Sanjay Chug vs Opender Nath Ahuja & Anr.
2014 Latest Caselaw 85 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment pronounced on: January 06, 2014

+                   RC.REV. 100/2013 & CM No.4013/2013

      SANJAY CHUG                                            ..... Petitioner
                           Through      Mr.T.L. Garg, Adv.

                           versus

      OPENDER NATH AHUJA & ANR.               ..... Respondents
                  Through   Mr.Rajsh Bhatia, Adv. with
                            Mr.Hitesh Khanna, Adv.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The petitioner by way of the present petition under Section 25B(8) of Delhi Rent Control Act, 1958 (hereinafter referred to as "the Act") has assailed the eviction order dated 29th November, 2012 passed by Additional Rent Controller, West Delhi.

2. Brief facts of the case are that the respondents filed an eviction petition against the petitioner in respect of a shop situated at the ground floor of property bearing No.11/21, East Patel Nagar, New Delhi- 110008 (hereinafter referred to as "the tenanted shop"). It was contended that the petitioner was inducted as a tenant by Late Sh. Kishan Chand i.e. father of the respondent No.1 and father in-law of the respondent No.2 way back in 1951 in respect of the tenanted shop. After the death of Late Sh. Kishan Chand, the property bearing No.11/21, East Patel Nagar, New Delhi- 110008 (hereinafter referred to as "the suit property") was mutated in favour of the

respondents and consequently the petitioner started paying rent of the tenanted shop to the respondent No.1.

3. The respondents filed the eviction petition stating that they bonafidely require the tenanted shop so that both the sons of the respondents can run their own independent business and can earn a good income in order to meet their independent family needs. It was stated that the respondents' family consists of respondents', their two married sons having two children each, and a married daughter, settled in her matrimonial home. The respondents alongwith the married sons and their children are said to be residing on the first floor of the suit property.

4. It was stated that the respondent no.1 and his two sons run a shop in the name and style of M/s. Ahuja Sons and are engaged in the business of sale of paint, hardware and sanitary items on the ground floor of the suit property and just adjacent to the tenanted shop. The said shop is stated to be the only source of livelihood for the entire family of the respondents.

5. The petitioner was stated to be running a shop in the name and style of M/s Sanjay Medical Store. It was contended that the respondents do not have any commercial property/shop which could be used and occupied for the purpose of running the shop for the sons of the respondents and the tenanted shop, being situated at the ground floor of the suit property was more suitable to meet out the bonafide need and requirement of the respondents.

6. In the leave to defend application filed by the petitioner, the petitioner averred that the eviction petition was filed by the respondents with malafide intention as they did not require bonafidely the small tenanted shop admeasuring 10x15 ft. it was averred that there was no cause of action in favour of the respondents as the suit property itself was stated to be

admeasuring 1650 sq. ft. and on the ground floor, commercial activities are being carried on by the respondent No.1 alongwith his two sons. It was contended that since the respondent No.1 is about 82 years old, he does not sit in the said shop and that the said shop is being run by the two sons of the respondents. It was further stated that the respondent No.2 is a housewife and does not carry any commercial activities. It was averred that the respondents had concealed material fact from the Court that the respondents and their sons own various other properties in Patel Nagar itself and other places, list of which was given.

7. In the reply to the leave to defend application, the respondents denied and contested the averments made by the petitioner and reiterated their stand taken in the petition. The ownership with regard to other properties was explained in the reply. In the rejoinder to the reply of the leave to defend application it was prayed that the eviction petition be dismissed on the ground that the affidavit had not been signed, verified and filed accordingly to the Rules in this regard and also that the respondents had not come to the Court with clean hands and suppressed the material fact regarding number of properties owned by the respondents and their sons.

8. The learned trial Court dismissed the leave to defend application vide the impugned order observing that the relationship of landlord-tenant between the parties was not denied or disputed by the petitioner neither was the rate of rent disputed. The objections raised by the petitioner were that the respondents had not come to the court with clean hands and concealed material fact regarding other properties owned by them and that there was no bonafide requirement of the respondents in respect of the tenanted shop.

9. With regard to the first objection, the learned trial Court observed that the respondents had properly explained all the properties pointed out by the petitioner in his leave to defend application that however the properties were not suitable to the respondents and that the respondents wanted to start the hardware business of his other son. It was further observed that it was stated by the respondent No.1 that he owned two commercial properties and properly explained how they were not suitable for the respondents and their sons as both the accommodations had already been let out to other tenants. Accordingly, the learned trial Court opined that the fact about other properties alleged to be concealed, could not be as such considered as concealment of fact. Also the contention that the respondents had not come to the Court with clean hands was rejected.

