Vinay Kumar Jain vs Sudeep Kumar Jain & Ors
2016 Latest Caselaw 2731 Del

*              HIGH COURT OF DELHI AT NEW DELHI

+                         RC.REV. 306/2011

                                              Decided on: 7th April, 2016

       VINAY KUMAR JAIN                             ..... Petitioner
                          Through:     Petitioner in person.


                          versus


       SUDEEP KUMAR JAIN & ORS                      ..... Respondents
                          Through:     Mr. S.N. Choudhri, Advocate with
                                       Mr. Sukreet Khandelwal, for R-1
                                       & R-4.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (Oral)

1. This is a revision petition filed under Section 25-B(8) of the Delhi

Rent Control Act, 1958 against the order dated 10.05.2011 passed

by the Additional Rent Controller (South), New Delhi by virtue of

which the leave to defend application of the present

petitioner/tenant has been dismissed and an eviction order has been

passed against him.

2. I have heard the learned counsel for the respondents as well as

petitioner who is appearing in person. I have also gone through the

impugned order. Before dealing with the question of grant of leave

to defend or refusal thereof, it will be pertinent here to give a brief

background of the case.

3. The respondents/landlords who are four in number had filed an

eviction petition against the present petitioner/tenant under Section

14 (1) (e) of the Act for bona fide requirement. The case which

was set up in the petition was that respondent No.1 Shri Sudeep

Kumar Jain and respondent No.4 Ms. Rosy Jain are the real brother

and sister while as respondent No.2 Smt. Bindu Jain is the step-

mother of respondents No.1 and 4 and respondent No.3 Sankesh

Jain is the step-brother. The respondents/landlords claims

themselves to be the co-owners and the landlords in respect of

property No.C-1/B, Green Park Extension, New Delhi. It was

alleged that the mother of respondents No.1 and 4 had let out a

shop on the garage portion of the ground floor of the building in

question to the present petitioner/tenant in the year 1974, which is

more particularly shown as red in the site plan annexed to the

petition. It was alleged that respondents No.1 and 3 want to start

their independent business as they have sufficiently grown enough

and they do not have any other alternative suitable accommodation

available to them for the said purpose. It has been further

elaborated that the respondents are residing on the first and the

second floor of the building in question. It is stated that respondent

No.1, before the death of his father Sugan Chand Jain on

21.06.2000 was helping his father in the sale and purchase of cars

and motor vehicles which was being carried out by the deceased

father from the residential portion. It was stated that ever since the

father of the respondent No.1 died, a heavy responsibility fell upon

respondent No.1. There were various litigations to be attended to

with the tenants by respondent No.1 because of which he stopped

his business of sale and purchase of vehicles. It has been stated

that respondent No.1 has since grown up and also sorted out all his

legal issues and, therefore, he intends to start his business afresh

and for that purpose he required minimum of two shops on the

ground floor of the suit property for the purpose of starting his

business of sale-purchase of artificial jewellery articles apart from

the eatables. It has been stated that the building in question is very

strategically located near the Green Park Metro Station and

therefore, he is hopeful that it will be able to generate sufficient

business because of the placement of the property near metro

station.

4. As regards respondent No.3 also it has been stated that he is

working in a call centre in Gurgaon and coming at odd hours which

is affecting his health and therefore he has also decided to start his

own independent business and his requirement would be also met

in case the possession of two shops is given to him on the ground

floor.

5. So far as the availability of accommodation to the

respondents/landlords is concerned it has been denied that they

have any suitable alternative accommodation available to them

either on the upper floors or at any other place wherefrom the

business could be started by any one of them. It has been stated

that in addition to the aforesaid property the respondents are also

co-owners of residential property bearing No.1961, Chandni

Chowk, Delhi comprising of two rooms and a kitchen which is

situated in a slum area which is a residential property. It is stated

that it is not suited for the purpose of commercial activities.

Because of these reasons the eviction of the present

petitioner/tenant was sought from the shop in question.

6. The present petitioner filed his leave to defend application and took

the plea that the property was let out to M/s. Veera Traders in the

year 1974 and therefore the said M/s. Veera Traders was the tenant

and not the present petitioner. It was stated that the entire property

No.C-1/B, Green Park Extension is essentially a commercial

building, a portion of which has been converted by the respondents

to residential and is thus being misused by them. It has been stated

that if the respondents' need was for alleged business then they

ought not to have occupied this portion of the building on the

mezzanine floor, first floor and third floor. The present

petitioner/tenant has also given the approximate square fts. Area

which was available to the respondents on the different floors

which has been occupied by them for the residential purposes.

7. The petitioner has also alleged that on 12.02.2008 a portion of the

first floor was let out to M/s. Computerware (I) Pvt. Ltd. on a

monthly rent of Rs.10,000/-. It has been stated that in case the

respondents were in genuine need of the premises for the purpose

of running their business then the same would not have been let out

to the said tenant.

