Rajnish Kumar & Ors. vs Mohan Singh
2011 Latest Caselaw 2649 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                        RC.REV.12/2011


+                                  Date of Decision: 18th May, 2011

#      RAJNISH KUMAR & ORS.                  ...Petitioner
!                       Through: Mr.M.L Sharma, Advocate

                                Versus


$     MOHAN SINGH                           ....Respondents
             Through: Mr. Diwan Singh Chauhan, Advocate


       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN

1.     Whether Reporters of local papers may be allowed
       to see the judgment? (No)
2.     To be referred to the Reporter or not? (No)
3.     Whether the judgment should be reported in the digest?(No)


                            ORDER

This revision petition under section 25-B(8) of the Delhi Rent

Control Act,1958 has been filed by the petitioners- tenants against the

order dated 11.10.2010 passed by the learned Additional Rent Controller

whereby their application under Section 25-B(4) filed for leave to contest

the eviction case filed against them by the respondent-landlord on the

ground of his bona fide requirement of a shop in property no.1712-B/5,

Govind Puri Extension, Kalkaji, New Delhi(hereinafter to be referred to

as 'the tenanted shop') under their tenancy as the legal heirs of the

original tenant late Shri Manohar Lal Bhandari was dismissed and they

have been asked to vacate the same within six months.

2. The brief facts of the case are that the respondent herein had filed an

eviction petition against the petitioners herein on the ground that he

required the tenanted shop bona fide for introducing his unemployed

elder son in the business of tenting and catering which he(landlord)

was carrying on already from some shop in the same

locality(Govindpuri). It was pleaded in the eviction petition that elder son

of the petitioner was unemployed and the petitioner wanted to settle him

in his aforesaid business and he also wanted his younger son, who was

employed somewhere, in Noida, to start his own business but due to

paucity of sufficient commercial accommodation he was unable to settle

them and fulfil their dreams.

3. The petitioners on receipt of the summons from the trial Court filed

an application before the trial Court seeking leave to contest the eviction

petition of their landlord. Leave was sought inter alia on the ground that

the landlord had not approached the Court with clean hands in asmuch as

he had concealed the fact that he was already having two shops in his

possession in his another property no. 658/7, Govindpuri(which was the

residential address of the landlord given the eviction petition) and those

shops were lying vacant and he had kept them locked. The respondent-

landlord had in his reply to the leave to contest application had denied

that he was the owner of property no. 658/7, Govindpuri or that he had in

his possessions any shops in that property. He denied having concealed

any material fact from the Court.

4. The learned Addl. Rent Controller after considering the pleas

raised by the tenants in their leave application and the reply of the

landlord rejected the leave application and passed an eviction order in

favour of the respondent herein vide order dated 11.10.10. Regarding the

claim of the tenants that their landlord was already having two vacant

shops in another property in Govindpuri the Addl. Rent Controller held in

the impugned order that the fact that property no.658/7 was owned by the

landlord had not been substantiated by the tenants and since the

landlord's elder son was unemployed and he wanted that son to be settled

in the business of catering his requirement could not be said to be mala

fide.

5. I have heard the learned counsel for the parties and also perused the

entire material placed on record by the petitioners as well as the written

submissions filed from both the sides.

6. It was submitted by the learned counsel for the petitioners that the

learned Additional Rent Controller was not justified in expecting

substantiation of the plea taken by them in their leave application to the

effect that their landlord was having in possession two vacant shops in his

other property in Govind Puri, i.e. property no. 658/7 which is

residential-cum-commercial property and where admittedly the landlord

was residing also. It was submitted that at the stage of consideration of

the leave to defend application a tenant is not required to substantiate his

pleas by bringing on record necessary evidence and all that he is required

to show is that he has raised some triable issues. In the present case,

counsel submitted, the fact that petitioners had pleaded availability of

additional accommodation with their landlord from where his sons could

run their business, if at all they wanted to do so, and the respondent -

landlord had refuted that factual averment a triable issue definitely arose

which could not be decided without giving an opportunity to the parties

to adduce necessary evidence. In this regard, learned counsel also placed

reliance on one judgment of the Supreme Court in "Precision Steel &

Engineering Works and Anr. Versus Prem Deva Niranjan Deva

Tayal", (1982) 3 SCC 270 wherein it had been held by the Supreme

Court that while considering the application of the tenant seeking leave to

contest the eviction petition filed by the landlord under Section 14(1)(e)

