Meeta Aggarwal & Ors. vs Mukesh Bhatnagar & Ors.
2012 Latest Caselaw 4743 Del

*      THE HIGH COURT OF DELHI AT NEW DELHI

+         R.C.Rev.No.397/2012 & CM 13739/2012 & 13740/2012
                                               Date of Decision: 13.08.2012

MEETA AGGARWAL & ORS.                                     ...... Petitioners

                          Through:     Mr. Tanuj Khurana with Mr. Ankur
                                       Gupta and Mr. Yash Wardhan
                                       Tiwari, Advocates.

                          Versus

MUKESH BHATNAGAR & ORS.                                 ...... Respondents

                          Through:     Mr. Samrat Nigam, Advocate.

CORAM:

HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This said civil revision petition has been filed under Section 25 B (8) of Delhi Rent Control Act (here in after referred to as 'Act') assailing the order dated 10.05.2012 passed by ld. Additional Rent Controller (ARC) in Eviction Petition No. E- 198/2011, whereby the application of the petitioners-tenants seeking leave to defend was dismissed and eviction order under Section 14(1) (e) of the Act was passed in favour of the respondents-landlords in respect of shop no. 7/108-109, Circular Road, Shahdara, Delhi (tenanted shop). The tenanted shop is situated on the ground floor of the suit premises which is a built up plot measuring 120 sq. yards having two floors.

2. The brief facts of the case leading to the present petition are that late S.B.L. Bhatnagar, father of the respondents, in his lifetime gave the tenanted shop on rent to Subhash Aggarwal, husband of petitioner no. 1 and father of petitioner no. 2 and 3. After the death of Subhash Aggarwal, the petitioners inherited the tenancy rights qua the shop. The eviction petition was filed by the respondents pleading that respondent no. 1 was unemployed and has been working with various printing units and has gained considerable experience in the field and required the tenanted shop for setting up a printing press. Lack of any other accommodation was also pleaded by the respondents.

3. The petitioners filed the application for leave to defend the eviction petition stating that the respondents are not the owners of the suit property and the petitioners have never paid rent to the respondents and have been paying the rent to the concerned authorities directly. It was further contended that respondent no. 1 was not unemployed, but was in fact running the business of M/s Sundaram Overseas from the suit premises. It was further submitted that respondent no. 1 was in exclusive possession of one big hall and two bedrooms on the first floor and one room on the second floor of the suit property from where he runs a firm named M/s Allied Trade Services which shows that the requirement as projected by him is not bonafide. It was also stated by the petitioners that respondents are joint owners of the shop no. 2, Dr. Ambedkar Stadium, Delhi Gate, New Delhi from where they are operating a firm named M/s Sundaram Hastkala. It was also contended that respondent no. 2 had concealed the fact that he was residing with his family at B-24, Park Street, Kaushambi, U.P and has the vacant possession of ground floor of the suit property consisting of one drawing-cum-dining, two bedrooms,

kitchen and WC. It was submitted that in view of the respondents being in possession of several other properties, the case was effectively that of requirement for additional accommodation and in such cases leave to defend should be accorded to the tenant. The last and most important plea taken up by the petitioners was that according to the Master Plan for Delhi 2021, the activity of printing, dying and varnishing was not covered under mixed use, and hence could not be undertaken in the tenanted property.

4. In the reply to the leave to defend application filed by the respondents, the allegations made by the petitioners were denied and contents of the eviction petition were reiterated. While dismissing the application for leave to defend, the ld. ARC expressed the view that the petitioners were not able to raise any triable issue and the bonafide requirement of the tenanted shop has been established by the respondents. Regarding the issue of prohibition of doing a business of printing in the suit premises, the ld. ARC observed that it shall be always open for the respondent no. 1 to make modification in respect of nature of his business in order to bring it within the parameters of the prescribed rules and it was not a substantial triable issue that could cast any doubt over the bonafide requirement of respondent no. 1.

5. It has been urged by the learned counsel for the petitioners that the impugned order is bad in law as the ld. ARC has overlooked the triable issues raised before him. It has been further contented that the ld. ARC ignored the material concealment made by the respondents regarding additional properties available and failed to follow the settled legal proposition that incase of requirement of additional accommodation for

the landlord leave to defend should normally not be refused to the tenant. Lastly, it has been submitted that the ld. ARC committed grave illegality in ignoring the pertinent fact that the entire case of respondents has been that the tenanted shop is required by respondent no. 1 to set up a printing press, whereas such activity is prohibited in the area.

6. On the other hand, the learned counsel for the respondents has urged that the order of the ld. ARC requires no interference which has been passed after taking into consideration the bonafide requirement of the respondent no.1 for the tenanted shop. It has been further submitted that no triable issues were raised by the petitioners that would merit the grant of leave to defend to them.

