Sakhi Bai vs Satish Kumar Sabharwal
1996 Latest Caselaw 113 Del

JUDGMENT

C.M. Nayar, J.

(1) The present revision petition is directed against the judgment dated 25th March, 1992 of Additional Rent Controller, Delhi. The learned judge dismissed the application for leave to defend and granted eviction to the respondent under Section 14(1)(e) of the Delhi Rent Control Act in respect of the suit premises i.e. the entire ground floor of property No. 15/16, Old Rajinder Nagar, New Delhi.

(2) . The respondent filed an eviction petition against Shri S.N.Thahriani, the husband of the petitioner on the ground of bonafide requirement on the allegations that the entire ground floor consisting of two rooms, one kitchen, one bath room-cum- lavoratory, one store besides front and back courtyard in respect of property No.15/16, Old Rajinder Nagar, as shown in red colour in the site plan annexed to the petition for eviction was let out to late Shri Thahriani with effect from 1st January, 1974 vide rent agreement dated 30th December, 1973 for a period of 11 months at a monthly rent of Rs.500.00 besides electricity and water charges. The said property was let out for residential purposes and the respondent was the owner/landlord in respect of the same in terms of letter dated 22nd December, 1974 issued by the office of L&DO. The respondent was 56 years of age at the time of filing the petition and it was contended that he could not afford to live either on the first floor or on second floor of the property No.E-7, Lajpat Nagar Iii, New Delhi as he and his wife suffered from arthrIT is and similarly was the situation of Barsati floor at the demised premises which were not even reasonably sufficient or suitable for the respondent and his wife. The respondent had been living on the ground floor of the premises at Lajpat Nagar along with two sons and his father. This property was owned by the son of the respondent Shri Brij Mohan Sabharwal who after completing his Masters degree in Dental surgery in December, 1990 wanted to settle down independently in the property at E-7, Lajpat Nagar. It is not in dispute that the said property at Lajpat Nagar was owned by the said son and did not derive from the respondent.

(3) In an application for leave to defend, it was not disputed that the respondent was the owner and landlord of the suit property. It was also not denied that the premises were let out with effect from 1st January, 1974. The plea was taken in the application that the suit premises were used for residence and office of the husband of the petitioner (since deceased) as he was an Advocate and the tenancy was residential- cum- commercial. However, this plea was not reiterated in the affidavit. The Rent Controller considered the respective pleas of the parties and held that the defense raised was vague and could not be accepted. The premises were held to be residential. The bonafide requirement was next considered and it was noted that neither in the affidavit nor in the application the ages of the respondent and his wife as well as his father were disputed. It was also not disputed that there were only 3 bed rooms on the ground floor of property No.E-7, Lajpat Nagar, New Delhi where the respondent was residing at the time of moving the petition for eviction. It was also not denied that the eldest son of the respondent was doing the course of Masters degree in Dental surgery which he has since completed.

(4) The main point raised by the tenant was that in the property in Lajpat Nagar the first floor was in the tenancy of Himalayan Car Rally Association of which respondent was an office bearer and, therefore, the respondent as well as his wife could settle on the ground floor and the son and his wife could shift to the first floor. The Controller took note of the fact that the property in Lajpat Nagar was owned by Mr.Brij Mohan Sabarwal, the son of the respondent-landlord. In view of the averments made the Court found the pleas raised by the petitioner as devoid of merit and vague. The application was, accordingly, rejected.

(5) The learned counsel for the petitioner/tenant has vehemently contended before me that the respondent had reasonably suitable premises at the time of application and he could live with his son at Lajpat Nagar. He has also made elaborate reference to the grounds as made in the application for leave to defend under Section 25(4) read with Section 25B of the Act, such as, (a) that the first floor of the house at Rajinder Nagar bad been let out to Canara Bank at the rate of RS.1100.00 per month and the second floor had been let out to another tenant at the rate of Rs.650 - per month whereas the rent of ground floor with the petitioner was Rs.500.00 per month only. This obviously has pinched the respondent and the only purpose to move a petition for eviction was to raise the rent; (b) the respondent has got sufficient accommodation at E-7, Lajpat Nagar, New Delhi where he had been living along with his family and sons; (c) the contention of the respondent that he wanted to marry his son and to settle him on the aground floor was totally false and untenable. The said house at Lajpat Nagar did not belong to any of his sons. The son of the respondent could easily shift to the first floor of the property at Lajpat Nagar and the respondent and his wife along with his father could live on the ground floor. The affidavit filed by the petitioner was rather brief and it was only reiterated that the petition for eviction was an abuse of the process of law and the respondent was taking undue advantage of his own faults. The petition was filed only for the purpose of increasing the rent.

(6) The learned counsel for the respondent, on the contrary, has contended that the scope of interference in exercise of revisional powers is very limited and only in exceptional cases this Court could interfere when the judgment of the Rent Controller was contrary to law. The petitioner has made merely vague allegations and the affidavit does not disclose any cogent grounds to allow the application for leave to defend. The marriage of the son of the respondent has since been solemanized and his wife herself is a Doctor and two children have since been born to them. The accommodation at Lajpat Nagar, accordingly, cannot be held to be reasonable and sufficient as the son as well as the daughter-in-law have installed certain equipments and set up a dental and or Hedonic centre at the house at Lajpat Nagar. In any case, the property does not belong to the respondent and neither the same is derived from him. In this background, it cannot be said that the respondent has reasonable alternative accommodation.

