Laxmi Prasad vs Suresh Kumar Mudgal
2012 Latest Caselaw 1193 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                        C.R.P. 570/2000
+                          Date of Decision: 22nd February, 2012

#     LAXMI PRASAD                           ....Petitioner
!                 Through: Mr. S.N. Gupta & Mr. Shambhu
                           Sharan Shukla, Advocates

                               Versus

$     SURESH KUMAR MUDGAL                 .....Respondent
                 Through: Mr. Rajesh Yadav & Mr. Sumit
                           Khosla, Advocates

     CORAM:
*    HON'BLE MR. JUSTICE P.K.BHASIN

                               ORDER

P.K.BHASIN, J:

This revision petition had been filed by the petitioner-tenant

under Section 25-B(8) of the Delhi Rent Control Act, 1958('the Rent

Act' in short) against the order dated 03.12.1999 passed by Additional

Rent Controller rejecting his application for grant of leave to defend

the eviction petition filed against him by the respondent-landlord

under Section 14(1)(e) of the Rent Act in respect of two rooms and

an open courtyard in house no. 1/2772 Ram Nagar, Loni Road, Gali

No. 9, Shahdara, Delhi which had been let out to him(hereinafter to be

referred to as the 'premises in dispute').

2. Briefly stated the facts are that the respondent had filed an

eviction petition against the petitioner in the year 1998 under Section

14(1)(e) read with section 25-B of the Rent Act on the ground that his

family consisted of himself, his wife, his two married sons, their

wives and children and two married daughters. His sons alongwith

their families were living in the same house of which the premises in

dispute formed a part. The respondent himself was living in a separate

rented premises in Katra Gokal Shah, Bazar Sita Ram, Delhi. It was

further pleaded in the eviction petition by the respondent that he

required the premises in dispute for his own residential purpose as he

wanted to shift to his own house after vacating the premises where he

was already living as a tenant since his landlord was wanting him to

vacate. His family was divided into pieces for the purpose of

residence at two different places because of paucity of accommodation

and so he needed the premises in dispute.

3. An application dated 19.12.1998 under Section 25-B(4) of the

Rent Act for grant of leave to defend the eviction petition was filed by

the petitioner-tenant in which he had pleaded that the eviction petition

filed by the respondent-landlord was based on false and baseless

allegations as there was no bona fide requirement of the respondent-

landlord for the premises in dispute as out of total built up area of 400

sq.yds. the petitioner-tenant was having a very small area of about

25/26 sq. yds. Built up portion under his tenancy and that in case he

was not granted the leave to defend he would suffer irreparable loss.

4. The learned Additional Rent Court rejected the leave

application of the petitioner-tenant vide impugned order dated

03.12.1999. The relevant observations made in the impugned order are

re-produced below:-

"5. Before discussing the facts on merits, I consider that crucial question before the Court is that whether averments made in the rejoinder can be considered or not for the grant of leave to defend. Ordinarily speaking the averments made in the rejoinder are to be taken into consideration. Why facts in the present case are somewhat peculiar. Rejoinder is normally filed to explain certain averments made in the W.S. A rejoinder can never be meant for introducing altogether new facts. If her rejoinder is used for this purpose then respondent has to be given another opportunity for filing rejoinder. I consider that there would be no end to it. Even civil procedure code does not provide for filing of rejoinder. A rejoinder is normally a repetition of averments made in the petition with the clarifications of the new facts mentioned in the W.S. In the present case, an application for leave to defend was filed which disclosed almost no ground for grant of leave to defend. To cover up this gap an application for

amendment was moved which was dismissed vide detailed order. Till today the order dated 23-7-99, has not been set aside by any superior Court. Now the respondent has taken new grounds in the rejoinder. If these averments are taken into consideration, the purpose of dismissing amendment application would be frustated so, therefore, at the outset I am not inclined to take into consideration the new facts incorporated in the rejoinder.

9. Now coming to the facts of the present case, the respondent has merely taken the plea that because the petitioner has got 490 sq. yds. built up property out of which just 25/26 sq. yds is under the respondent. The respondent has also submitted that petitioner is not at all under pressure to vacate the premises. Therefore, it is an admitted case that petitioner is residing in the tenanted premises. There is no dispute as to the letting purpose. There is also no dispute as to the number of the family members of the petitioner. There is also no dispute as to the non-availability of alternative accommodation with the petitioner.

10. As I have discussed the respondent has admitted the relationship of landlord and tenant and admitted that petitioner is owner of the premises. Hence, leave to defend cannot be granted on this ground.

11. Now to come on another plea as being raised by respondent. It is an admitted case that petitioner is residing separately in the tenanted premises, due to scarcity of accommodation. Petitioner has alternative stated that he wants to shift to her own house. In 1998 RLR 603 it was held that:-

"It was further held that "moreover it is a natural phenomenon that a landlord living in rented premises wants to move to his own house and the desire to do so cannot be imaginary, fanciful or unnatural..................."

13. As I have discussed above and held above, no fault can be found in the wish of the petitioner to live in his own accommodation. I consider that respondent has not been able to disclose any ground on the basis of which leave can be granted. Hence, application for leave to defend is rejected...................................................................."

