Delhi High Court
Kailash Kumari & Anr vs Shakuntla on 2 February, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 2nd February, 2018
+ RC.REV. 6/2017
KAILASH KUMARI & ANR ..... Petitioners
Through: Ms. Ritu Jain, Adv.
Versus
SHAKUNTLA ..... Respondent
Through: Mr. Devinder Singh Khatana and
Mr. Sagar Lal, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Rent Control Revision Petition under Section 25B(8) of the
Delhi Rent Control Act, 1958 impugns the judgment [dated 16th July,
2016 in E.No.15/12 (Unique Case ID No.02406C0031342012) of the
Court of Rent Controller (South), Saket Courts, New Delhi] dismissing
the application of the two petitioners for leave to defend the petition for
eviction under Section 14(1)(e) of the Act filed by the sole respondent and
the consequent order of eviction of the petitioners from Shop No.7 on
ground floor of property no.67, Village Garhi, Main Market, East of
Kailash, New Delhi as shown in red colour in the site plan filed with the
petition for eviction.
2. This petition came up first before this Court on 6 th January, 2017,
when, after some hearing, further hearing was adjourned. On 15 th
February, 2017, on the contention of the counsel for the petitioners /
tenants that in the property in question i.e. property no.67, Main Market,
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Village Garhi, East of Kailash, New Delhi, the respondent / landlady has
13 shops out of which shops no.4,5,6&13 are available with the
respondent / landlady and her sons are carrying on business therefrom and
that the respondent / landlady though in the reply to the application for
leave to defend has denied the said plea in the leave to defend application
of the petitioners / tenants and stated that the said four shops are tenanted
but had not placed anything on record to show the said four shops to be
tenanted, notice of the petition was ordered to be issued and the execution
of the order of eviction stayed. On 26th October, 2017, when the petition
listed, the counsel for the petitioners / tenants sought adjournment.
Observing that the petitioners / tenants, after obtaining interim order could
not seek adjournments, interim order was vacated subject to the final
outcome of the petition. The counsel for the petitioners / tenants then
stated that she will argue the matter and the counsels were heard. During
the hearing it was noticed that there was some discrepancy as to the
documents filed with the leave to defend application. Accordingly, the
Trial Court records were ordered to be requisitioned and orders in the
petition reserved.
3. The Trial Court record has been received and has been perused.
4. The counsel for the petitioners, during the hearing, on enquiry,
stated that the petitioners do not dispute that the respondent / landlady is
the owner and landlord of the shop in the tenancy of the petitioners. Thus
the discussion hereafter will only be on the aspect of bona fide
requirement of and availability of alternate suitable accommodation to, the
respondent/ landlady.
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5. The respondent / landlady instituted the petition for eviction under
Section 14(1)(e) of the Act, from which this Revision Petition arises,
pleading (i) that the husband of the respondent / landlady was the owner
and landlord of the said Shop no.7 and had let-out the same to the
petitioners / tenants in January, 2001; (ii) that the husband of the
respondent / landlady died on 19th October, 2007 and thereafter the
respondent / landlady became the owner of the shop and the petitioners /
tenants started paying monthly rent to the respondent / landlady; (iii) that
the respondent / landlady has five sons namely, (a) Devender aged 30
years; (b) Joginder aged 26 years; (c) Virender aged 22 years; (d) Sumit
aged 20 years; and, (e) Ajay aged 16 years; (iv) that Devender is running a
Gym from a rented accommodation and Joginder is unemployed; the other
sons of the respondent / landlady are studying; (v) that the respondent /
landlady requires the shop in the tenancy of the petitioners for setting up a
shop for her unemployed son Joginder so that he can earn his livelihood;
and, (vi) that the respondent / landlady has no vacant shop.
