Sunil Abrol vs Usha Sethi & Anr.
2015 Latest Caselaw 9558 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                RC. Revision No.166/2015 & C.M. No.6522/2015

                                      Decided on : 23rd December, 2015

SUNIL ABROL                                         ...... Petitioner
                       Through:   Mr. J.C. Seth, Advocate with petitioner in
                                  person.

                         Versus

USHA SETHI & ANR.                                 ...... Respondents
              Through:            Mr. P.K. Rawal & Mr. Tarun Agarwal,
                                  Advocates.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a revision petition filed by the petitioner against the order

dated 23.12.2014 passed by the learned Rent Controller (South), Saket

Court, New Delhi, by virtue of which the leave to defend has been

granted to the respondent to contest the eviction petition filed by the

petitioner under Section 14 (1) (e) of the DRC Act.

2. Briefly stated, the facts of the case are that the present petitioner is

claiming himself to be the owner of property No.M-27, Greater Kailash,

Part-1 which consists of ground floor, first floor and second floor. It has

been stated that the petitioner has two sisters, namely, Pamela Kapoor

and Meenakshi Nijhawan, who had relinquished their share on 29.5.2008

in the aforesaid property belonging to their mother, Swarn Lata Abrol, on

the basis of which he had become the absolute owner. He has stated that

the premises are required bona fide by the present petitioner for his own

use for running a consultancy business as he has done two Ph. D, one in

High Technology Equipment Services Export Opportunities and second

in Behavioral Science granted by Indian Institute of Foreign Trade and

University of Delhi respectively. At the time when the petition was filed,

the petitioner was holding the post of Director General, Consultancy

Development Centre, Department of Scientific and Industrial Research,

Ministry of Science and Technology, Government of India and he was to

superannuate on 30.4.2011 on attaining the age of superannuation

whereupon, he wanted to setup his Management Consultancy business in

multidisciplinary management consultancy services to provide his expert

services to corporate clients. The petitioner also required the premises for

the business purpose of his two sons, namely, Siddharth and Satyen, who

were pursuing Post Doctoral Studies in Chemical Engineering and M.S.

Computer Science in USA respectively. It was stated that their studies

were to come to an end in the year 2010 where after they propose to come

back to India and join the present petitioner in his multidisciplinary

consultancy services. It was stated that both the sons of the petitioner are

highly qualified and that the petitioner has no other alternative suitable

accommodation available to him.

3. On notice being issued to the respondent/tenant, they filed the

leave to defend application raising the challenge to the bona fides of the

present petitioner for using the premises as well as the fact that he is

already in possession of sufficient accommodation. It was also stated by

them that so far as the sons of the present petitioner are concerned, they

are settled in USA and they do not intend to come back to India. It was

also stated that the petitioner's requirement of the suit premises was not

bona fide and in any case, he was able to retrieve the possession of nearly

500 square feet of area on the ground floor from another tenant and

therefore, if at all the petitioner wanted accommodation for the purpose of

setting up of his consultancy business then it would become case of an

additional accommodation for which the leave to defend had to be

necessarily granted to the present petitioner. It may be pertinent here to

mention that the petitioner had setup a requirement of nearly 900 square

feet of an area out of which he had claimed that he is in possession of

only 500 square feet of area, portion of the premises, were vacated by the

other tenant in pursuance to the court orders.

4. The learned trial court, after hearing the arguments of both the

sides and referring to various case laws, gave leave to defend to the

respondent on the ground that the respondent was able to raise a triable

question with regard to the factum of requirement of the petitioner and his

bona fide about the same as well as on the ground that the present

petitioner had admittedly retrieved possession of 500 square feet area of

another shop while as his total requirement was nearly 900 square feet. It

was further stated that the petitioner had not disclosed the fact that there

was another tenant by the name of Madan Gopal Singh, who was

occupying the rear portion of the suit property which is claimed by the

present petitioner to be unauthorized and the same having been booked

by the MCD. It has also been stated that even if the premises are stated to

be unauthorized, the same are protected by the amendment to the NCT of

Delhi Laws (Special Provision) Second Act, 2011 from being demolished

till 2017 and this fact had not been revealed by the present petitioner in

the eviction petition which was treated as concealment of information.

Accordingly, leave to defend was granted by the learned trial court to the

respondent/tenant.

