Subhash Chand Chhabra, Shyam ... vs Radhey Govind Rohatgi S/O B.K.D. ...
2015 Latest Caselaw 8617 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                RC. Revision No.340/2015 & C.M. No.17274/2015

                                    Decided on: 20th November, 2015

SUBHASH CHAND CHHABRA, SHYAM CHHABRA BOTH S/O
U.M. CHHABRA                            ...... Petitioners
             Through: Mr. S.S. Ahluwalia, Advocate with
                      Mr. Lalit Vohra, Advocate

                       Versus


RADHEY GOVIND ROHATGI S/O B.K.D. ROHATGI... Respondent
            Through: Mr. Subhiksh Vasudev, Advocate.

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


V.K. SHALI, J. (ORAL)

1. This is a revision petition filed by the petitioner-tenant under

Section 25-B (8) of the Delhi Rent Control Act, 1958 (DRC Act)

against the order dated 27.02.2015 passed in E-56/2014 titled

Radhey Govind Rohtagi v. Sh. Subhash Chand Chhabra & Anr. by

virtue of which leave to defend application of the present

petitioner-tenant was dismissed and an order of eviction was

passed in respect of a shop measuring 8 ft. x 12 ft., ground floor,

situated at property No.1/11700A, Panchsheel Garden, Naveen

Shahdara, Delhi-110032. The detailed facts are given in the

impugned order. Suffice it would be here to mention that the

respondent-landlord is claiming himself to be the owner of the

aforesaid property situated on a 400 sq. yds. plot of land on the

basis of the Sale Deed purported to have been executed by one

Smt. Shashikanta in his favour on 14.11.2012 which is stated to be

duly registered with Sub-Registrar IV, Seelampur, Delhi.

2. It is the case of the respondent-landlord that before the purchase of

the suit property a school is being run in the name of K.D. Field

School since 1996 at the premises in question by a trust known as

Shri Mannu Lal & Smt. Surajwati Charitable Society. The said

school is also being run on an adjoining plot of land measuring 350

sq. yds. The respondent-landlord is working as a Secretary of the

Society which is running the school and is also designated as a

Manager. Since he is the owner of the property, he is receiving

rental income from the school although quantum of rent is not

disclosed. So far as the duties of the respondent-landlord as a

Manager of the School are concerned as to whether he is receiving

any remuneration for the same is also not disclosed but it is averred

that the respondent-landlord is under a duty and obligation to take

all the necessary steps and to provide all facilities for the purpose

of effective utilization and functioning of the school. It has been

stated that in the present times it is almost a practice of all the

schools to have a store room and a book shop in the school

premises itself and, therefore, the respondent-landlord wants to

create such a facility for the purpose of the school. It has also been

stated that the respondent-landlord would also use the said

premises that is the shop measuring 8 ft. x 12 ft. which is under the

occupation of the present petitioner-tenant for the purpose of

running a stationery shop which will give him some employment

instead of making him sit idle at home. The respondent-landlord

has also stated that his financial position would be eased and his

mental hardship would also be reduced. It was alleged by the

respondent-landlord that the petitioner-tenant is occupying the shop

and running a godown for storing the medicines which is of no

help for the purpose of running a school as it is a godown for

storing the medicines.

3. The petitioner-tenant filed his leave to defend application and

contested the claim of the respondent-landlord. He challenged the

identity of the property. It was contended by him that the Sale

Deed which is sought to be relied upon by the respondent-landlord

is reflecting the property number as 1/11700 while as in the Claim

Petition he has given the property number as 1/11700-A. It is

disputed by him that the respondent-landlord is the owner of the

property. It has been stated by him that the respondent-landlord

had filed a suit for possession against the present petitioner which

came to be decided by one Shri G.N. Pandey, learned Additional

District Judge, North-East bearing Suit No. 22/2009 in which the

learned ADJ had dismissed the claim of the respondent-landlord

with regard to his ownership of the suit property. The appeal was

taken by the respondent-landlord to the High Court, however,

curiously enough the same was also withdrawn and not pursued by

the respondent-landlord. It has been stated that these facts have not

been revealed by the respondent-landlord purposely so as to

mislead this Court with regard to the ownership of the suit

property. The existence of relationship between the petitioner and

the respondent that of tenant and landlord was also disputed. It

was stated that the petitioner was inducted as a tenant by one Smt.