7. I have heard the rival submissions and perused the file.

8. At the stage of granting leave to defend the real test should be whether the facts disclosed in the affidavit filed seeking leave to defend prima facie shows that the landlord would be disentitled from obtaining an eviction order and not whether at the end the defence may fail. If the application filed under Section 25-B discloses some substantial triable issues, then it would be grave injustice to brush them out rightly without testing the veracity of the claims made by the tenant/applicant.

9. The foremost contention of the petitioners is that the respondents are not the owners of suit property. The petitioners have not disputed that late S.B.L. Bhatnagar, father of the respondents was the owner of the suit property or that the respondents are his legal heirs. Naturally, the property has devolved upon the respondents after the death of the

erstwhile owner and this contention of the petitioners deserves to be rejected.

10.The next contention of the learned counsel for the petitioners is that respondent no. 1 was not unemployed and was in fact running the business of M/s Sundaram Overseas and M/s Allied Trade Services from the suit premises. It was also contended that respondents are joint owners of the shop no. 2, Dr. Ambedkar Stadium, Delhi Gate, New Delhi from where they are operating a firm named M/s Sundaram Hastkala. The ld. ARC has relied upon documents filed by the respondents and observed that M/s Sundaram Overseas was a partnership firm owned by Sushma Bhatnagar and Karun Bhatnagar, without any indication about the identity of these persons. There is no mention of the fact that from which address were these firms being run and whether the respondent no. 1 has any concern with them or not. It is not sufficient to say that these firms were partnership firms without any finding on the aspect that whether the respondent no. 1 was involved in their working or not and whether they were being run from the suit property as alleged by the petitioners or not. The impugned order is also totally silent about M/s Allied Trade Services. There is no finding related to this firm which casts a shadow on the submission of respondents that respondent no. 1 was unemployed. It is pertinent for the adjudication of the eviction petition that the factual position regarding the said firms is revealed which can be done only with the help of additional evidence. In my considered opinion, grave illegality was committed by the ARC in overlooking this significant triable issue at the time of disposal of the application for leave to defend.

11. Moreover, the perusal of the impugned order shows that the ld. ARC has not dealt satisfactorily with the contention of the petitioners that respondent no. 2 had concealed the fact that he was residing with his family at B-24, Park Street, Kaushambi, U.P and has the vacant possession of ground floor of the suit property consisting of one drawing-cum-dining, two bedrooms, kitchen and WC. The respondent no. 2 has merely denied this allegation without adducing any material to counter this claim. The petitioners had provided the details of the alternative property owned by respondent no. 2 which were unceremoniously brushed aside by the ld. ARC by relying upon a bald denial which was not the approach that ought to be followed at the stage of deciding the question of grant of leave to defend. 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.

12.The impugned order is also silent on the contention of the petitioners that respondent no. 1 was in exclusive possession of one big hall and two bedrooms on the first floor and one room on the second floor of the suit property from where he runs a firm named M/s Allied Trade Services. Clearly, this raises an important triable issue and casts a shadow on the respondents' plea about lack of any other shop in the suit premises.

13. But the most pertinent issue raised by the petitioners was that the activity of printing is prohibited in the area where suit property is located and the requirement of respondent no. 1 was to set up a printing press in

the tenanted shop. The entire case of the respondents is solely based on the submission that the tenanted shop would be utilized by respondent no. 1 to set up a printing press. But the way this issue has been dealt in the impugned order is totally contrary to the settled legal norms. Without being satisfied about the bonafides of the requirement as projected by the respondents, the ld. ARC had hurriedly reached to the conclusion that the nature of the business could be changed by the respondent no.1. No doubt the landlord has freedom to choose the nature of his business in the property that the intends to get vacated but in this case, it has been emphatically pleaded that the landlord intends to set up a business which is prohibited in the tenanted shop and has acquired the necessary experience and finances required for the very same business. Clearly, it raises an important triable issue that whether the respondent no. 1 actually intends to set up a business of printing press without having inquired about its feasibility in the area or this plea has been taken merely with a view to get the tenanted shop evicted.

14.Leave to defend must not be granted on mere asking, but it is equally improper to refuse to grant leave when triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through cross-examination of witnesses who have filed their affidavits. In Inderjeeet Kaur vs. Nirpal Singh (2001) 1 SCC 706 the Apex Court has held that

"13.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....."

15. In view of the foregoing discussion, it is evident that jurisdictional error has been committed by the ld. ARC, which calls for interference. The petitioners raised several important triable issues and the ARC could not be satisfied about its veracity at that stage of the lis, without calling for additional evidence.

16.Consequently, the impugned order is set aside and leave to defend is granted to the petitioners. The parties are directed to appear before the ARC on 23.08.2012. The petition stands disposed off in these terms.

M.L. MEHTA, J.

AUGUST 13, 2012 awanish/ss