is situated in an industrial village and
does not have a proper approach road and no car or ambulance can access
the same. The counsel for the petitioners / tenants has argued that the
RC.REV.134/2016 Page 11 of 18
tenancy premises are also in the same village. However on further prodding,
the counsel for petitioners/tenants states that while the tenancy premises are
on the main road, property No.WZ-506, Basai Darapur, Delhi is in the
interior of the village. It is further contended that the respondents / landlords
have recently let out portions of the said property and have even now
displayed the boards of "To Let" for letting out of the other portions of the
property.
17. As far as the aspect of suppression with respect to the said property is
concerned, Supreme Court in Ram Narain Arora Vs. Asha Rani (1999) 1
SCC 141 held that the non-disclosure of accommodation which the Court
also agrees cannot be alternate suitable accommodation, cannot be fatal to
the petition for eviction. I have also in judgment dated 12th January, 2009 in
RC (R) No.78-79/2005 titled Mumtaz Begum Vs. Mohd. Khan held that
non-disclosure of other accommodation available is not always fatal. To the
same effect are Surinder Singh Vs. Jasbir Singh (2010) 172 DLT 611,
Sukhbir Singh Vs. Dr. I.P. Singh (2012) 193 DLT 129, Manju Devi Vs.
Pratap Singh (2015) 219 DLT 260 and Hameeda Shahzad Vs. Shahjahan
Khatoon 2017 SCC OnLine Del. 7203. I have recently in Sunil Kumar
Goyal Vs. Harbans Singh 2017 SCC OnLine Del. 9289, referring to earlier
judgments, also held that once the facts have come before the Court and the
Court has, after dealing therewith held in favour of landlord, the petition for
eviction cannot be dismissed on ground of concealment.
18. Mention may also be made of Mukesh Kumar Vs. Rishi Prakash
(2010) 174 DLT 64 (SLP(CC) No.2968/2010 whereagainst was dismissed on
8th March, 2010) holding that a landlord is not obliged to make disclosure of
RC.REV.134/2016 Page 12 of 18
properties which are not available for the requirement pleading which
eviction of the tenant is sought. It was expressly held that the landlord is not
required, while seeking eviction of a tenant from commercial premises, to
disclose residential premises available to him. Mention may also be made of
S. Harbant Singh Sahni Vs. Smt. Vinod Sikari (2012) 189 DLT 215
holding that unless and until, there is a concealment of fact which is so vital
to the bearing of the petition in issue, it would not amount to a concealment.
Concealment of accommodation which cannot be used for the purpose
required was held to be not capable of resulting in dismissal of the petition
for eviction.
19. It has also been held in Shiv Sarup Gupta Vs. Dr. Mahesh Chand
Gupta (1999) 6 SCC 222, Ragavendra Kumar supra, Chandrika Prasad Vs.
Umesh Kumar Verma (2002) 1 SCC 531, Om Prakash Bajaj Vs. Chander
Shekhar 2003 (67) DRJ 674, Labhu Lal Vs. Sandhya Gupta 2010 (119)
DRJ 599 and in Anil Bajaj supra that the landlord, when owns several
properties, has an absolute choice as to which of the property to occupy for
fulfilling his requirement and the tenant cannot interfere with the said choice
of the landlord. Seen in this light, the choice made by the respondents /
landlords in the present case of the premises in the tenancy of the petitioners
/ tenants over property No.WZ-506, Basai Darapur, Delhi when admittedly
the premises in the tenancy of the petitioners / tenants are situated on the
main road and property No.WZ-506, Basai Darapur is in the interiors, cannot
be said to be mala fide and the respondents / landlords cannot be accused of
having created artificial paucity of accommodation.
