Dev Raj vs Rajinder Jain
2012 Latest Caselaw 4482 Del

*               THE HIGH COURT OF DELHI AT NEW DELHI

+                            RC.Rev. No.351/2012

                                               Date of Decision: 30.07.2012

Dev Raj                                                     ...... Petitioner

                             Through:     Mr. S.K. Sharma, Adv.

                                      Versus

Rajinder Jain                                          ...... Respondent

                             Through:

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

M.L. MEHTA, J. (Oral)

1. The present revision petition has been preferred under Section

25B(8) of the Delhi Rent Control Act (DRCA) assailing the order dated

03.04.2012 passed by the learned ARC whereby eviction order was

passed against the present petitioner.

2. The eviction petition No.E-13/2010 was filed by the

respondent/landlord in respect of one room, tenanted out to the

petitioner/tenant in property bearing No.1663-A, Chawla Bus Stand,

Najafgarh, New Delhi, on the ground of bona fide requirement. It was

stated by the landlord that the property under the tenancy of the tenant

was very old, constructed by mud, with roof made of stone slabs and

requires immediate reconstruction. It was submitted by the respondent

that he has no permanent employment and was earning his livelihood by

engaging in different works at different places. It was submitted by the

respondent that when his business of supply of spare parts did not work

at Delhi, then he moved to Bangalore in search of employment, which

also resulted in utter failure and he was constrained to sell off his house

in order to satisfy the creditors. It was submitted that in view of such

compelling circumstances and absence of any other accommodation, the

respondent required the entire premises for meeting the residential

requirement of himself and his family members and also to start a

business of auto parts. It was further averred that his elder daughter had

recently completed a course of interior designing and wanted to pursue

it professionally and hence also required a separate shop in the suit

premises.

3. The learned ARC was in agreement with the plea of bona fide

requirement of the entire property by the respondent and observed that

in absence of any noticeable triable issue being raised by the petitioner,

the respondent was entitled to an eviction decree and hence passed the

impugned order.

4. The eviction order has been challenged by way of present

proceedings by the learned counsel for the petitioner on the ground that

the learned ARC committed grave illegality in not appreciating the fact

that the respondent is not the owner of the suit property as the family

settlement deed placed on record was not registered and hence

inadmissible in evidence. It has been further contended that the

requirement of the respondent was not bona fide as projected and the

eviction petition has been filed with a view of gaining possession of the

tenanted premises, only to resell it at a higher price. In furtherance of

this contention, the learned counsel for the petitioner has placed reliance

on an Agreement to Sell dated 15.05.2009 executed by the respondent

through his attorney, i.e., his brother, Rakesh Jain with respect to a

portion of the suit property. It has been further averred that the learned

ARC has overlooked the fact that the respondent had sold his house at

Delhi and had moved permanently to Bangalore and it is highly

improbable that he would return to Delhi and reside in the suit premises,

much less to start up a business.

5. It is settled legal principal 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. In Precision

Steel & Engineering Works & Anr. Vs. Prem Devi Niranjan Deva

Tayal (1982) 3 SCC 270, the Apex Court has held that the p4rayer for

leave to contest should be granted to the tenant only where a prima facie

case has been disclosed by him. In the absence of the tenant having

disclosed a prima facie case i.e. such facts as to what disentitles the

landlord from obtaining an order of eviction, the Court should not

mechanically and in routine manner grant leave to defend.

6. Adverting to the issue of ownership of the respondent over the

suit premises, it would suffice to say that this contention raised by the

learned counsel for the petitioner, is misplaced as the present

proceedings are not meant for declaration of title to a property.

Moreover, it does not lie in the mouth of the petitioner to challenge the

ownership of the respondent over the suit property, having regard to the

fact that the petitioner has been paying rent to the respondent for a long

period of time and the principle of estoppel debars the petitioner from

challenging the title of the respondent over the suit property. The fact of

non-registration of the family settlement deed is inconsequential to the

present proceedings. In Praladh Singh Rekhi Vs. Smt. Bhawani Devi

& Anr. 113 (2004) DLT 137, a bench of this Court while dealing with a

similar objection and on the concept of ownership in proceedings under

Section 14(1)(e) of the DRCA had noted as follows :-

".........The proceedings under the said Act cannot be converted and utilized by a tenant to prevent eviction merely on the ground that he seeks to cast doubt on the title of the property which has been inherited when there is really no one else claiming right to the property."

7. Much reliance has been placed on the Agreement to Sell executed

by the brother of the respondent in the year 2009 with regard to 35

sq.yds. out of the total 77 sq.yds. of the suit property. It would be

pertinent to note the contents of the legal notices sent on behalf of the

brother of the respondent to the buyer of the said portion of the suit

property on 04.02.2010 and 05.03.2010. The bare perusal of the said

legal notices shows that the agreement could not materialize between

the respondent and the buyer due to some differences and consequently

the said 35 sq.yds. are very much a part of the suit property. The said

agreement was executed in the year 2009 and the eviction petition was

filed in the year 2010. No adverse conclusion can be drawn from the

fact that the respondent previously intended to sell a portion of the suit

property. An owner of the property has every right to dispose any part

or the property itself in order to meet his or her requirements.

Admittedly, the respondent has tried his luck in many business ventures

and even relocated to Bangalore, but the eventual failures led him to file

the present petition. There is no bar on seeking the possession of a suit

property, which its owner thereof, intended to sell at some point of time,

but could not do so.

8. The respondent had submitted that he intended to construct the

entire plot of land afresh and use it for residential as well as for

commercial purposes. Undisputedly, one of his daughters is also

interested in setting up a business of interior designing in one of the

shops that would thus be erected in the suit premises. All these

requirements as projected by the respondent are quite reasonable, given

the number of members in the respondent's family and the financial

hardships faced by the respondent. I cannot find any mala fide in the

requirement stated by the respondent in the eviction petition. The

landlord is the best judge of his requirement and cannot be deprived of

this right. In Siddalingamma & Anr. Vs. Mamtha Shenoy (2001) 8

SCC 431, the Hon'ble Supreme Court while considering the reasonable

and bona fide requirement of landlord held that the question to be asked

by a judge of facts, by placing himself in the place of the landlord, is,

whether in the given facts proved by the material on record, the need to

occupy the premises can be said to be natural, real, sincere and honest.

If the answer be in the positive, the need is bona fide.

9. In view of above discussion, I do not find any substantial triable

issues that could merit the leave to defend the eviction petition and do

not find any infirmity or illegality in the order passed by the learned

ARC decreeing the eviction. The petition being without any merit is

hereby dismissed in limine.

M.L. MEHTA, J.

JULY 30, 2012 ss/skw