Nawal Kishore Khandelwal vs Kunti Devi
2012 Latest Caselaw 7089 Del

*                THE HIGH COURT OF DELHI AT NEW DELHI

+                                  R. C. Rev. No. 494/2011

                                                 Date of Decision: 12.12.2012

NAWAL KISHORE KHANDELWAL                                      ..... Petitioner

                                   Through:   Mr.N.K.Kaul, Sr. Adv. with Mr.
                                              Raj Shekhar, Mr.Vikash Pathak,
                                              Adv.

                          versus

KUNTI DEVI                                                   ..... Respondent

                                   Through:   Mr.Sudhir Nandrajog, Sr.Adv.
                                              with Mr.Raghuvinder Varma,
                                              Adv.

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

M.L. MEHTA, J.

1. The present petition has been filed under Sec. 25B(8) of the Delhi Rent Control Act, 1958, against the Order passed by the Court of Learned Additional Rent Controller (Central) Delhi, in Eviction Suit No. 140/2008 dated 28.09.2011, rejecting the petitioner‟s application seeking leave to defend.

2. The brief facts leading to the present petition are as follows. The Petitioner is a tenant in respect of a shop situated at the ground floor of the property no. 1157, Kucha Mahajani, Chandni Chowk, Delhi

since 1979-80. On 05.09.2008, the respondents instituted an eviction petition under Sec. 14(1)(e) read with Section 25B of the Delhi Rent Control Act, 1958, on the ground that the suit premises were required bona fide by the respondent to accommodate the business of her son, who is unemployed and dependent on her.

3. In the application seeking leave to defend, the petitioner has raised a number of contentions before the Ld. ARC. Firstly, it was contended that the respondents were not the owners of the suit property and that the site plan placed on record was incorrect as the suit building comprises of ground floor, first floor as well as unauthorised third and fourth floors. Secondly, it was contended that on the ground floor of the suit premises a shop was shown as a „dallan‟, whereas it was a shop in the possession of the respondent and that the respondent had as many as 25 shops in the entire building. It was also contended that some of the shops on the second, third and fourth floors were let out to different tenants in the past 2 to 5 years, whereas the remaining shops are in the possession of the respondent and are presently locked. The petitioner contended that the respondent‟s son does not want to start any business, because he was already in the business of unauthorised construction and was only harassing the petitioner to vacate the premises so that he could re-let it at a higher rent. Lastly, it was contended that the respondent has recently carved three shops on the ground floor and is in possession of the same.

4. The Ld. ARC has examined the rival contentions and has dismissed the petitioner‟s leave to defend application on the following grounds. With regards to the contention regarding the ownership of the suit premises, the Ld. ARC has noted that the petitioner herein has conceded that the respondent is the owner of the entire suit building while alleging the unauthorized constructions on the third and fourth floors. Moreover, the Ld. ARC has also noted that the landlady herein had placed on record the judgment and decree dated 15/12/2955 in favour of her predecessor and also the rent receipts issued in favour of the petitioners by her late husband. The Ld. ARC also found that the allegation regarding the landlady‟s son being in business of unauthorised constructions, was taken up for the sake of defence which lacked any evidence. The Ld. ARC also observed that this meant that the respondent/landlady‟s son was not having any permanent business.

5. The Ld. ARC also found that allegation regarding unauthorised construction on the third and fourth floor of the building, were baseless. He has noted that no photographs have been placed on record by the petitioner to show the existence of any unauthorised construction on the third and fourth floor as also the shop allegedly shown as „dallan‟ on the ground floor. It is also placed on record that when the Ld. ARC suggested an inspection of the suit premises through a Local Commissioner to verify the factum of fresh construction of three shops in the ground floor, the landlady did not

have any objections, whereas the tenant contended that a Local Commissioner cannot be appointed in a summary proceeding. The Ld. ARC has found the contention of the petitioner herein to be without any substance and thereby rejected the petitioner‟s application seeking leave to defend.

6. Before proceeding to examine the submissions, it is vital to note that the powers of revision of this Court under Sec. 25B(8) are not as wide as that of an appellate Court. If found that the impugned order is according to law and does not suffer from a jurisdictional error, then this Court has no power to interfere. Keeping this in mind, I have perused through the impugned order and given my thoughtful consideration to the submissions advanced by the petitioners. I find that the Ld. ARC has rightly rejected the petitioner‟s application seeking leave to defend.

