Ranjiv Khanna vs Shyam Lal Mittal & Ors.
2017 Latest Caselaw 776 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: February 10, 2017

+      RC.REV. 452/2016 and CM Nos. 34667-69/2016
       RANJIV KHANNA                                      ..... Petitioner
                   Through            Mr.Bharat Deepak, Advocate

                         versus

       SHYAM LAL MITTAL & ORS.                            ..... Respondents

Through

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.(ORAL)

1. The present revision petition is filed under Section 25 B(8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the „DRC Act‟) seeking to challenge the eviction order dated 24.09.2015 passed by the Additional Rent Controller (hereinafter referred to as the „ARC‟) under Section 14(1)(e) of the DRC Act.

2. Respondent No.1 filed the present eviction petition under Section 14(1)(e) of the DRC Act regarding property being Shop, Ground Floor and Basement in property bearing No. 506, Katra Asharfi, Chandni Chowk, Delhi-06 against the petitioner and respondent No.4. Respondents No.2 and 3 were impleaded as proforma parties, being co-owners of the tenanted property. The premises were rented out 30 years back. It was the claim of respondent No.1 that the petitioner/tenant had sub-let the property to a third

party. The property in question is said to have been purchased by Late Smt. Bhagwati Devi in favour of her minor children, namely, Sh. Sat Narain and Sh. Din Dayal vide registered sale deed dated 02.03.1934. Subsequently, Sh. Sat Narain became the owner of the property. Respondents No. 1 and 2 are the sons of Sh. Sat Narain. It is stated that respondents No.1 and 2 were doing wholesale business of trading in cloth but the said business failed and respondents No. 1 and 2 suffered heavy losses. Their business was closed down. Various litigations were started with the bank. Due to financial difficulties, the father of respondents No.1 and 2 had to sell most of the portions of property bearing No. 505-506, Katra Asharfi and 1047, Maliwara, Chandni Chowk, Delhi. Respondent No. 2 in the present petition is the brother of respondent No.1 and is arrayed as respondent in the eviction petition. It is stated that the family of respondent No.1 comprises himself, his wife and his one son, namely, Amit Mittal, wife of Amit Mittal, grandchildren and a daughter. The said Amit Mittal is in the business of trading in Aluminum at Chawri Bazar, Delhi but he has no place to sit and deal with customers. He needs space to sit and the tenanted shop is the most suitable place from where the son of respondent No. 1 can operate his business. Hence, the present eviction petition was filed.

3. The ARC noted the submissions of the petitioner, namely, (a) that respondent No. 1 is not the owner of the property; (b) that the father of respondent No. 1 had sold the said tenanted premises and had even executed an agreement to sell 20 years back and (c) that the son of respondent No.1 i.e. Sh. Amit Mittal is already having suitable accommodation for running his business of Aluminum in Chawri Bazar, Delhi. The ARC noted that it is nowhere disputed that the petitioner is the tenant of respondent No. 1.

Counterfoils of the rent receipts have also been placed on record by respondent No. 1. Hence, the ARC concluded that the relationship of landlord and tenant stands established. On the issue of agreement to sell as raised by the petitioner, it noted that copy of the agreement to sell or receipt of payment of sale consideration have not been placed on record. Hence, it noted that the said averment is only a bald averment without any substance. On bona fide requirement, the ARC noted that the shop is required for the son of respondent No. 1 to run his Aluminum business. It noted that the petitioner has failed to mention the number or description of the premises in Chandni Chowk from where, according to the petitioner, the son of respondent No. 1 is carrying on the business of Aluminum. The contention being a bald averment without any substance, the ARC rejected the same. To the same effect was the issue of alternative suitable accommodation. Rejecting the contentions of the petitioner, the ARC dismissed the application for leave defend and passed an eviction order.

4. I have heard the learned counsel for the petitioner. He has submitted as follows:-

(i) That the father of respondents No. 1 and 2 had entered into an agreement to sell with the wife of the petitioner in 1994 and again in 2004. As per the agreement to sell, he submits, the entire sale consideration has been paid. Hence, he submits that the eviction petition is mala fide

(ii) He further submits that respondent No. 1 and 2 have sold various portions of the property and hence, now they cannot seek eviction on bona fide need.

(iii) The need of respondent No.1 is not bona fide.

5. I may first see the scope of the present petition. The Supreme Court in Shiv Sarup Gupta vs. Dr.Mahesh Chand Gupta, (1999) 6 SCC 222/(MANU/SC/0132/1999) described the revisional powers of this court as follows:-

"11....... The phraseology of the provision as reproduced hereinbefore provides an interesting reading placed in juxtaposition with the phraseology employed by the Legislature in drafting Section 115 of the CPC. Under the latter provision the exercise of revisional jurisdiction of the High Court is circumscribed by the subordinate court having committed one of the three errors, namely (i) having exercised jurisdiction not vested in it by law, or (ii) having failed to exercise a jurisdiction so vested, or (iii) having exercised its jurisdiction with illegality or material irregularity. Under the proviso to Sub-section (8) of Section 25B, the expression governing the exercise of revisional jurisdiction by the High Court is 'for the purpose of satisfying if an order made by the Controller is according to law'. The revisional jurisdiction exercisable by the High Court under Section 25B(8) is not so limited as is under Section 115 C.P.C. nor so wide as that of an Appellate Court. The High Court cannot enter into appreciation or re- appreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of "whether it is according to law'. For that limited purpose it may enter into re-appraisal of evidence, that is, for the purpose of ascertaining whether the conclusion arrived at by the Rent Controller is wholly unreasonable or is one that no reasonable person acting with objectivity could have reached that conclusion on the material available..."