5. After the filing of this revision petition the respondent-landlord

had claimed that his family had further expanded. Then he was

directed by this Court vide order dated 13.04.2010 to file an affidavit

to that effect and he was also asked to give in that affidavit the exact

accommodation available with him in the house in question. The

respondent filed his affidavit along with a plan showing the extent of

accommodation with him on the ground and first floors. It was also

stated in that affidavit that the respondent had vacated the premises

where he was earlier living as a tenant. Regarding the accommodation

in his possession and his requirement he stated as under in paras no.8,

10 and 11 of his affidavit:-

"8. That both the sons of the Respondent are occupying separate portions. The Respondent and his wife are living with the younger son namely Ajay but at times have their meals and stay with the elder son Atul. The Respondent at present has four rooms, two kitchens, one Pooja room and two toilets on the ground floor. In and around the year 2005, the Respondent constructed two rooms, two stores and a latrine on the first floor. One room and one store on the first floor is with the elder son of the Respondent and one room and one store on the first floor is with the younger son of the Respondent. The portion in occupation of the elder son of the respondent and his family is shown in green colour in the site plan. The portion in occupation of the younger son of the Respondent and his family is shown in yellow colour. The Site Plan showing the position as existing on date is annexed is as ANNEXURE R-1.

10. That, at present the requirement of the Respondent, is as under:-

a) One room - for self and his wife

b) One room - for elder son and his wife

c) One room - for two grand-daughters

d) One room - for younger son and his wife

e) One room - for grandson

f) Two rooms - to be used as Drawing rooms by both the sons and their family

g) Two rooms - to be used as Dining rooms by both the sons and their family

h) Two rooms - for visiting daughters and guests

i) Two rooms - for Pooja rooms, one each for each son

j) Two rooms - for store rooms, one each for each son

11. That during the pendency of this Petition, the other tenant Sardar Singh had handed over possession of one room and kitchen, which is available with the Respondent and is part of the portions presently in possession of the Respondent and shown in the Site Plan."

6. No opportunity was sought by the petitioner to rebut the facts

stated in his affidavit by the respondent-landlord. It was submitted by

the learned counsel for the petitioner- tenant that this being a case of

requirement of additional accommodation the trial Court should have

granted leave to defend to the petitioner-tenant in view of the decision

of the Supreme Court in the case of "Dr. S.N.Mehra vs Sh.

D.D.Malik" (Civil Appeal No. 120/90) wherein it was held that cases

of requirement for additional accommodation by the landlord should

not be decided summarily and leave to defend should be granted to the

tenant. It was also submitted that the petitioner had sought leave to

amend the leave application before the trial Court to plead that the

respondent-landlord had sold four rooms in the property in question

after getting them vacated from other tenants in the year 1998 which

showed that his requirement of the premises in dispute was not bona

fide but the amendment application was rejected. Thereafter the

petitioner had taken that plea in his rejoinder to the reply of the

respondent to the leave application but still the trial Court did not take

consider that plea while passing the impugned order erroneously on

the ground that the facts pleaded in the rejoinder could not be

considered.

7. On the other hand, learned counsel for the respondent-landlord fully

supported the impugned order.

8. From the foregoing narration and particularly the facts noticed

by the learned trial Court in the impugned order as admitted facts

which I have already extracted and about which observations nothing

was commented on behalf of the petitioner-tenant either in the

revision petition or during the course of hearing before this Court by

his counsel, it becomes more than clear that the respondent-landlord

did require the premises in dispute bona fide for his residence and that

the accommodation available to him in the property in question of

which the premises in dispute forms a part was not sufficient. The

petitioner-tenant in his leave application had not pleaded any fact

which would have disentitled the respondent-landlord from claiming

an order of eviction against him from the trial Court eventually and I

am in full agreement with the observation of the trial Court to that

effect. So, rightly the trial Court had declined leave to him to contest

the eviction petition.

9. The grievance of the petitioner - tenant that the learned

Additional Rent Controller was not justified in ignoring his plea taken

in the rejoinder that some months before the filing of the eviction

petition the respondent - landlord had sold four rooms after getting

the same vacated from the different tenants has no substance and is

liable to be rejected. As per Section 25-B (5) of the Rent Act, the

Rent Controller is supposed to grant leave to defend to a tenant only if

he raises certain triable issues in his affidavit. As noticed already, in

the present case the leave to defend application and the accompanying

affidavit of the petitioner - tenant did not contain any averment which

would have become a triable issue except that the respondent -

landlord's requirement was not bona fide since he was living in a

rented property since long. The plea raised in the rejoinder that the

respondent - landlord had sold some rooms after getting them vacated

from different tenants having not been raised in the leave to defend

application or the affidavit could not be taken into consideration by

the Additional Rent Controller and, therefore, the same were rightly

not considered as forming part of the leave to defend application.

10. Just because the respondent - landlord was staying in a rented

accommodation for many years would not make his decision to shift

to his own house to live along with his children mala fide and so that

plea also did not raise any triable issue at all.

11. Considering the family strength of the respondent - landlord

and the accommodation in his possession in the property in question,

as shown in the site plan filed by him and also described in the

affidavit filed in this matter, it can certainly be said that his

requirement for the premises in dispute was bona fide. It is not a case

of any landlord seeking additional accommodation, as was urged by

the learned counsel for the petitioner - tenant, and, therefore, the

decision of the Supreme Court relied upon by him in the case of Dr.

S.N. Mehra vs. Shri D.D. Malik (supra) cannot be pressed into

service.

12. This revision petition being devoid of any merit is dismissed.

P.K. BHASIN,J

February 22, 2012