(7) The scope of enquiry for grant of leave to contest has been explained by the Supreme Court in Precision Steel and Engineering Works and another v. Prem Deva Niranjan Deva Toyal 1982(2) R.C.R. 544. The counsel for the petitioner has placed strong reliance on the observations as made in paragraph 19 which reads as follows:- "IT is indisputable that while examining the affidavit of the tenant filed under 25B(4) for the purpose of granting or refusing to grant leave to contest the petition the landlord who has initiated the action has to be heard. It would follow as a necessary corollary that the landlord may controvert the averments made in the affidavit of the tenant but the decision to grant or refuse leave must be based on the facts disclosed in the affidavit. If they are controverted by the landlord that fact may be borne in mind but if the facts disclosed in the affidavit of the tenant are contested by way of proof or disproof or producing evidence in the form of other affidavits or documents that would not be permissible. It is not the stage of proof of facts, it is only a stage of disclosure of facts. Undoubtedly, the rules of natural justice apart from the adversary system we follow must permit the landlord to contest affidavit filed by the tenant and he can do so by controverting the same by an affidavit. That would be an affidavit in reply because tenant's affidavit is the main affidavit being treated as an application seeking leave to contest the petition. But the matter should end there. Any attempt in investigating the facts whether they appear to be proved or disproved is beyond the scope of sub-s (5) of s. 25B. Viewed from this angle the decision in Mohan Lal's (9) case rendered by the Full Bench of the Delhi High Court is far in excess of the requirement of s. 25B(5) and the view taken herein does not commend to us."

(8) The learned counsel has, therefore, contended that the application for leave to defend gave certain facts which needed to be investigated and the Controller had no jurisdiction to refuse leave to contest as sufficient facts were disclosed that would disentitle the respondent from recovering possession without contest. The learned counsel for the respondent, however, has argued that the affidavit did not disclose such facts as would disentitle the landlord from recovering possession. The jurisdiction in this background was correctly exercised. He has also argued that subsequent events can always be taken into consideration which will indicate that the son of the petitioner who is a doctor has since married and they have two children. Both are Doctors and part of the premises in Lajpat Nagar are used for their clinic.

(9) There is no doubt that when there are questions of fact, which require to be investigated, the application for leave to defend must be allowed but it is also settled by the judgment in Precision Steel and Engineering Works (supra) that jurisdiction to grant leave to contest or refuse the same is on the basis of the affidavit filed by the tenant. The perusal of the affidavit in the present case does not, in any manner, indicate that triable issues arise which require to be investigated by the court which would disentitle the respondent from obtaining an order of eviction .on the basis of the provisions of Section 14(1)(e) against the petitioner at that stage. The affidavit is the relevant document and one has to confine to the averments made therein. This is so held in the judgment which is so strongly relied upon by counsel for the petitioner. In this context may be made to paragraph 10 of the above cited judgment, which reads as follows: "10.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). Section 14(1) starts with a non obstante clause which would necessarily imply that the Controller is precluded from passing an order or decree for recovery of possession of any premises in favour of the landlord against the tenant unless the case is covered by any of the clause of the proviso. The proviso sets out various enabling provisions on proof of one or the other, the landlord would be entitled to recover possession from the tenant. One such enabling provision is the one enacted is section 14(1) proviso (e). Upon a true construction of proviso (e) to section 14(1) it would unmistakably appear that the burden is on the landlord to satisfy the Controller that the premises of which possession is sought is ;(i) let for residential purposes; and (ii) possession of the premises is required bona fide by the landlord for occupation as residence for himself or for any member of his family etc. and (iii) that the landlord or the person for whose benefit possession is sought has no other reasonably suitable residential accommodation. This burden, landlord is required to discharge before the Controller gets jurisdiction to make an order for eviction. This necessarily transpires from the language of section 14(1) which precludes the Controller from making any order or decree for recovery of possession unless the landlord proves to his satisfaction the conditions in the enabling provision enacted as proviso under which possession is sought. Initial burden is thus on the landlord."

(10) Therefore, on perusal of the law as laid down it is clear that the landlord is to prima fade establish that (a) the respondent was the owner of the premises which were let out for residential purposes; (b) they were required bona fide by the landlord for accommodation as residence for himself as well as for his wife etc.; (c) the respondent had no other reasonably suitable residential accommodation. These ingredients are satisfied in the facts of the present case. Firstly, the respondent was owner-landlord of the premises, secondly they were let out for residential purposes from the inception of the tenancy, thirdly they were required bonafide by the respondent for his use and for the use of the members of his family and lastly there was no sufficient alternative accommodation available with the respondent which could be occupied by him. The accommodation allegedly available in the property at E-7, Lajpat Nagar is not, in any manner, owned by the respondent nor he parted with possession of the same in favour of his son at any relevant time. These facts were not denied even at the time of arguments of the present petition.

(11) The law is well settled that the landlord is the best judge of his residential requirement and he has a complete freedom in the matter. It is not the concern of the courts to dictate to the landlord how and in what manner he should live or to prescribe for him are sidential standard of their own. These observations find place in the judgment of the Supreme Court as reported in Smt. Prativa Devi v. T. V.Krishnan 1987(12) Drj 258. The subsequent events have also taken place, such as, the marriage of the son of the respondent etc and it is open for the Courts to take such events in consideration to prove the bonafide requirement of the respondent. In appropriate cases the Courts do take into account such events which are brought to their notice and which are not denied at the time of hearing of the petition to mould the relief in the light of those events.

(12) For the aforesaid reasons there is no merit in this petition. The same is dismissed. Having regard to the facts and circumstances of the present case, the petitioner, however, is granted time to vacate the demised premises till 31st July, 1996 subject to filing usual affidavit of undertaking in this regard within four weeks. There will be no order as to costs.