6. The petitioners / tenants applied for leave to defend, pleading (a)
that they, at the time of taking the shop on rent had paid security deposit
of Rs.2,10,000/- in the nature of Pagri to the husband of the
respondent/landlady; (b) that there are 13 shops on the ground floor of
property No.67, Village Garhi and one of the said shops had been let out
for a food outlet just six months prior to the filing of the petition for
eviction; (c) that of the said 13 shops, the sons of the respondent/landlady
were carrying on business of CDs and electronic items from shop No.6, of
sale of stationary from shop No.5 and of sale of school bags from shop
No.4; (d) that another shop had recently been constructed under the stairs
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by demolition of the common urinal and let out to the food outlet
aforesaid; (e) that shop No.3 was let out recently to a tailor; (f) that shop
No.1 stood let out to Rajput Jeweller and shop No.2 to Classic Music
Center; (g) that shops No.9 to 12 also stood let out to different persons;
(h) that the husband of the respondent/landlady had taken Pagri for letting
out of shops No.1,2,7,9,10&11; (h) that the three sons of the
respondent/landlady are running their business from the three shops
aforesaid; (i) that first floor of the property was let out for residential
purpose to students and the second, third and fourth floors were being
used by the family of the respondent/landlady and her sons Devender,
Joginder, Virender, Bille, Sumit, Ajay, Baleshwar, Mahesh and Suresh; (j)
that the respondent/landlady was also the owner of property No.A-59,
Shera Mohalla, Garhi, East of Kailash, Delhi and which had been let out
by the sons of the respondent/landlady; (k) that the respondent/landlady
and her sons are also the owner of another property No.67B, Amrit Puri,
Garhi, New Delhi and which had also been let out; (l) that the
respondent/landlady and her sons were also the owners of property
No.59A/1, Amrit Puri Garhi, East of Kailash, New Delhi from which
Devender and Joginder, sons of respondent/landlady were running a Gym
and other parts of the said property were let out; (m) that the
respondent/landlady and her sons were also the owners of property
No.1747, Mam Raj Mohalla, Garhi, New Delhi which had also been let
out; (n) that the respondent/landlady and her sons were also the owners of
property No.76, Main Market, Garhi, New Delhi which had also been let
out.
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7. The respondent/landlady filed a reply to the application for leave to
defend, (i) denying that any security/Pagri was received from the
petitioners/tenants at the time of letting; (ii) denying that any new shop
had been constructed in the property at the place where earlier the
common urinal existed; (iii) denying that any shop had been let out six
months prior to the filing of petition for eviction for a food outlet; (iv)
pleading that there are only 12 shops on the ground floor and out of which
one was sold by the husband of the respondent/landlady 15 years back and
the other shops are in occupation of old tenants; (v) pleading that shop
No.6 is in possession of Suresh son of Selak Ram, brother of the husband
of the respondent/landlady and who the petitioners/tenants in their
application for leave to defend had pleaded to be also the owner of the
property; (vi) pleading that shop No.5 is in possession of one Jitender who
is running his book depot in the name and style of 'Amit Book Depot'
therefrom; (vii) pleading that shop No.4 is in possession of one Narender
who is running the business of sale of bags therefrom; (viii) pleading that
no new tenant had been inducted in any of the shops for four years
preceding the filing of the petition for eviction; (ix) pleading that
Baleshwar, Mahesh and Suresh are not the sons of the
respondent/landlady but are sons of Selak Ram; (x) pleading that Joginder
son of the respondent/landlady is unemployed; (xi) denying that the
respondent/landlady was the owner of property No.A-59, Shera Mohalla,
East of Kailash and pleading that Selak Ram is the owner of property
No.A-59, Shera Mohalla, Garhi, East of Kailash; (xii) denying that the
respondent/landlady is the owner of property No.67B/67, Shera Mohalla,
Jharia Maria Amrit Puri and pleading that Selak Ram was the owner of
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the said property; (xiii) denying that the respondent/landlady or her sons
are the owners of property No.59A/1, Amrit Puri, Garhi, East of Kailash
or that Joginder, son of the respondent/landlady is running his Gym
therefrom and pleading that Mam Raj, another brother of the husband of
the respondent/landlady is the owner of the said property and that it is
Devender, the elder son of the respondent/landlady who is running his
Gym from the said property by taking a portion thereof on rent from Mam
Raj (xiv) denying that the respondent/landlady was the owner of property
No.1747, Mam Raj Mohalla, Garhi and pleading that Mam Raj, brother of
the husband of the respondent/landlady was owner thereof and residing
therein; (xv) denying that the respondent/landlady or her sons had any
concern with property No.76, Main Market, Garhi, New Delhi and
pleading that the respondent/landlady also did not know who was the
owner thereof or whether such a property exist.
