Indermani vs Ajay Prakash Gupta
2012 Latest Caselaw 6750 Del

*      THE HIGH COURT OF DELHI AT NEW DELHI

+                     R.C. Rev 563/2012

                                          Date of Decision: 26.11.2012

INDERMANI                                          ......Petitioner

                           Through:    Mr. R.S. Kela, Adv.

                                 Versus

AJAY PRAKASH GUPTA                                 ......Respondent

                           Through:    Mr. Shiv Charan Garg & Mr.
                                       Imran Khan, Advs.


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

M.L. MEHTA, J. (Oral)

1. This is a revision petition under Section 25 B (8) of the Delhi Rent Control Act (for short "the Act"), assailing the order dated 06.06.2012, passed by the court of Sh. S.K. Malhotra, SCJ cum RC, North Delhi, whereby the leave to defend application was dismissed and an order of eviction was passed.

2. The facts of the case leading to the passing of the impugned order are as under. The petitioner was a tenant in respect of two rooms, kitchen, bathroom, covered verandah in front of the aforesaid two rooms, open terrace till brick wall and common WC on the second

floor of property bearing municipal no. 6571, Block-D, Kamla Nagar, Delhi-110007 (hereinafter referred to as "the tenanted property"). An eviction petition was filed on 11.02.2011 by the respondent on the ground of bonafide requirement u/S 14 (1) (e). In the petition, the respondent submitted that the tenanted premises is required for residential purposes for his family, consisting of his wife and two children, a son aged 24 years and a daughter aged 22 years. He required three rooms for himself and his family, one drawing and dining room and one puja room. As the respondent has close relatives who visit him often, an additional room was needed as the guest room. The respondent also required a computer cum study room for his 22 year old daughter and a room for his attendant. In addition, the respondent also required a garage as he was maintaining one car, a scooter and a bike. In the eviction petition, the respondent submitted that the previous landlady was his mother, Smt. Chanderpati Devi. It has been mentioned that the respondent‟s mother had filed an eviction petition bearing no 309/80 titled as "Smt. Chanderpati Devi vs. Smt. Indermani" on the ground of bonafide requirement. An order of eviction was passed by the Ld. ARC on 30.01.1984. This order was challenged in the High Court and later in the Supreme Court, wherein the eviction order was upheld. Smt. Chanderpati could not file the execution petition as she expired on 09.07.1984. It was further submitted by the respondent that one shop on the ground floor was sold to one Sh. Raj Kumar. One godown was occupied by Sh. Satya Narain Gupta. One garage is in the use and occupation of a tenant Sh. Om

Prakash and the mezzanine floor above this had been sold to Sunita Bajaj on 13.01.1997. On the first floor, the respondent was the owner of three living rooms, one kitchen, one puja cum store room, one bathroom and one common W.C. It was also submitted that one of the rooms on the backside, which was in the ownership of the respondent, is in the use and occupation of Sh. Anil Prakash Gupta, his brother. The respondent also submitted that he did not have any other suitable accommodation in Delhi for residential purposes.

3. In the leave to defend application, the petitioner/tenant has brought up various issues. Firstly, he contended that the suit was bad for non-joinder of parties as the respondent‟s brother Sh. Anil Prakash Gupta was also a co-owner and co-landlord in the property in which the tenanted premises was located. His second contention was that the landlord has alternative accommodation, information of which was to be further collected and submitted. Consequent to the plea taken in the leave to defend application, the petitioner, in the rejoinder submitted that the respondent/landlord had registered himself for allotment of plot under Rohini Residential Scheme, 1981 against priority No. 11748. It was further contended that the respondent had been allotted the plot against the specified number and has also built a residential house thereon. The petitioner also contended in the leave to defend application that the brother of the respondent, Sh. Anil Prakash Gupta, who purportedly was occupying a room on the first floor as permissive user, had separately owned and possessed another property bearing No

14/3, Shakti Nagar, Delhi and that his family resides in the said property. The petitioner also challenged the ownership of the landlord by submitting that the Will executed by the respondent‟s mother, Smt. Chanderpati Devi in favour of him and his brother was not genuine. All these averments have been denied by the respondent landlord.

4. The Ld. ARC vide the impugned order dismissed the above- mentioned contentions of the petitioner stating that the rent controller has to confine himself to the affidavit filed by the tenant and a reply to it, if any. By placing his reliance on the judgment of the Apex Court in "Precision Steel & Engineering Works & Anr v. Prem Deva Niranjan Deva Tayal, AIR 1982 SC 1518", the Ld. RC dismissed the leave to defend application, stating that on examining the affidavit and reply, the controller has to ask himself only one question- whether the affidavit discloses, not proves, such facts that would disentitle the landlord from obtaining an order for recovery of possession.