Shashikanta who too had filed an eviction petition against the

present petitioner bearing No.E-132/1999 which also came to be

dismissed.

4. On the basis of the aforesaid averments made in the application

seeking leave to defend it was contended that the petitioner-tenant

has been able to raise triable issues with regard to the existence of

relationship between the parties and the question of ownership of

the respondent-landlord qua the suit property as well as the bona

fides of the respondent-landlord in seeking eviction of the

petitioner.

5. The learned Additional Rent Controller, (ARC) Ms. Bhawani

Sharma, after hearing the arguments and referring to the various

judgments of the Apex Court observed that the plea of the

petitioner-tenant challenging the ownership of the respondent-

landlord as being inchoate is of no consequence because for the

purpose of getting the eviction of the petitioner from the suit

property, the respondent-landlord need not prove that he is the

absolute owner, all that he is required to prove is that he has a

better title to the suit property than that of the petitioner-tenant.

6. Regarding existence of relationship of tenant and the landlord

between the parties, it was observed that this argument is not

tenable by the petitioner-tenant. With regard to the number of the

suit property it was observed that the identification of the property

is not in dispute and the numbers have been given to the suit

property as 1/11700-A is the new number while as the old number

was 1/11700 and nothing muster on the same. The factum of

concealment was also denied and it was stated that the finding

returned by the learned ADJ with regard to the ownership was not

conclusive and would not result in prohibiting the respondent-

landlord from seeking eviction of the petitioner. With regard to the

bona fides of the respondent-landlord the impugned order is silent

and the learned ARC after referring to various pronouncements of

the Apex Court and the High Court has rejected the leave to defend

and ordered eviction of the present petitioner.

7. I have heard the learned counsel for the petitioner-tenant as well as

the learned counsel for the respondent. I have also gone through

the impugned order. Although, no fault can be found with the

judgments which have been relied upon by the learned ARC,

however, one fact needs to be observed very boldly and loudly that

the learned ARC has mis-applied the principles of law in the

instant case. The learned ARC has not only returned the erroneous

findings which is not sustainable in the eyes of law but also the fact

that no reasonable person would arrive to the same conclusion. It

may be mentioned that the respondent-landlord is claiming himself

to be the owner of the suit property. There is no dispute about the

proposition of law laid down by the Courts including the Apex

Court that the ownership of the suit property for the purpose of

satisfying the requirement under Section 14 (1) (e) of the DRC Act

is not absolute. The landlord is considered to have satisfied the

said requirement in case he is able to show to the Court that his

title to the suit property is better than that of the petitioner-tenant.

This better title can be shown by way of Agreement to Sell or the

property having been inherited by testamentary succession or

having succeeded to the suit property by intestate succession or

otherwise. Further, in the instant case before filing of the eviction

petition, the respondent-landlord had filed a suit for possession

wherein an issue was framed as to whether the petitioner is entitled

to a decree of possession. This suit filed by the respondent-landlord

was dismissed meaning thereby he was not entitled to possession

of the suit property which he was claiming to be the owner. Thus,

the proof of ownership was a pre-condition for getting of the

decree of possession. Respondent-landlord had filed the appeal

against the said dismissal of the suit for possession passed by Shri

G.N. Pandey, the learned ADJ, but that was also dismissed as

withdrawn and therefore that finding with regard to the respondent-

landlord being the owner of the property was also not established

fully and it raises a triable issue for which the petitioner was

entitled to leave to defend which has been denied to him.

