Shri Mohd. Yameen vs Mohd. Saleem Khan And Anr.
2002 Latest Caselaw 861 Del

JUDGMENT

R.C. Chopra, J.

1. This petition under Section 25B(8) of the Delhi Rent Control Act (hereinafter referred to as "the Act" only) is directed against an order dated 7th May, 2001 passed by the Additional Rent Controller in Petition No. 209/2000 dismissing the petitioner's application for leave to defend and allowing the eviction petition filed by the respondents under Section 14(1)(e) read with Section 25B of the Act.

2. The facts relevant for the disposal of this petition, briefly stated, are that the respondents who are brother and sister respectively filed a petition under Section 14(1)(e) read with Section 25B of the Act against the petitioner-tenant alleging that their father later Munawar Khan was the owner of House No. 3135, Gali Azizuddin Vakil, Kucha Pandit, Lal Kuan, Delhi. After the Death of their father, they had inherited the aforesaid property wherein the petitioner was a tenant in respect of one room and open space in front thereof. The premises were let out for residential purposes. The respondents submitted that the said premises were required by them bonafide for their residence and the residence of their family members and as such, the petition.

3. The petitioner-tenant moved an application for leave to defend denying that the respondents were the owners-landlords of the premises in question. He also raised objection to the non-impleadment of Mohd. Naseem Khan, brother of the respondents-landlords who was stated to be a co-owner. It was also pleaded that the property in question was a evacuee property and deceased Munawar Khan was merely a landlord who had inducted the petitioner in suit premises in November, 1984 for commercial purposes. It was stated that since the inception of the tenancy, the petitioner was using the premises in question for his business purposes and was residing in another portion with his brother Mohd. Saleem. It was also pleaded that the respondents-landlords did not require the premises in question for their bonafide needs as they had other alternative accommodations including the entire first floor of property No. 3134 which was an adjoining building. It was stated that the respondents were intending to convert the entire building into a multi storey building and had contacted some builder even for the said purpose.

4. In his counter affidavit, the respondent No. 1 denied the averments made by the petitioner-tenant. It was stated that the respondents were the joint owners of the property in question along with their brother who was living in Saudi Arabia. It was also stated that the brother of the petitioner-tenant Mohd. Saleem was residing separately in a tin shed. It was denied that the premises in question were let out for commercial purposes or any embroidery work was being done there. It was also denied that they were contacting any builder for the purposes of constructing a multi storey building. It was disputed that they had any alternative accommodation.

5. By the impugned order, the learned Additional Rent Controller came to the conclusion that there was nothing on record to show that the respondents were not landlords/owners of the property in question. It was found that their father Munawar Khan was assessed to house tax also in respect of the said property and there was nothing to show that this property was an evacuee property. It was also held that the respondents being joint owners, could file an eviction petition without impleading one of the co-owners. It was found that there was no evidence on record to show that the respondents-landlords were having any alternative accommodation for their residence. The property in question and the adjoining property No. 3134 were partly in possession of the respondents and partly in possession of their tenants but considering the number of the family members of the respondents, their need was held to be bonafide. The plea of the petitioner-tenant that the premises were let out for commercial purposes or for any composite use was rejected as the property was residential in nature and there was no document on record to show that the respondents-landlords had permitted commercial use thereof.

6. I have heard learned counsel for the petitioner and learned counsel for the respondents. I have gone through the records.

7. The law relating to the grant or refusal of an application for leave to defend under Section 25B(8) of the Act is settled that leave to defend can be granted to a tenant only when he succeeds in raising a friable issue which on proof is likely to disentitle the landlord to claim eviction of his tenant. The pronouncements made by the Apex Court in various judgments clearly lay down that at this stage, a tenant is not required to prove his defense nor he is under an obligation to show positively that the landlord is not entitled to his eviction. On mere showing of a prima facie defense in his favor, the leave to defend has to be granted. However, it also has been held in various pronouncements that the Court while dealing with an application for leave to defend has to ensure that leave is not granted to a tenant on false, frivolous or bogus grounds raised merely with a view to gain time and delay the passing of an eviction order against him. The judgments delivered by the Apex Court in "Inder jeet Kaur v. Nirpal Singh" reported in JT 2001 (1) SC 308, "Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta" , "M.L. Prabhakar v. Rajiv Singhal" reported in (2001) 2 SCC P-355, "Sarla Ahuja v. United Insurance Company" lay down not only the principles for guiding the Courts in the matter of disposal of applications for leave to defend but also lay down the parameters within which the High Court must remain while exercising jurisdiction under Section 25B(8) of the Act.

