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RC. Rev. No.385/2012 Page 1 of 18
* IN THE HIGH COURT OF DELHI AT NEW DELHI %
Order delivered on: October 04, 2013 +
RC. Rev. No.385/2012, C.M. Nos.13588/2012 & 4465/2013
M/S MEGH RAJ ROSHAN LAL
..... Petitioner Through Mr.J.M.Sabharwal, Sr.Adv. with
Mr.R.K.Sharma & Mr.S.K.Sabharwal,
Advs.
versus
MS. RASHMI JAIN
..... Respondent
Through Mr.Asheesh Jain, Adv. CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J. 1. The petitioner/tenant has filed the present petition, inter-alia, challenging the order dated 17th May, 2012 passed by the learned Addl. Rent Controller (North), Delhi, rejecting the application for leave to defend filed by the petitioner. 2. The respondent/landlady had filed an eviction petition against the petitioner/tenant in respect of the premises bearing No.5795-A, Chawla Market, Sadar Bazar, Delhi-110006 (hereinafter referred to as the “Suit Premises”), on the ground that the suit premises, which was lying locked for last several years under the tenancy of the petitioner was bonafidely required by the respondent for her business in partnership with the other family members which included her brother-in-laws and mother-in-law etc. It was stated that the business was being carried under different entities, in which the respondent was a partner. The space in the rented premises from where
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the business was being run for storing business goods and for office space was insufficient and that the insufficiency of space was becoming a hurdle in the expansion of business. 3. After service of notice the petitioner filed its application/affidavit seeking leave to defend the eviction proceedings. The grounds raised by the petitioner in the application for leave to defend were inter alia, that (a) the site plan filed by the respondent along with the eviction petition was not accurate, as there exists a kolky admeasuring 3‟6” x 4‟ on the first floor, thus, the respondent is having more than sufficient accommodation with her for carrying out the purpose for which the eviction was sought; (b) the respondent is having more than sufficient accommodation with her, as she is the owner of house No.D-112, Ashok Vihar, Delhi, a residential bungalow and was in occupation of other properties from where the businesses were being run; (c) that being the lady, the respondent was not managing any of the businesses and that she was a sleeping partner; (d) if the respondent was so keen to carry on the business, she could do so from her residential premises at Ashok Vihar where she is residing with her family and no family member dependent upon her requires the premises; and (e) she requires the property for her two brothers-in-law and mother-in-law who are having joint business of the members of joint family which requirement of the respondent is contrary to the scheme and mandates of provisions of Section 14(1)(e) of the Delhi Rent Control Act, 1958. 4. The respondent filed a reply to the application seeking leave to defend filed on behalf of the petitioner. In the reply, it was, inter-alia, pointed out that the petitioner had failed to point out any triable issue arising in the eviction proceedings. It was specifically pointed out that the respondent had no other commercial premises from where she could carry on business in
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collaboration with the relatives. The Ashok Vihar property, admittedly being a residential property, could not be used for business purposes. From the documents placed on record by the respondent which included the partnership deed, income tax verification forms of the respondent and the other family members/partners, etc. prove the authenticity of the partnership. The premises from where the businesses were currently being run were not owned by the respondent. 5. The petitioner filed a rejoinder to the reply filed by the respondent wherein it had denied the averments made in the reply to the application for leave to defend. 6. By the impugned order dated 17th May, 2012, the learned Addl. Rent Controller has rejected the application for leave to defend filed on behalf of the petitioner and while rejecting the same, the learned trial Court has come to a conclusion that admittedly, the respondent is the landlady/owner of the suit premises and the petitioner had admitted that the respondent was a partner in various businesses. The averment made by the petitioner that the respondent was only a sleeping partner was merely a bald averment without there being any document to substantiate the said statement, particularly, when the respondent had filed various documents in support of her contention that she was engaged in partnership business along with the other family members. The Court further came to conclusion that from the documents placed on record, it was clear that the other premises from where the businesses were currently being run were tenanted premises for which rent was being paid by the partnership businesses to the landlords/owners of the said premises which factual position was not even denied by the petitioner in the rejoinder filed in response to the reply to the application for leave to defend. The Court further came to the conclusion that there was no