8. The second point is with regard to the existence of relationship of

landlord and tenant. In this regard the moment a person purchases

the property either he or the seller would give a notice to the tenant

occupying the property in question which has been transacted

indicating that henceforth the rent be paid to the perspective

purchaser or the new purchaser. In the instant case no such notice

was ever given either by the seller or by the purchaser nor the

petitioner of his own had given rent at any point of time to the

respondent-landlord. Thus, the existence of relationship of tenant

and the landlord between the parties does not get establish and

curiously, the learned ARC observed that this question of

relationship between the parties is of no consequence or is not of

much importance because respondent-landlord has purchased the

property. This, in my view is not the correct application of the law

and the existence of relationship has to be proved by the

respondent-landlord who is seeking eviction of the person in

occupation of the premises. This can be proved either by

attornment or otherwise. Therefore, this question in itself becomes

a triable issue.

9. The learned ARC has also fallen into error by observing that the

title of the respondent-landlord inchoate but it is better than the

petitioner-tenant and, therefore, rejected the leave to defend and

passed an eviction order. As a matter of fact the respondent's title

is not at all established but was inchoate this is on account of the

fact that there is a judgment passed by Shri G.N. Pandey, learned

Additional District Judge, North-East in a suit for possession where

his title has not been established and the suit was dismissed. The

appeal was also curiously withdrawn by the respondent-landlord.

For this reason, I feel that this was a fit case where a triable issue

was raised by the petitioner-tenant and the petitioner ought to have

been given leave to defend. This has not been done and therefore,

the impugned eviction order is not sustainable in the eyes of law.

10. The next question is with regard to the bona fide requirement of the

respondent-landlord. The respondent is not seeking eviction of the

petitioner for his own benefit. He is seeking eviction of the present

petitioner for the purpose of setting up a stationery shop. The

stationery shop is provided to facilitate the school and the children

as in today's world every secondary school has its own stationery

shop within its premises to facilitate the students. It is incidental

that the respondent-landlord states that he is sitting idle at home

and it will also ease his financial position. Thus, the requirement of

the respondent-landlord is admix with the requirement of the

school. The requirement of the school cannot be considered under

Section 14 (1) (e) of the DRC Act. Moreover, the respondent-

landlord is making contradictory averment. On the one hand he

says that he is sitting idle and that the stationery shop will

supplement his financial position, but on the other hand he admits

that he has let out the premises to the school from which he is

realizing rentals. If his financial position is being ameliorated then

he ought to have disclosed what was the amount of rent he was

receiving from the school, ought to have disclosed. If he was

sitting idle and it would improve his employment in the sense he

would run the stationery shop then how it would reconcile this fact

which he states that apart from receiving the rental, he is

functioning as Secretary as well as the Manager of the school for

the purpose of running school.

11. Further, it is not in dispute that there is a school which is being run

at the premises in question and that there is a portion which is lying

locked on the ground floor which was being used as a bathroom.

The respondent-landlord states that he wants to evict the petitioner-

landlord from the shop in question for the purpose of providing a

book shop and store on the same premises for the effective

functioning of the school. If that be so, then it is essentially the

requirement of the school for whose benefit the eviction is sought.

This is not the purport of law under Section 14 of the DRC Act

irrespective of the premises being residential or commercial, the

individual must show his bona fide requirement with regard to

either of them. In case it is an institution, society or any other body

corporate then in such an event a petition would lie independently

under Section 22 of the DRC Act. On this count also, I feel that

the evidence ought to have been permitted to be adduced by the

learned ARC.

12. On these two counts, I feel that the order of the learned ARC is

erroneous and simply by referring to number of cases one does not

deny the leave to defend by wrong analysis of the evidence. I

accordingly, set aside the order rejecting the leave to defend of the

petitioner and passing of an eviction order.

13. Accordingly, the petition is allowed and the petitioner-tenant is

directed to file written statement within 30 days from today with an

advance copy to the respondent, who may file response thereto

within three weeks thereafter.

14. Pending application also stand disposed of.

15. The parties to appear before the learned Additional Rent Controller

on 10.12.2015.

16. The learned ARC is expected to expedite the trial.

17. A copy of the order be sent to the learned Additional Rent

Controller.

V.K. SHALI, J.

NOVEMBER 20, 2015/vk