Babaji Medicos vs Prem Prakash
2012 Latest Caselaw 5064 Del

*         THE HIGH COURT OF DELHI AT NEW DELHI

+             RC.Rev. No.361/2012 & CM No.13146/2012

                                          Date of Decision: 28.08.2012

Babaji Medicos                                       ...... Petitioner

                         Through:     Mr. Shekhar G. Devansa, Mr.
                                      Sanjay Mishra & Mr. Sarvesh
                                      Vishwakarma, Advs.

                         Versus

Prem Prakash                                       ...... Respondent

                         Through:     Mr. Hari Narayan Takkar, Adv.


CORAM:

HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This revision petition has been filed under Section 25-B (8) of the Delhi Rent Control Act (herein after referred to as the "Act") against the order dated 21.04.2012 passed by Learned Addl. Rent Controller (ARC) whereby the leave to defend application filed by the petitioner tenant in eviction petition E-158/2011, was dismissed.

2. The said eviction petition was filed by the respondent/landlord stating that he is the owner and landlord of property No.C-2/1, Krishna Nagar, Delhi-51 (suit property). It was submitted that on representation of the petitioner firm's partner namely Deepak Khanna, on 01.11.1978,

the firm was inducted as tenant by the respondent in the shop bearing private No.3 (tenanted shop) in the aforesaid suit property, vide rent agreement dated 01.11.1978. It was further stated that there were three other tenanted shops in the suit property bearing private No.1, 2 and 4 and remaining portion of the suit property was used by the respondent and his family members for residential purpose. It was submitted that the respondent/landlord required the tenanted shop due to his bonafide need as his dependent son namely Kuldeep Goswami was unemployed for the last 3-4 years and intended to open a general store in the tenanted shop. The lack of availability of any other alternate property in Delhi was also pleaded by the respondent/landlord.

3. In the affidavit filed by the petitioner/tenant, it was averred that the eviction petition being only against the petitioner firm, without impleading the other partners, was not maintainable. It was averred that the petitioner firm in the name of Babaji Medicos was carried on till 31.3.2006 and after that Bharat Bhushan has been running the business of property consultancy from the tenanted shop in his individual capacity. It was averred that the respondent/landlord had concealed the fact that a commercial typing college was being run in the suit property by his son Kuldeep and further the respondent had not filed any documents to prove that his son was unemployed. It was further averred that the respondent had acquired two properties in Delhi, situated in commercial locality, which was not brought to the notice of the Court. It was prayed that, on account of these substantial

triable issues, the petitioner/tenant should be afforded the opportunity to defend the eviction petition.

4. In the counter affidavit filed by the respondent/landlord, it was pleaded that the rent deed dated 01.11.1978 was executed by the petitioner firm and thereafter the respondent had no information regarding the change in the constitution of the tenanted firm and hence the eviction petition filed against the petitioner firm suffered from no infirmity. It was submitted that the commercial typing college was run by the wife of the respondent in one of the residential room which was closed down about 12 years back and the said room is since being used for residential purpose only and hence the non-disclosure of this fact was not relevant to the present proceedings. It was further submitted that the son of the respondent/landlord was previously employed with the Ministry of Defence, but is unemployed from the year 2007 and contention of the tenant, that the respondent's son is in employment, was erroneous. The respondent also filed certain documents before the Trial Court pertaining to the removal of his son from the services. The allegation made by the petitioner/tenant regarding the respondent having acquired two more properties in Delhi, was also refuted.

5. Upon consideration of assertions and counter assertions and material on record, the learned ARC was of the opinion that the petitioner/tenant could not prove the contentions raised in his affidavit and could not raise any substantial triable issue that would merit the

grant of leave to defend application filed by him and consequently passed the eviction order qua the tenanted shop in favour of the respondent/landlord. Hence, the present revision petition.

6. The submissions made by the learned counsel for the petitioner before the learned ARC were reiterated before this Court. It was also urged that the respondent did not send any legal notice to the petitioner/tenant and therefore the said eviction petition was not maintainable. Lastly, it has been argued that the impugned order is unsustainable as the learned ARC failed to consider the important triable issues raised by the petitioner. The learned counsel for the respondent submitted that the contentions of the petitioner were dealt with by the learned ARC at length and finding no merit in them, they were rightly rejected as the petitioner was unable to raise any triable issue. It has been submitted that it is settled legal proposition that leave to defend cannot be granted to the tenant merely on the basis of false averments and bald pleas and hence the order of the learned ARC decreeing the eviction requires no interference. I have heard the rival submissions and perused the record.

