Man Singh @ Mannu vs Mohd Ibrahim & Anr
2012 Latest Caselaw 2750 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Judgment:26.4.2012


+            RC.REV. 42/2012 & CM Nos.1643-44/2012


      MAN SINGH @ MANNU                        ..... Petitioner
                   Through:           Mr.D.K.Bhatia, Advocate.

                    versus

      MOHD IBRAHIM & ANR                         ..... Respondents
                  Through:            Nemo.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR



INDERMEET KAUR, J. (Oral)

1. Order impugned is the order dated 15.10.2011 vide which the

leave to defend application in a pending eviction petition under Section

14(1)(e) of the Delhi Rent Control Act (hereinafter referred to as the

DRCA) had been dismissed and the eviction petition had been decreed

in favour of the landlord.

2. Record shows that the present eviction petition has been filed by

the petitioner/landlord Mohd. Ibrahim and Mohd. Yasir against the

tenants; the disputed premises is a shop bearing No.S-65, Street 23,

Main road Brahampuri opposite Arora Building Material Store, Delhi

measuring 8.4 x 11.3 sq. feet from where the tenant is running a dabha.

Further contention in the eviction petition is that the premises had been

sublet by the tenant to the respondent no.2 who has also caused damage

to the said premises. Contention is that the property in dispute was

owned by the grandfather of the petitioner namely Mohd. Ismail; he had

purchased this property in terms of a registered sale deed dated

30.7.1966; he dies on 28.10.199 and left behind four sons and his

widow; the aforenoted portion is now co-owned by petitioners no.1 and

2 which includes the disputed premises. After the death of the father of

the petitioners no.1 and 2 which was in the year 1995 and 2007 the

petitioners being the only male surviving members of the family had

become co-owners; petitioner no.1 is aged 20 years and petitioner no.2

is aged 18 years. Petitioners are carrying on work of embroidery, sewing

and stitching ; they have sewing and embroidery machines but they

have no room to accommodate these machines; the premises under the

occupation of the respondent are required by them for the purpose of

carrying out their work of sewing and embroidery. Eviction petition

was accordingly filed.

3. Leave to defend has been filed. Alleged triable issues have been

highlighted. It is pointed out that material facts have been concealed

from the court. Petitioners are occupying and using the adjoining shop

which has been (depicted in the site plan) measuring 17.6 x10 sq. feet

from where they are carrying out the job of manufacturing of

embroidery machines in the name of NAVICO; this is very old business

of his family which they are carrying out from the aforenoted premises.

There is also non-joinder of necessary parties as all the co-owners have

not been impleaded; petition has been filed malafide with an ulterior

motive. These are by and large issues mentioned in the application

seeking leave to defend.

4. Reply filed to the said application and the corresponding paras

have been perused. There has a vehement denial. It has been denied

that the petitioners are using the adjoining shop from where they are

carrying out business of embroidery under the name of NAVICO. The

averments made in the eviction petition have been reiterated; contention

being that the need of the present disputed shop is for the two

petitioners; in the eviction petition it has been disclosed that there are

two shops in the disputed premises one of which has been tenanted out

to the present petitioner and the other shop is also under tenancy for

which a separate eviction petition has been filed which factum is not

disputed. Both the petitioners want to run their independent shops; they

have no commercial space to do so. The landlord has in fact himself

disclosed that there are two shops and the site plan has also depicted

them. The portion shown in red colour is with the present tenant; the

need is to accommodate their sewing and embroidery machines to run a

business. The other shop is also under a tenancy; it is not the case of the

tenant that the landlords have not disclosed about the other shop. No

triable issue has arisen on this count.

5. The landlord is the best judge of his requirement and this has been

reiterated by the courts time and again that it is not for the court or the

tenant to describe the manner in which the landlord wishes to chalk out

his life style or carry out his business.

6. A bald contention has also been raised about the non-joinder of

the necessary parties; contention being that even presuming that the

petitioners are co-owners; the name of the other co-owners has not been

disclosed. It is well settled position at law that a co-owner can maintain

eviction petition.

