Piyare Lal & Anr. vs Pawan Kumar
2015 Latest Caselaw 8305 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                RC. Revision No.372/2015 & C.M. No.13012/2015

                                     Decided on : 3rd November, 2015

PIYARE LAL & ANR.                                  ...... Petitioner
              Through:            Mr. R.S. Mahla, Advocate.

                         Versus

PAWAN KUMAR                                         ...... Respondent
                       Through:   Mr. Shiv Gupta & Mr. Anoop Kandari,
                                  Advocates.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

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

dated 9.3.2015 passed by the learned Additional Rent Controller (South),

Saket Courts, New Delhi in case titled Pawan Kumar vs. Piyare Lal &

Anr. bearing E. No.70/13 by virtue of which the leave to defend

application was rejected and order of eviction was passed against them.

2. The revision petition has been filed under Section 25-B (8) of the

Delhi Rent Control Act, 1958 which reads as under :-

"25B Special procedure for the disposal of applications for eviction on the ground of bona fide requirement. -

(1) .............

(2) ..............

(3) .............

(4) .............

(5) .............

(6) .............

(7) .............

(8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section:

Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit."

3. I have heard the learned counsel for the petitioners and have also

gone through the impugned order. The contention of the learned counsel

for the petitioners is that the order of eviction after rejection of the leave

to defend application, by virtue of which the petitioners have raised

triable issues is erroneous and therefore, the same deserves to be set aside

and leave to defend be granted to them.

4. Before dealing with the submission made by the learned counsel

for the petitioners, it may be pertinent here to give brief background of

the case.

5. The respondent/landlord filed an eviction petition under Section 14

(1) (e) read with Section 25-B of the Delhi Rent Control Act against the

present petitioners/tenants in respect of property bearing No.5-A, DDA

Janta Flats, Shahpur-Jat, New Delhi-110049. The case which was set up

by the respondent was that he was the owner/landlord of the

petitioners/tenants in respect of the aforesaid flat and he required the

possession of the said flat for his bona fide requirement, as his son is of

marriageable age and because of the paucity of accommodation, he is not

able to get him married. The respondent/landlord had stated that at the

time when the petition was filed, he was residing in House No.373,

Shahpur-Jat, New Delhi, which is situated in the same locality on the

fourth floor; however, the said property was a joint family property in

which he was feeling suffocated on account of the fact that it was in a

crowded area inside the locality. He also very fairly stated that a House

No.72-B, Shahpur-Jat, which is in the same locality, is in the name of his

wife but that was also located in the same congested area, where it was

difficult to breathe fresh air and consequently, they would like to shift to

their own flat which was in a better location though in the same area.

6. The petitioners/tenants filed their leave to defend application and

contested the claim of bona fide requirement of the respondent/landlord.

He stated that so far as the respondent/landlord is concerned, he is not the

owner of the property. As a matter of fact, it was stated by them that the

flat in question belonged to one Piyare Lal s/o Kandai Ram from whom

the respondent/landlord is purported to have purchased the flat. The

petitioners/tenants had stated that it was they who were paying the

installments to the DDA because the flat in question seem to be allotted

originally on hire-purchase basis. However, when they paid the entire

hire-purchase charges and wanted the flat to be registered in their name,

the DDA raised an objection. It is stated that because of these reasons,

the respondent/landlord could not be considered to be the owner of the

property.

7. So far as the bona fides of the respondent/landlord are concerned,

they were also assailed stating that he had two other residential properties

having an area of 250 square yards built upto four floors which had 48

rooms and this information was concealed by the respondent/landlord as

being alternative suitable accommodations and therefore, his bona fides

were suspect. It was also denied by the petitioners/tenants that the

respondent/landlord was not living on the third floor as claimed by him

but he was living on the ground floor and the plea set up by him that he

was not able to climb on to the third floor was also not correct. The

averments made by the petitioners/tenants in the leave to defend

application were denied by the respondent/landlord and he reiterated his

case that the suit property was purchased by him from erstwhile owner on

the basis of an agreement to sell and the Will which was purportedly

executed by the owner in his favour.

8. The learned ARC, after hearing the arguments, rejected the leave to

defend application of the petitioners/tenants on the ground that it does not

raise any triable issue and passed an order of eviction.