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other suitable accommodation available from where the business could be run by the respondent since the other premises were either residential premises or were not owned by the respondent. The learned Addl. Rent Controller held that even assuming that the site plan filed along with the eviction petition was not accurate, the same did not raise any triable issue. 7. The matter came up for hearing when Mr.Jag Mohan Sabharwal, Senior counsel appeared on behalf of the petitioner and Mr. Ashish Jain, learned counsel appeared on behalf of the respondent and made their respective submissions. 8. Mr. Sabharwal, learned Senior counsel has made his submissions which can be outlined in the following manner : i) firstly his submission is that the learned Addl. Rent Controller has erred in holding that premises are bonafidely required by the landlady as no opportunity to lead the evidence was given. It is submitted by him that there was no material on record filed by the landlady to show that they are members of HUF, no income tax return were filed and even the learned trial court ignored that the partners in partnership deed were members in their individual capacity and not as member of HUF and learned trial court has totally ignored that the rent initially was ` 28/- only and was increased to ` 225/- per month, that goes to show that petitioner was quite genuine tenant and landlady out of greed has filed a petition in view of taking the advantage of latest decision passed by the Supreme Court in the case of Satyawati Sharma. ii) secondly he argued that the brothers-in-law and sisters-in-law cannot fall within the ambit and scope of Section 14(1)(e) of the DRC Act. iii) thirdly, it is argued by him that the learned trial court ought to have noted that adjoining building which is having common stair case, with the
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petitioner is also owned by the family members of the respondent and at best it was a case of requirement of additional accommodation by the respondent landlady and it is settled law that in case of an additional accommodation the learned Addl. Rent Controller ought to have allowed the application of the petitioner to leave to defend. He referred the case of Santosh Devi Vs. Chand Kiran, 2001 (1) SCC 255 and S.M. Mehra Vs. D.D. Malik, 2001 (1) SCC 256 wherein it has been held that in case of additional accommodation normally the leave to defend should be granted. iv) He submitted that in the case of Nand Lal Goverdhan Dass & Co. Vs. Samrat Bai Lila Chand Shah, AIR 1981 Bom. 1, it has been held that bonafide is a state of mind and can be assessed when the person concerned is tested by cross-examination. He has also referred the subsequent decisions which were passed by this Court by following the decisions of Santosh Devi (supra) where the impugned orders passed by the Additional Rent Controllers who rejected the applications for leave to defend on the issue of additional accommodation have been quashed. According to him the tenant has to show a prima facie case and not conclusive proof. (See Inderjit Kaur Vs. Nirpal Singh, 2001 (2) SCC 706) (v) Mr.Sabharwal, learned Senior counsel argued that it is settled law laid down by the Supreme Court in the case of Precision Steel & Engineering Works & Ors. Vs. Prem Deva Niranjan Deva Tayal, AIR 1982 SC 1518 that the Controller has to confine himself to the affidavit filed by the tenant and it a triable issue is raised, then leave to defend is to be granted. The same was refused to the petitioner although substantial issues are raised by the tenant/ petitioner. The finding of the court below are contrary to the decisions of Supreme Court in the following cases :
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a) In the case of Ramesh Kumar Aggarwal Vs. Ravi Ravindran & Ors., AIR 2009 SC 2462 (paragraph 4 thereof) which reads as under:- “In our opinion, the Addl. Rent Controller ought not to have rejected the application, since in our opinion the tenant has framed and formulated several triable issues which requires to be considered at the time of trial.” b) The Supreme Court has held in the case of Johan Impex (P) Ltd. Vs. Surinder Singh & Ors., (2003) 9 SCC 176 that, “At this stage (Grant of Leave) neither evidence is to be weighed or looked into.” Whether the said godown/property in question is suitable or not can only be decided after the parties have been given opportunity to lead evidence on the said issue. 9. In view of the abovementioned submissions advanced, Mr. Sabharwal pressed that this court should interfere with the impugned order and proceed to grant the leave to defend to the petitioner to contest the matter for trial. 10. Per contra, Mr. Ashish Jain, learned counsel appearing on behalf of the respondent has made his submissions which can be outlined as under : 11. In reply to the submissions of Mr. Sabharwal, Mr. Jain argued that : a) The ground that “brother-in-law and sisters-in-law” do not fall within the ambit of Section 14(1)(e) of the Act has again been taken only to confuse the court as admittedly eviction has been sought for the purpose of running business by the respondent in partnership with the family members which may include brothers-in-law and/or sisters-in- law, as such, the eviction petition in the present case was absolutely maintainable under the provisions of Section 14(1)(e) of the Act. Mr. Jain argued that the said plea is not taken in the application for leave to defend, hence it should not be considered by the court. Even
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otherwise, he submits that if the prayer of the eviction petition is required to be read in a meaningful manner, the argument of the petitioner would become self defeating. b) In reply to other submissions that the present case being a case of requirement of additional accommodation by the respondent, leave to defend ought to have been granted, it is submitted by Mr. Jain that it is again an afterthought, never pleaded before the learned Rent Controller. He argued that infact the present case is not a case of requirement of additional accommodation. As has rightly been concluded by the learned Rent Controller, there is no other alternative accommodation available to the respondent. Since whatever has been shown by the petitioner as available to the respondent is either residential accommodation or premises not owned by either the respondent or the partnership firms, but having been taken on rent.
