Raj Rani Chaudhary & Ors vs Umesh Atri
2017 Latest Caselaw 895 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                     Date of decision: February 16, 2017
+      RC.REV. 263/2016 and CM No. 18322/2016 (stay)
       RAJ RANI CHAUDHARY & ORS               ..... Petitioners
                    Through  Mr.D.R.Bhatia, Advocate.
                         versus
       UMESH ATRI                                      ..... Respondent
                         Through      Mr.Praveen Chauhan, Mr. Abhishek
                                      Gupta and Ms.Arpita, Advocates.
       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. By the present revision petition filed under Section 25-B(8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the DRC Act), the petitioners/tenants seeks to challenge the order dated 03.03.2016 by which order the Additional Rent Controller (hereinafter referred to as the ARC) dismissed the application for leave to defend filed by the petitioners/tenants and passed an order of eviction against the petitioners under Section 14(1)(e) of the DRC Act.

2. The eviction petition was filed by the respondent/landlord. It was averred in the petition that the tenanted property being Property No. 393, Leela Ram Market, Masjid Moth, New Delhi was let out by late Pandit Sh.Leela Ram in 1952. The title of the respondent is traced through a family settlement dated 31.03.1971 between the LRs of Late Pt.Leela Ram and a family settlement dated 30.11.2005 among the family members of one of the LRs of Late Pt.Leela Ram, namely, Sh. Mohan Lal Atree. It is stated that as

per the family settlement, the tenanted property falls in the share of the respondent. The petitioners were said to have been informed about the family partition vide letter dated 08.01.2006. It is further stated that the respondent and his wife are professional architects who are running their office from their home i.e. B-5/4037, Vasant Kunj, New Delhi. It is averred that in view of the ban which has been imposed under the Master Plan of Delhi, 2021, business activities form residential premises would become illegal. Hence, it is stated that the respondent seeks to run/operate their office by joining the two tenanted premises, namely, premises No. 392-393. It is further stated that neither the respondent nor his wife has any other commercial property from where they can run their office. An undertaking was given that they would occupy the tenanted premises only for the office purpose.

3. The ARC noted the contents of the application for leave to defend filed by the petitioner. In the said application, the following salient grounds were taken:-

(i) No document has been placed on record by the respondent to show that he is the rightful/lawful owner/co-owner of the property in question. The entire transaction as narrated by the respondent, namely, the family settlement, partition, etc. has been completely denied by the petitioners. However, the petitioners admit that the property was let out to the father-in- law of the deponent of the affidavit seeking leave to defend, namely, Smt.Raj Rani Chaudhary/petitioner No.1, who was also the grandfather of petitioner Nos.2 to 4. It is further contended that all the legal heirs of the deceased tenant are necessary and proper parties for just, fair and complete decision of the case

(ii) It is stated that the respondent expressed apprehension that as per the Master Plan 2021, their business which is being carried out from their residence at Vasant Kunj would be banned but it is stated that not a single document in support thereof has been placed on record.

(iii) A list of various properties allegedly owned by the father of the respondent is given to submit that the respondent has alternative suitable accommodation.

(iv) That the respondent claims to be an architect but has failed to file any documentary proof regarding the same

(v) That the respondent has never disclosed their so called bona fide requirement for the last more than one decade and now all of a sudden, he has come with a make belief bona fide requirement.

4. On the issue of landlord-tenant relationship, the ARC noted that the petitioners are only denying the family settlement and claiming the same to be sham and bogus without any factual averment or narration of any kind whatsoever. It concluded that no tribale issue can be raised in this manner. On the issue of alternative suitable accommodation, it noted that though a list of properties has been given by the petitioners but admittedly as per the petitioners themselves, the same are owned by the father and other family members and not by the respondent. Thus, the ARC concluded that no triable issues have been raised on this aspect. Regarding bona fide need of the respondent, the ARC rejected the contention of the petitioners noting that the respondent being the landlord has a right to choose the place from where he wishes to do his business and the tenant cannot dictate to him terms. In view of the above, the application for leave to defend was dismissed.

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

6. Learned counsel for the petitioners has argued as follows:-

(i) He submits that the respondent claims himself and his wife to be Architects but has placed on record no proof thereof. He submits that in the absence of any proof, the averment of the respondent is suspected and cannot be accepted. This would, he submits, be a triable issue.

