Delhi High Court
Shyam Sunder Ahuja vs Shushil Kumar on 11 September, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 11th September, 2017
+ RC.REV. 312/2017, CM No.24292/2017 (for stay) & CM
No.24294/2017 (for condonation of 106 days delay in re-filing)
SHYAM SUNDER AHUJA ..... Petitioner
Through: Mr. Sumit Bansal & Mr. Prateek
Kohli, Advs.
Versus
SHUSHIL KUMAR ..... Respondent
Through: None.
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 23 rd December, 2016 in
RC/ARC No.172/2016 of the Court of Senior Civil Judge-cum-Rent
Controller (Shahdara), Karkardooma Courts, Delhi] of dismissal of the
application filed by the petitioner for leave to defend the petition for eviction
under Section 14(1)(e) of the Act filed by the respondent and the consequent
order of eviction of the petitioner from shop No.1A in property No.1712
forming part of Plot No.15 in Khasra No.1309/1049/638 in village
Chandrawali @ Shahdara in abadi of Rama Block, Bhola Nath Nagar,
Shahdarda Delhi-110032 in which the petitioner is an old tenant since
several decades.
2. The counsel for the petitioner, in furtherance of the earlier order dated
22nd August, 2017, has in Court handed over a complete certified copy of the
trial court record and which is taken on record.
3. The counsel for the petitioner has been heard and the record perused.
RC.REV.312/2017 Page 1 of 10
4. The respondent instituted the petition for eviction, pleading i) that he
had acquired the shop in the tenancy of the petitioner vide registered deed
dated 6th November, 2009; ii) that the respondent is aged about 42 years and
married, having minor children; iii) that the respondent has no permanent
business of his own and the wife of the respondent is also a housewife and
not working or earning livelihood; iv) that the respondent requires the shop
in the tenancy of the petitioner for running his own business therefrom and
which the respondent is not being able to run owing to non availability of a
commercial shop.
5. The petitioner, though applied for leave to defend raising all sorts of
pleas, including of denial of ownership of the respondent and denial of
existence of relationship of landlord and tenant but the counsel for the
petitioner, before this Court, acting fairly, has not urged any of the said
aspects and has drawn attention only to paras no.19 to 21 of the application
for leave to defend where the petitioner / tenant has pleaded i) that the
respondent / landlord sold one shop in property No.MPL No.1712, Plot
No.15, Rama Block, Bhola Nath Nagar, Shahdara, Delhi in the year 2011 to
one Sh. Pawan Kumar Bhasin; ii) that the respondent / landlord sold out one
shop in the year 2010 to Dr. Vinod Kumar Goel; iii) that the respondent /
landlord also sold another shop forming part of "aforesaid property" and
which shop is lying locked; iv) that had the respondent / landlord bona fide
required the shop in the tenancy of the petitioner / tenant, he would not have
disposed of / sold out the said shops; v) that the respondent / landlord is also
owner of property ad-measuring 200 sq. yds. bearing No.27/2, Gali No.14,
Vishwas Nagar, Shahdara, Delhi; vi) that the respondent had demolished the
entire old construction on the aforesaid property "and now will raise new
RC.REV.312/2017 Page 2 of 10
construction over the same and will construct various shops in the aforesaid
property since the aforesaid property is situated on main road"; vii) that the
respondent / landlord is a builder and engaged in the business of sale and
purchase of property; viii) that the respondent / landlord is also owner of
property situated at Pandav Road, Daksh Road, Vishwas Nagar, Shahdara,
Delhi; ix) that the respondent / landlord is owner of several other properties.
6. The respondent / landlord in his reply to the application for leave to
defend, with respect to the aforesaid i) did not dispute the sale of the three
shops in the year 2010-11 but stated that the shop in the tenancy of the
petitioner / tenant was the only shop available to the respondent / landlord
and further pleaded that the shops as pleaded by the petitioner / tenant were
sold much before the filing of the petition for eviction in October, 2015 and
at which time the shop in the tenancy of the petitioner / tenant was only shop
available to the respondent / landlord; ii) denied that he was the sole owner
of property No.27/2, Gali No.14, Vishwas Nagar, Shahdara, Delhi and
pleaded that the said property was owned by the mother of the respondent /
landlord and the respondent / landlord was residing therein as a member of
her family; iii) denied that the respondent / landlord had any property at
Pandav Road or Daksh Road or Vishwas Nagar or at Shahdara, Delhi; iv)
denied that the respondent / landlord had any commercial shop available in
property No.27/2, Gali No.14, Vishwas Nagar, Shahdara, Delhi.
