Delhi High Court
Jagdish Lal Khorana vs Hemant Arora on 5 December, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 05.12.2012
+ RC.REV. 282/2012
JAGDISH LAL KHORANA ..... Petitioner
Through: Mr.Tanuj Khurana, Adv.
versus
HEMANT ARORA ..... Respondent
Through: Mr.Bharat Deepak, Adv. with
Mr.Lalan Sinha, Adv.
+ RC.REV. 283/2012
JAGDISH LAL KHORANA ..... Petitioner
Through: Mr.Tanuj Khurana, Adv.
versus
GOPAL DASS ..... Respondent
Through: Mr.Bharat Deepak, Adv. with
Mr.Lalan Sinha, Adv.
+ RC.REV. 284/2012
JAGDISH LAL KHORANA ..... Petitioner
Through: Mr.Tanuj Khurana, Adv.
versus
RAM AVTAR ..... Respondent
Through: Mr.Bharat Deepak, Adv. with
Mr.Lalan Sinha, Adv.
+ RC.REV. 286/2012
JAGDISH LAL KHORANA ..... Petitioner
Through: Mr.Tanuj Khurana, Adv.
versus
DEVI CHAND ..... Respondent
Through: Mr.Bharat Deepak, Adv. with
Mr.Lalan Sinha, Adv.
R.C. Rev.282 to 284 & 286 of 2012 Page 1 of 7
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. By this common judgment, all the aforesaid revision petitions
under Section 25-B(8) of the Delhi Rent Control Act (for short the
'Act') are being disposed of as all these arise out of the identical orders
dated 24.04.2012 of Commercial Civil Judge-cum-Addl.Rent Controller
(ARC) passed in the eviction petitions filed by the petitioner against the
respondents, whereby the leave to defend applications filed by them,
were allowed.
2. The respondents are tenants in their respective shops in the suit
premises under the petitioner. Their eviction is sought on the ground of
bona fide requirement of the tenanted shops by the petitioner for setting
up the regional sales and marketing office for his sons Narender Kumar
and Suresh Kumar and also for setting up the career of his grandsons
Ashish and Rahul, who intended to open a retail and display outlet
showrooms of electrical goods in the two shops. The premises is also
stated to be required for his daughter-in-law Suman for expanding of
boutique business, which she is running in the mezzanine floor of the
suit premises. It was his case that he is aged about 83 years and is
leading a retired life and as such, he keeps visiting his two sons
Narender and Suresh in Delhi and third son Ajay Kumar in Calcutta.
His sons Narender and Suresh are engaged in the business of electrical
appliances in the industrial area where they do not have any suitable
commercial space for opening regional sales and marketing offices and
thus, the petitioner required the tenanted shops for them. His grandsons
Ashish and Rahul also wanted to open a retail and display outlet for
electrical goods and for that also, two shops are required. His daughter-
in-law Suman is running a business of boutique from the mezzanine
floor of the premises, which has small entrance of four feet from the
front side, and thus, the front shop is required for expansion of her
business. It was averred that the petitioner does not have any other
reasonably suitable commercial accommodation available for the
requirements of two sons, grandsons and the daughter-in-law.
3. The leave to defend applications were filed by the respondents,
which came to be allowed by the learned ARC vide separate impugned
orders dated 24.4.2012. The same are under challenge in the instant
petitions.
4. At the outset, I must reiterate that the powers of this Court under
Section 25 -B (8) of the Act are not as wide as those of Appellate Court,
and in case it is found that the impugned orders are according to law and
do not suffer from any jurisdictional error, this Court must refrain from
interfering with the same. The power under this provision is limited and
supervisory in nature. Only when it is evident that the Rent Controller
has committed grave illegality or came to a conclusion which was not
possible, based on the material produced, should this Court interfere in
the order passed by the Rent Controller. In Sarla Ahuja vs. United
India Insurance Co. Ltd. AIR 1999 SC 100 the Apex Court has held as
under:
"The satisfaction of the High Court when perusing
the records of the case must be confined to the
limited sphere that the order of the Rent Controller
is "according to the law." In other works, the High
Court shall scrutinize the records to ascertain
whether any illegality has been committed by the
Rent Controller in passing the order under Section
25B. It is not permissible for the High Court in that
exercise to come to a different fact finding unless
the finding arrived at by the Rent Controller on the
facts is so unreasonable that no Rent Controller
should have reached such a finding on the
materials available."
