Kedari Lal Gupta vs Cb Singh Raja
2014 Latest Caselaw 2260 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                 Date of Decision: 05.05.2014
+       RC.REV. 137/2012, CM APPL. 5502/2012

        KEDARI LAL GUPTA                                   ..... Petitioner
                     Through:       Mr. Tanuj Khurana with Mr. Honey Jain,
                                    Mr. Ashish Batra & Mr. Gaurav Malik,
                                    Advs.

                           versus

        CB SINGH RAJA                                      ..... Respondent

                 Through:           Mr. Ram Lal, Adv.

        CORAM:
        HON'BLE MR. JUSTICE NAJMI WAZIRI

%       MR. JUSTICE NAJMI WAZIRI (Open Court)

The petitioner/landlord is aggrieved by an order dated

14.2.2012 whereby the respondent/tenant was granted leave to

defend, in a petition filed under Section 14(1)(e) of the DRC Act,

1958 seeking eviction of the respondent/tenant from the tenanted

premises i.e. property bearing No. 106, Ground Floor, Janta Flats,

GTB Enclave, Delhi-110093. The case of the petitioner is that he had

only two residential premises; one of which has been sold out and the

other is occupied by the respondent. He is presently living in a rented

accommodation and is having to suffer the tenancy at a mere rent of

Rs. 550/- per month, whereas the landlord himself is having to pay an

amount of Rs. 1,500/-. He contends that the impugned order erred in

granting leave to defend, inasmuch as the application for leave to

defend, along with the affidavit, discloses no triable issues; that the

issues purporting to be triable are ex facie vague and cannot be

deemed to be of any substantive value which would prima facie lead

to denial of the issuance of an eviction order. He contends that the

issues raised in the leave to defend were as under :-

i) That the so-called sale of House No. 1560, Janta Flats, GTB

Enclave in favour of Mr. Nirmal Garg was a sham. In response, the

learned counsel for the petitioner submits that the sale was by way of

a registered sale deed and it would not been open to a tenant to

question the legitimacy of the sale documents. This Court is mindful

of the settled law that the question of legitimacy of a registered sale

deed cannot be determined at the instance of a tenant in a petition

under Sections 14(1)(e) and 25 B of the DRC Act.

ii) The tenant then argued that the landlord's alleged tenancy

apropos House no. 1483 Janta Flats, GTB Enclave too is a sham and

is fabricated. However, this Court is of the view that the said

contention is self-destructive since the tenant does not disclose the

address where the landlord is residing. After all a person would be

residing at some address. If the tenant argues that the landlord is not

resident of the address claimed by the latter, then the tenant must

furnish the actual address with documents to disprove the landlord.

Mere denial of the residential address as claimed by the landlord

would not be sufficient.

iii) The tenant argued that the landlord has five houses which are in

his name. However, the details of the same were not given.

iv) Finally, the tenant argued that none of the relatives of the

landlord were dependent upon him for accommodation. Therefore,

the alleged need was not bona fide.

The learned counsel for the petitioner submits that the Trial

Court had fallen into error in assuming that three flats which are said

to be owned by the petitioner are not even mentioned in the leave to

defend. In his reply, to the application for leave to defend, the

landlord has categorically denied that he had three flats bearing

Nos.1559,1560 & 1670 in GTB Enclave. He submits that the

petitioner was residing in a rented accommodation, i.e. property

No.1483, 1st Floor, Janta Flats, GTB Enclave, Delhi-110093 because

of a strained relationship with his family. He further submits that the

petitioner did not have sufficient accommodation for himself and that

after the demise of his brother Gopal, the latter's widow and his three

children were dependent upon him. Furthermore, it is submitted, the

petitioner being the elder member of the family had social

responsibilities towards the care and accommodation of the deceased

brother's family of four persons.

