Shri A.M. Shah vs Smt. Pushpa Sood
2001 Latest Caselaw 740 Del

ORDER

Vikramajit Sen, J.

1. This Revision has been preferred against the Eviction Order dated 7.12.2000 passed under Section 14D read with section 25B of the Delhi Rent Control Act (DRC Act). A perusal of the Petition disclose that the Landlady, who was widowed on 15.1.1989, has tow sons and two daughters. both the sons have two children each. They have the same servant for forty years and hence a room is required for him also. A Guest Room is needed inter alia for these married daughters who frequently visit their mother. The need for a Pooja room is also felt. Thus the Landlady's requirement is for at least ten rooms whereas presently only three rooms are available on the ground floor, and one room on the first floor. The Landlady has averred that she is the owner of the premises and that she has no other reasonably suitable residential accommodation except the demised premises.

2. In the application/affidavit seeking leave to contest it has been urged by the Tenant that the availability of six rooms and a bit hall on the 2nd floor has deliberately not been disclosed. These rooms are occupied by students each year and the bit hall is used as a factory. There is a very vague pleading viz a viz the letting of a room on the mezzanine floor and the letting of a room on the ground floor to a 'tailor'; but these pleadings are so devoid of material particulars that it is immediately evident that they are false. The tenant has belaboured the point that the intention behind the petition is only to obtain an increase in the rent.

3. In the background of these pleadings the Additional Rent Controller has returned the finding that the petition is well founded. After articulating that the purpose of the legislation is to grant immediate possession of tenanted premises to widows requiring them bona fide for their own use, he has found that the accommodation available on the second floor is virtually uninhabitable, being made of asbestos sheeting. The Additional Rent Controller has also declined to accept the tenant' submission that the failure to mention the accommodation on the 2nd Floor amounted to concealment and suppression, which should disentitle the landlady to the relief prayed for.

4. In exercising Revisional jurisdiction, the Court is only expected to investigate whether a jurisdictional error has been committed by the lower Court. Evidence is not to be minutely and meticulously reappraised. If a perverse conclusion has been arrived at the by the Additional Rent Controller that may be interfered with. Even if the Court of Revision may entertain a different opinion, this should not be substituted with that of the original Court. It does not sit as a Court of Appeal, on the facts of the case. In this context, arguments on the question of the failure to mention the Second Floor were heard at some length. It is undoubtedly an attractive argument that if a landlord fails to plead all the accommodation owned by him, the natural and inescapable inference to be drawn is of a lack of bona fides on his part. However, where this accommodation is located in the building itself, (usually labelled as additional accommodation), the Court should not lay too much emphasis thereon since these factors would inevitable be averred by the tenant. As in the present case it would invariably be brought into issue by the tenant. It would be farfetched to contend that by not pleading this aspect of the matter, the landlord intended to mislead the Court. The position would be some what different if the 'other reasonably suitable accommodation' is not likely to be within the knowledge of the Tenant, such as premises in a different locality. but in cases of Section 14D even this consideration would lose most of its topicality. If a pedantic approach is advocated on behalf of the Tenant, he is to be reminded that this is strictly necessary in cases filed under Section 14(1)(e). As has already been clarified in a host of decisions, the concept of 'bona fides' has been read into Section 14D via Section 19 of the Act. Attention to the decision in M/s. Rahabhar Productions Pvt. Ltd. vs. Rajendra K. Tandon, shall suffice. The Apex Court has recently clarified in the case of M.L. Prabhakar vs. Rajiv Singal, 2001 Rajdhani Law Reporter (SC) 123 that the landlord cannot be fatally faulted for not mentioning properties which are not conceived by him as 'reasonably suitable accommodation' (which wordings are to be found in Section 14(1)(e) and not in 14D) and the burden to make good the existence thereof is on the Tenant. The Apex has observed as follows:-