8. As regards carrying out of the business, it has been stated that the

respondents/landlords are dependent only on the rental income

which is their main source of livelihood and the present eviction

petition has been filed only with a view to harass the

petitioner/tenant. The petitioner has also taken the plea that the

respondents/landlords has not filed a complete site plan of the suit

property only with a view to withhold the information about the

total accommodation available to them on the upper floors. It has

also been alleged that the respondents/landlords are essentially

residents of 1961, Katra Khushal Rai, Kinari Bazar, Chandni

Chowk, Delhi. They are residing in the suit property purposely

with a view to convert a portion in the commercial building for the

residential purposes. On the basis of these averments it has been

contended by the petitioner/tenant that the respondents do not

require the premises in question bona fide and to that extent a

triable issue is raised.

9. The respondents/landlords have filed their reply to the leave to

defend application and contested all the averments made in the

leave to defend application.

10. As regards user of the portion of the building for residential

purposes is concerned, it has been stated that the respondents have

resided at the suit property for the last more than 30 years and have

in fact grown up in and around Green Park and therefore, this

cannot be attributed to them that they have sought to convert a

portion of the building from commercial to residential only with a

view to seek eviction of the petitioner/tenant. It has also been

denied that the respondents are totally dependent on the rentals.

On the contrary, it has been stated that the respondents have

sufficiently proceeded with their lives and as they are grown up

they intend to start their independent business so as to make their

livelihood. With regard to the availability of alternative

accommodation in Chandni Chowk area, the factum of the said

property being commercial in nature has been denied and it has

been stated that the same is residential in nature consisting of two

rooms and a kitchen and the property is situated in slum area.

11. I have heard the learned counsel for the parties and considered the

respective contentions.

12. The question to be considered at the stage of grant of leave to

defend or refusal thereof is whether the facts as disclosed in the

leave to defend application are such which raises a triable issue so

as to warrant the grant of the leave to the petitioner/tenant, which if

permitted to be proved would disentitle the respondents/landlords

from retrieving the possession from the tenant. It has also held by

the Supreme Court that at the stage of grant of leave the tenant

does not have to prove an iron cast case which if permitted to be

proved would invariably result in the dismissal of the eviction

petition filed by the respondents/landlords. All that is required to

be shown is that there are facts and circumstances available to the

tenant which if are permitted to be adduced by way of evidence

may result in dismissal of the petition.

13. Before dealing with the facts of the present case on the touchstone

of above parameter, it may be pertinent here to mention that during

the pendency of the present petition certain developments had

taken place which are not disputed and contested, which will have

vital bearing on the question of grant of leave to defend or refusal

thereof to the petitioner. These facts are that there are admittedly

four co-sharers in respect of the suit property. The respondents

No.2 and 3 after the filing of the petition on 18.10.2010 have sold

their interest which at best was to the extent of 25% which is

reportedly sold by them to the third party who had also filed an

application under Order 22 Rule 10 CPC for being impleaded as a

party to the eviction petition. This fact of having sold the interest in

the suit property by respondents No.2 and 3 was not disclosed

voluntarily by the respondents but was brought to the notice of the

court by the tenant.

14. Mr. Choudhri, the learned counsel for the respondents has

contended that since respondents No.1 and 3 themselves were

aware about factum of sale documents having been executed by

respondents No.2 and 3 in favour of third party, therefore they

could not have brought it to the notice of the Court.

15. This is not convincing explanation given by the respondents No.1

and 4. The fact of the matter is that this was a common petition

filed by the respondents and all the four respondents were

represented by a common counsel therefore whatever had

transpired between any one of the respondents with a third party is

deemed to be within the knowledge of the other respondents and

they ought to have brought to the notice of the Court.

16. One of the main contention which has been urged by the learned

counsel for the respondents is that even this sale transaction has

taken place on 13.01.2012 while as the eviction order has been

passed on 10.05.2011 and, therefore, this will have no bearing to

the merits of the case so far as the case of respondent No.1 is

concerned. It has been contended that it will at best erase the

requirement of respondent No.3 who had also claimed retrieval of

at least two shops on the ground floor for his own bona fide

requirement. Mr. Choudhri, has further contended that before this

transaction had taken place between respondents No.2 and 3 on the

one hand and the third party on the other, the respondents No.1 and

4 had filed a suit for injunction in which a status quo order was

passed. In addition to this, he has contended that even the sale

transaction was challenged by him on the touchstone of Section 22

of the Hindu Succession Act as respondents No.1 and 4 had a

preferential right of pre-emption so far as the property in question

is concerned. Therefore, on the basis of these facts, it has been

contended that the factum of sale will not affect the bona fide

requirement of respondent No.1 and to that extent no triable issue

can be said to be arising from the leave to defend. He tried to

justify the order of the eviction passed by the learned ARC.

