Delhi High Court

M/S.Indo Afgan Chamber Of ... vs Kalawati Devi on 29 January, 2014

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                              Date of Decision: 29.01.2014
+       RC.REV. 273/2013 & CM 11618/2013

        M/S.INDO AFGAN CHAMBER OF COMMERCE, DELHI
                                                  ..... Petitioner
                     Through: Mr. R.K.Jain, Advocate

                          versus

        KALAWATI DEVI                            ..... Respondent
                    Through: Ms. Ritu Singh Maan, Advocate

        CORAM:
        HON'BLE MR. JUSTICE NAJMI WAZIRI

%       MR. JUSTICE NAJMI WAZIRI (Open Court)

1.      The petitioner is aggrieved by an order dated 01.05.2013 whereby he

has been directed to be evicted from the tenanted premises i.e. 622, Katra

Ishwar Bhawan, Khari Baoli, Delhi. He is aggrieved by the denial of leave

to defend.

        Facts

2. The respondent landlady pleaded that she needed the tenanted

premises to settle her second son namely Shri Vipin Kumar into his own

business, he was currently engaged in trading of Kasuri Methi in one small

Kolki under the staircase and another one of smaller area of 2x3 feet on the

first floor. Both of which were extremely small and insufficient for carrying

out the said business and were also a constraint in the expansion of the

business. Besides, she submits, her husband and their son have rented shop

in the same locality at a monthly rent of Rs.7,000/-, ironically while they

were suffering the non-availability of their own shop which the tenant

occupied at a monthly rent of Rs.200/-; that the second son had a diploma in

computers and he could not put his educational qualification to professional

or commercial use due to the paucity of space. It was contended that should

the tenanted premises be vacated, the landlady's husband and son would be

able to shift into it then save the unnecessary rent of Rs.7,000/- and expand

their business.

3. In the leave to defend, the tenant sought to raise a few triable issues:

that several other shops were available to the landlady in the same building

as well as at other places which would suffice her need, if any; the petition

was malafide and payment of Rs.7,000/- per month towards rental was only

to gain sympathy of the Court as they had failed to produce any rent receipt

of the said tenancy, the tenant was in an association of Indian Importers and

Exporters of Dry Fruits, Herbs and Spices and is recognized Chamber of

Commerce and was a Non Profit making body duly registered under Section

25 of the Companies Act, 1956, engaged in the affairs of commerce and

business which was also beneficial to the society at large and at any given

day a number of persons visit the respondent which was engaged in

conducting meeting at the rented premises and that the tenant also

endeavoured for the redressal of the grievances and problems of its

members.

4. The impugned order took into consideration each of the properties

mentioned in the leave to defend i.e. two shops on first floor of property No.

622, Katra Ishwar Bhawan, Khari Baoli, Delhi admeasuring 2.1 x 7.7 ft. and

3 x 6 feet which were stated to be in occupation of the petitioner and have

been put to use by her husband and son under the name and style of M/s

Sharda Prasad Neeraj Kumar; an office each on the second floor and third

floors of the same building which were stated to have been given out on

rent; Shop No.17 D, Gopi Nath Market, Near Ramdev Market, Khari Baoli,

Delhi was self occupied by the petitioner and finally, a shop being used in

the name of M/s Rajdhani Marbles, Bhajanpura, New Delhi by the son of the

petitioner. The landlady denied ownership of the properties on the second

and third floors of the building as well as of shop No. 17D, Gopi Nath

Market. The shop at Bhajanpura was occupied by the landlady's first son

for his independent business and exclusive use. It was not available to the

second son for whose benefit the tenanted premises were sought. The two

shops on the first floor are the same as mentioned in the eviction petition -

as small kolkies, which as observed hereinabove were insufficient,

inconvenient and improper for being put to any meaningful commercial use

as contemplated by the petitioner. The issue of petitioner's paying rent @

Rs.7,000/- per month for another shop or the respondent not using the shop

in question or having installed a separate electricity connection in the

premises, were rightly considered irrelevant apropos the determination of

bonafide need of the tenanted premises other than making bald allegation of

owning the properties mentioned in the leave to defend. The tenant did not

produce any document or material to prima facie show that the properties

were owned by the landlady so as to make it a triable issue for grant of leave

to defend. This Court is of the view that insofar as the landlady had denied

ownership of three out of the six premises mentioned in the leave to defend,

and of the remaining three shops one was being used by her, while the

remaining two kolkies were insufficient to meet the need, nothing remained

in the leave to defend. The tenant's claim for the need of the premises could

not be a ground for granting leave to defend. Therefore, there was no triable

issue for which leave to defend could be granted. The Trial Court rightly

observed that:

"In response to this allegation, the petitioner in her counter affidavit has submitted that the shop at Bhajanpura, Delhi has already been disclosed by the petitioner in her petition. In fact, the said shop exclusively belongs to the first son of the petitioner. The said shop is exclusively occupied by the first son of the petitioner and he is running his separate business there.