20. It has been held in Uday Shankar Upadhyay Vs. Naveen Maheshwari
RC.REV.134/2016 Page 13 of 18
(2010) 1 SCC 503 and Dhannalal Vs. Kalawatibai (2002) 6 SCC 16 that the
tenant cannot tell the landlord to occupy upper floors for his commercial
needs as judicial notice can be taken of the fact that the profitability from
trade or business is dependent upon the location of the trade and business
and the landlord for the sake of continuing with the tenant cannot be directed
to occupy a premises carrying on business wherefrom would be less
profitable. Once it is so, there is no need to put to trial the dispute whether
the respondents / landlords, shortly prior to institution of the petition for
eviction, have let out portions of property No.WZ-506, Basai Darapur, Delhi
or not or are still offering portions of WZ-506, Basai Darapur, Delhi on rent
or not. The reasoning of the learned ARC in this respect that the said
controversy is not relevant, is in accordance with law and does not require
any interference in exercise of powers under Section 25B(8) of the Act.
21. The next in the tabulation handed over by the counsel for the
petitioners / tenants is, shop No.4, DLF Area, near Metro Station, Moti
Nagar, New Delhi. However, the counsel for the petitioners / tenants being
not in position to dispute that the said shop is in the tenancy of the
respondents / landlords, has merely contended that it is to be proved in trial
pursuant to grant of leave to defend. I am unable to agree. If it were to be
held that a tenant, merely by making assertions, in the application for leave
to defend, without any basis and without disclosing the requisite particulars,
is entitled to leave to defend, then the same would defeat the legislative
intent in providing for summary procedure with respect to petitions for
eviction on the ground of personal requirement of the landlord as then in all
cases leave to defend will have to be granted and the stage of leave to defend
would merely serve the purpose of delaying the filing of the written
RC.REV.134/2016 Page 14 of 18
statement by the tenant and the trial to follow, thereby making the procedure
for eviction on the ground of requirement for self-use of the tenant longer
than the procedure prescribed for adjudication of the petitions for eviction on
other grounds of eviction prescribed in the Act.
22. In a leave to defend application, per Section 25B(5) of the Act, facts
which when proved, would disentitle the landlord from obtaining an order of
eviction under Section 14(1)(e) of the Act have to be disclosed. Contents of
leave to defend thus have to be materially different from contents of a
written statement. While in a written statement, the defendant by specific
denial can put the plaintiff to proof of any fact on the basis of which relief is
claimed, it is not so in the case of leave to defend application. A leave to
defend application, merely denying each and every averment in the petition
for eviction and putting the landlord to proof thereof, without disclosing any
facts as aforesaid would not entitle the tenant to leave to defend. Thus when
the petitioners / tenants plead shop No.4, DLF Area, near Metro Station,
Moti Nagar, New Delhi to be alternate suitable accommodation, it was
incumbent on them to plead particulars of title of the respondents / landlords
to the said accommodation. I have recently in judgment dated 24th July,
2017 in RC.REV. No.112/2016 titled Ram Saroop Vs. Viney Kumar
Mahajan discussed in detail on the said aspect. An accommodation on rent
with the landlord and from which the landlord can at any time be evicted,
cannot be suitable accommodation within the meaning of Section 14(1)(e) of
the Act and the need of the landlord for the premises pleading which the
petition for eviction has been filed is to be considered bona fide. Reference
in this regard can be made to Rahul Int. Mkting P. Ltd Vs. Jai Gopal
MANU/DE/0966/1995, Sita Ram Verma Vs. Saraswati (1991) 43 DLT 629,
RC.REV.134/2016 Page 15 of 18
Dhannalal supra, Dinesh Kumar Vs. Yusuf Ali (2010) 12 SCC 740 and
Krishna Kumar Rastogi Vs. Sumitra Devi (2014) 9 SCC 309.
23. The counsel for the petitioners / tenants even till date, being unable to
place any fact showing the respondents / landlords to be the owners of the
said shop, cannot contend for grant of leave to defend on such ground.
