* HIGH COURT OF DELHI AT NEW DELHI
+ RC. Revision No.607/2015 & CM APPL.27232/2015
Pronounced on: 20th January, 2016
SH RAM LAKHAN CHAURASIA ...... Petitioner
Through: Mr. J.M. Bari, Advocate with
Ms. Meenakshi Bari, Advocate.
Versus
SMT SANTOSH KUMARI ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
1. This is a Revision Petition against the order dated 05.10.2015, by virtue of which the leave to defend filed by the petitioner/tenant, was dismissed and eviction order has been passed. Before dealing with the present petition it is pertinent to mention the facts of the case.
2. The tenanted premises comprises of one shop privately marked as shop no. 1 situated on the ground floor of Property no. BE-355, Gali no. 6, Hari Nagar, New Delhi-110064, as delineated in red in the site plan. The rate of rent was Rs.176/- per month upto October, RCR 607/2015 Page 1 of 10 2008, thereafter it stood increased by ten percent on expiry of three years. The premises was let out by the previous owner of the property, however, the tenancy is according to an English Calendar month commencing from the first day of the month and ending on the last day of the same month.
3. It was averred in the Eviction Petition that the petitioner/tenant has allegedly sublet, assigned and parted with the possession of the premises without the consent of the respondent/landlady.
4. It was further stated that the premises were let out for non residential purpose and are required bona fide by the respondent/landlady for occupation as a non-residential premises for herself or for any member of her family dependent upon her since the respondent/landlady or such person has no other reasonably suitable non-residential accommodation. It was also stated that she became the owner of the suit premises by virtue of sale deed dated 15-09-1998.
5. Regarding suit premises i.e. property no. BE-355, Gali no. 6, Hari Nagar, New Delhi-110064, it was stated that it consists of ground floor, first floor and second floor. It was averred that there are three RCR 607/2015 Page 2 of 10 shops on the ground floor of the property, out of which shop no. 1 is with the petitioner/tenant, shop no. 2 is with another tenant S.P. Gulati and shop no. 3 is in occupation of the grandson of the respondent/landlady Akshay Verma (S/o Rakesh Kumar Verma), who has been doing business, under the name and style of Verma Pneumatic from said shop. The first floor of the property is being used as a godown by M/s. Verma Mill Store, being run by the sons of the respondent/landlady Sh. Rakesh Kumar Verma and Sh. Vinod Verma. The second floor of the property is being used for residence by the workers/employees of M/s Verma Mill Store and M/s G.D. Traders, being run by the sons of the respondent and herself. There is one shop on the back of the said property also, which has been in use and occupation of the son of the respondent Ashwani Verma for the purpose of his business, under the name of M/s G.D. Traders.
6. Regarding availability of alternate accommodations, the respondent/landlady was stated to be the owner of ground floor of Property no. BE-204, Hari Nagar, New Delhi-110064, which is being used as a godown by M/s G.D. Traders. It was stated that the RCR 607/2015 Page 3 of 10 three of the said properties are owned by wives of the three sons of the respondent/landlady and the same are being used for residence by them. The husband of the respondent Virender Singh Verma was stated to be the owner of Property No. BE-303, Hari Nagar, New Delhi-110064 which consists of Shop No. 3 and the same is being used as a godown by the sons of the respondent for business of Hardwares and Tools. Another property bearing no. BE-204/1, Hari Nagar, New Delhi-110064, measuring 50 sq. yards, was stated to be owned by Seema Verma wife of Rakesh Kumar Verma i.e. son of respondent/landlady, the ground floor of which is having parking, and first floor and second floor have been let out to one tenant Prabhu Dayal for residence.
7. The averments regarding bona fide requirement were that two sons of the respondent/landlady Rakesh Kumar Verma and Vinod Verma have been running business jointly in partnership under the name and style of M/s Verma Mill Store and due to differences between them it is not possible to carry on the business jointly in a partnership and in order to enable them to do their independent business, and to accommodate them especially Vinod Verma, the RCR 607/2015 Page 4 of 10 shop under the tenancy of the petitioner/tenant is required bona fide. It was further reiterated that the said shop is therefore required bona fide for occupation by said sons Rakesh Kumar Verma and Vinod Kumar of respondent/landlady, and preferably for Vinod Verma, to enable them to have their separate independent business to resolve the dispute between them and no other suitable non residential accommodation is available in the nearby locality, Delhi or elsewhere.
8. Leave to defend was filed by the petitioner/tenant wherein he admitted the relationship of landlord tenant and also stated that the respondent is not accepting rent despite the requests having been made by him.
