S.S. Sidhu vs Ramkishan Khanduja
1994 Latest Caselaw 723 Del

JUDGMENT

Devinder Gupta, J.

(1) This is tenant's revision petition filed under Section 25-B(8) of the Delhi Rent Control Act, (hereinafter referred to as "the Act"), seeking to set aside an order passed on 1/04/1994, by Shri K.S. Khurana, Additional RentController, Delhi, rejecting his application, for leave to contest and also simultaneously passing an order of eviction in favor of the landlord/respondent.

(2) On 22/03/1993, a petition for eviction under Section 14(l)(e) read with Section 25B of the Act was preferred by the landlord seeking tenant's eviction from the first floor of premises bearing No. D-15, Amar Colony, Lajpat Nagar-IV, NewDelhi. It was alleged that the premises in question comprising two rooms with akitchen, bath, W.C. along with front and back verandah had been let out to the tenant on 3/07/1974 for residential purpose, which was required bona fide by the landlord for his own use and for the use and occupation of his family members. the landlord was not having any other alternate reasonably sufficient and suitable accommodation for the purpose. His family members consists of his wife, a married son and three married daughters. The marriage of the son was solemnized on 1 1/03/1993. There was no accommodation available for his son and daughter-in-law. He was having only two rooms, kitchen, bath, W.C. and open verandah. Inaddition, the married daughters usually and customarily have been coming and staying with the landlord with their families. Eviction thus was sought under summary procedure. .On being served, the tenant applied for grant of leave to contest by filing his own affidavit.

(3) The tenant sought leave to contest alleging that at the time when the premises was let out to him, the family of the landlord consisted of himself, his wife, three daughters and a son. Now with the passage of time the three daughters weremarried. Thus there has been reduction in the number of family members. The accommodation available in the ground floor was more than sufficient for the requirement of the petitioner and his family members, namely, his son anddaughter-in-law. A couple of years ago second floor in the same building had fallenvacant, which was let out by the landlord to another tenant. Thus the need was not bona fide. The landlord's son and daughter-in-law were earning members and were not dependent for the purpose of accommodation on the landlord. The petition was mala fide with a view to compel the tenant to enhanced rent. ownership of the landlord was also challenged. The stand taken by the tenant in his affidavit was controverter by the landlord in his reply-affidavit. The Controller through the impugned order proceeded to reject the application holding that the affidavit filed in support of the application for leave to contest did not disclose any friable issue and consequently proceeded to allow landlord's application holding that the premises were bona fide required for the personal use and occupation. It is this order which is under challenge.

(4) At the admission stage, I have heard learned Counsel for the parties and have also gone through the record.

(5) Learned Counsel for the petitioner has vehemently contended that the facts disclosed in the affidavit do disclose friable issues. The facts, as alleged, if proved,would definitely disentitle the landlord from claiming possession. ownership of landlord was in dispute. In addition, it was also alleged that the second floor had fallen vacant which had been let out by the landlord, instead of occupying himself.From the date when the premises were let out to the tenant to the date when the petition for eviction was filed, there had been reduction in the number of familymembers. Thus the need projected was exaggerated. All these facts, as disclosed in the affidavit, ought to have been held to be sufficient to allow tenant's application by granting him permission to contest.

(6) On going through the record and considering the submissions, I do not find any ground to interfere in the instant case.

(7) The tenant in the affidavit, after questioning the ownership of the landlord,did not specifically state that in case the landlord was not the owner, who else was the owner. Mere challenge to ownership without saying anything else cannot be said to be giving rise to a friable issue. In order to enable a tenant to put any matter in issue, it is necessary that in the allegations made some material facts must be stated which prima fade would enable the Court to formulate an opinion that a tribal issue does arise from the facts disclosed. A mere denial of a fact alleged by the landlord in the petition for eviction without making specific averments in support of the plea of denial cannot be said to be giving rise to a issue which might be put to trial. The Additional Rent Controller was also right in observing that denial by the tenant to the ownership of landlord does not give rise to a friable issue since the landlord has already placed on record material showing his ownership to theproperty.