7. It is settled legal principle that leave to defend is granted to the tenant in case of any triable issue raised before the trial Court which can be adjudicated by consideration of additional evidence. The whole purpose and import of summary procedure under Section 25-B of the DRCA would otherwise be defeated. In Precision Steel & Engineering

Works & Anr. Vs. Prem Devi Niranjan Deva Tayal (1982) 3 SCC 270, the Apex Court has held 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. In Nem Chand Daga Vs. Inder Mohan Singh Rana, 94 (2001) DLT 683, a Bench of this Court had noted as under:

"That before the leave to defend is granted, the respondent must show that some triable issues which disentitle the applicant from getting the order of eviction against the respondent and at the same time entitled the respondent to leave to defend existed. The onus is prima facie on the respondent and if he fails, the eviction follows."

8. Applying the above noted legal proposition to the current factual matrix, let me examine whether the order of the ld. ARC is sustainable or otherwise .The petitioner has raised the contention that in absence of notice by the respondent, the eviction petition is not maintainable. This plea of the petitioner is misplaced and contrary to settle legal position. In case of eviction petition filed under Section 14(1) (e) of the Act, there is no requirement of service of notice to the tenant by the landlord before filing of the petition. No triable issue has arisen on this count.

9. The next plea taken by the learned counsel for the petitioner is that the eviction petition filed against the petitioner firm without impleading the other partners is not maintainable.

10. In this regard, the petitioner does not seem to be clear about his case and has taken contradictory stands. On one hand he contends the petition being not maintainable without impleading other partners, and on the other, he alleges the firm having ceased to exist and being run by him alone. From the perusal of record, it is evident that the tenancy was created in favour of the petitioner firm vide rent agreement dated 01.11.1978. The authenticity of this rent agreement has not been disputed by the petitioner. The respondent cannot be expected to be abreast with the developments regarding the petitioner firm's constitution and hence the eviction petition filed against the petitioner firm relying upon the rent agreement suffers from no infirmity. Consequently, this contention taken up by the counsel for the petitioner is untenable.

11. The learned counsel for the petitioner has further urged that the respondent had concealed the fact that the commercial typing college is being run in the suit premises by his son and falsely submitted that his son is unemployed. The respondent in his counter affidavit has denied this contention and submitted that the commercial typing college was being run by his wife in one of the rooms of the suit premises 12 years

back and has now ceased to exist. The petitioner has not adduced any material evidence to prove otherwise and as a result the submission of the respondent has to be accepted as correct.

12. Moving on to the issue of lack of any document by the respondent to show that his son is unemployed, it would suffice to say that it is a matter of record that the respondent produced documents to show the termination of the employment of his son from the Ministry of Defence in the year 2007 and the petitioner was unable to produce any document which would prove otherwise. This plea raised by the petitioner seems to be a bald defence taken for the sake of defence without being substantiated with any material evidence and is consequently rejected.

13. Lastly, the learned counsel for the petitioner raised a vague plea that the respondent/landlord had acquired two other properties in Delhi without furnishing any details of such properties whatsoever. In the absence of any iota of evidence, such false averments cannot be accepted as gospel truth and were rightly discarded by the ld. ARC. Section 25-B was inserted by the legislature in the Act as a special provision for eviction of the tenants in respect of specified category of cases as provided therein. Where a landlord seeks eviction on the basis of bonafide necessity, a summary procedure is provided and tenant has to seek leave to defend disclosing such facts which would disentitle the landlord from seeking eviction. Where a tenant pleads, in application

seeking leave to defend, preposterous prepositions and makes such averments which are palpably false and the landlord in his reply affidavit is able to show to the ARC that all facts stated in leave to defend, were palpably false, ARC is not precluded from considering the falsity of such facts on the basis of material placed by the landlord before it.

14. In view of the above discussion, I find myself in agreement with the observations of the learned ARC that the petitioner miserably failed to raise any triable issue whatsoever that would merit the grant of leave to defend application. I find no infirmity or perversity in the order passed by the learned ARC. The petition being without any merit is hereby dismissed.

M.L. MEHTA, J.

AUGUST 28, 2012 ss/skw