Sudhakar Singh vs Sunil Batra
2012 Latest Caselaw 5066 Del

$~21 to 24
* IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                      Date of Decision:28.08.2012

+ RC.REV. 77/2012, CM 3109/2012
  SUDHAKAR SINGH                          ..... Petitioner
                  Through: Mr.J.K.Kalia, Adv.

                     versus

  SUNIL BATRA                                            ..... Respondent
                               Through:   Mr.Varun Goswami, Adv. with Mr.Rajesh
                                          Singh, Adv.
  With
+ RC.REV. 78/2012, CM 3112/2012
  SUDHAKAR SINGH                                                ..... Petitioner
                  Through: Mr.J.K.Kalia, Adv.

                     versus

  SUNITA BAJAJ                                              ..... Respondent
                               Through:   Mr.Varun Goswami, Adv. with Mr.Rajesh
                                          Singh, Adv.
  With
+ RC.REV. 80/2012, CM 3129/2012
  SUDHAKAR SINGH                                                ..... Petitioner
                  Through: Mr.J.K.Kalia, Adv.

                     versus

  SATISH MAHAJAN                                             ..... Respondent
               Through:                   Mr.Varun Goswami, Adv. with Mr.Rajesh
                                          Singh, Adv.
  And
+ RC.REV. 81/2012, CM 3130/2012
  SUDHAKAR SINGH                                              ..... Petitioner
                   Through: Mr.J.K.Kalia, Adv.
            versus


RC Rev. Nos. 77,78, 80 & 81 of 2012                                         Page 1 of 5
      PK CHADDHA                                        ..... Respondent
                                Through:   Mr.Varun Goswami, Adv. with Mr.Rajesh
                                           Singh, Adv.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. These four petitions are directed against the four orders dated 4.11.2011 of the Additional Rent Controller (ARC), whereby the leave to defend applications of the respondents in the four different eviction petitions filed by the petitioner against them, were allowed.

2. The present petitions are filed by the petitioner against the respondents who were facing evictions in separate eviction petitions. In all the four cases, the learned ARC has granted leave to defend to the respondents, observing that the respondents have been able to raise triable issues as regard to the claim of ownership of the tenanted premises by the petitioner as also his bona fide requirement of the same.

3. The impugned orders are assailed by the petitioner alleging that the learned ARC has erred in granting leave to defend to the respondents since no triable issues were made out. It is the petitioner's case that he is the owner/landlord of the tenanted premises, and that after having closed his business of skinning of hides of dead animals, salting, storing etc. around Idgah Abattoir, he is unemployed and does not have any place to set up his own business of leather garments. Learned counsel has placed reliance on the judgment of Mohd. Sayeed Vs. MCD & Ors., 137 (2007) DLT 535, wherein the decision rendered by this court, was to apply to the case that was filed by the petitioner vide his writ petition being W.P. (C) 13456/2005 against the

MCD. So far as this aspect of the case of the petitioner is concerned, there does not appear to be any dispute.

4. According to the ARC, the respondents have been able to raise the triable issue regarding the ownership of the petitioner inasmuch as the electricity and water bills as also the rent receipts of the tenanted premises, are in the name of Gurcharan Singh, brother of the petitioner. During the course of the arguments today, the learned counsel appearing for the petitioner has strongly disputed this observation of the ARC, alleging that the electricity bills or water bills do not confer any right of ownership on the brothers of the petitioner Gurcharan Singh or Joginder Singh. It was his submission that as per the family settlement of 28.01.1987, the tenanted premises fell in the share of the petitioner. He has also drawn my attention to the copy of the said settlement placed on record, as also the letter of the year 1997 purported to be issued by the MCD in the name of his brother Joginder Singh regarding mutation of the premises bearing No. 16E/919-24, Bapa Nagar, Karol Bagh as also E-929, Bapa Nagar, Tank Road. Based on this premise, it is sought to be urged that all these premises have fallen to the share of his brother Joginder Singh. Similarly, he has also drawn my attention to another letter of MCD dated 28.08.1997 of mutation in the name of the petitioner in respect of the tenanted premises. In other words, his submission is that as per the family settlement as also the mutation, the tenanted premises can be seen to be owned by the petitioner, whereas other properties being 16E/919-24, Bapa Nagar, Karol Bagh as also E-929, Bapa Nagar, Tank Road to be owned by his brother Joginder Singh.

5. On the other hand, learned counsel appearing for the respondents has, in addition to the water and electricity bills, also drawn my attention to certain

rent receipts of the period as late as of year 2008, showing Gurcharan Singh to be the owner of the tenanted premises. The learned ARC, in view of all this factual matrix, righty observed that the respondents have raised certain triable issues regarding ownership of the tenanted premises.

6. With regard to the plea that was taken by the respondents about the petitioner owning several other properties, and one of which being E-16/929, Main Tank Road, Bapa Nagar, Karol Bagh known as Baswala Complex, the submission of the learned counsel for the respondents is that this property was jointly owned by the petitioner with his wife Mala Singh and Joginder Singh with his wife Shalini. He has placed on record certain electricity bills in the name of the all these four persons in respect of this premises in question. The plea of the petitioner in this regard, in the reply to the leave to defend application, was that this property fell in the share of his brother Joginder Singh. This is apparently falsified, prima facie, from the fact of one power of attorney dated 18.08.2009, copy of which is placed on record seen to be executed by Shalini Singh, wife of Joginder Singh as also Mala Singh, wife of the petitioner, for consideration in favour of Minu Garg and Amit Chaudhary in respect of the first floor without roof rights of the said property i.e. E- 16/929. This document dislodges prima facie, plea of the petitioner that this property entirely fell in the share of Joginder Singh.

7. At the stage of granting leave, the real test is whether facts disclosed in the affidavit filed seeking leave to defend, prima facie show that the landlord would be disentitled from obtaining an order of eviction and not whether at the end the defence may fail. 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. If the application filed under Section 25-B discloses some substantial triable issues, then it would be grave injustice to brush them outrightly without testing the veracity of the claims made by the tenant/applicant. In Charan Dass Duggal vs. Brahma Nand, (1983) 1 SCC 301, while dealing with the issue of leave to defend the Apex Court has held thus:

"5. What should be the approach when leave to defend is sought for? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action (see Santosh Kumar v. Bhai Mool Singh). At the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counter-assertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought for on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively".

8. In my considerate view substantial and important triable issues are raised by the respondents at the time of filing applications of leave to defend which could not be prematurely decided. In view of my above discussion, I do not see any infirmity or illegality in the impugned order calling for interference by this court. The petitions have no merit and are hereby dismissed.

M.L. MEHTA, J.

AUGUST 29, 2012/akb