Rajiv Aggarwal vs Om Prakash Soni
1997 Latest Caselaw 461 Del

JUDGMENT

Usha Mehra, J.

(1) Petitioners sought eviction against the respondent herein basing their claim on the fact that they purchased the tenanted property consisting of three bed rooms, kitchen, bath, balcony and open terrace i.e. the entire first floor with the facility of staircase. Tenanted property was purchased by the petitioners jointly vide registered sale deed dated 13th August, 1990. After the lapse of statutory period of five years provided under the Act the petitioners sought eviction of the respondent on the ground of bonafide requirement. That the petitioner No. 1 had been residing in a rented accommodation. The petitioner No. 2 had been living in the house of his father on which he had no legal right. Both the petitioners have no other suitable alternative residential accommodation available to them in Delhi. In the tenanted premises they have got mezzanine floor consisting of one hall and one small store. Except the mezzanine floor the petitioners have no other accommodation. One hall and a store are not sufficient for the need of the petitioners. Entire ground floor under the tenancy of another tenant is being used for composite purposes. Eviction petition against the ground floor tenant has also been filed. The petitioner No. 1 has received a notice from his landlord to vacate the premises under his tenancy. Forced by circumstances, petition for eviction was filed.

(2) Respondent, Mr. 0m Prakash sought leave to contest the petition, primarily on the ground, that he was inducted as tenant by one Shri Ashok Malhotra. He was the owner/landlord of the premises in question. That the said Mr. Ashok Malhotra neither sold the property to the present petitioners nor had any legal heirs who could transfer or sell the property to these petitioners. Transfer of the property vide sale deed dated 13th August, 1980 by one Ms. Sudershan Malhotra was illegal, invalid and not sustainable because she was not the legally wedded wife of Mr. Ashok Malhotra. Mr. Ashok Malhotra was a bachelor, lie never got married to Ms. Sudershan Malhotra. Hence the sale deed is a fraud. That the tenanted premises was let out for residential-cum-commercial purpose. Hence petition under Section 14(1)(e) of Delhi Rent Control Act (in short the Act) is not maintainable. There is no bonafide requirement of the petitioners. Moreover sole transaction being sham requires adjudication.

(3) That by the impugned order, the learned Additional Rent Controller (in short ARC) granted leave to the respondent to contest the petition primarily on the ground to ascertain whether Smt. Sudershan Malhotra was the legally wedded wife of late Ashok Malhotra. Learned Arc granted leave to ascertain whether Mrs. Sudershan Malhotra had a locus standi to sell the property. Further, observed that the petitioners had sufficient accommodation, therefore, did not require the premises bonafide.

(4) Grievance of the petitioners is that the learned Arc had no jurisdiction to determine whether Smt. Sudershan Malhotra was the legally, wedded wife of late Ashok Malhotra. Admittedly Mr. Ashok Malhotra was the owner landlord of the premises in question. It has also been admitted by this respondent that Mr. Ashok Malhotra inducted him as a tenant in the premises in question. It is nobody's case that someone else is claiming title over this property. If Ashok Malhotra was a bachelor then his parents or other relations would have claimed title over this property. But that is not the position. Smt. Sudershan claimed herself to be the widow of Ashok Malhotra. Whether she was legally wedded wife or not could not be determined by the Rent Court. Hence on this count leave to defend could not be granted. Moreover, respondent's averment in this regard are vague. Mere denial of right of Smt. Sudershan Malhotra does not raise a triable issue. There is no denying the fact that while considering leave affidavit, the Rent Court has only to scrutinise the affidavit filed by the tenant and the reply affidavit, if any, filed by the landlord. But at the same time, we also cannot lose sight of the fact that mere denial of the title is not sufficient. Mere saying that Mr. Ashok Malhotra was a bachelor was not sufficient particularly in view of the fact that Smt. Sudershan Malhotra claimed herself to be his widow and no other legal heir of late Mr. Ashok Malhotra disputed the same. Hence she being the legal heir sold the property to the present petitioners. The judgment relied by Counsel for the respondent in the case of Devi Dass v. Mohan Lal, , is of no help to him. In that case the tenant had challenged the sale deed being a paper transaction in order to oust the tenant. In the case in hand sale deed is not challenged on any other ground except that Smt. Sudershan Malhotra was not the legally wedded wife of Mr. Ashok Malhotra. Meaning thereby that in case Smt. Sudershan Malhotra was Ashok's wife then sale transaction was valid. In the facts of this case the observation of Devi Dass case (supra) are not applicable. Smt. Sudershan Malhotra sold the property by registered sale deed for consideration. This transaction cannot be called sham transaction. The Rent Court had not considered whether that was a paper transaction or any other transaction. What is challenged in this petition is Smt. Sudershan Malhotra's legal status that cannot be gone into by the Rent Court, can it be said that the sale by Smt. Sudershan Malhotra was a paper transaction. To my mind, this fact does not require any adjudication by the Rent Court nor can be called triable issue. On this count, the observation of learned Arc cannot be sustained.

(5) As regards the sufficiency of accommodation with the petitioners, it is in their affidavit that they have no other premises of their own. The petitioner No. 1 is occupying a tenanted premises. His landlord has asked him to vacate the premises under his occupation. The mere denial of this fact by the respondent is no denial in the eyes of law. It was not the intention of the Legislature to grant leave on mere denial of a fact without prima facie laying the foundation for the same. Reading of Section 25-B(4) of the Act makes it clear that the tenant shall not contest unless he specifies grounds on which he likes to obtain leave. Sub-section (5) provides that leave would be granted if the facts disclosed by the tenant are such which would disentitle the landlord from obtaining an order for the recovery of possession. Reading of Sub-sections 4 and 5 makes it apparent that the facts to be disclosed by the tenant have to be such which on the face of it show that if proved would defeat the claim of the landlord. But mere denial of a fact does not mean adjudication. Merely saying petitioner No. 1 is not the tenant but owner of the premises under his occupation was not sufficient. It only shows denying of fact for denial sake.

(6) As regards petitioner No. 2 he says, he is residing with his father, on father's property naturally he has no right to live. The other objection of the respondent that the property was purchased jointly, this objection has no force in law. Being business partners if they purchased the property jointly no malafide can be attributed nor would disentitle the landlord of his prayer of eviction. In view of the fact that one petitioner is occupying a tenanted premises and the other living with his father, having no suitable alternative accommodation available, their need cannot be but bonafide. The judgment relied by Mr. B.S. Sherawat in the case of Bnt Associates Ltd. & Anr. v. G.C. Jerath b Anr., is also of no help to him. In that case the need of the daughter was challenged by the tenant. Circumstances were shown and explained as to how the need of the daughter was not bonafide hence leave was granted. But that is not so in the case in hand. Since the petitioner No. 1 is living in rented premises and petitioner No. 2 is occupying the premises of his father, therefore, there requirement cannot be questioned. On this count also leave cannot be granted. There is in fact no disputed facts which require adjudication. As regard mezzanine floor that accommodation cannot be considered a sufficient or suitable alternative accommodation to accommodate both the petitioners.

(7) For the reasons stated above, I find that the order of the learned Arc cannot be sustained. The learned Arc while granting leave did not indicate as to on what ground he granted the leave. The impugned order being cryptic and passed without appreciating the jurisdiction of the Rent Court hence cannot be sustained. The same is accordingly set aside. No ground made out for the grant of leave. The decree of eviction is accordingly passed under Section 14(1)(e) of the Act, thereby granting statutory period of six months to the respondent to vacate the premises.