5. I have heard Mr. Seth, the learned counsel for the petitioner as well

as Mr. Rawal, the learned counsel for the respondent. The contention of

the learned counsel for the petitioner is that the order of grant of leave to

defend to the respondent is erroneous on the ground that the learned trial

court has not taken into consideration correctly the requirement of the

sons and has further stated that in any case, even if the sons' requirements

is not taken into consideration, the petitioner being highly qualified and

having a rich experience of consultancy business with public sector

undertaking, he wants to start his own consultancy business in multi

speciality so that he is able to reap the benefit of his expertise. It is

accordingly contended that the leave to defend ought not to have been

given. The learned counsel has also referred to the judgments passed in

Krishna Kumar Rastogi vs. Sumitra Devi; (2014) 9 SCC 309, Olive

Marques and Anr. vs. Union of India & Ors.; (2013) 199 DLT 727 (DB),

Manika Rani Ghosh & Ors. vs. Dharwinder Kaur; (2013) 197 DLT (CN)

18, Mohd. Ayub and Anr. vs. Mukesh Chand; (2012) SCC 155, Usha

Kalra vs. Arya Samaj Bhogal (Jangpura); 2012 SCC OnLine Del. 266

and Shri Suresh Kumar Gupta vs. Dr. Sunil Abrol & Anr.; 2011 SCC

OnLine Del.4492.

6. I have carefully considered the submissions made by the learned

counsel for the petitioner and gone through the impugned order.

However, I find myself unable to get persuaded with the submissions

made by the learned counsel for the petitioner that it is not a case where

the leave to defend ought to have been refused to the respondent/tenant.

The learned counsel for the petitioner has not been able to point out any

illegality, impropriety or jurisdictional error in the leave to defend having

been granted by the trial court.

7. This is on account of the fact that the contention made by the

learned counsel for the petitioner during the course of oral submissions

have been that he has not projected the requirement of his sons as the

requirement for which he is seeking retrieval of accommodation but this

is factually incorrect. A perusal of the eviction petition will clearly show

that one of the grounds on the basis of which the retrieval of possession is

sought, is the fact that two of his sons are doing higher studies in USA

and they want to come back to India and join the petitioner in his multi

speciality consultancy business. Therefore, this requirement of the

petitioner for the benefit of his sons has been clearly pleaded in the

petition and claimed to have been dealt with by the learned trial court.

Admittedly here, so far as the sons requirement is concerned, it is not a

requirement in presenti but in future. The law regarding eviction of a

tenant on the ground of bona fide requirement is very well settled and it

has been laid down by the courts repeatedly that only a requirement in

presenti can be considered to be bona fide and not in future. It has no

where been shown that the sons have come back or setup some business

independently. Therefore, on this ground itself, the respondent deserves

grant of leave to defend.

8. So far as the requirement of the petitioner for the purpose of setting

up a consultancy business is concerned, admittedly, the petitioner has

been able to retrieve nearly 500 square feet of area from another tenant on

the ground floor of the suit property. Till date, the petitioner has not

stated as to whether he has setup the said consultancy business. From the

impugned order, it is not reflected that the petitioner is using 500 square

feet of which possession has been retrieved by him for the purpose of

running his multi speciality consultancy business or not. The petitioner,

who is present in person, has stated that as a matter of fact, he is using the

said 500 square feet of area which was retrieved by him from the other

tenant for the purpose of running his consultancy business and for this

purpose, he has drawn the attention of the court to some paper clipping

where some board is displayed for the purpose of running the consultancy

business. So far as the board is concerned, it cannot be taken to be giving

the correct picture as to whether the petitioner is actually running the

consultancy business or not. There ought to have been a pleading to that

effect. Even if it is assumed that he is running the consultancy business

on 500 square feet area, which was retrieved by him, even then petition

for retrieval of additional area or requirement for additional area becomes

a case of additional accommodation for which the leave to defend has to

be given to the respondent/tenant.

9. In addition to this, there is another flaw in the case of the petitioner

which has been noted by the learned Rent Controller. The petitioner has

indulged in concealment of fact as observed by the learned Rent

Controller because before filing of the eviction petition, the petitioner had

also let out the rear portion to one Madan Gopal Singh which he is now

claiming to be unauthorized in respect of which demolition order is

passed. The petitioner, who was present in court, had very fairly

admitted that Madan Gopal Singh continued to occupy this so-called

unauthorized structure in rear portion of the property for almost 15 years.

If Madan Gopal Singh could occupy this additional portion at the rear, the

court does not know how much area it consists of which and if it was

used for a period of 15 years, the petitioner immediately can utilize the

said portion also for the benefit of his own consultancy business. It does

not lie in the mouth of the petitioner to contend that the said portion is

unauthorized and there being an order of demolition, therefore, the said

portion cannot be taken into consideration in order to meet the

requirement of the petitioner which is to the tune of 900 square feet.

