Mohd Dilshad vs Qaiser Nasir
2017 Latest Caselaw 4279 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of decision: 21st August, 2017
              RC.REV. 378/2017 & CM No.29713/2017 (for stay)

       MOHD DILSHAD                                   ..... Petitioner
                   Through:              Mr. Anjum Javed, Adv.

                                 Versus
       QAISER NASIR                                     ..... Respondent

Through: None.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM No.29714/2017 (for exemption)

1. Allowed, subject to just exceptions.

2. The application is disposed of.

RC.REV. 378/2017 & CM No.29713/2017 (for stay)

3. This Rent Control Revision Petition under Section 25B(8) of the Delhi Rent Control Act, 1958 impugns the order [dated 28 th April, 2017 in Case No.E-188/2017 of the Court of Commercial Civil Judge (CCJ)-cum-Additional Rent Controller (ARC), Central District, Tis Hazari Courts, Delhi] of dismissal of the application filed by the petitioner / tenant for leave to defend the petition for eviction filed by the respondent / landlady under Section 14(1)(e) of the Act and the consequent order of eviction of the petitioner / tenant from shop No.981, Matia Mahal, near Jama Masjid, Delhi-110006.

4. The counsel for the petitioner / tenant has been heard.

5. The counsel for the petitioner / tenant has commenced argument by drawing attention to the order dated 25th April, 2017 of the ARC as under:

"An application u/s 151 CPC filed on behalf of the respondent alongwith photographs to bring on record subsequent events. The contents of the said application and the documents annexed alongwith the said application are disputed by counsel for the petitioner.

Meanwhile, arguments on leave to defend application on behalf of both the parties heard.

During course of the arguments, it is submitted by counsel for the respondent that he has not been supplied with the documents annexed alongwith the petition. A complete set of petition alongwith all the documents are supplied alongwith the summons and it is too delayed a stage to make such a plea.

To come up for orders on leave to defend application as well as application u/s 151 CPC now for 28.04.2017."

and to the order dated 28th April, 2017 at page 197 as under:

"Vide separate order of even date, the application for leave to defend filed by respondent is ordered to be dismissed. Consequently, eviction order is made liable to be passed against the respondent u/s Section 25 B (4) of the Act. The petitioner is held entitled for recovery of the tenanted premises, i.e., one shop bearing no.981, Matia Mahal, Near Jama Masjid, Delhi-110006, with loft therein, as shown in red colour in the site plan annexed with the petition. However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14(7) of the Act.

File be consigned to record room."

and has argued that the application under Section 151 of the Code of Civil Procedure, 1908 (CPC) has not been decided and it amounts to a material irregularity committed by the ARC and which alone entitles the petitioner / tenant to have the order impugned in this petition set aside. It is also argued that even in the order in the application for leave to defend, the application under Section 151 CPC has not been decided.

6. However the counsel for the petitioner / tenant at a subsequent stage of the hearing has himself drawn attention to para 22 of the impugned order and which deals with the application under Section 151 CPC, falsifying the earlier stand of the application under Section 151 having not been dealt with.

7. Merely because no separate order has been passed on the application under Section 151 CPC or because in the short order dated 28th April, 2017 there is no reference to the application under Section 151 CPC is no reason for interfering in the impugned order inasmuch as the application has been dealt with in the detailed order dated 28 th April, 2017 impugned in this petition.

8. There is thus no merit in the first contention aforesaid.

9. I have enquired from the counsel for the petitioner / tenant, whether there is any dispute about the ownership of the respondent / landlady of the shop in the tenancy of the petitioner / tenant and the existence of relationship of landlord and tenant.

10. The counsel for the petitioner / tenant answers in the affirmative. However on enquiry as to who is the owner and landlord if not the respondent / landlady, the counsel for the petitioner / tenant

states that it is the father of the respondent / landlady. On further enquiry, whether the said father is alive, the answer is in the negative. On yet further enquiry, as to whom rent was paid after the death of the father of the respondent / landlady, it is stated that no rent has been paid to anyone.

11. The aforesaid arguments of the counsel for the petitioner / tenant also show that according to the petitioner / tenant, the respondent / landlady being one of the heirs of her father would be entitled to maintain the petition for eviction.

12. Supreme Court in Kanta Goel Vs. B.P. Pathak (1977) 2 SCC 814, Pal Singh Vs. Sunder Singh (Dead) by Lrs. (1989) 1 SCC 444 and Dhannalal Vs. Kalawatibai (2002) 6 SCC 16 has held that petition under Section 14(1)(e) of the Act can be filed by any one of the co-owners / co-landlords also.

13. In fact, a perusal of the impugned order shows the learned ARC to have recorded that the petitioner / tenant, in reply to the legal notice dated 23rd October, 2016 got issued by the respondent / landlady qua rent, admitted the respondent / landlady to be the owner / landlord of the shop in his tenancy. It is not the argument of the counsel for the petitioner / tenant that the said finding of the ARC is wrong.

14. The respondent/landlady instituted the petition for eviction pleading (i) that she alongwith her husband and three sons of marriageable age but unmarried was residing at Niti Khand-I, Plot No.151, Indirapuram, Ghaziabad, Uttar Pradesh; (ii) that the husband of the respondent/landlady had retired from service with the Bank and was receiving pension; (iii) that the marriage of the sons of the

respondent/landlady was held up inspite of them being 38, 37 & 35 years of age respectively, owing to their unemployment; (iv) that the youngest son of the petitioner/tenant though was earlier working with Convergys at Gurgaon, was forced to resign in May, 2016 and was since then unemployed; (v) that the other two sons of the respondent/landlady were also unemployed; (vi) that the respondent/landlady had got tenant in adjoining shop No.982 evicted on the ground of requirement of one of her sons and the said son had started carrying on business therefrom; (vii) that the respondent/landlady required the shop in the tenancy of the petitioner for another son of hers, to commence business therefrom.