7. The counsel for the petitioner / tenant has referred to Santosh Devi
Son Vs. Chand Kiran JT 2000 (3) SC 397, Siddalingamma Vs. Mamtha
Shenoy (2001) 8 SCC 561 and Deepak Gupta Vs. Sushma Aggarwal (2013)
202 DLT 121.
RC.REV.312/2017 Page 3 of 10
8. I have considered, whether on the aforesaid grounds a case for grant of
leave to defend to the petitioner / tenant was made out or that the order of the
Additional Rent Controller refusing leave to defend to the petitioner / tenant
can be held to be not in accordance with law within the meaning of Section
25B(8) of the Act as interpreted in Shiv Sarup Gupta Vs. Dr. Mahesh
Chand Gupta (1999) 6 SCC 222 and reiterated in Chandrika Prasad Vs.
Umesh Kumar Verma (2002) 1 SCC 531 and Atma S. Berar Vs. Mukhtiar
Singh (2003) 2 SCC 3 i.e., whether the conclusions in the impugned order
are wholly unreasonable or such which no reasonable person acting with
objectivity could have reached on the material available.
9. The counsel for the petitioner has also sought to hand over in the
Court a copy of the application to place on record certain new facts along
with documents.
10. Not only can the petitioner / tenant, by taking successive adjournments
in this Revision Petition, as has been done in the present case, and by so
keeping it alive, be permitted to add to the grounds on which leave to defend
is sought, long after the time prescribed by law for filing of application for
leave to defend but even otherwise, a cursory look at the documents filed
along with application aforesaid do not show the respondent / landlord to be
the exclusive owner of property No.27/2, Gali No.14, Vishwas Nagar,
Shahdara but rather show the same to be owned by the respondent / landlord
along with his brother Lalit Kumar.
11. Thus no ground for entertaining the said application otherwise also
presented in a manner not acceptable in law, is made out.
RC.REV.312/2017 Page 4 of 10
12. In my view, the sale by the respondent / landlord of three shops in the
year 2010-11 cannot be a ground to disentitle the respondent / landlord from
obtaining an order of eviction, now in the year 2017, when according to the
petitioner / tenant also the said three shops are now not available to the
respondent / landlord.
13. If the facts as disclosed in the application for leave to defend would
not disentitle the landlord from obtaining an order of eviction under Section
14(1)(e) of the Act per Section 25(5) of the Rent Act, the tenant is not
entitled to leave to defend. The legislature, in the summary procedure
prescribed in Section 25B of the Rent Act for petitions for eviction of tenant
on the ground of requirement of premises by landlord for self use, has placed
the onus on the tenant to plead why the landlord, on proof of facts pleaded,
would be disentitled from obtaining an order of eviction on ground of self
requirement of premises. If the tenant, in the application for leave to defend,
does not disclose such facts, he / she cannot be granted leave to defend for
the reason of, the landlord having not explained „this or that‟ in the petition
for eviction.
14. It is the accommodation available to the landlord at the time of filing
of the petition for eviction which ordinarily has to be considered.
15. Though in some situations, the action of the landlord, of shortly before
the filing of the petition for eviction of arranging his affairs in a manner so as
to deprive himself of the suitable alternative premises may constitute a
ground to disentitle the landlord from an order of eviction under Section
14(1)(e) of the Act but it cannot be said that the facts disclosed by the
petitioner / tenant in the leave to defend application were such. The
RC.REV.312/2017 Page 5 of 10
petitioner / tenant though pleaded sale by the respondent / tenant in the year
2010-11 but shied from pleading that the shops at the time of sale were
vacant. Without pleading so, it cannot be said that mere sale of the shop
about 4/5 years prior to the institution of the petition for eviction, if was
already in possession of a tenant or someone else, would be a fact which
would disentitle the respondent / landlord from an order of eviction under
Section 14(1)(e) of the Act.
16. Not only so, the petitioner / tenant also did not state that there was no
change in the requirement of the respondent / landlord since then. Merely
taking a plea that the respondent / landlord has in the past sold some property
or let out some property has in Narender Kumar Shah Proprietor M/s Jay
Bharat Steels Vs. Malti Narang 2014 SCC OnLine Del 3839 and Anil
Kumar Bagania Vs. Shiv Rani 2014 SCC OnLine Del 6645 been held to be
not a ground for denying order of eviction to landlord on the ground of self
requirement of premises.
17. The sale of other shops by the respondent / landlord, nearly five years
prior to the institution of the petition for eviction, can be for diverse reasons.
It is the case of the respondent / landlord that he has no vocation. If he was
subsisting, by sale from time to time of his properties and has now, when left
with the last one, realised that it will be literally like killing the fabled hen
which laid the golden eggs, and has decided to commence business
therefrom, it certainly cannot be said, even after trial if leave to defend were
to be granted, that the landlord has no requirement of premises.
