Anil Rajora & Ors. vs Kiran Devi
2012 Latest Caselaw 5502 Del

*       THE HIGH COURT OF DELHI AT NEW DELHI
+               R.C.REV. 363/2011

                                        Date of Decision: 13.09.2012
ANIL RAJORA & ORS.                               ......PETITIONER

                          Through:      Mr. Rakesh Tikku, Sr. Adv.
                                        with Mr. Vikas K. Chadha,
                                        Adv.

                               Versus

KIRAN DEVI                                      ......RESPONDENT

                          Through:      Mr. Sudhir Nandrajog, Sr.
                                        Adv. with Mr. S. Bambha and
                                        Mr. Nishant Nandan, Advs.

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

M.L. MEHTA, J.

1. This revision petition is directed against the order dated 23.05.2011 of Addl. Rent Controller (ARC), New Delhi, whereby the leave to defend application filed by the petitioners, in the eviction petition, that was filed against them by the respondent, was dismissed.

2. The respondent Kiran Devi had filed a petition under Section 14(1)(e) of the Delhi Rent Control Act (for short the 'Act') for the eviction of the petitioners from the tenanted premises, forming part of the front portion of shop No. 72-B, Khan Market, New Delhi.

The petitioners filed leave to defend application, which came to be dismissed by the learned ARC vide the impugned order, which is under challenge in the instant petition.

3. Having heard the learned senior counsels for the petitioners as also for the respondent and on going through the record, including the impugned order, it is noted that all the submissions which have been made on behalf of the petitioners are the same, which were raised before the ARC, and which have been dealt with by her elaborately in the impugned order.

4. Being mindful of the scope and extent of revisional power of this court under Section 25-B (8) of the Act, which is not that of the appellate power, I have examined the impugned order in the light of the averments taken by the petitioners in the leave to defend application and the submissions made before me. The learned senior counsel for the petitioners has assailed the impugned order stating that the petitioners have raised various triable issues, which have been erroneously negated by the learned ARC. The foremost submission of the learned senior counsel for the petitioners is that a similar petition, under Section 14(1)(e) read with Section 25-B of the Act, was earlier filed by the respondent, and withdrawn by her on 5.6.2009 and thus, the second petition on the same ground is not maintainable.

5. It is next submitted that the respondent became the owner of the suit premises on 6.3.2007 by virtue of conveyance deed and the present eviction petition filed in August, 2009, is not maintainable, having been filed before the expiry of five years under Section 14(6) of the Act. It is next submitted that the respondent is in occupation of shop No. 66-A in the same market, where she is running her business under the name of M/s. Durga Dass Naval Kishore. It is further submitted that the respondent is in occupation of property bearing No. 63 in the same market, which is also of commercial nature and used by her for composite purposes.

6. With regard to the plea that the petition was not maintainable on account of earlier petition having been withdrawn on 5.6.2009, it is noted by the learned ARC, and rightly so, that a revision petition against the withdrawal of the earlier petition, has already been dismissed. I do not see any infirmity in the observation of the ARC in this regard. In fact, this contention was not seriously pressed by the petitioners' counsel, knowing it to be devoid of any merit.

7. With regard to the question of ownership of the tenanted premises by the respondent, it is noted that conveyance deed dated 6.3.2007 is only a document recognizing and effecting conversion of the property from leasehold to freehold. This clearly shows that this shop was already mutated in the name of the respondent on 17.2.1997 and that, she had been the recorded lessee with all rights

and liabilities. The law with regard to the concept of ownership in the context of Clause (e) to Section 14 (1) of the Act is trite and leaves no doubt that the 'ownership' contemplated in this provision is viz-a-viz 'tenant', which means that the ownership is something more than the tenant. The concept of absolute ownership, which is ordinarily understood, is not required to be determined in such cases. The mutation letter of the L&DO dated 17.2.1997 and also the fact that undisputedly, the petitioners have been treating the respondent as their landlady, and paying rent to her, are enough to repel the contention of the petitioners, raised disputing the ownership of the respondent.