24. The next property in the tabulation is, Chamber No.112, Civil Wing,
Tis Hazari Courts, Delhi. The argument of the petitioners / tenants is that the
identity card of Gaurav Tyagi, Advocate gives the address of the said
chamber. However, the counsel for the petitioners / tenants is unable to even
today state whether the said chamber, in the records of the Delhi Bar
Association, is allotted to Gaurav Tyagi or stands in the name of Rajinder
Kumar Bedi, Advocate. The same again shows the recklessness in filing the
application for leave to defend and in affirming on oath the affidavit
accompanying the same. I may in this regard mention that the petitioners /
tenants though before this Court have admitted ownership of the respondents
/ landlords of the premises in their tenancy and the relationship of landlord
and tenant but in the leave to defend application sought to controvert the
same also showing a tendency to, by taking reckless pleas, by hook or by
crook, obtain leave to defend. The learned ARC has given cogent reasons
for the petitioners being not entitled to leave to defend on the said ground
either. The provision for lawyers‟ chambers within the court complex is
made for the convenience of the advocates and to provide a space to them
during court hours to meet their clients and to keep their files of the day etc.
Judicial notice can be taken of the fact that a lawyer, even if allotted a
chamber, has no title thereto and merely has a right to use the same on the
RC.REV.134/2016 Page 16 of 18
terms prescribed and which right can be taken away at any time. Judicial
notice can also be taken of the size of the said chambers which is only
enough to fulfil the aforesaid limited purpose only. The said chambers are
not meant to be a substitute for a proper office, though some lawyers owing
to paucity of resources and unable to afford a proper office do indeed make
such chambers as their office also. It has been held in Bansi Lal Vs. Ashok
Bhardwaj (2012) 192 DLT 159 (SLP(C) No.38508/2012 preferred
whereagainst was dismissed on 14th January, 2015) and Yash Pal Vs. Shri
Gopal Singh Nim 2014 SCC OnLine Del 3817 (SLP(C) No.22262/2014
preferred whereagainst was dismissed on 29th August, 2014) that the said
chambers cannot be alternate suitable accommodation for requirement
pleaded.
25. The last property in the tabulation handed over by the counsel for the
petitioners / tenants is property No.1504, Khasra No.732, Block WZ, near
MCD School, Basai Darapur, Delhi. The said property admittedly did not
find mention in the leave to defend application. The counsel for the
petitioners / tenants states that the petitioners / tenants, at the time of filing
the leave to defend application, were not aware of the said property and after
the time stipulated for filing leave to defend sought to file an additional
affidavit but which, vide order dated 29th August, 2013, was refused to be
taken on record. It is further argued that the respondents / landlords, in reply
filed to the application for taking the said additional affidavit on record, did
not dispute ownership of the said property.
26. The learned ARC, in the order dated 29th August, 2013 refusing to
take the additional affidavit on record, has relied on Madhu Gupta Vs.
RC.REV.134/2016 Page 17 of 18
Gardenia Estates (P) Ltd. 2011 (184) DLT 103, Prithipal Singh Vs. Satpal
Singh (2010) 2 SCC 15, Iqbal Singh Narang Vs. Veeran Narang (2012) 2
SCC 60 and on Om Prakash Vs. Ashwani Kumar Bassi (2010) 9 SCC 183
to hold that if the leave to defend was allowed to be amended or additional
affidavit taken, that would automatically extend the period of 15 days
prescribed in Section 25B(4) for filing leave to defend application. I do not
find any reason to, in exercise of jurisdiction under Section 25B(8), interfere
with the said reasons and reference in this regard can also be made to Shiv
Sarup Gupta supra and Hindustan Petroleum Corporation Limited Vs.
Dilbahar Singh (2014) 9 SCC 78.
27. The counsel for the petitioners / tenants is also not correct in
contending that the respondents / landlords, by not denying ownership /
possession of the said property in the reply filed to the application for taking
additional affidavit on record, are deemed to have admitted the same. The
respondents / landlords in the reply were not required to admit or deny the
additional facts sought to be pleaded and need wherefor would have arisen
only if the application had been allowed.
28. No other argument has been raised.
29. There is no merit in the petition.
30. Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
JULY 27, 2017 „pp/gsr/bs‟..
(corrected & released on 23rd October, 2017) RC.REV.134/2016 Page 18 of 18