9. It was also contended by the petitioner/tenant in the leave to defend that the respondent/landlady as well as her family members are having seven residential properties in Delhi spread in an area of 50 to 300 square yards having a total area of nearly 4000 square yards of total area on the all floors and 12 Commercial shops of 20 X 30 feet to 10 X 20 feet within the vicinity of one kilometer and that the respondent does not have any bona fide need at all since as per RCR 607/2015 Page 5 of 10 her admission in another case she is a housewife and not involved in any business. It was also stated that in the entire petition the respondent/landlady has not stated her bonafide need or the reason for insufficiency of the available accommodation.
10. The petitioner also contended that the respondent/landlady wants to evict him due to ulterior motive and was demanding exuberant rent. It was also stated that in the eviction petition itself, the respondent/landlady has admitted to having ownership and possession of as many as three different premises i.e. B-204, B- 204/1 and B-303 all if which are situated in Hari Nagar and are stated to be in use by the family members of respondent which clearly highlights that neither the respondent nor her family members have any paucity of space so the question of bona fide requirement does not arise. It was further averred that the family members of the respondent/landlady are having 3 shops on the main road of Mayapuri Metal Forging with the name of Verma Traders, Verma Steel and Verma Mill Store and each of these three shops is having an area of 30 feet to 20 feet 20. Also the respondent and her other family members were stated to be in the RCR 607/2015 Page 6 of 10 possession of two 100 square yards floors of the adjoining property i.e. BE-203, Hari Nagar, New Delhi-64. It was contended that this is also an indication/reflection about the mala fide intention of the respondent/landlady who is adamant on evicting the petitioner from the tenanted premises at any cost.
11. The respondent/landlady thereafter filed her reply to the leave to defend after which learned Additional Rent Controller passed a detailed order running into 32 pages rejecting leave to defend application and passing an order of eviction against the present petitioner.
12. I have heard the learned counsel for the petitioner as well as the counsel for the respondent and gone through the record including the impugned order.
13. A perusal of the impugned order shows that the learned Additional Rent Controller has passed an unduly long order, which gives an impression as if he is not deciding the leave to defend application, but is deciding the Eviction Petition itself on merits. The Apex Court in Charan Dass Duggal vs. Brahma Nand; (1983) 1 SCC 301 while criticizing the practice of writing lengthy orders has very RCR 607/2015 Page 7 of 10 clearly observed that while deciding the leave to defend application all that is expected of the ARC is to see whether the tenant has a prima facie case, which if permitted to be proved would disentitle the landlord from retrieval of possession. It has also been observed that prima facie case need not be an iron cast case or a strong case but should raise a triable issue. In the judgment of Inderjeet Kaur v. Nirpal Singh, (2001) 1 SCC it has been laid down by the Apex Court that the onus for grant of leave to defend on the tenant is very light. The counsel for petitioner/tenant has also relied on the judgment in Precision Steel & Engineering Works Anr. Vs. Prem Deva Niranjan Deva Tayal (1982) 3 SCC 270 which has also held that:
"....The language of Sub-section 5 of Section 25B casts a statutory duty on the Controller to give to the tenant leave to contest the application, the only pre-condition for exercise of jurisdiction being that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground mentioned in Section 14(1)(e)."
14. In the instant case, the learned ARC seems to have fallen into a grave error by going into minute details as to what are the different RCR 607/2015 Page 8 of 10 kinds of accommodations owned by the respondent/landlady and as to how she is utilizing the same.
15. This is a case where the respondent is an old lady and wants to retrieve the possession of one shop, which is under the tenancy of the petitioner for the benefit of either of the sons preferably Vinod Verma, while admittedly she is in possession of several shops as well as ample alternative accommodation, though explanation has been furnished by her as to how these properties are being used. The question of sufficiency or suitability of alternative accommodation can be decided by the Additional Rent Controller only after permitting the parties to adduce their respective evidence.
16. For the reasons mentioned above, I feel that the Additional Rent Controller has fallen into a serious jurisdictional error by exceeding its jurisdiction and deciding the question of grant of leave, which is to be decided prima facie on the basis of the pleadings of the parties, rather than deciding as if he is deciding the case on merits. Hence, I set aside the order of the learned Additional Rent RCR 607/2015 Page 9 of 10 Controller, rejecting the leave to defend application and passing an eviction order and grant leave to defend to the petitioner.
17. Pending applications also stand disposed off.
18. The petitioner shall file his written statement within four weeks from today, with an advance copy to the counsel for the respondent-landlord, who may file their rejoinder within four weeks.
19. Parties to appear before the concerned Additional Rent Controller on 15th February, 2016 at 2.00 P.M.
V.K. SHALI, J.
JANUARY 20, 2016 / n RCR 607/2015 Page 10 of 10