Accebeen Steel Pvt. Ltd. & Ors vs Jai Shree Khanna
2012 Latest Caselaw 4348 Del

*      THE HIGH COURT OF DELHI AT NEW DELHI
+                  RC Rev. 290/2012

                                           Date of Decision: 23.07.2012

ACCEBEEN STEEL PVT. LTD. & ORS          .... PETITIONER
                 Through: Mr. K.K. Bhuchar, Advocate.

                          Versus

JAI SHREE KHANNA                              ......RESPONDENT
                          Through:     Mr. Sanjiv Bahal and Mr. Eklavya
                                       Behal, Advocate.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. The present Civil Revision Petition has been preferred U/S 25-B(8) of Delhi Rent Control Act (DRC Act) r/w S. 115 CPC against the order dated 21.03.2012 passed by Learned Senior Civil Judge-cum-Rent Controller wherein, the leave to defend application filed by the petitioner in eviction petition E-32/2009 was dismissed.

2. The eviction petition was filed by the respondent in respect of property bearing No. 19 Nizamuddin East, New Delhi. The suit property was let out by predecessor in interest of respondent to the petitioner vide lease deed dated 01.05.1973. The demised property was let out at the monthly rent of Rs.2450/- for residential purposes. In the eviction petition, it was submitted by the respondent that she lives with her husband and son in Mumbai in a tenanted flat. Respondent's husband is the Director of M/s Paramount Dyes and Chemicals Private Ltd. with its offices at Delhi and Gurgaon whereas the respondent is proprietor of M/s

Tribaels India which is a firm dealing in carpets. It was the respondent's case that she and her husband visit Delhi 5-6 times a year and have no place to stay in Delhi and hence require the demised property for herself as well as for her family members who are dependent upon her for residence. The respondent also averred that the first floor of the suit property was occupied by her brother Mr. Anil Verman and hence the first floor was not available to meet the requirement of their family. It is also submitted that the respondent has no other alternative accommodation in Delhi and thus sought the eviction of the petitioner from the suit property on the ground of bona fide requirement.

3. In the leave to defend application filed by the petitioner various contentions were raised disputing the alleged bona fide requirement as projected by the respondent. The relationship of landlord and tenant between the parties was denied by the petitioner. It was further submitted that the respondent has not placed on record any document to prove that she and her husband visit Delhi frequently and hence there was absolutely no bona fide requirement of the respondent qua the suit property. Another ground that was put forth by the petitioner in the leave to defend application was that the brother of the respondent Mr. Anil Verman was permanently settled at Goa and neither he nor his family members were living on the first floor of the suit property. To substantiate this contention, the petitioner also submitted that the brother of the respondent owns property No. D-251, Defence Colony, New Delhi and is not dependent on the respondent for the purpose of residence. While rejecting the contentions made by the petitioner the learned Rent Controller observed that the petitioner has not submitted any document to refute the

claim made by the respondent regarding the occupancy of the first floor of the suit premises by the brother of the respondent. It was further observed that on the basis of the copy of a will placed on record by the respondent the ownership of the suit premises was transferred in favour of the respondent and hence the relationship of landlord and tenant between the parties cannot be disputed by the petitioner. The learned Rent Controller relied on the copies of the air tickets produced by the respondent to conclude that she and her husband were in fact frequently visiting Delhi from Mumbai for business purposes.

4. The impugned order has been challenged by the petitioner on the ground that the learned Rent Controller has committed grave illegality in rejecting the contention of the petitioner that the present case was of requirement of additional accommodation as the first floor of the property was lying vacant and the plea taken up by the respondent that her brother was the occupant of the first floor of the suit property, was a concocted one. It has also been submitted that the present case being of additional accommodation leave to defend should have been granted to the petitioner as held in Dr. S.M. Mishra Vs. D.D. Malik, 2001 (1) SCC 255 and Santosh Devi Vs. Chand Kiran 2001(8) Scale 346.

5. It has been further urged by the petitioner that the copies of air tickets placed on record by the respondent pertained to the period after the filing of leave to defend application and show that respondent has not visited Delhi at any time prior to the filing of eviction petition. It has been submitted that most of the visits to Delhi of the husband of the respondent were during and around the period when the Commonwealth Games were under way and were for the said specified purpose and does

not support the contention of the respondent that she and her husband are frequent flyers to Delhi and hence need the suit property for their residential purposes.

6. On the other hand, the respondent has submitted that there is no requirement of interference with the well reasoned and speaking order of the learned Rent Controller. It has been submitted that no triable issue was established by the petitioner which would merit the grant of leave to defend application to him. It has been submitted that in case of ample proof of bona fide requirement by the landlord, the application for leave to defend deserves to be dismissed. Reliance has been placed on Saroj Khemka Vs. Indu Sharma & Anr. 2000 (54) DRJ.

7. I have heard the rival submissions and perused the record.

8 I am in agreement with the observation of the learned Rent Controller regarding the issue of ownership of the suit property. There can be no dispute that by the virtue of will dated 03.08.1970 executed in favour of the respondent by Smt. Daya Verman who was the owner of the suit property, the title of the property now rests with the respondent and hence the contention of the petitioner that the respondent is not the owner of the property, is untenable.

