Akshma Devi vs Jagdish & Ors
2016 Latest Caselaw 5584 Del

$~A-14
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Date of decision:29.08.2016

+     RC.REV. 58/2016 and CM No. 3432/2016 (stay)

      AKSHMA DEVI                         ..... Petitioner
                    Through    Mr.Asheesh Jain and Mr.Yudhir
                    Singh, Advocates
                    versus
      JAGDISH & ORS                       ..... Respondents
                    Through    Mr.B.S.Choudhry, Advocate.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. By the present petition, the petitioner/landlord seeks to impugn the order dated 31.10.2015 passed by the ARC granting leave to defend to the tenant/respondent.

2. The petitioner filed the petition under Section 14(1)(e) read with Section 25 B of the Delhi Rent Control Act seeking an eviction order in respect of the property being One Almirah Shop forming part of Shop No. 3830, Arya Samaj Road, Karol Bagh, New Delhi-5. It was the contention of the petitioner that she is the owner of the property in dispute and the same is required bona fide for running the business of her son, namely, Sh.Umesh Aggarwal who is a family member and residing with the petitioner and is dependent upon her for necessary accommodation for carrying out his business. It was stated that the entire property No. 3820-3830, Arya Samaj Road, Regarpura, Karol Bagh, New Delhi-5 is let out to different tenants and

RC.REV.58/2016 Page 1 the petitioner is not in possession of any portion of the said property. The son of the petitioner i.e. Sh. Umesh Aggrawal, it was averred, intends to carry on the business of car accessories and spare parts from the property in dispute.

3. It is the case of the petitioner that Sh. Narayan Dass was the original tenant inducted by the predecessor in interest of the petitioner under an oral tenancy. The respondents inherited the tenancy rights on the death of Sh.Narayan Dass i.e. respondents No.1 to 9. It may be noted that only respondents No.2 and 7 have filed their application for leave to defend.

4. The respondent filed his application for leave to defend making two submissions as grounds for grant of leave to defend. Firstly, it was stated that the petitioner is the owner of five shops and only two shops are under the tenancy of the tenants whereas the three shops are in possession of the petitioner and are lying vacant. It was secondly submitted that the petitioner has not disclosed in her eviction petition that Sh. Umesh Aggarwal is not the son of the petitioner but he is the son of her sister. Hence, it was urged that the respondent be granted leave to defend.

5. The ARC in a cryptic order noted that though the petitioner claims that her son Sh. Umesh Aggarwal is not having a place to carry on his business but the respondents have placed on record a visiting card and an invoice bearing the name of said Sh. Umesh Aggarwal to contend that he is carrying out business of auto accessories from Prithvi Raj Market, Khan Market, Delhi. It was stated that as there is no explanation from the petitioner, on this aspect a case is made out for grant of leave to defend to the respondents. The ARC further noted that the petitioner has not disclosed in the petition that Sh.Umesh Aggarwal is her adopted son and the same has

RC.REV.58/2016 Page 2 only been stated in the reply to the application of the respondents for leave to defend. It was noted that whether the adoption is in compliance of the Hindu Adoption and Maintenance Act would itself be a triable issue. Merely because an Election I Card and a college certificate have been filed does not prove anything. Based on these grounds, the ARC granted the respondents leave to defend.

6. I have heard the learned counsel for the parties.

7. Learned counsel for the petitioner has strongly pointed out that the factum of adoption is established itself by the documents placed on record by the petitioner, namely, the college certificate of Sh.Umesh Aggarwal given by Ramjas College, University of Delhi which clearly states that the name of the father of Sh. Umesh Aggarwal is Mr.Munshi Ram Aggarwal and his address is the same as that of the petitioner. Reliance is also placed on the Election I Card issued by the Election Commission of India which also states to the same effect. The petitioner has also filed on record an affidavit of Ms.Sheela Devi, the biological mother of Sh. Umesh Aggarwal and the sister of the petitioner who has stated that her husband Late Sh.Kishan Lal Aggarwal and she had given her son in adoption to the petitioner and her deceased husband-late Sh.Munshi Ram Aggarwal in a ceremony in the presence of the family members two months after the birth. Reliance is also placed on the judgment of this court in the case of S.A.Satsangi vs. Prem Kumar, 98 (2002) DLT 11.