Even otherwise, without prejudice to the contention that the present case is not a case where the respondent is seeking additional accommodation, even if it is assumed for the sake of argument without admitting that the eviction of the demised premises is sought as additional accommodation for the business of the respondent, it cannot be laid as a proposition that wherever additional accommodation is being sought as a ground for eviction of the tenant, leave to defend ought to be granted. c) In reply to the decisions referred by Mr. Sabharwal on the aspect of additional accommodation wherein leave was granted it is argued by Mr. Jain that in a catena of decisions held only these short orders of the Supreme Court in the cases of S.M. Mehra (supra) and Santosh Devi (supra) were sought to be relied upon by the petitioner. These
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orders were rendered in the peculiar facts of those cases; the peculiar facts of those cases could not be deciphered from the said orders, as such each case has to be weighed in the context of its own peculiar facts. This Court has further interpreted the said orders passed by the Supreme Court as distinguishable on facts and it could not be laid down as a matter of principle that in every case of additional accommodation, the leave to contest the petition must necessarily be granted. Such interpretation is also supported by the fact that the words used in the two orders are “normally not refused” and “no need to take summary procedure” which show that grant of leave to defend is not mandatory and depends upon the peculiar facts of the present case. Reliance in this regard is placed on the decisions by Mr. Jain in : i. K.D. Gupta Vs. H.L. Malhotra, 1992 (23) DRJ 234. ii. Budh Singh & Sons Vs. Sangeeta Kedia, 185 (2011) DLT 580 d) It is further submitted that this court has in a catena of decisions upheld the orders rejecting the applications for leave to defend even in cases where the landlord were, in fact, in possession of alternate accommodations at the time of filing of the eviction petition. Mr. Jain has referred the cases of : i. Amarchand Jain Vs. Dewan Sales Corporation, RCR No.525/2011 (decided on 06.08.2011) 12. Mr. Jain argued that there is no infirmity in the genuineness of the need of respondent and the impugned order holds that there exists no disputed question of law which is required to be examined in the trial and this court should not upset the finding of the learned Rent Controller merely
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by taking a different view which is not permissible in law and the present petition be dismissed. 13. The suit property is lying locked for many years as alleged by the respondent. It is argued by the respondent that the present proceedings are being contested by the petitioner, only to harass the respondent and/or to extract some money from the respondent as a condition to vacate the premises. Though the petitioner has denied the said fact but at the same despite of specific statement made by the respondent, no positive and cogent evidence to show that the suit property is being visited regularly except explanation is given that the petitioner is using the same for godown purposes. 14. The question before this Court is, as to whether said findings call for any interference by the Courts in revisionary jurisdiction or not in view of the facts and circumstances of the present case. i) In the case of Ramesh Chand Vs. Uganti Devi, 157(2009) Delhi Law Times 450, it has been held that while exercising jurisdiction under Section 25(B)(8), this Court does not act as a Court of appeal. This Court has only to see whether the learned ARC has committed any jurisdictional error and has passed the order on the basis of material available before it. ii) A Full Bench of this Court in Mohan Lal v. Ram Chopra and Anr., 1982 (2) RCJ 161 exhaustively considered the provisions of Section 25B of the Act. On the scope of the proviso to Sub-section (8) of this Section, after examining the judgment of Supreme Court in Hari Shanker and Ors. v. Rao Girdhari Lal Chowdhury, A.I.R. 1963 S.C. 698 and Bell and Co. Ltd. v. Waman Hemraj, AIR 1938 Bom (223) it was laid down as follows:
