* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 29.01.2014
+ RC.REV. 273/2013 & CM 11618/2013
M/S.INDO AFGAN CHAMBER OF COMMERCE, DELHI
..... Petitioner
Through: Mr. R.K.Jain, Advocate
versus
KALAWATI DEVI ..... Respondent
Through: Ms. Ritu Singh Maan, Advocate
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
% MR. JUSTICE NAJMI WAZIRI (Open Court)
1. The petitioner is aggrieved by an order dated 01.05.2013 whereby he
has been directed to be evicted from the tenanted premises i.e. 622, Katra
Ishwar Bhawan, Khari Baoli, Delhi. He is aggrieved by the denial of leave
to defend.
Facts
:
2. The respondent landlady pleaded that she needed the tenanted premises to settle her second son namely Shri Vipin Kumar into his own business, he was currently engaged in trading of Kasuri Methi in one small Kolki under the staircase and another one of smaller area of 2x3 feet on the RC. Rev. 273/2013 Page 1 of 9 first floor. Both of which were extremely small and insufficient for carrying out the said business and were also a constraint in the expansion of the business. Besides, she submits, her husband and their son have rented shop in the same locality at a monthly rent of Rs.7,000/-, ironically while they were suffering the non-availability of their own shop which the tenant occupied at a monthly rent of Rs.200/-; that the second son had a diploma in computers and he could not put his educational qualification to professional or commercial use due to the paucity of space. It was contended that should the tenanted premises be vacated, the landlady's husband and son would be able to shift into it then save the unnecessary rent of Rs.7,000/- and expand their business.
3. In the leave to defend, the tenant sought to raise a few triable issues: that several other shops were available to the landlady in the same building as well as at other places which would suffice her need, if any; the petition was malafide and payment of Rs.7,000/- per month towards rental was only to gain sympathy of the Court as they had failed to produce any rent receipt of the said tenancy, the tenant was in an association of Indian Importers and Exporters of Dry Fruits, Herbs and Spices and is recognized Chamber of Commerce and was a Non Profit making body duly registered under Section RC. Rev. 273/2013 Page 2 of 9 25 of the Companies Act, 1956, engaged in the affairs of commerce and business which was also beneficial to the society at large and at any given day a number of persons visit the respondent which was engaged in conducting meeting at the rented premises and that the tenant also endeavoured for the redressal of the grievances and problems of its members.
4. The impugned order took into consideration each of the properties mentioned in the leave to defend i.e. two shops on first floor of property No. 622, Katra Ishwar Bhawan, Khari Baoli, Delhi admeasuring 2.1 x 7.7 ft. and 3 x 6 feet which were stated to be in occupation of the petitioner and have been put to use by her husband and son under the name and style of M/s Sharda Prasad Neeraj Kumar; an office each on the second floor and third floors of the same building which were stated to have been given out on rent; Shop No.17 D, Gopi Nath Market, Near Ramdev Market, Khari Baoli, Delhi was self occupied by the petitioner and finally, a shop being used in the name of M/s Rajdhani Marbles, Bhajanpura, New Delhi by the son of the petitioner. The landlady denied ownership of the properties on the second and third floors of the building as well as of shop No. 17D, Gopi Nath Market. The shop at Bhajanpura was occupied by the landlady's first son RC. Rev. 273/2013 Page 3 of 9 for his independent business and exclusive use. It was not available to the second son for whose benefit the tenanted premises were sought. The two shops on the first floor are the same as mentioned in the eviction petition - as small kolkies, which as observed hereinabove were insufficient, inconvenient and improper for being put to any meaningful commercial use as contemplated by the petitioner. The issue of petitioner's paying rent @ Rs.7,000/- per month for another shop or the respondent not using the shop in question or having installed a separate electricity connection in the premises, were rightly considered irrelevant apropos the determination of bonafide need of the tenanted premises other than making bald allegation of owning the properties mentioned in the leave to defend. The tenant did not produce any document or material to prima facie show that the properties were owned by the landlady so as to make it a triable issue for grant of leave to defend. This Court is of the view that insofar as the landlady had denied ownership of three out of the six premises mentioned in the leave to defend, and of the remaining three shops one was being used by her, while the remaining two kolkies were insufficient to meet the need, nothing remained in the leave to defend. The tenant's claim for the need of the premises could not be a ground for granting leave to defend. Therefore, there was no triable RC. Rev. 273/2013 Page 4 of 9 issue for which leave to defend could be granted. The Trial Court rightly observed that:
"In response to this allegation, the petitioner in her counter affidavit has submitted that the shop at Bhajanpura, Delhi has already been disclosed by the petitioner in her petition. In fact, the said shop exclusively belongs to the first son of the petitioner. The said shop is exclusively occupied by the first son of the petitioner and he is running his separate business there.
