Delhi High Court
Khalil Khan vs Amiruddin on 16 April, 2012
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:16.04.2012
+ RC.REV. 145/2010 and CM No. 11650/2010, 11651/2010,
11653/2010, 11654/2010, 12112/2010 & 18303/2010
KHALIL KHAN ..... Petitioner
Through Mr. Rajat Aneja and Mr. Vaibhav
Jairaj, Adv.
versus
AMIRUDDIN ..... Respondent
Through Mr. K.S. Singh, Mr. Rahul Singh
and Ms. Madhu Sharma, Adv.
+ RC.REV. 146/2010 and CM Nos. 11656-57/2010, 11659-
60/2010
NASIR ALI ..... Petitioner
Through Mr. Rajat Aneja and Mr. Vaibhav
Jairaj, Adv.
versus
AMIRUDDIN ..... Respondent
Through Mr. K.S. Singh, Mr. Rahul Singh
and Ms. Madhu Sharma, Adv.
+ RC.REV. 147/2010 and CM Nos. 12113/2010, 11663-
11664/2010, 11666-67/2010 & 18257/2010
NABI AHMED ..... Petitioner
Through Mr. Rajat Aneja and
Mr. Vaibhav Jairaj, Adv.
versus
RCR Nos.145-147/2010 Page 1 of 15
AMIRUDDIN ..... Respondent
Through Mr. K.S. Singh, Mr. Rahul Singh
and Ms. Madhu Sharma, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1. These three petitions had been disposed of by a common order
dated 14.01.2010. The applications filed by the three tenants i.e. Khalil
Khan, Nasir Ali and Nabi Ahmed seeking leave to defend had been
declined; the eviction petition filed by the landlord Amiruddin seeking
relief of possession qua the suit premises had been decreed.
2. Record shows that Amiruddin is the owner and the landlord of
three portions of three premises which had been tenanted out to Khalil
Khan, Nasir Ali and Nabi Ahmed. Nabi Ahmed had been tenanted out a
portion of property bearing No. E-29, House No. 144/10, Khureji Khas,
Delhi -51; Nabi Ali was a tenant in a portion of property bearing No. E-
30 and Khalil Khan was a tenant in a portion of property bearing No. E-
31 of the aforenoted suit property. Each portion comprised of one room,
kitchen, latrine and open space on the ground floor of the premises
bearing Nos. 144/10, 144/13 and 144/15, Khureji Khas, Delhi-51. The
rate of rent was Rs. 1,000/-, Rs. 1,200/- and Rs. 850/- respectively
which was exclusive of water and electricity charges.
3. There is no dispute to the fact that the premises of Khalil Khan
and Nabi Ahmed have since got vacated; the landlord has taken vacant
and peaceful possession of the suit premises from Khalil Khan and Nabi
Ahmed in the course of the execution proceedings. The learned counsel
for the petitioners/tenants points out that an application under Section
144 of the Code of Civil Procedure (hereinafter referred to as 'the
Code') has been filed seeking restitution of the aforenoted premises. The
portion let out to Nasir Ali is still in his possession.
4. Before this court, alongwith the present petitions an application
under Order 41 Rule 27 of the Code as also other applications under
Section 151 of the Code has been filed; contention being that certain
informations have now been obtained by the tenants under the Right to
Information Act which information would be relevant in deciding the
controversy in question; these documents are to the effect that in the
year 2008 the present petitioners/landlord had executed irrevocable
powers of attorney in favour of third parties for valuable consideration.
Contention being that the bonafide need of the petitioners/landlords is in
fact malafide; they have set up a false case; in October 2008, they have
executed irrevocable powers of attorney selling their portion of land to
other persons for money; this was during the course of the eviction
petition which has been filed in February, 2007; attention has been
drawn to the aforenoted irrevocable powers of attorney dated
08.10.2008, 20.10.2008 and 22.10.2008; contention being that these
documents are authentic and cannot be challenged and would throw
light upon the controversy in question and as such may be permitted to
be taken on record.
5. Arguments have been refuted on this point. It is submitted that in
view of the judgment of Prithipal Singh vs. Stapal Singh reported in
(2010) 2 SCC 15, the provisions of the Code are inapplicable to the
summary procedure as contained in Section 25B of the DRCA and Rule
23 of the DRCA being inapplicable, the present applications filed
under the provisions of the Code cannot be permitted to be taken on
record; further submission being that even otherwise these documents
are not authentic and would in no manner throw light upon the
controversy in question.