8. In the aforesaid state of pleadings, the learned Additional Rent
Controller (ARC) has found the petitioners/tenants to be not entitled to
leave to defend the petition for eviction and has passed the order of their
eviction, reasoning that the pleas taken by the petitioners/tenants in their
application for leave to defend, of other properties owned by the
respondent/landlady and her sons, were vague and the
respondent/landlady on the other hand had in her reply denied any
ownership of the said properties by herself and her sons and given
particulars of the owners of the said properties and on such vague pleas
leave to defend could not be granted.
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9. Perhaps for this reason only, the counsel for the petitioners/tenants
also, during the hearing before this Court on 15th February, 2017, confined
his argument to availability of four shops in property No.67, Main Market,
Village Garhi, East of Kailash, New Delhi, in another shop wherein, the
petitioners are tenants to the respondent/landlady or her sons.
10. A perusal of the Trial Court record, which was requisitioned, shows
the respondent/landlady to have also filed the documents to show
ownership of the other properties which the petitioners/tenants averred
that the respondent/landlady and her sons owned and qua which the
respondent/landlady in her reply to the application for leave to defend
pleaded that the same were owned by the brother/s of the husband of the
respondent/landlady. I may in this regard notice that the
petitioners/tenants in their application for leave to defend had also taken
the plea of respondent/landlady being only a co-owner of the property, in
a shop wherein the petitioners are tenants, along with the brothers of the
deceased husband of the respondent/landlady. However before this Court,
the ownership of the respondent/landlady and the existence of relationship
of landlord and tenant was not disputed.
11. Though a perusal of the Trial Court file does not show the
respondent/landlady to have placed on record the documents of letting out
of the shops which the petitioners/tenants alleged were in possession of
the sons of the respondent/landlady but the respondent/landlady is found
to have filed a site plan showing the occupation of each of the 12 shops on
the ground floor of the property.
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12. The petitioner/tenants have merely taken vague pleas with respect
to the availability of alternate accommodation with the
respondent/landlady and of the business being run by her sons therefrom.
13. It was for the petitioners/tenants to place before this Court
photographs or other material with respect to the business claimed to be
run by the sons of the respondent/landlady from the said shops. No such
effort has been made.
14. The petitioners/tenants are only found to have filed a site plan of
the shops but in which site plan also, it is merely mentioned that from one
of the shops claimed to be in possession of respondent/landlady and her
sons, business of bags, from another business of books and from another
business of CDs, was being run.
