Faqir Chand @ Faqira vs Padma Devi
2013 Latest Caselaw 4747 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Order delivered on: October 11, 2013

+                      RC. Rev. No.341/2013, C.M. No.14319/2013

       FAQIR CHAND @ FAQIRA                     ..... Petitioner
                    Through Mr.P.S. Yadav, Adv.


                            versus


       PADMA DEVI                                          ..... Respondent
                            Through       Mr.Anurag Jain, Adv.
       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The petitioner (tenant in the suit) has filed the present petition under Section 25B(8) of Delhi Rent Control Act challenging the impugned order dated 8th July, 2013 whereby the eviction order was passed against the petitioner in the petition filed under Section 14(1)(e) of the Act to vacate the tenanted premises i.e. one shop in property bearing No.WZ-16, Shadipur, Main Bazar, District Karol Bagh, Ward No.96, New Delhi, as shown in red in the site plan filed by the respondent. Six months‟ time was granted to the petitioner to vacate the said premises.

2. When the present petition was listed first time on 13 th September, 2013, the following order was passed:

"After arguments, learned counsel for the petitioner upon instructions does not press the present petition on merit. He states that if one year‟s time is extended the petitioner shall

hand over and vacant possession to the respondent. The petitioner shall also pay rent and electricity charges during this period and shall not sublet or create third party interest. Learned counsel for the respondent is agreeable to the suggestion made by the learned counsel for the petitioner. He states that the respondent has no objection if the one year‟s time is granted from the date of eviction order i.e. 8th July, 2013. The petitioner shall hand over the possession on 7 th July, 2014. Let an undertaking by way of affidavit be filed by the petitioner within one week."

3. Since the undertaking was not filed in view of the above said order, the matter was renotified for 27th September, 2013. On the said date, a statement was made by the learned counsel for the petitioner that his client was not agreeable to file the undertaking despite the fact that earlier he was agreeable to vacate the premises if one year‟s time is extended from the date of eviction order dated 8th July, 2013. Left with no option, the matter was heard on merit.

4. The case of the respondent is that the respondent is the owner/landlord of the tenanted premises and the same was required bonafidely by the respondent for running her business/beauty parlour shop as the husband of the respondent expired on 13th June, 2011 and since then there was no source of income of the respondent. Admittedly, the respondent is having three children; one daughter of marriageable age and two sons who are studying. It is not in dispute that the respondent has no source of livelihood and she is not a well educated lady and has no alternative place to run her business from. Thus, her need is genuine and urgent.

5. It is stated in the petition that the petitioner has other suitable place to run his shop i.e. from property bearing No.3013/3, Gali No.18, Ranjeet Nagar, New West Patel Nagar, New Delhi.

6. The petitioner in his affidavit/application for leave to defend inter alia stated that there are three shops. Out of them, one shop is in the possession of the petitioner, one shop is in possession of the other tenant and one shop which is vacant is in possession of the respondent which is shown as room measuring 9‟X14‟ in the site plan by the respondent.

7. The petitioner has averred that the said shop was converted by the respondent into a room in order to get the eviction of the tenanted premises of the petitioner. When the query was made to the learned counsel for the respondent about the conversion of one shop which is in possession of the respondent into room, the learned counsel admitted that the said shop had been converted into room because of shortage of accommodation as the respondent has three children. The learned counsel for the petitioner has not denied that one shop is with another tenant.

8. I have gone through the impugned order as well as the pleadings of the trial court and the revision petition filed by the petitioner. I find that the petitioner has totally failed to raise any triable issue even if the face value of the grounds is taken as correct.

9. It is settled law that in order to succeed in a petition for eviction, the landlord must establish that he/she is the owner and landlord in respect of the tenanted premises and landlord requires premises bonafidely for himself/herself or for any member of his/her family dependent upon him/her and landlord has no other reasonably suitable accommodation.