8. As far as the argument of the respondents that Sh.Umesh Aggarwal is running his own shop, it is urged that the respondents along with their rejoinder had filed a visiting card claiming that Sh.Umesh Aggarwal is running his own shop and an invoice has also been filed. No such plea was

RC.REV.58/2016 Page 3 raised in the application for leave to defend and hence the petitioner had no opportunity to deal with the said submission. It is also urged that these documents were placed on record beyond the statutory period and contrary to the judgment of the Supreme Court in the case of Prithipal Singh v. Satpal Singh, 2010 (2) SCC 15 and hence the same cannot be taken into account. Even otherwise, he submits that the alleged shop, namely, in Prithvi Raj Market is not owned by Sh.Umesh Aggarwal and no business is being run over there. It is further submitted that regarding the contention of the respondents about the petitioner having three shops in her possession, the ARC has completely ignored the clear contention of the petitioner that all five shops are under tenancy though eviction petitions have also been filed against the said tenants. He submits that these eviction petitions are still pending before the trial court and are still at the stage of leave to defend.

9. Learned counsel for the respondents has reiterated his contentions to support the order as stated above regarding the three issues, namely, that the petitioner has possession of three shops, Sh. Umesh Aggarwal is an adopted son and that Sh.Umesh Agarwal is running a shop from Prithvi Raj Market.

10. The parameters for considering an application of the tenant for leave to defend have been considered in a catena of judgments. This court in the case of Sarwan Dass Bange vs. Ram Prakash, MANU/DE/0204/2010 has held as follows:-

"5. The Additional Rent Controller has in the order impugned in this petition dealt with the matter in a very cursory manner.

After reproducing the pleadings, arguments and passage from the judgment of the Supreme Court in Precision Steel and Engineering Works Ltd. v. Prem Deva Niranjan Deva Tayal MANU/SC/0210/1982:AIR 1982 SC 1518, it has merely been observed that the respondent/tenant has disputed each and

RC.REV.58/2016 Page 4 every ingredients of Section 14(1)(e) of the Act and thus disputed question of fact arise making the respondent/tenant entitled to leave to defend. Though the judgments cited by the petitioner are recorded in the order but there is no reasoning as to why the law laid down therein is not to be applied.

Aggrieved there-from the present revision petition has been preferred.

11. This court thereafter stated as follows:-

"7. The Controller has not discussed as to how the pleas raised by the respondent/tenant in the application for leave to defend are such which if established by adducing evidence would disentitle the petitioner/landlord of an order of eviction under Section 14(1)(e) of the Act. Ordinarily, when a tenant approaches an advocate for drafting a leave to defend application, the advocate, using his legal acumen would dispute each and every plea of the landlord in the eviction petition. However, merely because the tenant so disputes and controverts the pleas of the landlord does not imply that the provision of summary procedure introduced in the Act with respect to ground of eviction on the ground of requirement is to be set at naught. The Controller is required to sift/comb through the application for leave to defend and the affidavit filed therewith and to see whether the tenant has given any facts/particulars which require to be established by evidence and which if established would disentitle the landlord from an order of eviction. The test is not of the tenant having controverted/denied the claim of the landlord and thus disputed questions of fact arising; the test is to examine the pleas of facts and then to determine the impact thereof."

12. Similarly, this Court in Sanjay Mehra vs. Sunil Malhotra, 2010 (117) DRJ 654 held as follows:-

"38. This Court has considered the above submissions. In considering an application filed by the tenant under Section 25B(4) DRCA for grant of leave to defend an

RC.REV.58/2016 Page 5 eviction petition, filed on the ground of bonafide requirement under Section 14(1)(e) DRCA, the learned ARC would certainly have to examine the said application as well as the affidavit filed by the tenant. Under Section 25B(5), one essential requirement is that the affidavit filed by the tenant should disclose "such facts as would disentitle the landlord from obtaining an order for recovery of possession of the premises on the grounds specified in Clause (e) of the proviso to sub-section (1) of Section 14." It is plain that it is not enough at the stage of granting leave to defend for the learned ARC to examine if the landlord has made out a prima facie case to seek eviction of the tenant on the ground of bonafide requirement. In other words, the tenant will have to make a positive case as to why the landlord is disentitled from obtaining an order for recovery of possession."

13. We may now see the application filed by the respondents for leave to defend. As far as the issue of adoption of Sh. Umesh Aggarwal is concerned, this court in the case of S.A.Satsangi vs. Prem Kumar (supra) held as follows:-

"11. Applying the aforesaid principle of law to the facts of the present case, this Court has no hesitation in agreeing with the learned Trial Judge that the respondent was the landlord/owner of the premises in question. The respondent was under no obligation to plead in the eviction petition that he was an adopted son for the reason that the law does not countenance any distinction between an adopted and a natural son. It is also worth mentioning that in our society, in most of the cases of adoption, the adoption is kept as a guarded secret and under wraps so that the adopted child does not suffer any psychological trauma on learning that he is not natural but an adopted child in the family. Therefore, neither the adoptive parents nor the adopted child are under any obligation to go around and beat drums about adoption and tell the whole world

RC.REV.58/2016 Page 6 that the child is not a natural but an adopted child only. The pleading required to be made was that the respondent was the owner/landlord of suit premises and it was made. Thus, the absence of pleading in eviction petition that respondent was an adopted son is inconsequential as it was not required to be made."