Here again, I find that the petitioner has disclosed about this shop in her petition. The petitioner has also disclosed that she has two sons. She has also disclosed that the shop at Bhajanpura is being run exclusively by her first son. She has submitted that it is for the requirement of her second son that she needs the shop in question. Therefore, merely because there is a shop in which some business is being carried out by one son of the petitioner, for whose need the shop in question is not required, leave to defend cannot be granted to the respondent.

Apart from aforesaid grounds, there are certain other grounds which are in response to the petitioner's submission that the rent has not been paid regularly or that the petitioner is paying rent @ Rs.7,000/- for another shop or that the respondent is not using the shop in question or that the respondent has installed a separate electricity connection in the tenanted premises. However, these are the grounds, which I find are irrelevant for the disposal of the present application."

5. Learned counsel for the petitioner has raised no grounds other than

what were raised in leave to defend and duly addressed in the impugned

order as discussed hereinabove.

6. Counsel for the petitioner relies upon two judgments namely Khem

Chand & Ors. v. Arjun Jain & Ors. 202 (2013) DLT 613 and Inderjeet

Kaur v. Nirpal Singh 2001 (1) RCR 33.

7. Counsel for the respondent submits that except two small Kolkies

the petitioner, her husband and her second son were neither the owners

of nor occupied any other shop, as alleged by the tenant in his leave to

defend. Counsel submits that the other properties belonged to some Shri

Ashok Kumar Bhatia and the landlady/petitioner had nothing to do with

it. Counsel for further relies upon Inderjeet Kaur v. Nirpal Singh in

2001 (1) RCR 33 wherein the Supreme Court held as under:

"We are of the considered view that at a stage when the tenant seeks leave to defend, it is enough if he prima facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. It would not be a right approach to say that unless the tenant at that stage itself establishes a strong case as would non-suit the landlord, leave to defend should not be granted when it is not the requirement of Section 25B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act. Leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of a landlord to

recover possession of the premises from a tenant under clause (e) of the proviso to sub-section (1) of Section 14, when as a matter of fact the requirement may not be bona fide. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to him and his family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction. At the stage of granting leave to defend parties rely on affidavits in support of the rival contentions. Assertions and counter assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend were either frivolous, untenable or most unreasonable. Take a case when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire. The ground under clause (e) of the proviso to sub-section (1) of Section 14 enables a landlord to recover possession of the tenanted premises on the ground of his bona fide requirement. This being an enabling provision, essentially the burden is on the landlord to establish his case affirmatively. In short and substance wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the Rent Controller by the statute itself to grant leave. At the stage of granting leave the real test should be whether facts disclosed in the affidavit filed 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 defence may fail. It is well to remember that when a leave to defend is refused, serious consequences of eviction shall follow and the party seeking leave is denied an opportunity to test the truth of the averments made in the eviction petition by cross-examination. It may also be noticed that even in cases where leave is granted provisions are made in this very Chapter for expeditious disposal of eviction

petitions. Section 25B(6) states that where leave is granted to a tenant to contest the eviction application, the Controller shall commence the hearing of the application as early as practicable. Section 25B(7) speaks of the procedure to be followed in such cases. Section 25B(8) bars the appeals against an order of recovery of possession except a provision of revision to the High Court. Thus a combined effect of Section 25B(6), (7) and (8) would lead to expeditious disposal of eviction petitions so that a landlord need not wait and suffer for long time. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims."

8. It is evident from Section 25B(4) and (5) of the Act that the

burden placed on the tenant is light and limited in that if the affidavit

filed by him discloses such facts as would disentitled the landlord from

obtaining an order for the recovery of the possession of the premises on

the ground specified in clause (e) of the proviso to Section 14(1) of the

Act, it will be good enough to grant leave to defend.

9. The principles laid down in the aforesaid judgment and the concerns

expressed apropos the need for expeditious disposal of an eviction petition,

so that a landlord should not suffer for long awaiting eviction of a tenant for

bonafide need, would apply in entirety to the present case.

10. This court finds that the reasoning adopted by the Trial Court and the

conclusion arrived at soundly address all the issues raised by the tenant. The