(ii) He also submits that it is the case of the respondent that as per the Master Plan 2021, the respondent would be barred from carrying out his business from the present residential premises. He submits that the year 2021 is far off and an eviction order could not have been passed. He submits that the order is premature and relies upon the judgment of this court in the case of David Brown vs. Dr. Surjeet Singh, 1971 All India Rent Control Journal 716 to contend that this court had held that the petitions which plead hardships which are premature should not be accepted.

(iii) He also points out to para 19 of the impugned order where he submits that the ARC has noted that the office of the respondent has been sealed by the municipal authorities which, he submits, is factually incorrect. In fact, he submits that no such averment has been made by the respondent in his eviction petition. He submits that the eviction order has been passed on a wrong analysis.

(iv) It is further submitted that the respondent claims that he and his wife are running their office from Vasant Kunj as part of their residential property. No reasons are given why he would like to shift to the tenanted property. In fact, there is no averment even saying that they need additional space or that the said space is more suitable.

7. 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..."

8. 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.

9. 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:-

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(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."

The above provisions would in view of the judgment of the Supreme Court in Satyawati Sharma(dead) by LRs vs. Union of India & Anr., AIR 2008 SC 3148 apply to commercial premises also.

10. 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 dependent upon him. (iii) the landlord or such other family members has no other reasonable suitable accommodation.

11. In the present case the trial court declined to grant leave to defend to the petitioners. The parameters for granting leave to defend are well known.

12. The Supreme Court in Precision Steel & Engineering Works and another vs. Prem Deva Niranjan Deva Tayal, AIR 1982 SC 1518 in para 22 held as follows:-

22. What then follows. The Controller has to confine himself indisputably to the condition prescribed for exercise of jurisdiction in Sub-section (5) of Section 25B. In other words, he must confine himself to the affidavit filed by the tenant. If the affidavit discloses such facts-no proof is needed at the stage, which would disentitle the plaintiff from seeking possession, the mere disclosure of such facts must be held sufficient to grant 'leave because the statute says on disclosure of such facts the Controller shall grant leave'. It is difficult to be exhaustive as to what such facts could be but ordinarily when an action is brought under Section 14(1) proviso (e) of the Act whereby the landlord seeks to recover possession on the ground of bona fide personal requirement if the tenant alleges such facts as that the landlord has other accommodation in his possession; that the landlord has in his possession accommodation which is sufficient for him; that the conduct of the landlord discloses avarice for increasing rent by threatening eviction; that the landlord has been letting out some other premises at enhanced rent without any attempt at occupying the same or using it for himself; that the dependents of the landlord for whose benefit also possession is sought are not persons to whom in eye of law the landlord was bound to provide accommodation; that the past conduct of the landlord is such as would disentitle him to the relief of possession; that the landlord who claims possession for his personal requirement has not cared to approach the Court in person though he could have without the slightest inconvenience approached in person and with a view to shielding himself from cross-examination prosecutes litigation through an agent called a constituted attorney. These and several other relevant but inexhaustible facts when disclosed should ordinarily be deemed to be sufficient to grant leave."

13. 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.)"

14. I may deal with the submissions of the learned counsel for the petitioners. The first contention was regarding alleged proof of the respondent and his wife being an architect. Learned counsel appearing for the respondent has explained that nowhere in the application for leave to

defend, the petitioners have made the claim that the respondent and his wife are not qualified architects. He submits that in the absence of such an averment, there was no need or occasion for the respondent to file the necessary papers to that effect.

15. A perusal of the application for leave to defend filed by the petitioners would show that the only averment raised by the petitioners is that the respondent has failed to file any documentary proof that they are doing the work of architects. It has not been stated that the respondent/his wife is not an architect. It may also be noted that the respondent in his eviction petition on affidavit stated that he and his wife are architects. Merely based on the bald averments of the petitioners, it cannot be concluded that any triable issue has been raised by the petitioner on the said contentions.