10. In the application for leave to defend, the petitioner has nowhere disputed the relationship of the landlord and tenant between the petitioner and the respondent. Thus, the first condition of Section 14(1)(e) is fulfilled. With regard to other defences, the learned trial court has given detailed reasons in para 12 of the impugned order which reads as under:

"12. That the petitioner is in possession of one vacant shop which she has converted into a room six months back. 12.1 Respondent has taken defence that the petitioner is having one shop in her use and occupation which she has converted into a room with malafide intention and ulterior motive to create a false ground for filing the present petition. The relevant portion of the affidavit is quoted as under:

"3. That the fact is that the petitioner is having one shop in her use and occupation. But about six months before, the petitioner has converted the said shop into a room with malafide intention and ulterior motive to create a false ground for filing the present petition. It is submitted that in the said property there are three shops, out of them one shop is in possession of the deponent, one shop is in possession of other tenant, and one shop which is vacant is in possession of the petitioner which is shown as room measuring area 9‟X14‟ in the site plan by the petitioner. The fact is that the said shop is converted by the petitioner into a room about six months back and now filed the present petition with malafide intention and ulterior motive to get evicted the tenanted shop from the deponent."

12.2 Thus, it is admitted case of the respondent that out of three rooms on the ground floor of the property:

12.2.1 one ship is in possession of respondent. 12.2.2 One shop is in possession of other tenant. 12.2.3 One shop which is vacant is in possession of the petitioner measuring 9‟X14‟ which has been converted into a room by the petitioner about 6 months back. 12.3 Thus, admittedly there are three rooms on the ground floor, out of which one room is in possession of the petitioner which is being used as a room by the petitioner as a room by the petitioner as on date. The said averment/admission of the respondent is further supported by the photographs which are submitted by the petitioner on 25.09.2012.

12.4 It is interesting to note that while on the one hand the respondent is submitting that the petitioner wants to let out the tenanted shop to some other tenant at a higher rate of rent, on the other hand it is also been submitted by the petitioner that the room in the possession of the petitioner was a shop six months back and has been converted by the petitioner into a room. If the said room was a shop six months back and the motive of the petitioner is to earn money by letting out properties at higher rate of rent, then it is not understood as to why the petitioner would not let out the said room to some tenant at higher rate of rent, and instead use the same as a room, if it was not her requirement.

12.5 Moreover, even if the respondent is believed that the shop was converted into a room six months back by the petitioner, still, it is an admitted that that the said portion of the property is being used as a room by the petitioner for her requirement and it is not lying vacant or unused from where the petitioner can start her intended business to earn her livelihood.

12.6 The court cannot ask the petitioner to convert a room which is used by her as a room for residential purposes into a shop for the convenience of the tenant.

12.7 It may be noted here that the respondent has not challenged the bonafide requirement of the petitioner to the fact that she intends to start a business of beauty parlour from the tenanted premises in order to look after herself and her family. The respondent has also failed to aver as regards any other source of income and as such the requirement of the petitioner seems not only bonafide, rather, highly justified and urgent.

12.8 Further, the respondent has failed to produce any document on record to show that the said room in possession of the petitioner on the ground floor was used as a shop by the petitioner six months back or even prior thereto. 12.9 Thus, this defence taken by the respondent does not raise any triable issue."

11. 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) In the case of Ramesh Chand Vs. Uganti Devi, 157(2009) Delhi Law Times 450, it has been held that while exercising jurisdiction under Section 25(B)(8), this Court does not act as a Court of appeal. This Court has only to see whether the learned ARC has committed any jurisdictional error and has passed the order on the basis of material available before it.

ii) 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."

iii) 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."

iv) 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.

v) 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."

12. In view of the aforesaid case, facts and circumstances of the present case, this court is not inclined to interfere with the impugned order. Consequently, the present petition is dismissed.

13. No costs.

(MANMOHAN SINGH) JUDGE OCTOBER 11, 2013