15. I have enquired from the counsel for the petitioner/tenant, whether the petitioner/tenant in the application for leave to defend disputed that the respondent/landlady had three sons or their respective ages as stated by the respondent/landlady.

16. The answer is in the negative.

17. I have next enquired from the counsel for the petitioner/tenant, whether the petitioner/tenant in the application for leave to defend disclosed that the sons of the respondent/landlady were having any other vocation or employment and whether any other reason was disclosed as to why they would not use the shop in the tenancy of the petitioner/tenant for their self use.

18. The answer is again in the negative.

19. The counsel for the petitioner/tenant has however argued that the petitioner/tenant had filed the application aforesaid under Section 151 stating that though shop No.982 had been got vacated on the

ground of self use but the respondent/landlady has put up notice outside the shop for letting out thereof.

20. The learned ARC in para 22 supra of the impugned order has stated that the petitioner/tenant in support of his said plea has filed a photograph of a shop having shutter upon which a paper was affixed and on which "shop No.982 To Let" was written and it was thus not proved that the said photograph was of shop No.982 and the shutter in the photograph did not have any sign board showing the address of the shop. It was further reasoned that on the other hand the respondent/landlady had placed on record photograph of shop No.982 where one of the sons of the respondent/landlady was shown as carrying on business of kidswear from the said shop.

21. The counsel for the petitioner/tenant has argued that the learned ARC, in para 22 supra of the impugned order has further observed "further, the said photograph is not accompanied with a certificate under Section 65-B of the Indian Evidence Act and hence, the same cannot be relied upon". The argument is that the learned ARC has thereby shown preference of one set of affidavit over another and which is not permissible at the stage of leave to defend.

22. Though undoubtedly the observation of the learned ARC qua the certificate under Section 65-B of the Indian Evidence Act was uncalled for but what is of relevance is that the respondent/landlady in the petition for eviction itself pleaded having recovered possession of shop No.982 and one of her sons having commenced business therefrom. The petitioner/tenant, as per the argument urged, in the leave to defend did not state that the said shop was being put to any

other use. At a subsequent stage, merely filing a photograph and filing an affidavit of the intent of the respondent/landlady to re-let the said shop cannot entitle the petitioner/tenant to leave to defend. It is not in dispute that the respondent/landlady is till date in possession of the shop No.982. Though more than four months have elapsed since the impugned order and many more months have elapsed since the filing of the photograph aforesaid but it is not the case that the respondent/landlady has let out the said shop. The plea of the intent being to let out is clearly not such on which leave to defend is to be granted. If leave to defend were to be granted on such pleas, Section 25B of the Act introduced by the Legislature qua the only ground of eviction of self requirement by the landlord would become illusory.

23. The counsel for the petitioner/tenant has next argued that the legal notice and reply thereto while having been used by the learned ARC for finding the admission of the petitioner/tenant of ownership of the respondent/landlady of the shop in the tenancy of the petitioner/tenant and the existence of relationship of landlord and tenant, have been discarded qua the rate of rent.

24. For adjudication of an application for leave to defend in a petition for eviction on the ground under Section 14(1)(e) of the Act, adjudication of the rate of rent is not required. There is thus no merit in the said argument either.

25. Lastly, when the order is being dictated, it is averred that there are other premises available to the respondent/landlady. However, the counsel for the petitioner/tenant agrees that the petitioner/tenant in the application for leave to defend has not disclosed any other

accommodation other than the properties which have been disclosed by the respondent/landlady in the petition for eviction itself and qua which the respondent/landlady has given explanation.

26. A tenant under Section 25B of the Act cannot seek leave to defend merely by putting the respondent/landlady to proof of each and every averment in the petition for eviction. On the contrary the tenant is required, under Section 25B(5) of the Act, to disclose facts which would disentitle the landlord from an order of eviction under Section 14(1)(e) of the Act. The words "discloses such facts would disentitle the landlord from obtaining an order for recovery of possession of the premises on the ground specified in Clause (e) of the proviso to Sub-secton (1) of Section 14" have to be given a meaningful interpretation and have to be read as disclosing facts which would prima facie disentitle the respondent/landlady from an order of eviction under Section 14(1)(e) of the Act. The petitioner/tenant herein has utterly failed to disclose any such facts and the case of the petitioner/tenant is merely of denial of the case set up by the respondent/landlady and which cannot be the basis for grant of leave to defend.

27. No ground for interference under Section 25(B)(8) of the Act is made out.

28. Dismissed.

29. At this stage, the counsel for petitioner/tenant states that he has instructions from the petitioner/tenant to withdraw this petition and to state that the petitioner/tenant shall be bound by the order of eviction

impugned in this petition and confines the relief only to grant of time of one year to vacate the premises.

30. Issue notice limited to the aforesaid extent to the respondent/landlady by all modes including dasti and through the counsel for the respondent/landlady before the Trial Court returnable on 9th October, 2017.

RAJIV SAHAI ENDLAW, J.

AUGUST 21, 2017 „gsr/bs‟