5. The law governing consideration of leave to defend application is
well settled that at this stage, it is only the averments of the affidavit of
the leave to defend application and reply thereto, if any, which are to be
considered. If the averments in the affidavit disclose such facts which
would ultimately disentitle the landlord from recovering possession, that
by itself, makes obligatory upon the Controller to grant leave to defend
to the tenant. It is also trite that at the stage of consideration of leave to
defend application, the tenant is only required to make a prima facie
case and not to make out a strong case. The leave to defend application
cannot be refused where the eviction petition is filed without bona fide
requirement. If the tenant is able to raise the triable issue, he would be
entitled to grant of leave to defend by the Controller. This is primarily
because the rival contentions, cannot be decided by way of affidavits
only and requires reliable material for proof.
6. Though it is settled law that the landlord is the best judge of his
preferences and choices as also how he would utilize his premises, and
that neither the tenant nor this court can dictate him terms, but at the
same time, it is also settled principle of law that it is not on the mere
asking of the landlord that the tenant will be thrown out of the premises
at the threshold. It is not the subjective decision of the landlord alone,
which would entitle him straight eviction order against the tenant, but
the objective assessment by the Controller of the bona fide requirement
of the landlord.
7. With the above principles governing the leave to defend
application, I have examined the submissions made by the learned
counsel for the petitioner and gone through the record including the
impugned orders.
8. The need that is projected by the petitioner/landlord for
requirement of the tenanted shops is for his two sons, two grandsons and
his daughter-in-law. His two sons are stated to be engaged in businesses
of manufacturing electrical goods in the two industrial premises located
in Shalimar Bagh and Bawana. It was his case that they do not have any
convenient place for opening their regional sales and marketing offices
in the industrial premises or at any other place and two shops were
required for them for this purpose. On the other hand, the plea that was
taken by the respondents in this regard was that both the sons of the
petitioner are independently settled, having their independent lives and
are neither financially nor otherwise dependent upon the petitioner,
much less for accommodation. The learned ARC has taken note of
these facts and observed that dependency or otherwise of the sons as
also of the grandsons is an issue which was a triable one and could not
be decided without evidence.
9. I am aware of the fact that there is no dispute with regard to the
proposition that a landlord is entitled and also under an obligation to
help his sons to set up their businesses and make them available
accommodation and could seek eviction of the tenant on this ground,
but, at the same time, this requirement of the landlord is required to be
assessed objectively by the Controller. It is not just the fanciful desire
of the landlord that in every case, the projected requirement for such
purposes would be taken to be as genuine and authentic. In view of the
fact that both the sons of the petitioner are independently settled in their
businesses and undisputedly, not living with the petitioner, but away
from him alongwith their families, this aspect would be required to be
tested as to whether they are dependent upon him for accommodation or
not. Further, it was also required to be tested as to whether they really
and genuinely intended to have their regional and marketing offices,
and further, as to whether the suit shops were suitable for the same or
not. All these aspects would be required to be evaluated, examined and
adjudicated by the Controller. Similarly, for the same reasons, the
projected requirement of the grandsons for opening retail outlets, would
also be required to be objectively tested by the Controller. Except the
mere asking of the petitioner/landlord, there is nothing on record to
substantiate his projected requirement of the suit shops for his sons and
grandsons.
10. The petitioner's daughter-in-law Suman is stated to be having her
boutique in the mezzanine floor in the suit premises and one shop is also
stated to be required by her for expansion of her business. The plea in
this regard was that the entrance of the premises in her possession was
four feet wide and thus, the front space shop was required for expansion
of her business. In this regard as well, there is nothing on record to
substantiate the plea of the petitioner/landlord as to whether his
daughter-in-law really required the additional space for expansion of
boutique business, and further, as to how the suit shop would be suitable
for the same. It is not that the landlord is not entitled to seek eviction of
the tenanted shop, which may be required by his daughter-in-law for the
expansion of her business, but, at the same time, the projected need in
this regard, would also be required to be tested, there being nothing on
record to substantiate the same.
11. In view of my above discussion, I do not see any infirmity or
illegality in the impugned orders of ARC granting leave to defend to the
respondents. Consequently, the petitions being without any merit are
hereby dismissed.
M.L.MEHTA, J
DECEMBER 05, 2012/akb
