Delhi High Court
Jasbir Singh vs Kishan Lal on 1 May, 2012
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:01.05.2012
+ RC.REV. 194/2012 & CM Nos.7905-07/2012
JASBIR SINGH ..... Petitioner
Through Mr. A. Maitri, Adv.
versus
KISHAN LAL ..... Respondent
Through None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 Impugned judgment is dated 02.02.2012. The application filed by
the tenant seeking leave to defend had been dismissed. The eviction
petition filed by the landlord Kishan Lal seeking eviction of his tenant
Jasbir Singh from the disputed premises i.e. a shop forming a part of
property No. A-7/52, Main Road, Lal Quarter, Krishan Nagar, Delhi
under Section 14 (1)(e) of the Delhi Rent Control Act (DRCA) had been
decreed.
2 Record shows that the present eviction petition has been filed by
the landlord on the ground of bonafide requirement; the petitioner
claims himself to be owner of the suit premises. His contention is that he
has two sons namely Rajat Arora and Deepak; younger son Rajat Arora
is running his readymade garment shop if the rear portion of the suit
property; Deepak who has non-speaking terms with his younger brother
is aged 40 years; he is unemployed; present premises are required by the
petitioner for his elder son Deepak to run his business as Deepak is
dependent solely upon his father for his need for accommodation; his
son Deepak requires the disputed premises where he wishes to start his
own business which shop falls at the front side.
3 The application seeking leave to defend has been perused. By and
large the averments are to the effect that Rajat Arora has a shopt at A-
10, East Krishan Nagar, Delhi; Deepak is employed for the last one
year; in the earlier part of the petition, it has been denied that Deepak is
the son of the petitioner; contention being that the petitioner has only
one son.
4 Corresponding paras of the reply to the application seeking leave
to defend have been perused. It is denied that the petitioner has only one
son; it has been reiterated that Deepak and Rajat are both the sons of the
petitioner and to support this submission, the election I card and the
driving license of Deepak have showing name of Deepak also been
placed on record.
5 These are by and large the contentions raised by the tenant.
6 In (1982) 3 SCC 270 Precision Steel & Engineering Works &
another Vs. Prem Devi Niranjan Deva Tayal the Apex Court has held
that the prayer 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.
7 The counsel for the petitioner has also drawn attention of this
Court to a document dated 03.02.2012; contention is that by virtue of
this document which is a rent deed, the present landlord Krishan Lal has
given on rent a shop in the same property which has since been vacated;
contention is that this document if taken on record would throw light on
the controversy in question and would automatically entitle the tenant to
leave to defend. This document (admittedly only a photocopy of the
document has been placed on record) is dated 03.02.2012; the impugned
order is dated 02.02.2012; admittedly this document was not even
created at the time when the eviction order was passed; it could
obviously not form a part of the application seeking leave to defend.
Triable issues have to emanate from the pleadings of the parties which
includes the application filed by the tenant seeking leave to defend; no
such triable issue has arisen. That apart the reply filed to this pending
application (filed before this Court) has disputed the veracity of this
document; contention on the tenant on this count is that this document
can be proved in accordance with law and matter should be remanded
back. If such like prayer are granted, the whole purport and import of
the summary procedure contained in Section 25-B of the DRCA would
be defeated; this summary procedure has been engrafted for a special
class of landlords including a landlord who seeks eviction under Section
14 (1)(e) of the DRCA. Upon service, the application seeking leave to
defend has to be filed within a stipulated period of 15 days; this is a
mandatory provision. If no triable issue emanates from the pleadings of
the parties which includes the application seeking leave to defend (as
noted supra), leave to defend should not be granted in a routine or
mechanical manner. At the cost of repetition, if the aforenoted
averments contained in the application are permitted and the disputed
document is to be taken on record which was admittedly after the filing
of the eviction petition, the whole purpose of providing a stipulated time
period of 15 days for filing an application seeking leave to defend would
be given a go-bye; there would be an automatic extension for filing an
application for leave to defend. Even otherwise, it is only a photocopy of
this document which has been filed on record; it is also not a registered
document. An application under Order XLI Rule 27 of the Code of Civil
Procedure (hereinafter referred to as the 'Code') necessarily postulates
certain pre-conditions before which the prayer made in such an
application can be entertained; the application must aver that inspite of
due diligence, the additional evidence which is now sought to be
produced could not be adduced in the court below or inspite of due
diligence the applicant could not get his hands on the said document.
The document which is now sought to be filed in additional evidence is
a document which has been created after the judgment has been
delivered by the trial Court; the impugned order is dated 02.02.2012 and
the document is dated 03.02.2012. That apart the necessary ingredient of
Order XLI Rule 27 of the Code have not been pleaded in the application.
This provision would thus be wholly inapplicable to the averments made
in the present application. This application has been filed malafide; it
cannot be entertained at this stage.
8 In this background, the averments made in the eviction petition
clearly establish the need of the landlord for the disputed shop which is
for the purpose of the business of his elder son Deepak who is
unemployed and who is also dependent upon his father for his
accommodation.
9 No other argument has been urged or argued.
10 Thus, the impugned order decreeing the petition of the landlord
and dismissing the application of the tenant seeking leave to defend does
not suffer from any infirmity. Petition is without any merit. Dismissed.
INDERMEET KAUR, J
MAY 01, 2012
A