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“In our opinion the jurisdiction of the High Court under proviso to Section 25B(8) has to be interpreted, keeping in view the legislative intent. The revision under Section 25B(8) cannot be regarded as a first appeal and nor can it be as restricted as the revisional jurisdiction under Section 115 CPC. The High Court would have jurisdiction to interfere if it is of the opinion that there has been a gross illegality or material irregularity which has been committed or the Controller has acted in excess of his jurisdiction or has not exercised the jurisdiction vested in him. A finding of fact arrived at by the Controller would not be interfered with by the High Court unless it can be shown that finding has been arrived at by misreading or omitting relevant evidence and this has resulted in gross injustice being caused. If none of the aforesaid circumstances exist the High Court would not be entitled to interfere with the order of the Controller in exercise of its jurisdiction under proviso to Section 25B(8) of the Act.” iii) In the case titled as Shiv Sarup Gupta vs. Dr.Mahesh Chand Gupta, reported in AIR 1999 Supreme Court 2507, it has been held as under:- “…..The revisional jurisdiction exercisable by the High Court under S.25-B (8) is not so limited as is under S.115, CPC nor so wide as that of an Appellate Court. The High Court cannot enter into appreciation or re- appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a Court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of „whether it is according to law‟. For that limited purpose it may enter into reappraisal of evidence, that is, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one
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that no reasonable person acting with objectivity could have reached that conclusion on the material available. Ignoring the weight of evidence, proceeding on wrong premise of law or deriving such conclusion for the established facts as betray the lack of reason and/or objectivity would render the finding of the Controller „not according to law‟ calling for an interference under proviso to sub-sec. (8) of S.25-B of the Act. A judgment leading to miscarriage of justice is not a judgment according to law.” iv) The Supreme Court in another case tilted as Chaman Prakash Puri vs. Ishwar Dass Rajput and Another, 1995 Supp (4) Supreme Court Cases 445 has examined with regard to High Court‟s power to interfere in revision against the finding as to bonafide requirement of landlord. It has been held that if the Rent Controller finds that landlord was in bonafide need of premises, the High Court in revision was not entitled to re-appreciate evidence and reverse the finding. v) The Apex Court in Sarla Ahuja versus United India Insurance Company Ltd., reported in AIR (1999) SC 100 held as under:- “6. ..…The above proviso indicates that power of the High Court is supervisory in nature and it is intended to ensure that the Rent Controller conforms to law when he passes the order. The satisfaction of the High Court when perusing the records of the case must be confined to the limited sphere that the order of the Rent Controller is “according to the law”. In other words, the High Court shall scrutinize the records to ascertain whether any illegality has been committed by the Rent Controller in passing the order under Section 25-B. It is not permissible for the High Court in that exercise to come to a different fact finding unless the finding arrived at by the Rent Controller on the facts
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is so unreasonable that no Rent Controller should have reached such a finding on the materials available.” 15. Let me now test as to whether the present case warrants interference of this court on the touchstone of the principle governing scope of the enquiry of revisionary court and see whether there exists any illegality in the impugned order which makes the order not in accordance with law or suffers from perversity of finding which no reasonable person could have arrived at by evaluating the contentions of the petitioner. 16. The argument made by the petitioner that all the facts and ingredients of Section 14(1)(e) of the Act were not pleaded in the eviction petition is legally untenable as brother-in-law and sister-in-law cannot fall within the ambit and scope of Section 14(1)(e) of the Act. The reading of Section 14(1)(e) of Act, it is true that the bonafide requirement of brother-in-law and sister-in-law cannot fall within the ambit and scope of the said provision. But, the facts in the present case are different. The same is apparent from the reading of the prayer made in the eviction petition. The relevant part of the prayer made in the eviction petitioner are extracted as under : “It is, therefore, respectfully prayed by the petitioner that in view of submissions made hereinabove by the petitioner, this Hon‟ble Court in the interest of justice be gracious to decree the eviction petition of the petitioner on the ground under Section 14(1)(e) read with Section 25- B of DRC Act, 1958, for her non residential use (for the business being carried out jointly by her and her husband) with brothers of the husband, their wives and others also having interest in the joint business, in respect of premises shown red and green, bearing No.5795-A (over shop No.5794/1 and 2), Chawla Market, Sadar Bazar, Delhi-110006. An affidavit in support is enclosed.”