14. Under the Hindu Adoption and Maintenance Act, an adopted son is akin to a natural son. He severs all his ties from his biological parents and for all intents and purposes, he is treated to be a son of his or her adoptive parents. Merely because this fact was not stated in the eviction petition would not be a ground to grant leave to defend to the respondents.

15. The petitioner has placed on record documents i.e. the certificate of Ramjas College, Delhi University and Election I Card where Sh.Umesh Aggarwal is shown as the son of Sh. Mr.Munshi Ram Aggarwal, the deceased husband of the petitioner and the address is shown as that of the petitioner, namely, 5143, Gali No.2-3 Krishna Nagar, Regar Pura, Karol Bagh, Delhi. The affidavit of the biological mother, namely, the sister of the petitioner is also on record to confirm adoption.

16. In the light of these facts, a mere denial of the respondents stating that Sh. Umesh Aggarwal is not the son of the petitioner would not give rise to a triable issue.

17. As far as the visiting card and invoice filed by the respondents is concerned, admittedly this was not filed along with the application for leave to defend. In the case of Prithipal Singh v. Satpal Singh(supra) the Supreme Court held as follows:-

"16. From a careful perusal of Sub-section (4) of Section 25B of the Rent Act, it would be clearly evident that the tenant shall not be permitted to contest the prayer for eviction unless he

RC.REV.58/2016 Page 7 files an affidavit before the Controller stating the ground on which he seeks to contest the application for eviction and obtains leave from the Controller. This Section also clearly indicates that in default of his appearance in compliance with the summons or his obtaining such leave, the statement made by the landlord in the eviction proceeding shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground mentioned in the eviction petition. At this stage, we may also note that in Sub-section (4) of Section 25B of the Rent Act read with Third Schedule, it has been made clear by the Legislature that if the summons of the proceeding is received by the tenant, he has to appear and ask for leave to contest the eviction proceeding within 15 days from the date of service of notice upon the tenant and if he fails to do so, automatically, an order of eviction in favour of the landlord on the ground of bona fide requirement shall be made."

18. Section 25B of the Delhi Rent Control Act, 1958 is a special code and the Rent Controller while dealing with an application for eviction of a tenant on the ground of bona fide requirement has to strictly follow compliance of the said section. The tenant has to appear and ask for leave to contest the eviction petition within 15 days from the date of service of notice upon the tenant and if he fails to do so, automatically an order of eviction in favour of the landlord on the ground of bona fide requirement shall be made. After expiry of 15 days period, the respondents cannot file additional document. Reference may also be had to judgments of this Court in Mirajuddin vs. Mohammad Habib (MANU/DE/1779/2014) and Sanjeev Gupta vs. Subhash Kumar Gupta (2014 SCC Online 4369.)

19. In the present case admittedly, the visiting card and the invoice were filed along with the rejoinder much beyond the expiry period of 15 days. The petitioner never had an opportunity to deal with the said document/contentions. In any case the petitioner has clarified that they do

RC.REV.58/2016 Page 8 not run any business on the said premises and do not own the said premises. These contentions raised by the respondent belatedly beyond the prescribed period could not be taken into account. Further, this allegation does not raise any plausible issue.

20. Coming to the last contention of the respondents, about the availability of three shops to the petitioner, the petitioner has clarified that all the shops are with tenants and eviction proceedings with regard to them are pending before the ARC. The ARC in the impugned order does not hold this to be a ground to grant leave to defend. Learned counsel for the petitioner has stated that this contention was not even argued before the trial court.

21. In view of the above, the conclusion of the ARC that sufficient grounds have been disclosed in the leave to defend application by the respondents is a conclusion which suffers from material illegalities. The ARC failed to see that the respondents as not been able to show facts which would disentitle the petitioner from obtaining an eviction order.

22. Accordingly, the impugned order dated 31.10.2015 is quashed and an eviction order is passed in favour of the petitioner and against the respondent in respect of the tenanted premises.

23. Respondents are directed to handover peaceful and vacant possession of the shop in question to the petitioner. However, the order shall not be executed prior to expiry of a period of six months from the date of the present order.

24. The petition stands allowed as above.

                                                     JAYANT NATH, J
AUGUST 29, 2016/rb



RC.REV.58/2016                                                           Page 9