7. In 2004 3 SCC 178 India Umbrella Manufacturing Co. Vs.

Bhagbandei Agarwalla the Apex Court had held as follows:

"One of the co-owners can file a suit for eviction of a tenant. This principle is based on the doctrine of agenc. One co-owner filing a suik for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co- owners is assumed as taken unless it is shown that the other co- owners were not agreeable to eject the tenant and the petition was filed in spite of their disagreement."

8. This submission also raises no triable issue.

9. It has lastly been contended that the petitioner is not the owners

of the suit premises. The averments as disclosed in the eviction petition

and as detailed aforenoted have made a bald submission that the

petitioners are not the owner/landlord and this by itself would not take

away this status of the petitioners. Admittedly the tenant had already

been paying rent to the said landlords; Section 116 of the Indian

Evidence Act also get attracted. However, the earlier argument on non-

joinder of the other co-owner is an argument which is contrary to the

stand now sought to be adopted; the earlier submission being that the co-

owners have not been joined; status of the petitioners as owner/landlord

in fact is deemed admitted

10. Be at it may the concept of ownership has been discussed in the

numerous judgments; the Apex Court had an occasion to discuss this

point in a judgment reported in (1987) 4 SCC 193 Smt. Shanti Sharma

& Ors. Vs. Ved Prabha & Ors the Apex Court had held as follows:

"The word 'owner' has not been defined in this Act and the word 'owner' has also not been defined in the Transfer of Property Act. The contention of the learned Counsel for the appellant appears to be is that ownership means absolute ownership in the land as well as of the structure standing thereupon. Ordinarily, the concept of ownership may be what is contended by the counsel for the appellant but in the modern context where it is more or less admitted that all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Govt. or the authorities constituted by the State and in this view of the matter it could not be thought of that the Legislature when it used the term 'owner' in the provision of Section 14(1)(e) it thought of ownership as absolute ownership. It must be presumed that the concept of ownership only will be as it is understood at present. It could not be doubted that the term 'owner' has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act."

11. No triable issue has arisen on this count either

12. Learned counsel for the petitioner has lastly submitted that in the

connected eviction petition which has been filed in respect of the

adjoining shops leave to defend had been granted and when the matter

was almost ripe for conclusion, the landlord has chosen to withdraw this

eviction petition; attention has been drawn to the order dated

17.10.2011 passed in Eviction Petition No.112/2011; attention has also

been drawn to the order dated 16.9.2009 passed in Eviction Petition

No.118/2009; contention being that this was the connected eviction

petition which had been filed by the landlord qua the other disputed

shop and leave to defend had been granted; thereafter the landlord had

chosen to withdraw the petition for the reasons best known to him; this,

in fact, destroys the bonafide need of the landlord. This argument has

vehemently been urged by the learned counsel for the petitioner. At this

stage it is relevant to point out that the order passed on 16.9.2009 is

passed in Eviction Petition No.118/2008 and order dated 17.10.2011

was passed in Eviction Petition No.112/2011; the eviction petition

numbers do not match and this has been specifically pointed out to the

learned counsel for the petitioner for which he has no answer. That

apart this argument now urged admittedly does not form a part of the

pleadings of the tenant in his application for leave to defend.

13. Triable issues have to emanate from the averments made in the

application for leave to defend; that is why the legislature has mandated

that leave to defend has to be filed within a stipulated period of 15 days.

Issues sought to be raised after the stipulated period cannot be gone into

as otherwise the very purpose and import of the summary procedure as

contained in Section 25 B of the DRCA would be given a go by. This

was not the intent of the legislature.

14. Leave to defend cannot be granted in a routine manner.

15. In (1982) 3 SCC 270 Precision Steel & Engineering Works &

another Vs. Prem Devi Niranjan Deva Tayal the Apex Court had noted

that the prayer for leave to contest should be granted to the tenant only

where a prima-facie case has been disclosed by him. In the absence of

the tenant having disclosed a prima-facie case i.e. such facts as to what

disentitles the landlord from obtaining an order of eviction, the Court

should not mechanically and in routine manner grant leave to defend.

16. On no count does the impugned order suffer from any infirmity.

Since no triable issue has arisen eviction petition had rightly been

decreed in favour of the landlord and the application seeking leave to

defend filed by the defendant had been dismissed.

17. Petition is without any merit; dismissed.

INDERMEET KAUR, J APRIL 26, 2012 nandan