* IN THE HIGH COURT OF DELHI AT NEW DELHI
% RC.REV.12/2011
+ Date of Decision: 18th May, 2011
# RAJNISH KUMAR & ORS. ...Petitioner
! Through: Mr.M.L Sharma, Advocate
Versus
$ MOHAN SINGH ....Respondents
Through: Mr. Diwan Singh Chauhan, Advocate
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed
to see the judgment? (No)
2. To be referred to the Reporter or not? (No)
3. Whether the judgment should be reported in the digest?(No)
ORDER
This revision petition under section 25-B(8) of the Delhi Rent Control Act,1958 has been filed by the petitioners- tenants against the order dated 11.10.2010 passed by the learned Additional Rent Controller whereby their application under Section 25-B(4) filed for leave to contest the eviction case filed against them by the respondent-landlord on the ground of his bona fide requirement of a shop in property no.1712-B/5, RC. REV. NO. 12/2011 Page 1 of 9 Govind Puri Extension, Kalkaji, New Delhi(hereinafter to be referred to as 'the tenanted shop') under their tenancy as the legal heirs of the original tenant late Shri Manohar Lal Bhandari was dismissed and they have been asked to vacate the same within six months.
2. The brief facts of the case are that the respondent herein had filed an eviction petition against the petitioners herein on the ground that he required the tenanted shop bona fide for introducing his unemployed elder son in the business of tenting and catering which he(landlord) was carrying on already from some shop in the same locality(Govindpuri). It was pleaded in the eviction petition that elder son of the petitioner was unemployed and the petitioner wanted to settle him in his aforesaid business and he also wanted his younger son, who was employed somewhere, in Noida, to start his own business but due to paucity of sufficient commercial accommodation he was unable to settle them and fulfil their dreams.
3. The petitioners on receipt of the summons from the trial Court filed an application before the trial Court seeking leave to contest the eviction petition of their landlord. Leave was sought inter alia on the ground that the landlord had not approached the Court with clean hands in asmuch as he had concealed the fact that he was already having two shops in his RC. REV. NO. 12/2011 Page 2 of 9 possession in his another property no. 658/7, Govindpuri(which was the residential address of the landlord given the eviction petition) and those shops were lying vacant and he had kept them locked. The respondent- landlord had in his reply to the leave to contest application had denied that he was the owner of property no. 658/7, Govindpuri or that he had in his possessions any shops in that property. He denied having concealed any material fact from the Court.
4. The learned Addl. Rent Controller after considering the pleas raised by the tenants in their leave application and the reply of the landlord rejected the leave application and passed an eviction order in favour of the respondent herein vide order dated 11.10.10. Regarding the claim of the tenants that their landlord was already having two vacant shops in another property in Govindpuri the Addl. Rent Controller held in the impugned order that the fact that property no.658/7 was owned by the landlord had not been substantiated by the tenants and since the landlord's elder son was unemployed and he wanted that son to be settled in the business of catering his requirement could not be said to be mala fide.
RC. REV. NO. 12/2011 Page 3 of 9
5. I have heard the learned counsel for the parties and also perused the entire material placed on record by the petitioners as well as the written submissions filed from both the sides.