10. With regard to the second objection as to the bonafide requirement of the tenanted shop, the learned trial Court observed that in the present case, the petitioner was inducted as tenant by the father of the respondent No.1 long back in the year 1951 and nothing had come on record to show that the respondents at any point of time had disturbed the petitioner or filed any petition for eviction on any grounds under the Act. It was opined that it cannot be said that with passage of time, needs of a person cannot change. It was observed that one shop of the landlord is situated or is in existence and in between the shop of the respondents and the petitioner is 11 ft passage which cannot be appropriate to start or expand the business.

11. The learned trial Court observed that in the leave to defend application, it was specifically disclosed that apart from the properties mentioned therein, only two properties were commercial which had been

already let out to other tenants, one to MTNL and other being a basement, which is not suitable for the purpose of the respondents.

12. Accordingly, in the light of these observations, the learned trial Court opined that the petitioner had failed to raise triable issues and so the leave to defend application was dismissed vide the impugned order. Aggrieved thereof, the petitioner has filed the present petition.

13. It is settled law that 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. The High Court is obliged to test the order of the Rent Controller on the touchstone of 'whether it is according to law'.

14. Proviso (e) to Section 14(1) is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bonafide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso

(e) of the Section 14 (1) are:

a) The said premises are bonafide required by the landlord either for himself or for his family member.

b) The landlord or the family member has no other reasonable suitable accommodation.

These twin thresholds are to be satisfied conjunctively in order to attract the provisions of Section 14 (1) (e) and the absence of even one of the said ingredients clearly makes the said provision inapplicable.

15. In the case of Deena Nath vs. Pooran Lal, (2001) 5 SCC 705, the Supreme Court observed thus:

"The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in praesenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in sub-section (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is duty-bound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable non-residential accommodation in his occupation in the city/town is available. The judgment/order of the court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind the statutory mandate incorporated in Section 12(1)(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide requirement would cease to be a mere finding of fact, for

such erroneous finding illegally arrived at would vitiate the entire judgment." (Emphasis Supplied).

16. While deciding the leave to defend, the controller is not expected to examine the success or failure of the plea raised but has to examine merely a tenable case. The controller is estopped in view of settled law from recording a finding as to disputed questions of fact. All the above stated propositions of law has been laid down in the case of Charan Dass Duggal vs. Brahma Nand, (1983) 1SCC 301 speaking through Hon'ble Desai, J. observed thus:-

"5. What should be the approach when leave to defend is sought? 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, 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 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."

In the same judgment, in para 7 it is further observed:-

"7. The genesis of our procedural laws is to be traced to principles of natural justice, the principal amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and provide his own case. Summary procedure does not clothe an authority with power to enjoy summary dismissal. Undoubtedly wholly frivolous defence may not entitle a person leave to defend. But equally a triable issue raised, enjoins a duty to grant leave. Maybe in the end the defence may fail. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party by cross- examination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refuse to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through cross- examination of witnesses who have filed their affidavits. 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." (Emphasis Supplied)

17. The Supreme Court in the case of M.M. Quasim vs. Manohar lal, AIR 1981 SC 1113 which is a three bench decision passed by the court

speaking through Hon'ble Desai, J. (as His Lordship then was) has categorically flawed this approach of mechanically stating that the landlord is the best judge without applying a judicious approach in the matter. In the words of Hon'ble Desai, J. it was observed thus:

"Before turning to the next topic, a word about the judicial approach to the question of personal requirement of the landlord under the Rent Act would not be out of place. The learned judge of the first appellate court while upholding the claim of personal requirement of respondent 1 has observed as under:

"It is for the plaintiffs to decide whatever they think fit and proper. It is not for the defendant to suggest as to what they should do. The defendant has led evidence to show that the plaintiffs have got some more houses at Girdih.... The defendant appellant has also filed certified copy of judgment of one suit No. 47/73 which is Ext. only to show that plaintiffs have got a decree for eviction with respect to the other house at Giridih. I have already pointed out earlier that it is for the plaintiffs to decide which of the houses is suitable for them. It is not for the defendant to suggest that the house which will fall vacant in the near future is most suitable house for the plaintiffs".