of the Delhi Rent Control Act, the Rent Controller is required to consider

only the affidavit of the tenant filed in support of the leave application

and the landlord's reply thereto and at that stage the Rent Controller is

not to record a finding on disputed questions of facts or his preference of

one set of affidavits against other set of affidavits and it is also not to be

considered at that stage whether the tenant would finally succeed or not

on the basis of pleas taken in the leave application. It was also held that

plausibility of the defence raised by the tenant and proof of the same are

materially different from each other and one cannot bring in the concept

of proof at the stage when plausibility of the defence of the tenant only

has to be shown. Learned counsel for the petitioners also submitted that

they could not bring on record any documentary evidence at the time

when they had filed the leave application before the trial Court since the

same could not be gathered within the short period of 15 days within

which they were expected to file the leave to contest application but after

great efforts they have been able to lay their hands on some documents

which clearly show that the respondent - landlord was owner of property

no. 658/7, Govind Puri and those documents have now been filed before

this Court along with present revision petition. My attention was drawn

to those documents which include an housetax assessment order passed

by Municipal Corporation of Delhi in the name of the respondent herein

in respect of the said property and also one electricity bill in his name.

The petitioners have also placed on record one Gift Deed purporting to

have been executed by one of the brothers of the respondent in favour of

his son whereby he gifted his share in the said property no. 658/7, Govind

Puri to his son. That Gift Deed records that the said property no. 658/7,

Govind Puri was allotted to the mother of the respondent herein,as a plot

and building thereon was constructed jointly by her sons, including

respondent herein by contributing their own money and after the death of

their mother there has been a partition and some part of the said property

came to the share of the executant of the said Gift Deed, namely,

Sh.Jaswant Singh while the remaining part of the property, which

included three shops on the ground floor came to the share of the other

two sons of late Smt. Swarn Kaur.

7. In view of the above referred documents placed on record by the

petitioners when it was put to the learned counsel for the respondent -

landlord as to what he had to say his reply was that property no. 658/7,

Govind Puri belonged to his mother and after her death it had devolved

upon her legal heirs which included her two daughters and three sons,

including the respondent herein, and since no partition had actually taken

place, as had been recorded in the Gift Deed purporting to have been

executed by his brother Jaswant Singh, it could not be said that the

respondent was in occupation of two shops in the said property since

those shops were joint properties and he could not claim himself to be the

exclusive owner thereof. Regarding the Gift Deed relied upon by the

petitioners, learned counsel also contended that that document was not

binding on the respondent since he was not a party thereto. Same

submissions were reiterated by the counsel for the respondent in his

written submissions dated 12th May, 2011 also. Counsel further

submitted that since the respondent was not the exclusive owner of the

afore-said property he was not obliged to mention anything about that

property in the eviction petition and, therefore, there was no concealment

of any material fact by him. In support of the argument that learned

Additional Rent Controller had rightly rejected the petitioners'

application for leave to contest, and that this court would not be justified

in interfering in that order in exercise of revisional jurisdiction learned

counsel cited many judgments which, however, I am not referring to at

present in view the order which I propose to pass today in the matter.

8. In my opinion, considering the fact that the respondent - landlord

has before this Court only said something about the title and available

accommodation in property no. 658/7, Govind Puri and that too during

the course of hearing of the matter which, in fact, should have been done

by him before the trial Court for its consideration this aspect of the matter

should first be considered by the learned Additional Rent Controller and

then a finding in that respect should be returned for being considered by

this Court. For that purpose, the respondent - landlord shall file before

the trial Court an additional affidavit giving the entire facts regarding the

ownership and available accommodation in the afore-said property in

which, according to the petitioners, he has available with him vacant

shops.

9. The matter is accordingly remanded back to the trial Court for the

afore-said purpose. The parties shall appear there on 30th May, 2011 at 2

p.m. on which date the respondent - landlord shall submit his additional

affidavit and the petitioners herein shall then be given time to give their

response also. Thereafter, the learned Rent Controller shall pass a fresh

order but confined only to the petitioners' plea regarding availability of

some shops with the respondent - landlord in house no. 658/7, Govind

Puri, after hearing both the sides. Those findings shall then be returned

to this Court. That exercise should be completed within a period of two

months from 30th May, 2011. On receipt of the findings of the trial

Court, the matter shall then be taken up by this Court to be finally

disposed of. It is made clear that since the matter is being remanded

back to the trial Court, this Court has not gone into the merits of any

other aspect of the matter at present.

10. On receipt of the fresh decision of the trial Court the registry shall

then place the matter before the Court within a week.

May 18, 2011/sh                                     P.K. BHASIN,J