17. I do not agree with this submission of the learned counsel for the

respondents that the filing of the injunction suit or challenging the

Sale Deed on the touchstone of Section 22 or the fact that

respondents No.1 to 4 were aware about the transaction of sale is

relevant at this stage, so as to allow the eviction petition of

respondent No.1. The respondents must realise that they have filed

a composite petition along with respondents No.2 and 3 for the

purpose of eviction in which respondents No.1 and 3 have given

their independent requirement although a general statement has

been made in the beginning that the premises in question are

required bona fide by the respondents for the purpose of running of

business. Even if this is the case which has been set up by the

respondents then such a case cannot be segregated into two parts so

as to say that the requirement of respondent No.3 has ceased to

exist, while as the requirement of respondent No.1 still subsists

and to that extent the order of eviction is sustainable. In a situation

like this, it has a vital bearing on the bona fides of the respondents

in seeking of ejectment of the tenant from the suit property and it

raises triable issue, if the petitioner/tenant is permitted to prove it

may as well result in dismissal of the entire petition.

18. As regards bona fide requirement of the respondents is concerned,

it has been contended that no motive could be attributed to the

respondents by converting the first floor and the second floor to

residential premises of the building in question and the reason of

this is that the respondents having living in the suit property right

from the beginning for past more than three decades and it is not as

if for the purpose of ejectment of the present petitioner a part of the

suit property has been converted into residential from commercial.

It is contended that this submission of the petitioner/tenant that if

the respondents intends to start business then they ought to have

utilized the portion on the first and the second floor which was

available to them and which was being used for residential

purpose, does not raise any triable issue.

19. No doubts, the respondents are living on the first and the second

floor of the suit property for a considerable length of time but the

fact of the matter remains that the property in question is occupied

by 15-20 tenants in such a contingency if the respondents were

really serious, they could have explored the possibility of starting

the business yet continued with the present proceedings. This

would have certainly shown their bona fides. This fact coupled

with this fact that before filing of the petition some portion of the

suit property had fallen vacant but instead of using the same for

their own benefit they had let out the same at a higher rent. In

addition to this, the respondents have also admitted during the

course of arguments in writing that apart from the aforesaid

property in Green Park Extension, they have some other

commercial properties available to them in Pitam Pura, Maya Puri

and Darya Ganj which according to them is not suitable to meet the

requirement of their business which they intend to start with at the

place in question. Therefore, it is contended that the said

accommodation available is not suitable for the purpose of starting

of business of the type which was intended by the respondents

No.1 and 3, the details of such property were not given. The

factum of withholding of the details of the property which was

alternative accommodation would tantamount to concealment.

20. I have considered the submission and carefully gone through the

judgment, no doubt the accommodation which is available to the

respondents in different places which is sought to be disclosed now

during the course of argument may not be considered to be

sufficient or good enough by the respondents to meet their

requirement for the purpose of business which they intends to start.

But the fact of the matter remains that this fact cannot be seen in

isolation if this fact is one of the parts of series of facts then this

certainly becomes an important fact. The respondents ought to have

disclosed this accommodation. The other important fact which

form part of the series of facts are that respondents No.2 and 3 have

sold the property and yet not disclosed the same to the Court

notwithstanding the fact that it was a composite petition; the fact

that there were 15-20 tenants who are using the premises for

commercial purpose in the entire building. All these facts if taken

together create an impression prima facie that the argument of the

petitioner with regard to the bona fide requirement of the

respondents need to be put to trial and it cannot be decided at the

stage of permission to grant leave or to refuse the same.

21. For the aforesaid reasons, I feel that the learned ARC has fell into

error by rejecting the leave to defend application of the

petitioner/tenant and passing an eviction order against him. I

accordingly, set aside the order of eviction passed against the

present petitioner and grant him leave to defend.

22. Parties to appear before the trial Court on 04.05.2016.

23. The petitioner shall file his written statement within a period of

four weeks from today before the trial Court with advance copy to

the respondents who may file reply thereto within two weeks

thereafter.

24. Since the order of eviction was passed in 2011 and the petition has

been pending for a considerable length of time not only in the trial

Court but also in the High Court, therefore, the trial needs to be

expedited. I am cognizant of the fact that the Rent Controller are

overburdened with number of cases, however, despite the said

disability being suffered by the Rent Controller, I deem it just and

proper to request the learned Rent Controller to have expeditious

disposal of the matter and preferably within a period of one year

from the date of recording of evidence.

25. So far as the payment of user and occupation charges by the

present petitioner after the passing of the eviction order is

concerned, the same shall be at the rate at which he was paying

rentals to the respondents/landlords and if any amount in excess

has been paid by the petitioner/tenant by virtue of a court order, the

same shall be refunded back to the petitioner and if any amount is

deposited with the Registrar General of this Court, the same shall

also be refunded to him along with interest which has accrued

thereon.

CM APPL.9900/2015 (O.22 Rule 10 CPC)

26. This application under Order 22 Rule 10 CPC is dismissed which

has been filed by a third party as the basic doctrine which is

applicable in litigation is that the petitioner is the dominus litis.

Since the third party was not a party to the litigation in the trial

below, therefore, there was no necessity to implead him as a party.

27. As regard the application filed by respondents No.2 and 3 is

concerned that they may be deleted from the array of parties is

concerned, that application is also dismissed with liberty to take

such recourse in law as may be available to them before the trial

Court.

28. Other pending applications also stand disposed of.

V.K. SHALI, J.

APRIL 07, 2016 vk