6. It was submitted by the learned counsel for the petitioners that the learned Additional Rent Controller was not justified in expecting substantiation of the plea taken by them in their leave application to the effect that their landlord was having in possession two vacant shops in his other property in Govind Puri, i.e. property no. 658/7 which is residential-cum-commercial property and where admittedly the landlord was residing also. It was submitted that at the stage of consideration of the leave to defend application a tenant is not required to substantiate his pleas by bringing on record necessary evidence and all that he is required to show is that he has raised some triable issues. In the present case, counsel submitted, the fact that petitioners had pleaded availability of additional accommodation with their landlord from where his sons could run their business, if at all they wanted to do so, and the respondent - landlord had refuted that factual averment a triable issue definitely arose which could not be decided without giving an opportunity to the parties to adduce necessary evidence. In this regard, learned counsel also placed reliance on one judgment of the Supreme Court in "Precision Steel & RC. REV. NO. 12/2011 Page 4 of 9 Engineering Works and Anr. Versus Prem Deva Niranjan Deva Tayal", (1982) 3 SCC 270 wherein it had been held by the Supreme Court that while considering the application of the tenant seeking leave to contest the eviction petition filed by the landlord under Section 14(1)(e) of the Delhi Rent Control Act, the Rent Controller is required to consider only the affidavit of the tenant filed in support of the leave application and the landlord's reply thereto and at that stage the Rent Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against other set of affidavits and it is also not to be considered at that stage whether the tenant would finally succeed or not on the basis of pleas taken in the leave application. It was also held that plausibility of the defence raised by the tenant and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility of the defence of the tenant only has to be shown. Learned counsel for the petitioners also submitted that they could not bring on record any documentary evidence at the time when they had filed the leave application before the trial Court since the same could not be gathered within the short period of 15 days within which they were expected to file the leave to contest application but after great efforts they have been able to lay their hands on some documents RC. REV. NO. 12/2011 Page 5 of 9 which clearly show that the respondent - landlord was owner of property no. 658/7, Govind Puri and those documents have now been filed before this Court along with present revision petition. My attention was drawn to those documents which include an housetax assessment order passed by Municipal Corporation of Delhi in the name of the respondent herein in respect of the said property and also one electricity bill in his name. The petitioners have also placed on record one Gift Deed purporting to have been executed by one of the brothers of the respondent in favour of his son whereby he gifted his share in the said property no. 658/7, Govind Puri to his son. That Gift Deed records that the said property no. 658/7, Govind Puri was allotted to the mother of the respondent herein,as a plot and building thereon was constructed jointly by her sons, including respondent herein by contributing their own money and after the death of their mother there has been a partition and some part of the said property came to the share of the executant of the said Gift Deed, namely, Sh.Jaswant Singh while the remaining part of the property, which included three shops on the ground floor came to the share of the other two sons of late Smt. Swarn Kaur.
7. In view of the above referred documents placed on record by the petitioners when it was put to the learned counsel for the respondent - RC. REV. NO. 12/2011 Page 6 of 9 landlord as to what he had to say his reply was that property no. 658/7, Govind Puri belonged to his mother and after her death it had devolved upon her legal heirs which included her two daughters and three sons, including the respondent herein, and since no partition had actually taken place, as had been recorded in the Gift Deed purporting to have been executed by his brother Jaswant Singh, it could not be said that the respondent was in occupation of two shops in the said property since those shops were joint properties and he could not claim himself to be the exclusive owner thereof. Regarding the Gift Deed relied upon by the petitioners, learned counsel also contended that that document was not binding on the respondent since he was not a party thereto. Same submissions were reiterated by the counsel for the respondent in his written submissions dated 12th May, 2011 also. Counsel further submitted that since the respondent was not the exclusive owner of the afore-said property he was not obliged to mention anything about that property in the eviction petition and, therefore, there was no concealment of any material fact by him. In support of the argument that learned Additional Rent Controller had rightly rejected the petitioners' application for leave to contest, and that this court would not be justified in interfering in that order in exercise of revisional jurisdiction learned RC. REV. NO. 12/2011 Page 7 of 9 counsel cited many judgments which, however, I am not referring to at present in view the order which I propose to pass today in the matter.
8. In my opinion, considering the fact that the respondent - landlord has before this Court only said something about the title and available accommodation in property no. 658/7, Govind Puri and that too during the course of hearing of the matter which, in fact, should have been done by him before the trial Court for its consideration this aspect of the matter should first be considered by the learned Additional Rent Controller and then a finding in that respect should be returned for being considered by this Court. For that purpose, the respondent - landlord shall file before the trial Court an additional affidavit giving the entire facts regarding the ownership and available accommodation in the afore-said property in which, according to the petitioners, he has available with him vacant shops.
9. The matter is accordingly remanded back to the trial Court for the afore-said purpose. The parties shall appear there on 30th May, 2011 at 2 p.m. on which date the respondent - landlord shall submit his additional affidavit and the petitioners herein shall then be given time to give their response also. Thereafter, the learned Rent Controller shall pass a fresh order but confined only to the petitioners' plea regarding availability of RC. REV. NO. 12/2011 Page 8 of 9 some shops with the respondent - landlord in house no. 658/7, Govind Puri, after hearing both the sides. Those findings shall then be returned to this Court. That exercise should be completed within a period of two months from 30th May, 2011. On receipt of the findings of the trial Court, the matter shall then be taken up by this Court to be finally disposed of. It is made clear that since the matter is being remanded back to the trial Court, this Court has not gone into the merits of any other aspect of the matter at present.
10. On receipt of the fresh decision of the trial Court the registry shall then place the matter before the Court within a week.
May 18, 2011/sh P.K. BHASIN,J
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