Om Prakash Sehgal vs Mohd. Shamim
2013 Latest Caselaw 5207 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Order delivered on: November 13, 2013

+                             RC. Rev. No.417/2013

       OM PARAKSH SEHGAL                                        ..... Petitioner
                    Through               Mr.Abinash K. Mishra, Adv.

                              versus

       MOHD. SHAMIM                                             ..... Respondent
                              Through     None

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

C.M. No.17979/2013 (exemption) Exemption allowed, subject to just exceptions.

The application is disposed of.

RC. Rev. No.417/2013 & C.M. No.17978/2013 (for stay)

1. The petitioner (respondent in the eviction petition) has challenged the order dated 14th August, 2013 passed by the Addl. Rent Controller (Central), Tis Hazari, Delhi in eviction petition bearing No.E-04/11 whereby the petitioner's application for leave to defend was dismissed and the eviction order was passed against the petitioner/tenant and in favour of the respondent/landlord in respect of the tenanted premises, i.e. one room, kitchen, bath, WC latrine and courtyard at the first floor and Barsati with open terrace at the second floor of property No.1989, Kucha Faulad Khan, Kucha Chalan, Delhi-06, as shown in red colour in the site plan filed along with the eviction petition.

2. The case of the respondent before the learned Trial Court was that the respondent is the owner and landlord of the above said property including the tenanted premises. The mother of the petitioner was a tenant in the tenanted premises at a monthly rent of `33/-. The rent deed dated 6th April, 1990 was executed by the mother (deceased) of the petition in favour of the respondent. On 9th September, 2002 the respondent issued a legal notice through counsel and asked the mother of the petitioner to deposit arrears of rent with effect from 1st March, 1999 up till 31st August, 2002 and an amount of `1386/- @ `33/- per month which was not paid by her or tendered inspite of the repeated reminders. The petitioner as well as his mother did not fulfill the clause of the agreement, therefore, the respondent had terminated the contractual tenancy.

3. The respondent is residing on the ground and first floors of the property bearing House No.1398, Haveli Kallu Khawas, Chitli Qabar, Delhi with his wife, two sons, two daughters-in-law with their children, which is not sufficient area for the respondent and his family members for residing and the respondent is facing acute hardship with his family. The area of the said property is about 59 Sq. Yards.

4. It was also alleged by the respondent in the eviction petition that despite of request, the petitioner made the addition/alteration in the tenanted premises and a written notice in this regard was given. Since the respondent was not interested anymore to keep the petitioner as tenant due to various reasons, therefore, the eviction petition was filed against the petitioner under Section 14(1)(e) of the Delhi Rent Control Act, 1958.

5. Upon service, the petitioner filed the application for leave to defend, alleging therein that the full disclosure of the facts has not been made by the

respondent who has not come before the Court with clean hands. Even, the site plan was not the correct one filed by the respondent. It was also alleged that in the house where the respondent at the time of filing of the eviction petition was residing is built on 100 Sq. Yards area and is a four storeyed house. As far as the tenanted premises is concerned, the same consists of a shop on the ground floor and three rooms above, which are in occupation of the respondent. The respondent is also having one plot at Khureji and another house at Seelampur, Delhi. Thus, the respondent did not need the tenanted premises bonafide for his own use or for the use of his alleged family members.

6. Reply-affidavit to the application for leave to defend was filed by the respondent who has specifically denied that the house, in which the respondent is residing, is built up on 100 Sq. Yards, rather submitted that the same is built up on 59 Sq. Yards up to four storey, our of which 2 nd and 3rd floors with terrace have already been sold to Sh. Mohd. Farooq S/o Abdul Salam in the year 2010. It was further submitted that the respondent having no source of income had borrowed a sum of `1 lac from Mohd. Farooq in the year 2002 when the marriage of Ms.Shagufta Parveen took place and again borrowed a sum of `1,50,000/- when the marriage of second daughter Ms.Sehma Parveen of the respondent took place. It was also submitted that in the year 2010, Mohd. Farooq demanded the money back along with interest from the respondent but the respondent could not arrange the same and he ultimately sold the 2nd and 3rd floors with terrace vide GPA dated 18th February, 2010. The remaining two floors, i.e. ground and first floors both comprising with two rooms, kitchen, latrine and bathroom are in use and occupation of both sons of the respondent, namely, Abdul Naim and

Mohd. Naim having two children, namely, Abdul Aleem 7 years old and Baby Rimsha Parveen, aged 4 years and Mohd. Faim having one daughter namely Mahira Noor, aged 3½ years, are residing therein with their respective families. The portion shown in red colour in the site plan is in use and occupation of the sons of the respondent and portion shown in green is in possession of Mohd. Farooq. It was submitted that the said material facts are very well within the knowledge of the petitioner.

7. It was also denied by the respondent that the tenanted premises consists of one shop on the ground floor and three rooms above and the same are in occupation of the respondent, rather only three shops on the ground floor are in use and occupation of the respondent in which the sons of the respondent are running a Bakery in the name and style of Blue Diamond Bakery. It was specifically denied in the reply that the respondent has 10 rooms where he is residing in the property No.1398, Haveli Kallu Khawas which is built up to four storeys. It has already been stated that the 2nd and 3rd floors have been sold whereas the ground and first floors are in use and occupation of the sons of the respondent.