5. It is settled law that the tenant should only disclose such facts in his affidavit that would disentitle the landlord from recovering possession of the disputed premises. At the stage of granting the leave to defend, the Rent Controller should confine himself to the affidavit and reply, if any. The controller does not have the task of testing the veracity of the issues raised by the tenant, since that stage of the case will arise only after a leave to defend application has been allowed. The level of proof at this stage is that of a prima facie case. Reference at this point can be made to the landmark judgment of the Apex Court

in "Precision Steel Engg vs. Prem Deva Niranjan Deva Tayal, (supra)", wherein it was held that:-

"If the averments in the affidavit disclose such facts which, if ultimately proved to the satisfaction of the Court, would disentitle the landlord from recovering possession, that by itself makes it obligatory upon the Controller to grant leave. It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. It is distinctly possible that a tenant may fail to make good the defence raised by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown."

6. Further, the above cited case also poses a statutory duty on the Controller to grant leave to defend, if the tenant is able to disclose certain facts which would have to be tested at a later stage. Relevant paragraphs of the judgment are as under:-

"Statutory duty is cast on the Controller to give leave as the legislature uses the expression 'the Controller shall give' to the tenant leave to contest if the affidavit filed by the tenant discloses such fact as would disentitle the landlord for an order for recovery of possession. The Controller has to look at the affidavit of the tenant seeking leave to contest. Browsing through the affidavit if there emerges averment - of facts which on a trial, if believed, would non-suit the landlord, leave ought to be granted. Let it be made clear that the statute is not cast in a negative form by enacting that the Controller shall refuse to give to the tenant leave to contest the application unless the affidavit filed by the tenant discloses such facts as would disentitle the landlord from

obtaining an order etc........ The language of sub-section 5 of section 25B casts a statutory duty on the Controller to give to the tenant leave to contest the application, the only pre-condition for exercise of jurisdiction being that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of 13; possession of the premises on the ground mentioned in section 14(1) (e)."

Keeping the above principle of law in mind, I have heard the Ld. Counsels for the parties and have examined the documents on record and the impugned order.

7. In the present case, the petitioner tenant raised the issue that the respondent landlord had registered for a plot under the Rohini Residential Scheme, 1981 and that a plot bearing No. 11748 has been allotted to him and that a residential house has already been built. This alleged fact was brought up by the petitioner in the rejoinder to the reply filed against the leave to defend application. The landlord in his eviction petition specifically denied the existence of any other property in Delhi. It is only fair that the landlord has to come to the court with clean hands. He cannot conceal relevant information that may go against his favour. In the case of "Mohd Illyas v. Nooruddin & Ors, 184 (2011) DLT 590", the landlord concealed the fact that he had another property measuring around 300 sq yards. This court held the fact of concealment to be a triable issue. The judgment stated that:-

"3........The triable issue sought to be raised by the petitioner is that the landlord has not approached the Court with clean hands; he has a huge property

measuring about 300 sq. yards at 5310. Sadar Bazar, Delhi which can be fit for the needs of the respondents;

this factum has deliberately been concealed.....Submission of the petitioner that this factum of the concealment of this fact as aloes the area which is in possession of the landlord not having been disclosed, contention of the tenant being that a reasonably suitable accommodation is available with the respondents and this has raised a triable issue.

4. This submission of the petitioner has force. Present case has thus raised a triable issue...."

8. The other issue raised by the petitioner tenant was that the brother of the respondent, Sh. Anil Prakash Gupta was not in occupation of a room on the first floor of the disputed property as permissive user, but that he was residing separately in property bearing No 14/3, Shakti Nagar, Delhi, along with his family. This becomes a triable issue as to whether the room, allegedly in occupation of the brother, was available to the respondent at the time of filing the eviction petition. If the brother is in fact in occupation of the said room, it is relevant to be seen as to whether he has occupied the same as a dependent on the respondent landlord. The term „bonafide requirement‟, as stipulated in the Act, is not only confined to requirement of the landlord, but also those persons who are dependent on him. Thus it is pertinent to dwell into this issue further by producing evidence.

9. Lastly, there had already been an eviction petition filed by the respondent‟s mother Smt. Chanderpati Devi in the year 1984, on the

ground of bonafide requirement, which was adjudged in her favour by the Ld. Rent Controller and an eviction order was passed. This eviction order was upheld in the High Court as well as the Supreme Court. Smt. Chanderpati could not file an execution petition as she expired on 09.07.1984. As the legal representatives of the deceased landlady, the fact that the respondent had not taken any steps to file an execution petition and carry out the eviction order at that time i.e. in 1984, and also for such a long time, becomes a triable issue.

10. Thus, it is evident that the petitioner tenant was able to raise certain issue, the veracity of which ought to be tested. Rent control laws were enacted to strike a balance between the rights of the tenants as well as those of the landlord. The petitioner tenant was able to raise certain triable issues and cannot be thrown out at this threshold. Doing so would defeat the purpose for which the Act was created.

11. In light of my above discussion, I find that the Ld. RC has erred in denying the petitioner tenant the leave to defend. This petition is thus allowed and the leave is granted to the petitioner to contest the eviction petition. The parties are directed to appear before the Rent Controller on 19.12.12. The petition is hereby allowed.

M.L. MEHTA, J.

NOVEMBER 26, 2012 rmm