9. I have gone through the impugned order which runs into 14 pages

and deals with each and every aspect which has been raised by the

learned counsel for the petitioners before not only the trial court but

repeated before this court also. I do not find that there is any illegality or

impropriety or jurisdictional error in the finding returned by the learned

ARC on any of the counts by observing that none of the points raised by

the petitioners/tenants raises a triable issue.

10. So far as the question of ownership is concerned, it is not in dispute

that the petitioner/tenant has been paying the rent to the

respondent/landlord. Once this fact of relationship of landlord-tenant

between the parties is not denied by the petitioner, he is estopped from

challenging the question of ownership of the respondent/landlord

howsoever imperfect it may be. Admittedly, in the instant case, the

respondent/landlord has a better title to the suit property although it

cannot be said to be perfect one but it was not in dispute that it was the

respondent/landlord who had inducted the petitioner as a tenant and the

later, that is, the tenant started paying the rent to him originally and

thereafter was paying the rent by way of depositing installments with the

DDA for and on behalf of the respondent. If that be so, then obviously

this question of now challenging the ownership of the

respondent/landlord cannot be said to be raising a triable issue because he

is estopped from raising this issue. It has been rightly rejected by the

learned ARC.

11. As regards the availability of alternative accommodation of having

two houses of 250 square yards is concerned, this is a mere bald

allegation. This allegation is bald and unbelievable more so when he

makes a specific allegation that these two properties have 48 rooms. A

property of 250 square yards cannot have more than 10-12 rooms even if

it is fully built-up upto three floors. If two properties are considered to be

such properties owned by the respondent/landlord then obviously the

maximum number of rooms which may be available would be at best 20

or so while as the petitioner/tenant is talking about 48 rooms which seem

to be figment of his imagination. The petitioner has not placed any

specific prima facie evidence with regard to these properties either by

way of sale deed, photographs or any documentary evidence to show that

these properties are owned by the respondent/landlord and therefore, this

plea was also brushed aside by the learned ARC.

12. So far as the bona fides of the respondent/landlord are concerned,

the learned ARC has rightly observed, no doubt that he is presently living

on the third floor of House No.373, Shahpur-Jat and there is no property

bearing No.72-B in Shahpur-Jat which is owned by his wife but the

respondent/landlord has taken a specific plea that these two properties are

situated in a congested area where it is very difficult to breathe fresh air.

This is on account of the fact that Shahpur-Jat is essentially an old

village. These properties must be in the village itself where, in course of

time, municipality has given municipal numbers and obviously because

of the high density of population, quality of air in the said pocket would

not be as fresh and clean as would be in the periphery where the DDA

flats are built. The DDA must have taken into consideration the density

of population and other considerations and therefore, the possibility of

population in that area where the flats are built must be much less.

13. The learned ARC has rightly observed that the right to breathe

fresh and clean air is a fundamental right which has been read into Article

21 by the Supreme Court. Keeping that background in view, if a landlord

wants to shift to his own premises where he is expecting to breathe a

fresh and clean air and his family is also going to stay with him then

obviously it will be a bit of luxury which he must be permitted to enjoy

and exercise his right. The learned ARC has rightly referred to catena of

judgments in its order where the Supreme Court time and again has

reiterated the principle that it is not for the tenant to dictate the terms to

the landlord as to how he is to live. The object of the court or the learned

ARC is only to see that the desire of the respondent/landlord seeking

eviction of his tenant on the ground of bona fide requirement should not

be malicious or mala fide with a view to sale, let out the property or

ulterior considerations. Though the court does not have a foolproof

system of ensuring 100 per cent eviction on the ground of bona fide

requirement but Section 19 of the DRC Act provides a sanction for such

obdurate persons, who try to dislodge the tenants maliciously on ulterior

considerations by not occupying the premises within a period of two

months from the date of eviction which will invite an action to be

initiated by the court for restoring back the possession to the tenant.

14. Having regard to the aforesaid totality of circumstances, I feel that

there is no illegality or impropriety or jurisdictional error in arriving at

the conclusion which has been done by the learned ARC by detailed and

a reasoned order. I, accordingly, uphold the impugned order dated

9.3.2015 rejecting the leave to defend as not raising any triable issue and

the consequent passing of the eviction order. Accordingly, the petition

for revision under Section 25-B (8) of the DRC Act is without any merit

and the same is dismissed.

V.K. SHALI, J.

NOVEMBER 03, 2015 'AA'