6. Hence, this court is to test the order of the ARC to see whether it is according to law, and whether the conclusions are not wholly unreasonable.

7. Section 14(1)(e) of the DRC Act reads as follows:

"14.Protection of tenant against eviction.- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant:

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:-

xxxxx

(e) that the premises let for residential purpose are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and the landlord or such person has no other reasonably suitable residential accommodation."

8. The essential ingredients which a landlord/respondent is required to show for the purpose of getting an eviction order for bona fide needs are (i) the respondent is the owner/landlord of the suit premises (ii) the suit premises are required bona fide by the landlord for himself and any of his family members dependant upon him. (iii) the landlord or such other family members has no other reasonable suitable accommodation.

9. Similarly, this court in Deepak Gupta vs. Sushma Aggarwal, 2013 202 DLT 121 held as follows:-

"24.From the mere reading of the afore mentioned illuminating observations of the Supreme Court in the case of Precision Steels (supra), it is apparent that the Controller has a statutory duty to grant the leave to defend if the affidavit discloses the facts which could raise suspicion on the genuineness of the need of the landlord which can in effect disentitle the landlord from recovering the possession on the ground of bonafide requirement. The likelihood of success or the failure of the defence is not really determinative of the question as to grant or not grant of the leave to defend but the real question is tenability of the plea which may raise a suspicion on the need of the landlord which may if proved can also lead to disentitlement to the recovery of the possession. Thus, the plea raising a doubt in the mind of the Controller is sufficient to grant the leave. The Controller can also not record the findings on disputed question of the facts by preferring the one set of facts over and above the other. The merits of the pleas raised are not to be gone into at the time of the grant of the leave to defend by going into the complicated questions of fact. For making the enquiry, the affidavit filed by the tenant is helpful.

25. The views expressed by the Supreme Court in the case of Charan Dass (supra) and Precision Steel (supra) are holding the field and have been consistently followed by the Supreme Court till recently and also by this court from time to time. (kindly see the case of Inderjit Kaur vs. Nirpal Singh, : 2001 (1) R.C.R. 33 and Tarun Pahwa vs. Pradeep Makin, : 2013 (1) CLJ 801 Del.)"

10. I may hence test the findings recorded by the ARC on the touchstone of the requirement of the parameters stated above for determining as to whether the trial court rightly refused the leave to defend to the petitioners.

11. I may first deal with the main contention of the petitioner regarding agreement to sell in favour of his wife for the tenanted property. I may note

that the ARC has noted in the impugned order that the petitioner has failed to place on record photocopies of the alleged agreement to sell and receipt. It was put to the learned counsel for the petitioner as to whether these documents were placed on record before the ARC. Learned counsel submits that his instructions were that the documents were placed on record but he cannot say so categorically. Hence, the conclusion of the ARC that this submission has no merit as the documents were not placed on record cannot be faulted with.

12. In any case, reliance on the alleged execution of agreement to sell in 1994 or 2004 is misplaced. Now, almost 12 years after the execution of the agreement to sell, the petitioner cannot claim any right which perhaps may flow from the agreement to sell as it stands extinguished. Admittedly, the petitioner has taken no steps to claim any right to the property based on the said alleged agreement to sell. Admittedly no suit for specific performance was filed. There is no merit in the said plea of the petitioner.

13. Regarding the contention of the petitioner of sale of other properties, respondent No. 1 has in his eviction petition clearly pointed out that various properties were sold by the father of respondent No. 1 and also by respondent No.1. It has been pointed out that because of financial losses suffered in the previous business and proceedings pending with the bank, the necessary sale had to be affected. In any case, the sales have been affected long back and are not contemporaneous in nature. The sale of the said property does not in any manner affect the bona fide requirement of respondent No. 1.

14. The last contention of the petitioner pertains to the submission that there is no bona fide in the present petition. Respondent No.1 has pointed out

that his son is doing business in Aluminum but has no premises to carry on the same. The petitioner has failed to place on record the details of any premises which are available with the son of respondent No.1. In my opinion, there is no merit in the contention of the petitioner.

15. There are no reasons for this court to exercise revisionary powers to interfere in the eviction order passed by the ARC. The Petition is accordingly dismissed. All pending applications also stand dismissed.

(JAYANT NATH) JUDGE FEBRUARY 10, 2017/rb