It is clear from the said prayer as contained in the petition that the respondent required the accommodation for herself and for the benefit of her
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husband including for the purpose of businesses being carried out jointly also with brothers of the husband, their wives and others having interest in the joint-businesses in respect of premises. Thus, the aspect of her doing the business along with the benefit of the husband would clearly attract section 14(1) (e) of the Act as the premises are required for herself or the benefit of the person which is her husband. Thus, the plea raised by the petitioner is not meritorious and thus rejected. 17. It is not the case of the petitioner that the respondent and her husband are not part of joint businesses carried out and having interest in the suit property, therefore, there is no force in the submission of the petitioner.
It is a matter of fact this ground was not taken up by the petitioner in its application for leave to defend. 18. Even otherwise, unless the permission is granted by the Court to raise the subsequent evidence, the normal practice is that while deciding the revision petition, only the leave to defend application filed by the tenant before the Additional Rent Controller can be considered and no new material can be considered at all. i) In the case of Mrs. Krishna Chopra & Anr. vs. Smt. Raksha & Ors., 82 (1999) DLT 360, it has been held that:- “4….The present revision petition was filed aggrieved by the order of the Additional Rent Controller not granting leave to contest the eviction petition. Nothing was urged before me on the basis of leave to defend application filed by the Petitioner before the Additional Rent Controller. Legislature in its wisdom has provided Summary Trial under Chapter-III of the Delhi Rent Control Act. Under Section 25 of the Delhi Rent Control Act procedure has been provided as to how to deal with the petition under Section 14 of the Delhi Rent Control
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Act. From the service of the notice on the tenant under Section 14(1)(e) of the Act fifteen days‟ time is granted to the tenant to file the leave to defend application and to plead all such grounds which, if proved, would disentitle a landlord from obtaining an order of eviction. In view of such a stringent procedure laid down by the Parliament, is it open for the Court which is not even exercising an appellate jurisdiction as contemplated under the Code of Civil Procedure to allow a tenant to say that at the time of filing of leave to defend application certain facts were not available to him and same can be brought to the notice of this Court while exercising revisional jurisdiction. In view of expressed provisions of the Statute, in my considered opinion while exercising the revisional jurisdiction emanating under the Act it is not permissible.” ii) In M. L. Prabhakar v. Rajiv Singal, AIR 2001 SC 522 wherein for the first time in the Special Leave Petition filed by the petitioner a point was taken that the landlord had constructed a building at Greater Kailash and that bunglow was also available to him, it was observed that “we have not allowed the appellant to urge this point in this appeal as these are disputed questions of fact which should have been placed before the Rent Controller so that proper evidence could have been taken on this.” iii) In Bal Krishan Khanna v. Smt. Ravi Kanta Madhok, 2010 VI AD (Delhi) 986 where the plea of the petitioner/tenant in the revision petition was that there was a mutual understanding between the deceased father-in- law of the respondent/landlady and the petitioner/tenant that the tenanted premises in question shall be used by the petitioner/tenant at his will for the rest of her life is concerned, it was observed that “a perusal of the leave to defend application filed by the petitioner tenant before the learned
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Additional rent Controller shows that no such ground was taken by him to contest the eviction petition. In para 1 of the leave to defend application, the petitioner/ tenant only stated that the tenanted premises was let out to him on rent by the father-in-law of the respondent/landlady 40 years ago after taking security amount of Rs.8,000/-. There is not a whisper in the application with regard to such a mutual understanding between the petitioner/ tenant and the deceased father-in-law of the respondent/landlady, as claimed in the present petition. The said ground cannot be permitted to be taken at this stage by the petitioner.” 19. A mere perusal of the eviction petition would show that the same was filed in the prescribed format/form wherein all the information/ingredient/facts required to be stated under the Act were duly provided. Therefore, the argument of the petitioner on this point are without any force and it can not be agitated by the petitioner when the said plea was not taken in the application for leave to defend. 20. With regard to the submission of the petitioner that the site plan filed alongwith the eviction petition was inaccurate, the learned trial court has come to a conclusion that when it is not disputed that there is single tenancy created between the parties in respect of the suit premises and there is no separate tenancy created between them with respect to any other portion in the demise premises and that if the petitioner had to vacate the demised premises, then the suit premises would have to be vacated irrespective of the fact whether the entire demised property is shown accurately in the site plan or not. The said finding of the trial court are reasonable and legally correct. 21. The other argument of Mr. Sabharwal that there is sufficient accommodation available with the respondent and that no other family member of the respondent requires the suit premises, the same is legally and