6. The Apex Court in the judgment of Prithipal Singh(supra) has
inter alia noted as follows:-
"16. From a careful perusal of sub-section (4) of Section 25B of the Rent Act, it
would be clearly evident that the tenant shall not be permitted to contest the prayer
for eviction unless he files an affidavit before the Controller stating the ground on
which he seeks to contest the application for eviction and obtains leave from the
Controller. This Section also clearly indicates that in default of his appearance in
compliance with the summons or his obtaining such leave, the statement made by the
landlord in the eviction proceeding shall be deemed to be admitted by the tenant and
the landlord shall be entitled to an order for eviction on the ground mentioned in the
eviction petition..At this stage, we may also note that in sub-section (4) of Section
25B of the Rent Act read with Third Schedule, it has been made clear by the
Legislature that if the summons of the proceeding is received by the tenant, he has to
appear and ask for leave to contest the eviction proceeding within 15 days from the
date of service of notice upon the tenant and if he fails to do so, automatically, an
order of eviction in favour of the landlord on the ground of bona fide requirement
shall be made.
...........
20. The scope of Chapter IIIA of the Rent Act has been elaborately discussed in
the case of Ravi Dutt Sharma v. Ratan Lal Bhargava, (AIR 1984 SC 967), in which
this Court duly discussed the object of the Rent Act and also the insertion of Chapter
IIIA of the same in the following manner :-
"7. ....The dominant object of the act is to provide a speedy,
expeditious and effective remedy for a class of landlords contemplated
by Sections 14(1)(e) and 14A and for avoiding unusual dilatory
process provided otherwise by the Rent Act. It is common experience
that suits for eviction under the Act take a long time commencing with
the Rent Controller and ending up with the Supreme Court. In many
cases experience has indicated that by the time the eviction decree
became final several years elapsed and either the landlord died or the
necessity which provided the cause of action disappeared and if there
was further delay in securing eviction and the family of the landlord
had by then expanded, in the absence of accommodation the members
of the family were virtually thrown on the road. It was this mischief,
which the Legislature intended to avoid by incorporating the new
procedure in Chapter III-A. The Legislature in its wisdom thought that
in cases where the landlords required their own premises for bona fide
and personal necessity they should be treated as a separate class
along with the landlords covered by Section 14(A) and should be
allowed to reap the fruits of decrees for eviction within the quickest
possible time. It cannot, therefore, be said that the classification of
such landlords would be an unreasonable one because such a
classification has got a clear nexus with the objects of the Amending
Act and the purposes, which it seeks to subserve. Tenants cannot
complain of any discrimination because the Rent Act merely gave
certain protection to them in public interest and if the protection or
part of it afforded by the Rent Act was withdrawn and the common law
right of the tenant under the Transfer of property Act was still
preserved, no genuine grievance could be made."
21.Before we take up the question posed before us in detail, we may also refer to one
provision of the Rules, namely, Rule 23 of the said Rules which runs as under :-
"Code of Civil Procedure to be generally followed - In deciding any
question, relating to procedure not specifically provided by the Act
and these rules the Controller and the Rent Control Tribunal shall, as
far as possible, be guided by the provisions contained in the Code of
Civil Procedure, 1908.";
22. A challenge was thrown to Section 25B of the Rent Act in Kewal Singh Vs.
Smt. Lajwanti [1980 (1) SCC 290], questioning the classification held to be not in
consonance with the objective sought to be achieved and the aforesaid provision
must be held to be unconstitutional wherein this Court held that the special
provision namely, Section 25B of the Rent Act providing summary procedure for
eviction while the landlord pleading bona fide personal requirement, separate
classification of such landlords were held to be justified as such classification must
be held to be in consonance with the objective sought to be achieved and provision
not unconstitutional. Accordingly, in the aforesaid decision, this Court held that
Section 25B does not suffer from excessive delegation. Keeping in view the aforesaid
observations of this Court in this case and considering the special provisions made
in Section 25B of the Act, we conclude that Section 25B of the Act is a complete code
by which the entire procedure to be adopted for eviction of a tenant on the ground of
bona fide requirement filed by the landlord in respect of a premises, shall be
followed.