Admittedly, NCT of Delhi Laws (Special Provisions) Second Act, 2011,

has prohibited demolition of any unauthorized construction till about

31.12.2017, therefore, so far as the said structure is concerned, it is safe

against demolition till 31.12.2017 and there is no threat of demolition.

These factors have all been taken into consideration as the grounds which

have not been fairly revealed by the learned counsel for the petitioner

before the learned Rent Controller and have been treated to be

constituting a triable issue. A triable issue is an issue which, if permitted

to be proved, would disentitle the petitioner from retrieving the

possession. It is also not necessary that every triable issue must

necessarily, in all cases, result in success. But certainly, it must be an

issue which, in a given circumstance, if permitted to be proved, can

disentitle the petitioner to retrieve the possession.

10. In view of the aforesaid facts, I feel that the learned Rent

Controller was absolutely right in granting the leave to defend to the

respondent/tenant primarily on four grounds. Firstly, concealment of

fact, secondly, that the so-called construction which is stated to be

unauthorized is with the petitioner and there is no threat of demolition of

the same and as on date, we do not know how much area it consists of

and thirdly, the petitioner during the pendency of the petition itself, has

been able to retrieve 500 square feet of area from another tenant while as

total requirement projected by him is 900 square feet and thus, this 500

square feet coupled with the so-called unauthorized construction can

substantially be touching or nearly the total accommodation which the

petitioner needs and fourthly, so far as the sons of the petitioner are

concerned, their requirement is not a requirement in presenti as

admittedly the petitioner's sons are not stated to be in India nor has this

fact been urged as a ground for retrieval of possession during the course

of arguments by Mr. Seth, the learned counsel for the petitioner.

11. I am also tempted to refer to the judgments which have been relied

upon by the learned counsel for the petitioner. So far as the Krishan

Kumar's (supra) judgment is concerned, that is not applicable to the facts

of the case because that was a judgment on merits and it did not involve

the question of refusal or grant of leave to defend at the threshold,

therefore, the observations in the said case cannot be made applicable

without co-relating the facts of that case with the present case. Similarly,

in Olive Marques's case (supra), single judge's view of our own High

Court does not apply because that was a case in which the validity of the

procedure to be followed in cases of bona fide requirement was under

challenge as being violative of Article 14, 19 (1) (g) and 21 of the

Constitution of India. In Manika Rani's case (supra), it was held that the

leave to defend application was rightly dismissed since tenant had raised

vague pleas which were mere averments without any evidence, while as

in the instant case, leave to defend has been granted since admittedly the

petitioner/landlord had alternative accommodation. In Mohd. Ayub's case

(supra), the court had considered the comparative hardship of the

landlord and the tenant in an eviction case relating to U.P. Urban

Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. So far as

the question of comparative hardship is concerned, the said question

would arise only at the stage when parties have adduced their respective

evidence and the question of bona fide requirement is decided on merits

rather than at the stage when the court is confronted with the question of

grant or non-grant of leave to defend. Similarly, in Usha Kalra's case

(supra), where leave to defend had been refused on the ground that it was

observed to be a moonshine, sham and not raising any triable issue and

therefore, it is in no way comparable with the facts of the present case

where the leave to defend has been granted on the basis of concealment

and availability of alternative accommodation. Last but not the least, the

learned counsel for the petitioner has referred to the judgment of the

single judge of this court in Suresh Kumar (supra), which is the case of

the petitioner himself pertaining to another tenant by the name of Suresh

Kumar Gupta where the leave to defend was held to be not raising any

triable issue and the revision petition was dismissed. It is in pursuance to

the said dismissal of the revision petition that the petitioner has been able

to retrieve the possession of 500 square feet of area of shop which is

alternatively available at the disposal of the petitioner which can be used

by him. Merely because, the leave to defend of another tenant has been

dismissed, does not mean that every tenant has to necessarily suffer the

same fate so far as his case is concerned.

12. In view of the aforesaid facts and circumstances of the case, I am

of the considered view that there is no infirmity, illegality or

jurisdictional error in the analysis of evidence prima facie produced by

the parties so far as the question of the pleas taken by the

respondent/tenant raising a triable issue is concerned for which he has

been rightly given the leave to defend. I, accordingly, dismiss the present

revision petition of the petitioner as being without any merit.

V.K. SHALI, J.

DECEMBER 23, 2015 'AA'