This approach betrays a woeful lack of consciousness relatable to circumstances leading to enactment of Rent Acts in almost all States in the country. The time honoured notion that the right of re-entry is unfettered and that the owner landlord is the sole judge of his requirement has been made to yield to the needs of the society which had to enact the Rent Acts specifically devised to curb and fetter the unrestricted right of re-entry and to provide that only on proving some enabling grounds set out in the Rent Act the landlord can re-enter. One such ground is of personal requirement of landlord. When examining a case of personal requirement, if it is pointed out that there is

some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison de'etre of the Rent Act. Undoubtedly, if it is shown by the tenant that the landlord has some other vacant premises in his possession, that by itself may not be sufficient to negative the landlord's claim but in such a situation the Court would expect the landlord to establish that the premises which is vacant is not suitable for the purpose of his occupation or for the purpose for which he requires the premises in respect of which the action is commenced in the Court. It would, however, be a bald statement unsupported by the Rent Act to say that the landlord has an unfettered right to choose whatever premises he wants and that too irrespective of the fact that he has some vacant premises in possession which he would not occupy and try to seek to remove the tenant. This approach would put a premium on the landlord's greed to throw out tenants paying lower rent in the name of personal occupation and rent out the premises in his possession at the market rate. To curb this very tendency the Rent Act was enacted and, therefore, it becomes the duty of the Court administering the Rent Act to bear in mind the object and intendment of the legislature in enacting the same. The Court must understand and appreciate the relationship between legal rules and one of necessities of life-shelter-and the way in which one part of the society exacts tribute from another for permission to inhabit a portion of the globe. In 'The Sociology of Law', edited by Pat Carlen, the author examines the rent and rent legislation in England and Wales and observes as under: "The prevailing paradigms of neo- classical economics and empiricist political theory have determined the conceptual insularity of law and legal institutions, with the result that they and other social events appear as random existences independent of their historical formation. The force of any theory of law must of course lie in its explanatory power, and this in turn depends on the

wider image of social relations which produces it".

(Emphasis Supplied)

18. In the present case, it is also the case of the petitioner that the respondents have various other properties and their family members including sons and wife, for their purpose the tenanted premises is required. The details given by the petitioner of said properties are referred as under:

i) Property No.29/3, UGF, Front Side, East Patel Nagar, New Delhi.

ii) Property No.6/11, 1st Floor, Front Side, East Patel Nagar, New Delhi.

iii) 45/6, 1st Floor, East Patel Nagar, New Delhi.

iv) 12/11, Ground Floor, East Patel Nagar, New Delhi.

v) House No.652 in Khasra No.336, Village Bijwasan, New Delhi.

vi) B2-4, Mahatta Tower, 54, B-Block, Community Centre, Janakpuri, New Delhi.

vii) Entire property No.9/21, East Patel Nagar, New Delhi consisting of Ground Floor, First Floor and Second Floor.

19. It is alleged by the petitioner that the respondents had purchased in his name and in the name of his wife property bearing No.45/6, East Patel Nagar, New Delhi at a consideration of Rs.19,50,000/-. This sale deed was executed vide registration No.19208, Addl. Book 1, Vol. No.18958 on pages 177-183 dated 30th July, 2011 and let out the same on a monthly rent of Rs.35,000/- per month vide lease deed which was registered vide registration No.22397 Addl. Book No.1., Vol. 19060 on pages 105-108 on 1st September, 2011. And the respondents had also purchased in his name and in the name of Rajiv Ahuja and Ritesh Ahuja, first floor, property bearing

No.6/11, East Patel Nagar, New Delhi at a consideration of Rs.11,00,000/- which sale deed was registered vide registration No.4208, Addl. Book 1, Vol. 15737 on pages 151-159 on 26th February, 2008.

20. The petitioner has also made the averment that the respondents have two commercial properties, namely House No.652, in Khasra No.33 which is in Village Bijwasan, New Delhi. This property has been let out by the respondents to MTNL and that a rent of Rs.33,184/- each is being paid to his wife Smt. Prem Ahuja and his son Ritesh Ahuja. Similarly has another commercial property namely, B2-4, Mahata Tower, 55, B-Block, Community Centre, Janakpuri, New Delhi. This is a commercial property and has been let out @ Rs.52,000/- per month by the respondents for commercial activities. At present Stress Management/Mediation and Power Yoga classes are held in the said property.