23. As noted herein earlier, Section 25B(1) clearly says that any application
filed by a landlord for recovery of possession of any premises, inter alia, on the
ground of Section 14(1)(e) of the Rent Act, shall be dealt with in accordance with
the procedure specified in Section 25B of the Rent Act. Therefore, sub-section (1) of
Section 25B makes it clear that if any application for eviction of a tenant is filed by
the landlord, the special procedure indicated in Section 25B has to be followed and
Section 25B(1) clearly stipulates that the application for eviction shall be strictly
dealt with in accordance with the procedure specified in this Section. Apart from
that, as we have noted herein earlier, Section 25B itself is a special code and
therefore, Rent Controller, while dealing with an application for eviction of a tenant
on the ground of bona fide requirement, has to follow strictly in compliance with
Section 25B of the Act. Therefore, after insertion of Section 25B of the Act, any
application for granting eviction for a special kind of landlord, shall be dealt with
strictly in compliance with Section 25B and question of relying on Rule 23 of the
Code, which also does not give full right to apply the provisions of the Code, could
be applied.
24. That apart, Rule 23 does not specifically confer any power on the Controller
to follow the provisions of the Code in special classes of landlords. It is a general
rule, by which the Controller in deciding any question relating to procedure not
specifically provided by the Act and these rules shall, as far as possible, be guided
by the provisions contained in the Code.
25. In view of our discussions made hereinabove that Section 25B has been
inserted by the Legislature for eviction of a tenant of a certain classes of landlords,
in which the entire procedure has been given, it is difficult for us to hold that Rule
23 of the Rules can be applied in the present case in view of the specific provisions
provided in Section 25B of the Rent Act. Accordingly, we are of the view that Rule
23 has no manner of application.
26. .That being the position, if Rule 23 cannot be applied in the present case
because of applicability of Section 25B, which is a special code and specific
procedure for eviction of a tenant by a landlord on the ground of bona fide
requirement, we cannot agree with the courts below that in view of Rule 23 of the
Rules, the provisions of the Code can be applied in the present case and, therefore,
we are of the view that the High Court had acted illegally and with material
irregularity in the exercise of its jurisdiction in setting aside the order of eviction
and in allowing the affidavit filed by the tenant for the purpose of defending the
proceedings for eviction."
7. From the above noted observations, it is clear that the Apex Court
has reiterated that Section 25-B which relates to a special class of
landlords (as is so in the present case) have to be treated as a class apart;
provisions of Rule 23 of the DRCA is inapplicable; the applications
filed by the petitioners/tenants even otherwise do not disclose the details
as to when this information was obtained by the them; the authenticity
of the aforenoted documents is also under challenge; if such like
applications are permitted, the very purpose and import of the summary
procedure would be defeated; the summary procedure specifically
envisages that the application seeking leave to defend has be filed
within 15 days of service of summons upon the tenant; triable issues
have to emanate from the pleadings made by the tenant in his
application for leave to defend which does not contain the averments
now sought to be incorporated which averments are seriously disputed
by the learned counsel for the respondent/landlord. If the submission of
the learned counsel for the petitioners/tenants is accepted and the
applications are allowed the whole summary procedure of 25B of the
DRCA would be given a go by which was not the intent of the
legislature. These applications are clearly devoid of merits; they are
dismissed.
8. Record shows that an eviction petition had been filed by the
landlord on the ground of bona fide requirement; there were three
petitioners before the court; they are the legal heirs of Sirajuddin
namely, Amiruddin, Mohd. Parvej and Mohd. Chand. The petitioners
claimed to be the owners of the aforenoted suit property; contention
being that the premises had been let out to the respondents/tenants for a
for a residential purpose; the family of the petitioners/landlords has
enlarged over a period of time and the accommodation presently
available with them is insufficient; they require at least 16 rooms for the
residence for themselves and for their family members and the present
accommodation available with them comprises only four rooms, one
kitchen and one latrine and one bathroom is not sufficient to
accommodate the need of their families; the details of the members of
the family of the three petitioners have been disclosed; Amiruddin's
family comprises of himself, his wife, one son and two daughters of
whom two children are school going; contention being that his family
require four bed rooms along with one study room, one dining room and
one drawing room i.e. seven rooms in total.
9. The family of Mohd. Parvez comprises of himself, his wife and
one daughter; they require two bed room, one drawing room and one
dinning room i.e. four rooms in total. The family of Mohd. Chand
comprises of himself and his wife; they require one bed room, one
drawing room and one dinning room i.e. three rooms accommodation.
The need of the three petitioners is of 14 rooms in total; the present
accommodation available with them comprises of only four rooms
which is inconvenient and causes harassment to themselves and their
families; present eviction petition was accordingly filed on the ground of
bonafide requirement.