15. As would be evident from the narration above, the petitioners in
the leave to defend application, except for making vague pleas have not
disclosed any facts of their own which would disentitle the
respondent/landlady from obtaining an order of eviction under Section
14(1) (e) within the meaning of Section 25 (B)(5) of the Act. If it were to
be held that a tenant, in the application for leave to defend, merely by
denying the averments in the petition for eviction or making vague pleas,
without any basis and without disclosing the requisite particulars, or
producing any material, is entitled to leave to defend, then the same
would defeat the legislative intent in providing for summary procedure
with respect to petitions for eviction on the ground of personal
requirement of the landlord, as then in all cases leave to defend will have
to be granted and the stage of leave to defend would merely serve the
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purpose of delaying the filing of the written statement by the tenant and
the trial to follow, thereby making the procedure for eviction on the
ground of requirement of self use longer than the procedure prescribed
for adjudication of the petitions for eviction on other grounds of eviction
prescribed in the Act. I have in Ram Saroop Vs. Viney Kumar Mahajan
MANU/DE/3530/2017 on the said aspect held as under:-
"18. If leave to defend were to be granted on such
vague pleas, the same would defeat the legislative intent
of inserting Section 25B in the Rent Act as summary
procedure for dealing with petitions for eviction on the
ground of requirement of the premises by the landlord for
his own use. A tenant, to be entitled to leave to defend
has to disclose facts which would disentitle the landlord
from obtaining an order of eviction under Section
14(1)(e) of the Act. It is only such facts which when
proved would so disentitle the landlord which can entitle
the tenant to leave to defend. Evidence in proof of such
facts has to be confined to the pleas and cannot be
beyond the pleas. If the tenant is unable to make specific
pleas, the Court cannot grant leave to defend on the
premise that he will improve his case during trial. Leave
to defend is not to be granted to allow to the tenant time
to improve his case.
19. Supreme Court in Baldev Singh Bajwa Vs.
Monish Saini (2005) 12 SCC 778, in the context of
summary procedure under the East Punjab Urban Rent
Restriction Act, 1949 held that a heavy burden lies on the
tenant and the tenant is called upon to give all the
necessary facts and particulars supported by
documentary evidence, if available, to support his plea in
the affidavit itself so that the Controller will be in a
position to adjudicate and decide the question of genuine
or bona fide requirement of the landlord. A mere
assertion on the part of the tenant was held to be not
sufficient. Similarly, in Rajender Kumar Sharma Vs.
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Leela Wati (2008) 155 DLT 383 it was held that Section
25B was inserted as a special provision for eviction of
the tenants in respect of specified category of cases as
provided therein; where a landlord seeks eviction on the
basis of bona fide necessity, a summary procedure is
provided and the tenant has to seek leave to defend
disclosing such facts which disentitle the landlord from
seeking eviction; where a tenant, in leave to defend,
pleads preposterous propositions and makes such
averments which are palpably false and the landlord in
his reply to leave to defend is able to show the said
falsity, the Controller is not precluded from considering
the falsity of such facts on the basis of material placed by
the landlord before it. Again, in Ramesh Chand Vs.
Uganti Devi (2009) 157 DLT 450, it was held that mere
assertions do not raise any triable issue and if these bald
assertions were entertained, then every tenant would get
away with leave to defend, defeating the intent of
legislature. It was further held that only in those cases
leave to defend can be granted where Controller finds
some substance in the issues raised by the tenant. I have
also taken the same view in Sarwan Das Bange Vs. Ram
Prakash (2010) 167 DLT 80.
20. Supreme Court in Busching Schmitz Private
Limited Vs. P.T. Menghani (1977) 2 SCC 835 held that
Controller's power to give leave to contest is cribbed by
the condition that the affidavit filed by the tenant
discloses such facts as would disentitle the landlord from
obtaining an order for recovery of possession of the
premises on the ground specified in Section 14(1)(e) of
the Act; disclosure of facts is a sine qua non for grant of
leave. It was further held in Kewal Singh Vs. Lajwanti
(1980) 1 SCC 290 that it is a salutary provision in order
to prevent frivolous pleas taken by the tenants to avoid
eviction. In Precision Steel & Engineering Works Vs.
Prem Deva Niranjan Deva Tayal (1982) 3 SCC 270 it
was further expanded that while browsing through the
affidavit, if there emerges averment of facts which on a
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trial, if believed, would non-suit the landlord, leave ought
to be granted; however leave to contest should not be
granted unless the affidavit discloses such facts.