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factually incorrect. The learned Rent Controller after discussing the facts has held that the only accommodation available with the respondent was a residential house where the respondent is staying along with the joint family, where no business could be carried on and the premises from where the business was currently being run is a tenanted premises as proved by the documents placed on record, not disputed by the petitioner. Thus, there is no force in the submission of the petitioner. The petitioner is not able to show any accommodation owned by the respondent where the business could be carried out conveniently which can cast some doubt as to the availability of the alternative accommodation with the respondent. Having not done so, the finding arrived at by the learned Rent Controller is in accordance with law and suffers from no legal infirmity on the count of availability of the alternative accommodation. 22. The ground that whether the suit premises is suitable for the purpose for which eviction is sought can only be proved by leading evidence, is legally untenable and goes against the very scheme of the provisions of Section 14(1)(e) and Section 25 B relating to the summary procedure for eviction on the ground of bona fide requirement. The provisions of the Act as well as the well settled on the subject clearly provide that in the proceedings of present nature, evidence can be allowed to be led only pursuant to the grant of leave to defend, which is otherwise granted by the trial court only when certain triable issues arise from out of the grounds on which leave to defend is sought. A perusal of the record of the present proceedings would clearly show that nothing pleaded in the affidavit seeking leave to defend which could be said to have raised triable issue. Thus, the decision referred by the petitioner are not applicable in the facts of the present case which are materially different. It cannot be said till the time
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some doubts exists on the suitability of the premises that every time if the tenant challenges that the premises are not suitable for the purpose for which the eviction is sought for, the court will make the same as triable issue. The dispute as to the suitability of the purpose of the premises shall become triable only when on the material available on record, there exists a doubtful case on the genuineness of the need which may emerge from the affidavit along with the leave to defend application along with the documents filed there with. If that is not so, it cannot be said that there exists a triable issue on the count of the suitability of the purpose.
No evidence was filed to show that the respondent was member of an HUF and the same is meant only to confuse and mislead this Court. It is submitted that the entire case of the respondent was that she requires the demised premises for running a business in partnership with her family members, which was duly demonstrated by way of documents. It was never the case of the respondent that the demised premises was required for use by any HUF. This position was never disputed by the petitioner before the learned Rent Controller. As such, this plea is clearly an afterthought taken for the first time before this Court. 23. There is no cogent evidence even prima facie to show that the suit premises is being used by the petitioner continuously or regularly. On the otherhand, the case of the respondent is that suit premises is required bonafidely for the purpose of her business in the partnership with other family members and there is insufficiency of space. There is a force in the submission of Mr. Jain that if as per the respondent accommodation with the respondent insufficient then the question of additional accommodation would arise and in the present case, the petitioner is not even prima facie
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able to show the space lying for the respondent is sufficient, in the absence of the same, the respondent is able to make out a strong case in her favour. 24. It is settled law that where a need of the landlord is bonafide and the same is genuine then it is not proper on the part of the tenant to have doubts towards the landlord who cannot be attributed any malafide and he cannot be deprived of the bonafide enjoyment of his property. 25. In view of the aforesaid reasons, facts and circumstances of the present case, the impugned order does not suffer from any legal infirmity and the same is passed in accordance with law warranting no interference of this court. Consequently, the present petition is dismissed. However, in the interest of justice, interest of justice, equity and fair play, the petitioner is granted six months time to vacate the suit property. During this period, the petitioner shall not sublet or create any third party interest in the suit property. 26. No costs.
(MANMOHAN SINGH)
JUDGE OCTOBER 04, 2013