Here again, I find that the petitioner has disclosed about this shop in her petition. The petitioner has also disclosed that she has two sons. She has also disclosed that the shop at Bhajanpura is being run exclusively by her first son. She has submitted that it is for the requirement of her second son that she needs the shop in question. Therefore, merely because there is a shop in which some business is being carried out by one son of the petitioner, for whose need the shop in question is not required, leave to defend cannot be granted to the respondent.
Apart from aforesaid grounds, there are certain other grounds which are in response to the petitioner's submission that the rent has not been paid regularly or that the petitioner is paying rent @ Rs.7,000/- for another shop or that the respondent is not using the shop in question or that the respondent has installed a separate electricity connection in the tenanted premises. However, these are the grounds, which I find are irrelevant for the disposal of the present application."
5. Learned counsel for the petitioner has raised no grounds other than RC. Rev. 273/2013 Page 5 of 9 what were raised in leave to defend and duly addressed in the impugned order as discussed hereinabove.
6. Counsel for the petitioner relies upon two judgments namely Khem Chand & Ors. v. Arjun Jain & Ors. 202 (2013) DLT 613 and Inderjeet Kaur v. Nirpal Singh 2001 (1) RCR 33.
7. Counsel for the respondent submits that except two small Kolkies the petitioner, her husband and her second son were neither the owners of nor occupied any other shop, as alleged by the tenant in his leave to defend. Counsel submits that the other properties belonged to some Shri Ashok Kumar Bhatia and the landlady/petitioner had nothing to do with it. Counsel for further relies upon Inderjeet Kaur v. Nirpal Singh in 2001 (1) RCR 33 wherein the Supreme Court held as under:
"We are of the considered view that at a stage when the tenant seeks leave to defend, it is enough if he prima facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. It would not be a right approach to say that unless the tenant at that stage itself establishes a strong case as would non-suit the landlord, leave to defend should not be granted when it is not the requirement of Section 25B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act. Leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of a landlord to RC. Rev. 273/2013 Page 6 of 9 recover possession of the premises from a tenant under clause (e) of the proviso to sub-section (1) of Section 14, when as a matter of fact the requirement may not be bona fide. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to him and his family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction. At the stage of granting leave to defend parties rely on affidavits in support of the rival contentions. Assertions and counter assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend were either frivolous, untenable or most unreasonable. Take a case when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire. The ground under clause (e) of the proviso to sub-section (1) of Section 14 enables a landlord to recover possession of the tenanted premises on the ground of his bona fide requirement. This being an enabling provision, essentially the burden is on the landlord to establish his case affirmatively. In short and substance wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the Rent Controller by the statute itself to grant leave. At the stage of granting leave the real test should be whether facts disclosed in the affidavit filed seeking leave to defend prima facie show that the landlord would be disentitled from obtaining an order of eviction and not whether at the end defence may fail. It is well to remember that when a leave to defend is refused, serious consequences of eviction shall follow and the party seeking leave is denied an opportunity to test the truth of the averments made in the eviction petition by cross-examination. It may also be noticed that even in cases where leave is granted provisions are made in this very Chapter for expeditious disposal of eviction RC. Rev. 273/2013 Page 7 of 9 petitions. Section 25B(6) states that where leave is granted to a tenant to contest the eviction application, the Controller shall commence the hearing of the application as early as practicable. Section 25B(7) speaks of the procedure to be followed in such cases. Section 25B(8) bars the appeals against an order of recovery of possession except a provision of revision to the High Court. Thus a combined effect of Section 25B(6), (7) and (8) would lead to expeditious disposal of eviction petitions so that a landlord need not wait and suffer for long time. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims."
8. It is evident from Section 25B(4) and (5) of the Act that the burden placed on the tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitled the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in clause (e) of the proviso to Section 14(1) of the Act, it will be good enough to grant leave to defend.
9. The principles laid down in the aforesaid judgment and the concerns expressed apropos the need for expeditious disposal of an eviction petition, so that a landlord should not suffer for long awaiting eviction of a tenant for bonafide need, would apply in entirety to the present case.
10. This court finds that the reasoning adopted by the Trial Court and the conclusion arrived at soundly address all the issues raised by the tenant. The RC. Rev. 273/2013 Page 8 of 9 conclusion arrived at is sound both in fact and in law. The order does not suffer from any material irregularity.
11. This court finds no reason to interfere with the impugned order in its revisional jurisdiction. The petition lacks merit and is therefore dismissed.
NAJMI WAZIRI (JUDGE) JANUARY 29, 2014/acm RC. Rev. 273/2013 Page 9 of 9