The wife of respondent No.1, Mrs.Prem Ahuja (respondent No.2) after her retirement is a housewife. It is not disputed that property No.11/21, East Patel Nagar, New Delhi is owned by Sh. Opender Nath Ahuja and Smt. Prem Ahuja. The ground floor with an area admeasuring 1650 sq. ft. is being used for commercial activities by the sons of the respondents while first and second floors are being used for residence.

21. From the facts of the eviction petition and reply to the application for leave to defend, prima facie, it appears that the respondents have filed the petition for the purpose of requiring additional accommodation. Presently, two sons of the respondents are using the commercial space for sale of paints, hardware and sanitary items.

22. It was held in the case of S.M. Mehra vs. D.D. Malik, Civil Appeal No.120/1990 wherein para 1 of the judgment the Supreme Court was pleased to hold as follows:

"1. Special Leave granted. Having heard counsel for both the sides and also perused the material, we are of the opinion that this is a case where the court below ought not to have refused leave to contest. The landlord is occupying the ground besides the entire second floor. The tenant is occupying the first floor. The question in our opinion, could be properly determined only by granting leave to the tenant to contest. There is no need to take a summary procedure since it is a case of additional accommodation."

In the case of Santosh Devi Soni vs. Chand Kiran, Civil Appeal No.412/2000, the Supreme Court was pleased to hold in para 3 of the judgment as follows:

"3. The short question is whether in the light of the requirements put forward by the respondent Landlady who is a widow and is in occupation of the first floor of the building in which the suit premises are situated, leave to defend to the defendant-Appellant could have been refused. As this is a case for additional accommodation and looking to the facts and circumstances of the case, especially in the light of the additional accommodation which is subsequently made available to the respondents as mentioned by the Appellant, the question of the respondents need was required to be thrashed out on merits by a full fledged trail. The court on 11.1.1990 in the case of S.M. Mehra (Dr.) vs. D.D. Malik has ruled that in the cases, where additional accommodation is asked for in proceedings under the Delhi Rent Control Act, normally leave to defend should not be refused."

23. In the case of Charan Dass Duggal vs. Brahma Nand (supra), it has been held by the Supreme Court that at the state of granting leave parties

rely upon their rival contention of affidavits that may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought 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.

24. Admittedly, in the present case, the respondents have in their possession of commercial accommodation from where their two sons are operating business, their need projected would be nothing but that an additional accommodation for setting up a new business by one of son or expanding the existing business. The projected requirement is to be examined at the time of trial. If the leave to defend is refused, an opportunity to test the requirement as averred by landlord is denied which is not the scheme of the Act.

25. As per details mentioned in earlier paras No.18 to 20 of my order and without going into the merit of the case of the petitioner with regard to whether these all properties are owned by them or not but prima facie appears to the court as discussed, the petitioner has been able to raise prima facie triable issues which were ignored by the learned Addl. Rent Controller. The petitioner who is operating business for the last many decades and is tenant since more than 62 years cannot be evicted without trial or without considering the affidavit filed along with the application for leave to defend in view of the settled law on this aspect.

26. This aspect directly goes to the bonafide requirement of the respondents as also to assess the suitability or otherwise of the space from

where the respondent was carrying the said business. There is no dispute that a respondent is entitled to have the expansion of her business and can also seek additional accommodation for the same, but, then, it is necessary to know that the space available was either insufficient or not suitable for doing the business. It is necessary to know if it was for the expansion of the said business in view of joining grandson in the tenanted shop. It is triable issue, which is seen to have been raised by the petitioner, and projected requirement of the respondents is required to be tested by the Controller. From the respondents' own pleadings, a triable issue is seen to have been raised by the petitioner.

27. In view of the above, I am of the view that the learned ARC has erred in appreciating the averments made in the leave to defend application. Thus, it could be seen that the petitioner has been able to raise prima facie, triable issue and cannot be overlooked without adjudication by way of evidence. The impugned order is therefore set aside. The petition is allowed, and the leave to defend is granted to the petitioner. The parties to appear before the concerned ARC on 10th February, 2013. In the meanwhile, the petitioner is granted four weeks' time to file the written statement. The learned trial Court is directed to complete the trial within 9 to 12 months and main petition be disposed of within three months thereafter.

28. Copy of this order be sent to the trial Court forthwith.

29. No costs.

(MANMOHAN SINGH) JUDGE JANUARY 06, 2014