8. Coming to the facts of the present case, this Court finds that the plea of the petitioner disputing the ownership of the respondents was absolutely untenable for the reason that there is nothing on record to show that the property in question is an evacuee property or that the respondents had not inherited it from their father later Munawar Khan. The affidavit filed by the respondents in reply to the leave to defend application shows that late Munawar Khan was assessed to house tax even in regard to the property in question. It is admitted that the petitioner's predecessor interest was inducted as a tenant by respondents' father and even the petitioner had been paying rent to the respondents. In view of the presumption under Section 116 of the Evidence Act and the averments made by the respondents in their petition as well as affidavit and reply, the learned Trial Judge was fully justified in holding that there was nothing on record to show that the respondents were not the owners/landlords of the premises in question. The Apex Court in a recent judgment "Sheela and Ors. v. Prahlad Rai Prem Prakash" had the occasion of dealing with a similar question. His Lordship Hon'ble Mr. Justice R.C. Lahoti speaking for the Bench was pleased to hold that the concept of ownership in a landlord-tenant litigation governed by Rent Control Law has to be distinguished from the one in a title suit. It was held that the ownership is a relative term the import whereof depends on the context in which it is used. According to His Lordship, a landlord can be said to be the owner if he is entitled in his own legal right as distinguished from, for and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself. It was clarified that what may suffice and hold good as proof of ownership in a landlord-tenant litigation, probably may or may not be enough to successfully sustain a claim for ownership in a title suit. Therefore, in a landlord-tenant dispute, the owner is one who has better rights that of the tenant and it is not incumbent upon him to prove beyond shadow of doubt that he is the owner of the property as if he is contesting a suit challenging his title. Accordingly, this Court agrees with the findings given by learned Additional Rent Controller that the respondents were the owners-landlords of the premises in question.

9. The plea of the petitioner that the premises in question were let out to him for commercial use is also without any substance for the reason that he has not placed on record any document to show that the letting was for commercial purpose. The premises are of residential nature and as such, it can be reasonably assumed that the same were let out for residential purpose only. The mere fact that the petitioner was doing some embroidery work in the premises or was having a Bank account or that he had applied for a license does not show that the letting was for commercial purpose in as much as in none of these documents the respondents or their predecessor in interest is shown to have consented for the commercial use of the premises. The nature of the work being done by the petitioner was such that it could be done even without the knowledge of the respondents or their predecessor in interest and as such, there are no grounds for holding that the premises were let out for commercial purpose or the same were being used for commercial purpose with the consent of the landlords/owners.

10. The question of the bonafide requirement of a landlord/owner in terms of Section 14(1)(e) of the Act has to be carefully considered and the material on record has to be properly weighed to ensure that an unscrupulous owner-landlord is not in a position to throw out his tenant on the pretence of bonafide need nor a tenant is in a position to defeat the object of the provisions by delaying and protracting the passing of an eviction order inspite of the fact that the landlord or the owner is in bonafide need of the premises for his residential use or the residential use of his family members. In M.L. Prabhakar v. Rajeev Singhal (supra) as well as in Shiv Sunder Gupta v. Dr. Mahesh Chand Gupta (supra), the Apex Court examined this aspect in detail and concluded that the Judge should put himself into the position of a landlord/owner and then consider as to whether the plea of bonafide need as raised by the landlord/owner is bonafide or not. It was held that the Court must not compel a landlord/owner to squeeze himself into lesser accommodation so that the tenant's occupancy is protected. The question of the requirement has, to some extent, to be left to the discretion of the landlord/owner who has every right to live comfortably in his property. The tenant has no business to suggest as to how and in what manner the landlord and his family should adjust in the premises available to them so that he continues to occupy the premises under his tenancy.

11. The respondents/owners of the property in question, are brother and sister. The respondent No. 1 is living in the adjoining House No. 3134 in only one room, one small tin shed, one store room, open courtyard, kitchen and bathroom available to him. He has besides himself, his wife, two sons aged 16 years and 12 years and three daughters between the age of 17 years to 20 years. Therefore, considering the number of the family members of the respondent No. 1 and the accommodation available to him, it cannot be said that his need is not bonafide. The fact that some of the rooms in the said property are lying locked does not advance the petitioner's case as the said rooms are stated to be in possession of the respondent's brother Mohd. Naseem Khan as a co-owner who is presently serving in Saudi Arabia and uses the said rooms in the course of his visits to India. The respondents No. 2, the sister of respondent No. 1 who is also co-owner of the property in question is living in a rented flat at Okhla and as such, she has full justification for shifting to the premises in question. A landlord/owner living in a rented house but intending to shift to his own property is certainly in bonafide need of his premises. The plea of the petitioner that the respondents have some other properties also is not established on record and as such, was rightly rejected by the learned Additional Rent Controller. The fact that the respondents have succeeded in obtaining an order of eviction against another tenant Shri Abdul Raheem dose not materially affect the present eviction petition as the said tenant was in occupation of one room only and as such, the availability of this one room even would not be of much consequence.

12. The plea that one of the co-owners i.e. Mohd. Naseem Khan has not joined the respondents does not help the petitioner as there is nothing on record to show that he is not supporting the respondents. The law is well settled that an eviction petition may be filed by one of the co-owners only. In Tejbir Kaur v. Devinder Singh, reported in 1996 RLR p-106, a learned Single Judge of this Court held that one co-owner is competent to maintain an eviction petition under Section 14(1)(e) of the Act.

13. After perusing the material on record and considering the pleas raised by the parties, this court is of the considered view that the findings arrived at by the learned Additional Rent controller were in accordance with law. It cannot be said that the view taken by learned Additional Rent Controller was perverse or so many manifestly erroneous that no prudent man could have taken that view. This Court finds no ground on record to take a different view in the matter or for interfering with the impugned order in exercise of the powers under Section 25B(8) of the Act.

14. The petition, therefore, stands dismissed.