"It has been urged that there was suppression on the part of the landlord inasmuch as he did not disclose the premises which were available at Basant Road, Pahar Ganj. On the other hand on behalf of the Respondent Dr. Singhvi has submitted that the only requirement is to disclose such accommodation as is suitable for residence of the landlord. Dr. Singive submitted that if there is no other residential accommodation which is suitable then there is no duty to disclose. Dr. Singhvi relied upon Ram Narain Arora Vs. Asha Rani wherein it has been held that the question whether the landlord has any other reasonably suitable residential accommodation is a question which is intermixed with the question regarding bonafide requirement. It was held that whether the landlord has any other reasonably suitable residential accommodation is a defense for the tenant. It was held that whether the other accommodation is more suitable that the suit premises would not solely depend upon leading and non disclosure by the landlord. It was held that the landlord having another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed materials before the court and case of neither party was prejudiced in this case even though the landlord has not mentioned about the other two premises, the material in respect of the other two premises was placed before the Rent Controller as well as before the High Court, thus no prejudice has been caused."

5. In this analysis, no jurisdictional error has been committed by the Additional Rent Controller in not attaching a fatal consequence to the landlady's failure to plead the accommodation on the 2nd Floor. As has been forecast by the Lordships of the Supreme Court in M.L. Prabhakar's case (supra) this aspect was brought into issue by the Tenant and was thereafter argued threadbare. Had the Additional Rent Controller found that the rooms on the 2nd Floor were suitable for the landlady's need, he may well have viewed the failure to disclose their particulars, as being indicative of a lack of bona fides.

6. Mr. Kapur relied heavily on the decision of the Supreme Court in Santosh Devi Soni vs. Chand Kiran, JT 2000 (3) SC 397 and Inderjeet Kaur vs. Nirpal Singh, 89 (2001) Delhi Law Times 27 (SC), for his submission that leave to contest the petition should have been granted. ?Even in Santosh Devi's case (supra), the Court has stated in its Order that normally leave should be granted; and that in "considering the facts and circumstances of this case, we deem it fit to grant leave to defend". It did not lay down a proposition calling for universal application per se, that even if facts prima facie incredible in nature were pleaded, they should like a password result in leave to contest being granted. In inderjeet Kaur's case (supra), a reading of the following paragraph make sit evident that leave to contest should be granted only where a prima facie case has been disclosed. IN this event, the Additional Rent Controller should grant leave to contest, and desist form entering into a final consideration of the grounds disclosed on their possible merits. The additional Rent Controller should not obviate a Trial at this state, by going into the merits of the grounds, if a final conclusion is available only after evidence is led in the Trial. The only possible exception may be where the grounds raised are strictly legal in character, no necessitating the holding of a trial. It should be borne in mind that a Trial is required for establishing facts, and now law. The Apex Court opined in Inderjeet Kaur's case (supra) as follows:-

"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 eh Act. Leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of a landlord to recover possession of the premises form 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 defense may not entitle a tenant to leave to defend but when a friable 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 defense 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 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 defense, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims."

7. In Madan Lal Gupta v. Ravidnder Kumar,(2001) 1 SCC 252, the Apex Court declined to interfere in the concurrent refusal to grant leave to contest even after referring to the cases of Santosh Devi (supra) and Liaq Ahmed vs. Habeeb-Ur-Rehman, .

8. Returning to the case in hand, it is to be seen whether the Additional Rent Controller could have arrived at the conclusion that a prima facie case had not been made out by the Tenant. If his conclusion is possible and not perverse, this Court would not interfere even if it favored a different view. The Additional Rent Controller has opined that no accommodation was available to the landlady on the 2nd Floor which was fit for her habitation. This view is based on several precedents of this Court. It is well entrenched that the landlord is the best judge of his needs, and if the demand is not absurd, the Court should desist form scrutinising it minutely. The Additional Rent Controller was obviously and correctly influenced by the size and temporary character of the rooms and that whilst the second floor may well be used for the 'factory' and as quarters for employees, it was not reasonably suitable for the Landlady's residential need. Keeping in perspective the accommodation disclosed by both parties, the version of letting to persons other than the present Tenant is mere moonshine. The finding that the landlady/widow required the premises bonafide is not open to revision as no jurisdictional error has been committed.

9. The petition is without merit and is dismissed.