Ultimately in Prithipal Singh Vs. Satpal Singh (2010) 2
SCC 15 it was held that the dominant object of insertion
of Section 25B is to provide a speedy, expeditious and
effective remedy for a class of landlords contemplated
inter alia by Section 14(1)(e) and for avoiding unusual
dilatory process provided otherwise by the Rent Act and
the application of Order XXXVII Rule 4 of the Code of
Civil Procedure, 1908 (CPC) to Section 25B in force till
prior thereto, was held to be bad.
21. I am afraid making of vague pleas in the
application for leave to defend and affidavit
accompanying the same, without giving any particulars,
cannot be said to be disclosing facts which would
disentitle the landlord from obtaining an order of
eviction under Section 14(1)(e) of the Act."
16. Again, in judgment dated 2nd August, 2017 in RCR
No.352/2017 titled Lalta Prasad Gupta Vs. Sita Ram it was held as
under:
"17. The word "discloses" in Section 25 B (5) of the Rent
Act has to be understood as disclosing facts which if
proved would disentitle the landlord from obtaining an
order of eviction under Section 14(1)(e). Unless the words
"discloses such facts" in Section 25B(5) are understood
and interpreted as placing before the Rent Controller facts
which when proved will result in dismissal of petition for
eviction, the Rent Controller will be unable to apply
summary procedure prescribed in Section 25B for such
petitions for eviction. If it were to be held that every plea
in the application for leave to defend, howsoever vague
and without particulars and without anything in support
thereof, should be permitted to be proved, the advocates
for tenants, with their astute drafting skills, will not allow
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the summary procedure, prescribed by legislature to be
followed for petitions for eviction of tenants on the ground
of requirement of the landlord of the tenancy premises for
self use, to be followed in any case and leave to defend will
have to be granted and each case put to trial.
18. Thus, if the tenant seeks leave to defend
controverting the requirement pleaded by landlord on the
ground of the landlord, though at the time of requirement
having alternate premises, having not used the same and
instead having commercially exploited the same, the tenant
must plead (a) the particulars of such premises; (b) the
right / title of the landlord to the same; (c) that the said
premises were vacant and available for use at the time of
the pleaded requirement of landlord; (d) how the said
premises were suitable for the pleaded requirement; and,
(e) how the landlord has deprived himself thereof i.e. by
sale or letting and support the said pleas with material on
the basis whereof such pleas will be proved. I say that it is
essential to place such material before the Rent Controller
because the purpose of trial, resulting from grant of leave
to defend, is to prove the said pleas and if the tenant has
nothing from which he can possibly prove the said pleas,
the trial also will not result in the landlord being
"disentitled from obtaining an order for recovery of
possession of premises on the ground specified in Clause
(e) of proviso to sub Section (1) of Section 14" of the Act,
within the meaning of Section 25B(5) supra. This is not to
say that the tenant should file fool proof documentary
evidence at the stage of leave to defend. However there
must be placed on record all the requisite particulars. The
onus on the tenant, at the stage of seeking leave to defend,
is thus somewhere in between fool proof documentary
evidence and a totally vague, bereft of any particulars
plea. Where, in between the said onus lies, depends on
facts of each case."
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17. The application filed by the petitioners for leave to defend is not
found to be disclosing any facts which would disentitle the
respondent/landlord from obtaining an order of eviction under Section
14(1)(e) of the Act.
18. In the light of aforesaid, the order impugned does not require
interference by this Court in exercise of revisional jurisdiction under
Section 25B(8) of the Act as interpreted by the Supreme Court in Shiv
Sarup Gupta Vs. Dr Mahesh Chand Gupta (1999) 6 SCC 222 and
Hindustan Petroleum Corporation Limited Vs. Dilbahar Singh
(2014) 9 SCC 78.
19. There is no merit in this petition. Dismissed.
RAJIV SAHAI ENDLAW, J.
FEBRUARY 02, 2018
'pp/bs'..
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