10. Applications seeking leave to defend were filed by the tenants;
the foremost contention raised was that all the owners have not joined as
landlords; otherwise there was no dispute to the factum that the present
petitioners are the co-owners/landlords of the premises.
11. At this juncture, learned counsel for the petitioners herein states
that he is not contesting this petition on this ground and no objection has
been raised by him qua the proposition that only some of the co-owners
have filed the eviction petition and not all of them. In fact, this objection
deserves no merit. The Apex Court in AIR 2004 SC 1321 M/s India
Umbrella Manufacturing Co. & Ors. vs. Bhagabandei Agarwalla (dead)
by L.Rs. & Ors. has even otherwise held that one of the co-owners can
file a suit for eviction of a tenant in the property owned by co-owners;
this principle is based on the doctrine of agency; one co-owner filing a
suit for eviction against the tenant does so on his own behalf in his own
right and on behalf of the other co-owner.
12. The only ground of challenge which has been laid by the
petitioners/tenants by the impugned order is that the bonafide
requirement of the landlord has not been disclosed. Attention has been
drawn to the averment made in para 3(i) of the application seeking leave
to defend wherein it has been contended that the landlord has 33 rooms
which have been let out by him to different persons and his
accommodation also comprises of five rooms on the ground floor and
two rooms on the first floor which have not been disclosed by him; this
is the only triable issue which has been raised by the tenants.
13. The reply to the corresponding para of the application seeking
leave to defend has also been perused. This submission of the tenants
has been vehemently denied; it has been denied that the landlord is in
possession of more than four rooms; the averments made in the eviction
petition have been reiterated submitting that the accommodation
available with the three petitioners/landlords is only four room and one
common kitchen, latrine and bathroom. There is no dispute about the
family members of the three petitioners. The details of their family's
requirement have in fact been noted supra; all the three petitioners have
independent units; the family of Amiruddin comprises of himself, his
wife and three children of whom two are school going children; the need
of Mohd. Parvez as rightly noted is of four rooms i.e. two bed rooms
i.e. one for himself and other for his daughter; one drawing and one
dinning room which is also an additional requirement; the requirement
of Mohd. Chand is of three rooms. The families of three petitioners are
independent units; they want to live independently which need can be
met only if they have not only bed rooms for sleeping but also a dinning
and a drawing room and a kitchen area; their need for 16 rooms has
been fairly substantiated.
14. The submission of the tenants that there are 33 rooms available
with the landlord is neither here nor there. Apart from the fact that this
submission has been vehemently denied by the landlord, no further
details of this 33 room accommodation has been given by the tenants; no
counter site plan has been filed by them; that apart no details of the
aforenoted accommodation have also been given as to where these
accommodations are located.
15. The landlord is the best judge of his requirement. It is not for the
tenant or even for the court to dictate to the landlord the manner in
which he should set up his residence to satisfy the need of his family.
The family members of the three petitioners/landlords not being in
dispute as also the fact that the accommodation presently available with
the three petitioners is only comprised of four rooms, their need for an
additional accommodation to set up their separate housing units has
been well founded and established. The bald submission of the tenants
that there other accommodation is available with the landlord is neither
here nor there; tenants have not been able to substantiate their bald
submission.
16. The Supreme in Prativa Devi (Smt.) Vs. T.V. Krishnan (1996)
5SCC 353 had held in this context inter alia noted as:-
"The landlord is the best judge of his residential requirement. He
has a complete freedom in the matter. It is no concern of the courts
to dictate to the landlord how, and in what manner, he should live or
to prescribe for him a residential standard of their own."
17. No triable issue has arisen. The procedure contemplated under
Section 25 B of the Delhi Rent Control Act (DRCA) which has to be
read with Section 14(1)(e) of the DRCA is a summary procedure which
had been engrafted by the legislature to provide a summary trial for
eviction of tenants; unless and until a triable issue arises, leave to defend
cannot be granted in a routine or in a mechanical manner; no triable
issue has arisen in this case.
18. Impugned order suffers from no infirmity. No triable issue
having been raised by the tenants, the applications seeking leave to
defend were rightly declined; the averments made in the eviction
petition had made out a clear case of bonafide requirement of the
landlords; their bonafide need stood substantiated. No other argument
has been urged; the impugned judgment calls for no interference.
19. Petitions are without any merit; dismissed.
INDERMEET KAUR, J
APRIL 16, 2012
rb