The learned counsel further submits that the impugned order

erred inasmuch it concludes, quite contrary to the settled law, that it is

for the landlord to show that he did not have sufficient

accommodation and that the flats mentioned in the leave to defend

were owned by some other person(s). He relies upon seven

judgments, which have been dealt with in the impugned order, to

emphasise that it is not for the landlord to prove beyond a prima facie

case, at the stage of consideration of the application for leave to

defend. He submits that the courts are to lean in favour of the

presumption that the landlord's need was bona fide unless, the tenant

shows something to the contrary.

He also relies upon this Court's judgment in Jitender Kumar

Jain & Ors. V. M/s. J.K. Horticultural Produce Marketing &

Processing Cor. Ltd., 110 (2004) Delhi Law Times 193. In

particular, reliance has been placed on paragraph nos. 4 and 5, which

reads as under :-

"The accommodation available with the petitioner at Greater Kailash is one drawing-cum-dining room and three bed rooms. By no stretch of imagination such an accommodation be treated or deemed as reasonable, suitable or sufficient for the petitioners. Family of petitioner no. 1 consists of his wife, married son and unmarried daughter. Similarly the family of the deceased brother consists of his wife, two married daughters and one married son. To say that three bed-rooms accommodation for the size of such a family is sufficient and reasonable is to negate the concept of requirement of the premises by the landlord who at given point of time wants to live comfortably and not in crowded conditions.

It appears from the impugned order that the learned ARC was more swayed and influenced from the allegations that the petitioners have concealed the question of vacation of the first floor premises. The fact remains that the premises on the first floor was not owned by the petitioners. It was bequeathed by their mother in favour of their sister. Any property or accommodation over which the landlord has no legal control or legal right to occupy cannot be included in the accommodation available with such a landlord for the purpose of ascertaining the requirement or need."

In reply the learned counsel for the respondent refers to a

statement of the landlord where he has admitted as under :-

"I have only two houses in Delhi. My other family members are having five flats in the name in DDA Janta Flats, GTB Enclave, Delhi. My family and myself have own three flats in the same vicinity. Two flats are adjoining are each other and third is in the same street at some distance."

The counsel for the respondent further submits that this

admission was available to the Trial Court at the time of consideration

of the leave to defend application and it is only after having

appreciated the facts & circumstances of the case that the leave was

granted. He submits that the impugned order does not suffer from

any infirmity. However, this Court finds that the aforesaid argument

of the respondent is specious since a perusal of the document would

show that what has been admitted by the landlord is his ownership of

only two premises, i.e., the one which was with him and the other

which was occupied by the tenant. The other properties were not

owned by him but were owned by his relatives. The adjoining flats

could well have been put to use as a single unit depending upon the

requirement of his extended family. However, it cannot be the case

that a relative's property can be deemed to be the property of the

landlord. It is settled law that the property which is not in possession

of the landlord cannot be deemed to be an alternative suitable

accommodation to be taken into consideration as a defence by the

tenant opposing his own eviction. Logically, therefore, the property

which was not owned by the landlord cannot be considered as an

alternative accommodation available to him. This Court is of the

view that the leave to defend application did not disclose any triable

issue especially since the record before the Trial Court stated that the

landlord owned only two premises. Thus, leading to a denial of the

eviction in the summary procedure envisaged in Section 25B of the

Delhi Rent Control Act, 1958. A landlord cannot be made to lean

upon his relatives to provide him accommodation. It is not for a

tenant to dictate how else the landlord could adjust himself so as to

obviate the need of the tenant's eviction. Evidently, the Trial Court

fell into an error in considering such properties which were not

available to the landlord as being alternate suitable accommodation.

In the circumstances there were obviously no triable issues and hence

the grant of leave to defend the eviction petition was unwarranted. In

view of the aforesaid discussion, the petitioner's bona fide need is

clearly made out.

In the circumstances the petition is allowed and the impugned

order is set aside and the respondent is directed to be evicted from

premises No.106, Janta Flats, G.T.B. Enclave, Delhi-110093.

No orders as to costs.

NAJMI WAZIRI (JUDGE) MAY 05, 2014/p/b'nesh