7. The learned senior counsel appearing for petitioner has contended before this Court that Secs. 25B (4) & (5) only require that the affidavit ought to disclose triable issues, which if proved at trial, would disentitle the landlord from seeking eviction. He has also contended that the Ld. ARC has erred in going into a detailed evaluation of the documents filed and deciding the matter on merits and ordering the eviction of the Petitioner by evaluating the relative merits of the documents filed by the parties at the stage of determining whether or not to grant leave to defend. I do not find any merit in these submissions because the Ld. ARC has clearly

noted that the petitioner‟s assertions and allegations are bald and vague, unsubstantiated by any evidence.

8. While it is imperative that the Court should refrain from going into the merits of the claims raised by the tenant, it must be borne in mind that leave to defend may not be granted on the basis of vague or bald assertions. It is often contended by petitioner/tenants that the landlord is not the owner of the suit property and that he has various other properties or such and such property and has concealed all those in the eviction petition. This Court, in the case of Rejender Kumar Sharma v. Leela Wati, 155 (2008) DLT 383 has held:

"Mere assertions made by a tenant in respect of landlord's ownership of other buildings and in respect of alternate accommodation are not to be considered sufficient for grant of leave to defend. If this is allowed, the whole purpose of Sec. 25B shall stand defeated and any tenant can file a false affidavit and drag a case for years together in evidence, defeating the very purpose of the statute. The Rent Controller is thus not precluded from considering the material placed before it by the landlord in response to leave to defend to show that the tenant's assertions and averments were totally false".

9. The second contention of the petitioner is that the respondent has in her possession alternate properties on the third and fourth floors in the form of unauthorised constructions. In the case of Shafiqqudin v. Mohd. Ibrahim, R. C. Rev. 502/2012, the petitioner/tenant had set up a similar case contending that the respondent had two alternate accommodations available to him. However, he was not

able to submit any document supporting his submissions. The Court in this case, held:

"It is important for the tenant, in any leave to defend application to submit relevant documents on record to support any triable issue raised by him. In absence of any material, the ARC cannot come to a conclusion as to the weight of the issue raised by the tenant. Thus impairing his power to decide whether an issue raised is triable or not."

10.This Court relied upon the judgment in the case of Krishan Kumar Gupta v. Swadesh Bhushan Gupta, 152 (2008) DLT 556, wherein it was held:

"Unless, the learned ARC scrutinizes each of the objections raised by the tenant with the help of documents and the material placed on record, the entire purpose of providing summary proceedings in respect of the eviction proceedings fails. Thus, it is incumbent upon the ARC to scrutinize all objections carefully in the light of law laid down and in the light of the material placed on record. It cannot be argued that the learned ARC was not required to go into the details of the objections and come to a conclusion on the basis of affidavits and once objections are raised leave to defend must be granted. Leave to defend can be granted only in those cases where the tenant is able to show by material on record that the petition was filed by the landlord malafidely."

11. The petitioners herein have raised a number of allegations against the respondents, however, have failed to produce a single piece of evidence in support of their contentions. When the peitioners assailed the ownership of the respondent, they did not file any document in furtherance of their contention, whereas, the respondent has deposed in the reply to the leave to defend that she is the co-owner of the suit premises along with other co-owners as

per the decree dated 15.12.1955. Further, the petitioner has assailed the site plan placed on record by the landlady as incorrect. In reply to these allegations, the respondent has filed the site plan for the entire building and has deposed that the shops shown in blue colour, are in the possession of her brother-in-law who got them after partition with her husband. The remaining shops which were shown in green colour are her husband‟s share which is presently in the possession of other tenants since a long time. Therefore, no other shop was available for her son to set up a business. However, the petitioner himself has not placed any photographs, documents or site plan of the premises supporting his contentions that the respondent has nearly 25 shops or that any shop was kept locked. The Ld. ARC has rightly noted that these are bald assertions by the petitioners.

12.In light of the factual matrix and the principles of law as discussed above, the Ld. ARC has rightly dismissed the application seeking leave to defend. I see no infirmity or illegality in the impugned order. The petition is hereby dismissed.

M.L. MEHTA, J.

DECEMBER 12, 2012 kk