9. Moving on, the thrust of the arguments adduced by the petitioner is that the factum of occupancy of the first floor of the suit property by the brother of the respondent has not been proved by her and the learned Rent Controller has overlooked the documents produced by the petitioner to refute this claim. From the perusal of mobile bills of the respondent's brother brought on record it is evident that these bills pertain to roaming

charges. This fact casts a shadow of doubt on the claim of the respondent that the first floor of the suit premises is unavailable to her as it is used by her brother for residential purposes. Had Mr. Anil Verman been residing in the suit premises from a long period of time as submitted by the respondent, the mobile bills of his phone would not show him to be in roaming territory. Undisputedly, this is an important triable issue which can be adjudicated only after cross-examination and submission of additional evidence in this regard.

10. Even if it is assumed for the sake of arguments that the brother of the respondent has been residing on the first floor of the demised property, the brother of a married woman cannot be termed as a family member dependent on her for residential purposes. Only the immediate family members of a person can claim the right of residence in the property owned by him/her. This effectively makes it a case of requirement of additional accommodation by the respondent and it is settled legal proposition that in such cases leave to defend must be accorded to the defendant. In Santosh Devi vs Chand Kiran (Supra) it has been held by the Hon'ble Apex Court that it is a case for additional accommodation and looking to the facts and circumstances, especially in the light of the additional accommodation which is subsequently made available to the respondent as mentioned by the appellant, the question of the respondent's need was required to be thrashed on merits by a full fledged trial. In S.M. Mehra vs D.D. Mallik (Supra) the Hon'ble Apex Court has held that there is no need to take a summery procedure since it is a case of additional accommodation.

11. Also it has been contended that the brother of the respondent is the owner of the property in Defence Colony, Delhi. In support of this contention, the petitioner placed on record the Residents Directory of D- Block, Defence Colony which mentions the brother of the respondent to be the resident at D-251, Defence Colony. But this fact seems to have been over looked by the Learned ARC who observed that nothing has been brought on record by the petitioner to prove this fact. In my considerate view, such an observation at the time of deciding the application of leave to defend was erroneous and contrary to settled legal position. The petitioner ought to have been afforded the opportunity to provide additional evidence in support of this claim which was refused to him. This is another very relevant triable issue that was raised by the petitioner and prematurely decided against the petitioner without giving sufficient opportunity to verify its authenticity. In Inderjeet Kaur vs. Nirpal Singh (2001) 1 SCC 706 the Apex Court has held that "13. We are of the considered view that at a stage when the tenant seeks leave to defend, it is enough if he prima facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction......"

12. The respondent has contended that she requires the premises for bona fide requirement of herself and her family and that she and her husband frequently visit Delhi for business purposes. However, the only proof that was submitted to support this contention was air tickets pertaining to the period during and around the Commonwealth Games. There is no document to show that the respondent had visited Delhi at

any time prior to filing of the eviction petition. This raises doubt on the claim made by the respondent that she requires the suit premises for her stay at Delhi at regular intervals. It is pertinent to test the veracity of this claim for the disposal of the eviction petition. The discharge of burden of proof placed on the respondent in regard to this submission is germane to deciding the question of bona fide requirement as alleged by the respondent. In Charan Dass Duggal vs. Brahma Nand (1983) 1 SCC 301 it has been observed by the Hon'ble Supreme Court that the burden is on the landlord to prove his requirements and his assertion is required to be tested more so when it is shown that he is staying outside Delhi. Further in Nandlal Goverdhandhas and Co. Vs. Samratbai Lilachand Shah (AIR 1981 Bom 1) it has been held that bona fide requirement is a state of mind and unless a person claiming requirement is subjected to cross-examination, requirement without his evidence cannot be established. In the present case such burden of proof has not been discharged by the respondent satisfactorily. Travel tickets pertaining to an isolated period of time do not prove the fact of regular visits by the respondent and her husband to Delhi.

13. 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. Where a prima facie case is made out by the tenant which disentitle the applicant from getting the order of eviction against the respondent and at the same time entitle the respondent to leave to defend, it would be erroneous to refuse such permission by outrightly rejecting the triable issues raised by the tenant. At the stage of granting leave to defend, the real test should be

whether the facts disclosed in the affidavit filed seeking leave to defend prima facie shows that the landlord would be disentitled from obtaining an eviction order 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.

14. Applying the aforesaid legal proposition to the current factual matrix, it is evident that the learned Rent Controller committed manifest error in accepting the case of the respondent when the facts were seriously disputed and the veracity of the claims made by the opposing parties was yet to be determined.

15. In my considerate view substantial and important triable issues were raised by the petitioner at the time of filing application leave to defend which should not have been prematurely decided. Having regard to the facts and circumstances of the case it would be erroneous to conclude that no triable issues were raised for consideration.

16. In this background, the impugned order allowing the eviction petition while dismissing the application for leave to defend suffers from illegality and cannot be sustained. The impugned order is accordingly set aside and the petitioner is granted leave to contest the eviction petition. The respective parties are directed to appear before the learned Senior Civil Judge-cum-Rent Controller on 31.7.2012.

17. The petition is accordingly allowed.

M.L. MEHTA, J.

JULY 23, 2012/SS/pkv