Pushpender Singh vs Raj Kumar Kashyap
2012 Latest Caselaw 5811 Del

*          THE HIGH COURT OF DELHI AT NEW DELHI

+                              R.C.Rev No. 188/2012

                                                 Date of Decision: 27.09.2012
PUSHPENDER SINGH                                         ...... Petitioner

                               Through:      Mr. Narender Sharma
                                             Mr. Kamal Sharma, Advocate.

                                        Versus

RAJ KUMAR KASHYAP                                       ...... Respondent

                               Through: Mr. Harminder Singh, Advocate.

+                              R.C.Rev No. 190/2012

PUSHPENDER SINGH                                        ...... Petitioner

                               Through:      Mr. Narender Sharma
                                             Mr. Kamal Sharma, Advocate.

                                        Versus

NOOR MOHD                                               ...... Respondent

                               Through: Mr. Harminder Singh, Advocate.

+                              R.C.Rev No. 191/2012

PUSHPENDER SINGH                                        ...... Petitioner

                               Through:      Mr. Narender Sharma
                                             Mr. Kamal Sharma, Advocate.

                                        Versus
RCR Nos.188/2012, 190/2012 & 191/2012                         Page 1 of 7
 SARDAR BALJEET SINGH                                ...... Respondent

                               Through: Mr. Harminder Singh, Advocate.

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

M.L. MEHTA, J. (Oral)

1. By this common order the aforesaid three revision petitions are being disposed of as common questions of facts and law are involved. These three petitions arise out of the three separate orders passed by Learned Additional Rent Controller, in the eviction petitions filed by the petitioner against the respondents in respect of their respective rented shops in the suit premises bearing No. B-8, Old Plot No. 43, Block-5, Kanti Nagar, Shahdara. The petitioner had filed separate eviction petitioners against the respondents, wherein the respondents filed leave to defend applications, which were allowed by the ARC vide separate impugned orders, which are under challenge in the instant petitions.

2. The eviction of the respondents was sought by the petitioner from their respective shops on the ground of his bona fide requirement for opening showroom of electronic goods in all these shops. His case is that he does not have any other reasonably suitable commercial accommodation in Delhi and that he has been visiting Australia for job purposes, but now he wants to settle permanently in Delhi to do his business in these shops. The respondents disputed the bona fide requirement of the petitioner alleging him to be not requiring these suit

shops, and also having sufficient accommodation on the ground floor as also on the first and the second floor. It was also alleged by all the respondents that the petitioner has got vacated one shop from the tenant Gurmeet Singh on 15.12.2011 and has let out the same immediately thereafter to another tenant on 18.12.2011. It was their case that on the back of this shop, the petitioner has sufficient accommodation comprising of hall and store, which can be used for commercial purposes.

3. The Learned Addl. Rent Controller has allowed the leave to defend applications, observing the respondents having raised triable issues as regard to the bona fide requirement of the petitioner.

4. I have heard learned counsel for the petitioner and the respondents and perused the record including the impugned order.

5. At the outset, I must reiterate that the powers of this Court under Section 25 -B (8) of the Act are not as wide as those of Appellate Court, and in case it is found that the impugned order is according to law and does not suffer from any jurisdictional error, this Court must refrain from interfering with the same. The power under this provision is limited and supervisory in nature. Only when it is evident that the Rent Controller has committed grave illegality or came to a conclusion which was not possible, based on the material produced, should this Court interfere in the order passed by the Rent Controller. In Sarla Ahuja vs. United India Insurance Co. Ltd. AIR 1999 SC 100 the Apex Court has held as under:

"The satisfaction of the High Court when perusing the records of the case must be confined to the limited sphere that the order of the Rent Controller is "according to the law." In other works, the High Court shall scrutinize the records to ascertain whether any illegality has been committed by the Rent Controller in passing the order under Section 25B. It is not permissible for the High Court in that exercise to come to a different fact finding unless the finding arrived at by the Rent Controller on the facts is so unreasonable that no Rent Controller should have reached such a finding on the materials available."

6. The two shops are in possession of respondent Baljeet Singh, one shop in possession of respondent Noor Mohammad and one shop in possession of respondent Raj Kumar Kashyap. The shop which was admittedly got vacated from Gurmeet Singh on 15.12.2011 and was let out to another tenant on 18.12.2011 is adjoining the shop of Raj Kumar Kashyap. Learned counsel for the petitioner submitted that this shop which was vacated by Gurmeet Singh is in gali and is of much smaller size, and so being not sufficient for the petitioner to open a showroom, was let out to another tenant on 18.12.2011. The undisputed fact is that the petitioner himself stated to be frequently visiting Australia for his business, and has now decided to set up his business of selling of goods of electronics in a showroom in all the four shops in possession of the respondents. There is no dispute that the petitioner is the master of his decision, and neither the tenant nor this court can dictate upon him as to the manner in which he should conduct his business and use

his premises, but, it is settled law that mere wish and desire to have the tenanted premises is not the decisive factor. In a case like this, where the petitioner has been frequently visiting Australia for business purposes, and there is nothing on record to show that he has ever done any business in India, his projected bona fide requirement of the four tenanted shops would require to be tested. The burden in this regard would lie upon the petitioner to prove his requirement and his assertion of projected requirement of the four tenanted shops. In the case of Charan Dass Duggal Vs. Brahma Nand (1983) 1 SCC 301, the Supreme Court observed as under:-

"7. ........Burden is on the landlord to prove his requirements and his assertion is required to be tested more so when it is shown that for long he is staying outside Delhi, that he has a building albeit standing in the names of his sons and daughters where he is staying and at which place he receives his normal correspondence. If in such a situation one can say that a triable issue is not raised, one is at a loss to find out where, when and in what circumstances such an issue would arise. We are, therefore, satisfied that this is a case in which triable issues were raised and both the learned Rent Controller and the High Court were in error in refusing to grant the leave."

7. It is settled legal proposition that leave to defend is granted to the tenant in case any triable issue is raised before the trial Court, which can be adjudicated by consideration of additional evidence. At the stage of granting leave, the real test should be whether facts disclosed in the affidavit filed while seeking leave to defend, prima

facie show that the landlord would be disentitled from obtaining an order of eviction 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. If the application filed under Section 25-B discloses some substantial triable issues, then it would be grave injustice to brush them outrightly without testing the veracity of the claims made by the tenant/applicant. In Charan Dass Duggal vs. Brahma Nand (supra), while dealing with the issue of leave to defend the Apex Court has held thus:

"5. What should be the approach when leave to defend is sought for? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought for, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action (see Santosh Kumar v. Bhai Mool Singh). At the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counter-assertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought for on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere

desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively. If as it appears in this case, the landlord is staying at Pathankot, that a house is purchased, may be in the name of his sons and daughters, but there may not be an apparent need to return to Delhi in his old age, a triable issue would come into existence and that was sufficient in our opinion to grant leave to defend in this case."

8. In view of the above discussion, I do not see any illegality and infirmity in the impugned order warranting interference by this court. The petitions have no merit and are dismissed.

M.L. MEHTA, J.

SEPTEMBER 27, 2012 pkv