16. Coming to the second contention of the learned counsel for the petitioners about sealing of the premises being far away in 2021. In my opinion, the contention has rightly been rejected by the ARC as not raising any triable issue. The respondent is carrying on his professional activities from his residence. It is a matter on common knowledge that Vasant Kunj is a DDA colony with limited floor area. The desire of the respondent to shift to a proper commercial office away from the residence would be an obvious desire. Accordingly, merely because using of an office by a professional would become illegal in 2021 would not mean that the respondent cannot express his desire to have an independent office away from his residence. There is no merit in the said contention of the petitioners.

17. Coming to the third contention of the petitioners regarding a wrong observation made by the ARC in the impugned order, I may note that in para 19 of the impugned order what has been noted is the submission of the

learned counsel for the respondent. There is no finding recorded based on this contention of the respondent that the office of the respondent has been sealed by the municipal authorities. The said submission of the petitioners is without merit.

18. Coming to the last contention of the petitioners, namely, the absence of any averment regarding the need to shift the office, in my opinion, this is again a baseless argument.

19. A desire of a qualified professional to shift his office from his residence to an independent unit would be bona fide requirement and cannot be termed to be a whimsical or mere fancy as has been held by a catena of judgments. It is not for the petitioners to dictate to the respondent the premises from where he should carry on his business especially in the present circumstances, namely, the residence of the respondent.

20. Reference may be had to the said judgment of the Supreme Court in Anil Bajaj & Anr. vs. Vinod Ahuja, 2014 (6) Scale 572. That was a case where the landlord owned several properties in the vicinity of the tenanted premises. The Supreme Court held as follows:-

6. In the present case it is clear that while the landlord (Appellant No. 1) is carrying on his business from a shop premise located in a narrow lane, the tenant is in occupation of the premises located on the main road which the landlord considers to be more suitable for his own business. The materials on record, in fact, disclose that the landlord had offered to the tenant the premises located in the narrow lane in exchange for the tenanted premises which offer was declined by the tenant. It is not the tenant's case that the landlord-Appellant No. 1 does not propose to utilize the tenanted premises from which eviction is sought for the purposes of his business. It is also not the tenant's case that the landlord proposes to rent out/keep vacant the tenanted premises after obtaining possession thereof or to use the same is any way

inconsistent with the need of the landlord. What the tenant contends is that the landlord has several other shop houses from which he is carrying on different business and further that the landlord has other premises from where the business proposed from the tenanted premises can be effectively carried out. It would hardly require any reiteration of the settled principle of law that it is not for the tenant to dictate to the landlord as to how the property belonging to the landlord should be utilized by him for the purpose of his business. Also, the fact that the landlord is doing business from various other premises cannot foreclose his right to seek eviction from the tenanted premises so long as he intends to use the said tenanted premises for his own business. The grounds on which leave to defend was sought by the tenant and has been granted by the High Court runs counter to the fundamental principles governing the right of a tenant to contest the claim of bonafide requirement of the suit premises by the landlord under the Delhi Rent Control Act, 1958. Even assuming the assertions made by the tenant to be correct, the same do not disclose any triable issue so as to entitle the tenant to grant of leave to defend."

21. In Ragavendra Kumar v. Firm Prem Machinery and Co., [2000] 1 SCR 77, it was held that it is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter. In Prativa Devi (Smt.) v. T.V. Krishnan, (1996) 5 SCC 353, it was held that the landlord is the best Judge of his requirement and Courts have no concern to dictate to the landlord as to how and in what manner he should live. The bona fide personal need is a question of fact and should not be normally interfered with.

22. In G.C. Kapoor Vs. Nand Kumar Bhasin, AIR 2002 SC 200, the Supreme Court noted as follows:

"9. It is settled position of law that bonafide requirement means that requirement must be honest and not tainted with any oblique motive and is not a mere desire or wish. In Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde and Anr.: [1999] 2 SCR 912, this Court while considering the bonafide need of the landlord was of the view that when a landlord says that he needs the building for his own occupation, he has to prove it but there is no warrant for 'presuming that his need is not bonafide'. It was also held that while deciding this question. Court would look into the broad aspects and if the Courts feels any doubt about bonafide requirement, it is for the landlord to clear such doubt."

23. In the light of the above, there is no merit in the contentions of the petitioner. The present petition is dismissed. All pending applications also stand dismissed.

(JAYANT NATH) JUDGE FEBRUARY 16, 2017 rb