8. The question before this Court is, as to whether said findings call for any interference by the Courts in revisionary jurisdiction or not in view of the facts and circumstances of the present case.

i) A Full Bench of this Court in Mohan Lal v. Ram Chopra and Anr., 1982 (2) RCJ 161 exhaustively considered the provisions of Section 25B of the Act. On the scope of the proviso to Sub-section (8) of this Section, after examining the judgment of Supreme Court in Hari Shanker and Ors. v. Rao Girdhari Lal Chowdhury, A.I.R. 1963 S.C.

698 and Bell and Co. Ltd. v. Waman Hemraj, AIR 1938 Bom (223) it was laid down as follows:

"In our opinion the jurisdiction of the High Court under proviso to Section 25B(8) has to be interpreted, keeping in view the legislative intent. The revision under Section 25B(8) cannot be regarded as a first appeal and nor can it be as restricted as the revisional jurisdiction under Section 115 CPC. The High Court would have jurisdiction to interfere if it is of the opinion that there has been a gross illegality or material irregularity which has been committed or the Controller has acted in excess of his jurisdiction or has not exercised the jurisdiction vested in him. A finding of fact arrived at by the Controller would not be interfered with by the High Court unless it can be shown that finding has been arrived at by misreading or omitting relevant evidence and this has resulted in gross injustice being caused. If none of the aforesaid circumstances exist the High Court would not be entitled to interfere with the order of the Controller in exercise of its jurisdiction under proviso to Section 25B(8) of the Act."

ii) In the case titled as Shiv Sarup Gupta vs. Dr.Mahesh Chand Gupta, reported in AIR 1999 Supreme Court 2507, it has been held as under:-

".....The revisional jurisdiction exercisable by the High Court under S.25-B (8) is not so limited as is under S.115, CPC nor so wide as that of an Appellate Court. The High Court cannot enter into appreciation or re-appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a Court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of 'whether it is according to law'. For that limited purpose it may enter into reappraisal of evidence, that is, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no

reasonable person acting with objectivity could have reached that conclusion on the material available. Ignoring the weight of evidence, proceeding on wrong premise of law or deriving such conclusion for the established facts as betray the lack of reason and/or objectivity would render the finding of the Controller 'not according to law' calling for an interference under proviso to sub-sec. (8) of S.25-B of the Act. A judgment leading to miscarriage of justice is not a judgment according to law."

iii) The Supreme Court in another case tilted as Chaman Prakash Puri vs. Ishwar Dass Rajput and Another, 1995 Supp (4) Supreme Court Cases 445 has examined with regard to High Court's power to interfere in revision against the finding as to bonafide requirement of landlord. It has been held that if the Rent Controller finds that landlord was in bonafide need of premises, the High Court in revision was not entitled to re-appreciate evidence and reverse the finding.

iv) The Apex Court in Sarla Ahuja versus United India Insurance Company Ltd., reported in AIR (1999) SC 100 held as under:-

"6. .....The above proviso indicates that power of the High Court is supervisory in nature and it is intended to ensure that the Rent Controller conforms to law when he passes the order. 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 words, 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 25-B. 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."

It was further held by the Supreme Court in case (supra) that:-

"......The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."

9. The learned Trial Court after hearing both the parties had come to the conclusion that the respondent and his family consist of six adults and three minor children who are residing in House No.1398 consisting four rooms only which are not sufficient for residential needs of his family. The numbers of family members are not disputed by the petitioner. The respondent has also placed on record the General Power of Attorney dated 18th February, 2010 in support of his contentions that the 2 nd and 3rd floors of property bearing House No.1398 have been disposed of in favour of Mohd. Farooq before filing of the eviction petition, in order to clear the loan taken by him for the marriage of his two daughters.

10. On the contrary, the petitioner has not placed on record any document to show that the respondent is in occupation of second, third and terrace floors of the property No.1398. The petitioner has also not placed on record

any material to show that the site plan of the respondent qua property No.1989 is incorrect, nor he has led any evidence to show that the respondent is the owner of other plot and house at Khurezi Khas and Seelampur which is otherwise denied by the respondent/landlord.

11. In view of the above, I agree with the findings of the learned trial Court that no triable issue was raised by the petitioner. Thus, the eviction order has been rightly passed in favour of the respondent.

12. While passing the eviction order on 14th August, 2013, the petitioner/ tenant was given six months time to vacate the tenanted premises which is expiring on 13th February, 2014. Considering the hardship raised by the petitioner as well as the facts and circumstances of the present case, the period for eviction of the tenanted premises is extended up to 31 st December, 2014. It is directed that the petitioner shall hand over the vacant and peaceful possession of the tenanted premises, i.e. one room, kitchen, bath, WC latrine and courtyard at the first floor and Barsati with open terrace at the second floor of property No.1989, Kucha Faulad Khan, Kucha Chalan, Delhi-06, as shown in red colour in the site plan filed along with the eviction petition, to the respondent positively by 31 st December, 2014. It is also directed that during this period, the petitioner shall not sublet or create third party interest in the tenanted premises and shall also pay the agreed rent and other charges to the respondent regularly.

13. The present petition is accordingly dismissed along with the pending application. No costs.

(MANMOHAN SINGH) JUDGE NOVEMBER 13, 2013