(8) The second agitation by the tenant in his affidavit is that when the premises were let out to him, the family of the landlord consisted of three daughters, a son and his wife and now the number of family members, instead of increasing had decreased since three daughters have been married and now the family of the landlord consists of himself, his son and daughter-in-law. In addition to the reduction in the family, the petitioner has retired from the job and was having more than sufficient accommodation in his occupation. Connected with this is the other objection that petitioner had let out the second floor of the premises to one Mr.Sharma, a couple of years ago. Argument is that in case the petitioner wanted accommodation or was in genuine need of additional accommodation, there was no reason as to on Mr. Sharma's vacation, the premises instead of being occupying by the landlord would be let out to a fresh tenant.

(9) The question that whether tenant's version alone would be considered and not the landlord's version or that whether tenant's version bona fide is such which give rise to a friable issue was considered in Precision Steel & Engineering Works &Another v. Prem Deva Niranjan Deva Tayal, , wherein it was held that jurisdiction to grant leave to contest or refuse the same is to be exercised on the basis of affidavit filed by tenant. If averments made in the affidavit disclose such facts which if ultimately proved to be to the satisfaction of the Court, would disentitle the landlord from recovering possession, the same by itself would make it obligatory upon the Controller to grant leave. While holding so, it is also observed that in case the allegations made in the tenant's affidavit are controverter by the landlord that fact may be borne in mind. For the satisfaction of the Court that the facts as disclosed in the affidavit prima facie give rise to a friable issue requiringinvestigation, it is all the more necessary to keep in mind the landlord's affidavitalso. But the facts disclosed in the tenant's affidavit must be such which are material facts leading to a friable issue and not a mere denial or assertion of some allegations.In the instant case the tenant in his affidavit merely denied the ownership of landlord and without giving other material particulars alleged that a few years ago second floor had fallen vacant, which was rented out. The Controller in the light of the facts disclosed was right in observing that in the petition for eviction itself the landlord had given sufficient particulars of his claim that his family consisted of himself, hiswife, a married son and three married daughters. The marriage of the son was solemnized on 11/03/1993 and the landlord was not having any accommodation to accommodate his son and daughter-in-law. He wanted to settle his son and daughter-in-law in the tenanted premises since the accommodation in his occupation was not sufficient to meet his requirement. His daughters, their husbands and children were customarily visiting the house. In the light of these observations, it was all the more necessary for the tenant to allege that when need arose some accommodation other than the tenanted one had became available which was not occupied by the landlord.

(10) As regards the second floor, it was clarified by the landlord that The accommodation fell vacant in the year 1987, when there was no need and his son was married after six years and thus there cannot be any question of mala fide. The plan submitted by the landlord was not in dispute by the tenant. The perusal of which would show that the accommodation in the ground floor and the first floor isidentical. The tenant's version that there was an additional room in the ground floor,in the absence of any plan filed by him was also rightly ignored by the Controller. In these circumstances, no friable issue can be said to have arisen since the accommodation which fell vacant six years ago would not be a relevant factor when the landlord states that need has arisen in the year 1993 when the marriage of his son took place.

(11) On perusal of the entire record, I find that the Controller was justified incoming to the conclusion that tenant was not entitled to leave to defend. The result is that the revision which has no force is dismissed.

(12) In the impugned order it was provided that the eviction order shall not be executable for a period of six months, which has since expired on 31/08/1994.In case the tenant/petitioner, within a period of one week from today, would place on record the usual affidavit with advance copy to the respondent to be served through his Counsel agreeing and undertaking to hand over and deliver vacant and peaceful possession of the premises in question to the respondent on or before 3 1/03/1995 and also undertaking that he will not allow any other person to use the premises or will part away with the possession, the order of eviction shall not be executed till 31/03/1995. This of course will be on the tenant's paying/depositing all arrears within a week and continuing to pay/deposit use and occupation charges month by month on or before the 10th day of each month at the rate at which rent was payable: Failure on the part of the tenant/petitioner to place on record his on affidavit within one week, will automatically entitle the respondent to execute the order of eviction forthwith. No costs.