8. The respondent had sought the eviction of the petitioners from the tenanted shop, stating that her three daughters are settled in their matrimonial lives, but one daughter Kamla, who is a divorcee, has been residing with her in the backside portion of the tenanted shop, and she is totally dependent upon her. The respondent also has a son, who is stated to have withdrawn relationships from her and, is running his independent business in a tenanted shop bearing No. 66- A, Khan Market. Her daughter Kamla, who is totally dependent upon the respondent, intends to set up her own business in the tenanted shop to enable them to earn their livelihood. It is also averred that the tenanted shop is more suitable and convenient as they are living in the back portion thereof. With regard to the property being Flat No. 63, Khan Market, it is her case that this is a

residential accommodation and is in the possession of her son, who is living there with his family.

9. In fact, before the learned ARC, the petitioners had filed an application under Section 151 CPC alleging that the daughter of the respondent is not dependent upon her and, is having independent income of her own. However, no such plea was raised before me by the learned senior counsel for the petitioners, nor, there was any dispute raised that the respondent has a widow daughter Kamla, who is residing with her and is dependent upon her. There being no dispute that Kamla is a divorcee and living with the respondent in the back portion of the tenanted shop, there cannot be any dispute that she is dependent upon her mother (respondent) for all purposes and that being so, the respondent is entitled to seek eviction of the petitioners from the tenanted premises for her bona fide requirement as well. Further, nothing is brought on record to substantiate that Kamla has any independent income of her own. In any case, it is otherwise immaterial if Kamla had any income from any other source. There is also no dispute that though aged, about 70 years, but the respondent has been doing business right from the beginning with her husband. Similarly, there being no dispute that the respondent along with her daughter is living in the back portion of the tenanted shop, there can be no dispute that the same would be more suitable and convenient for both the ladies to set up their business.

10. With regard to the plea of the petitioners that the respondent has alternative accommodation at shop No. 66-A and 63, it is undisputed that the shop No. 66-A is under the tenancy of the son of the respondent, where he is doing his own business. In fact, this was the petitioners' own averment that the respondent is not able to run the business and is having rental income and also income from the business being run by her son in shop No. 66-A. There is nothing on record to controvert the plea of the respondent that this shop being 66-A is in exclusive occupation of her son. Similarly, there is nothing on record to controvert the plea of the respondent that the accommodation at 63, Khan Market is residential and is in possession of her son and his family. Rather, in the leave to defend application itself, it is averred by the petitioners that this accommodation is a residential house/flat. Assuming for the sake of argument that the respondent has some interest in the business being run by her son at shop No. 66-A, but that is undisputedly, the rented shop in the tenancy of her son. Thus, this shop could not be said to be alternatively suitable accommodation available with her for enabling her and her divorcee daughter to establish business for earning their livelihood.

11. The learned senior counsel for the petitioners has relied upon certain judgments of this court as also of the Supreme Court. The ratio of all these judgments, which have been relied by the petitioners, is the same that the burden placed on the tenant is light

and limited, in that if the affidavit filed by him discloses such facts, as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in Clause (e) of the proviso to Section 14(1) of the Act, with which this court is concerned in this case, are good enough to grant leave to defend. In other words, it is that if the tenant has been able to make out a triable issue in the leave to defend application, then, he is entitled to grant of leave to defend, so as to enable him to lead additional evidence to prove his defence. There is neither any dispute, nor any controversy with regard to the settled propositions of law regarding considerations at the stage of grant of leave to defend the eviction petition.

12. Having discussed all the pleas which have been raised and the submission made, as above, I do not see any triable issue having been raised by the petitioners, which if proved, would disentitle the respondent to obtain their (petitioners) eviction from the tenanted premises. I do not see any infirmity or illegality in the impugned order of the ARC. The petition has no merit and is hereby dismissed.

M.L. MEHTA, J.

SEPTEMBER 13, 2012/akb