18. As far as the property No.27/2, Gali No.14, Vishwas Nagar, Shahdara
is concerned, the petitioner / tenant himself, in the leave to defend
RC.REV.312/2017 Page 6 of 10
application, stated that the entire construction on the said property had been
demolished and that the respondent / landlord "will raise new construction
over the same and will construct various shops". Thus, on the date of filing
of the application for leave to defend also the said property or any part
thereof was not available.
19. Even otherwise, the further plea of the petitioner / tenant in the
application for leave to defend was that the respondent was a builder and if
that be so, the action of the respondent of demolishing old construction of
property No.27/2, Gali No.14, Vishwas Nagar, Shahdara and intending to
raise construction thereon cannot be said to be availability of the said
property to the respondent / landlord for his own use.
20. From the arguments today of the counsel for the petitioner / tenant and
the documents sought to be handed over, it has as aforesaid also emerged
that in any case the respondent / landlord is not the sole and exclusive owner
of the said property and for this reason also, a joint property cannot be said
to be alternative accommodation for respondent / landlord to commence his
exclusive business. A joint property is always fraught with risks of
disruption of business commenced therefrom. Supreme Court in Anil Bajaj
Vs. Vinod Ahuja (2014) 15 SCC 610, Bhupinder Singh Bawa Vs. Asha
Devi (2016) 10 SCC 209, Dina Nath Vs. Subhash Chand Saini (2014) 11
SCC 20 and Faruk Ilahi Tamboli Vs. B.S. Shankarrao Kokate (2016) 15
SCC 431 has held that merely because a landlord has been carrying on
business jointly with others from some premises cannot be a ground for grant
of leave to defend to a tenant in a petition filed by the landlord for eviction
RC.REV.312/2017 Page 7 of 10
of a tenant to commence his exclusive business from the premises in
occupation of the tenant.
21. The averments with respect to other properties at Pandav Road, Daksh
Road, Vishwas Nagar, Shahdara are vague and cannot be counted as
disclosing facts as would disentitle the landlord from obtaining an order of
eviction.
22. The only other argument of the counsel for the petitioner / tenant is
that the respondent / landlord had earlier filed a suit for recovery of
possession of the shop from the petitioner in the Civil Court and a petition
under Section 14(1)(e) of the Act and which were dismissed / dismissed in
default respectively.
23. However no copy of the plaint in the suit was filed.
24. It is however stated that the suit for possession was filed treating the
rent to be Rs.5,000/- per month.
25. The counsel for the petitioner / tenant on enquiry states that the
petitioner / tenant does not admit the rent to be Rs.5,000/- per month and
claims to be a tenant within the ambit of the Delhi Rent Control Act.
26. Once it is so, the factum of filing of the suit earlier cannot disentitle
the respondent / landlord from an order of eviction. Rather, the same shows
the intent of the respondent to have the shop vacated since the purchase by
the respondent / landlord.
27. The same, rather than disentitling the respondent from obtaining an
order of eviction, entitles the respondent to an order of eviction. Supreme
Court recently in Farukh Ilahi Tamboli supra has held that when a person
RC.REV.312/2017 Page 8 of 10
buys a tenanted property fetching very low rent, the presumption is that he
has purchased the same, not for investment purpose or to earn rent therefrom
but to have the tenant evicted and to use the same for own purpose after
evicting the tenant.
28. As far as Rent Act of Delhi is concerned, it takes care of creation of
documents of transfer of property in favour of one who can get tenant
evicted on ground of self-requirement by, in Section 14(6) thereof
prohibiting filing a petition for eviction on the ground of self-requirement
within five years of the date of purchase. Thus the intent of the respondent /
landlord alleged, supports the case of the respondent / landlord rather than
negates the same.
29. As far as the judgments cited are concerned, Supreme Court again in
2014 in Dina Nath supra has noticed the shift in the interpretation of the
Rent Act and the fact that while earlier the Rent Act was only for the
protection of the tenant now it is interpreted as concerning the interest of
both landlord and tenant and has held that a plea of bona fide requirement is
not to be treated with suspicion. Again in Nidhi Vs. Ram Kripal Sharma
(2017) 5 SCC 640 it has been held that legislations made for dealing with
landlord-tenant disputes were pro-tenant but in the process of doing justice
the Court cannot be overzealous and forget its duty towards the landlord as
ultimately, it is the landlord who owns the property and is entitled to the
same when has requirement therefor.
30. Supreme Court, in Raghunath G. Panhale Vs. Chaganlal Sunderji &
Co. (1999) 8 SCC 1 and in Dattatraya Laxman Kamble Vs. Abdul Rasul
Moulali Kotkunde (1999) 4 SCC 1 held that the term „bona fide required by
RC.REV.312/2017 Page 9 of 10
the landlord‟ though means that the requirement of landlord must be genuine
but genuineness is not to be tested on par with „dire need‟
31. There is thus no merit in the petition.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 11, 2017 „gsr‟..
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