Delhi High Court
Abdul Rashid vs Nawab Ali on 11 July, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 11th JULY, 2022
IN THE MATTER OF:
+ RC.REV. 642/2018
ABDUL RASHID ..... Petitioner
Through: Mr. R. K. Saini, Advocate
versus
NAWAB ALI ..... Respondent
Through: Mr. G M Farooqui, Advocate
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
SUBRAMONIUM PRASAD, J.
1. The instant revision petition is directed against the Order dated
11.10.2018, passed by the learned Additional Rent Controller, Central
District, Tis Hazari Courts, Delhi in eviction petition, being E-160/15
(hereinafter referred to 'the instant eviction petition').
2. The facts, in brief, leading to the instant petition are as under :-
i. It is stated that Respondent herein (hereinafter referred to as
'the Landlord') is the owner of a shop/godown in Property
bearing No. 2386, Ward No. 11, Gali Dr. Inayat Khan, Kucha
Chelan, Darya Ganj, New Delhi (hereinafter referred to as 'the
tenanted premises'). It is stated that the said godown was let out
by the Landlord to the Petitioner herein (hereinafter referred to
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as 'the Tenant') @ Rs. 330/- per month for commercial
purposes.
ii. It is stated that the Landlord is also the owner of property
bearing No. 4083, Gali Nalwali Urdu Bazar, Jama Masjid,
Delhi-06 admeasuring 50 sq. yds. which consists of three floors
and a tin shed on the terrace. It is stated that the Landlord is
running his guest house in the name & style of Nawab Guest
House in the said property by using the ground floor, first and
the second floor. The third floor is being used by the Landlord
and his family members for residential purposes.
iii. It is stated that the Landlord has one married daughter and an
unmarried son. The son, Mohd. Fazal, aged 22 years is
unemployed, has no source of income and is interested in
running his own independent business of tent house. It is stated
that due to paucity of accommodation, the son of the Landlord
has not been able to even start his business till date. It is further
stated that the Landlord has no other property either for
residential or commercial purpose, and therefore, the Landlord
has filed the instant eviction petition on the ground that the
tenanted premises is bona fide required by him to enable his
son to run his own business.
iv. An application for leave to defend was filed by the Tenant. In
the said application, it was contended by the Tenant that:
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a) The Landlord was not the owner of the tenanted premises
since the property in question is the Custodian Property
situated in a Slum Area.
b) The Guest House owned by the Landlord is well-known
and is currently being operated by the son, and, therefore,
the son does not require the tenanted premises.
c) There are other alternate residential as well as
commercial accommodations available and, therefore,
there is no bona fide requirement of the tenanted
premises. It is stated that there are four shops lying
vacant in Property No. 4083, Urdu Bazar, Jama Masjid,
Delhi which is owned by the Landlord.
d) It is stated that the first, second and third floor premises
of House No. 2386, Gali Dr. Inayat Khan Chelan, Darya
Ganj, New Delhi are also lying vacant.
e) It is stated that the Landlord has four shops within the
commercial area of Gazipur Mandi and he recently got
one shop vacated from the tenant situated near the shop
of the Petitioner herein and sold the same.
v. A reply was filed by the Landlord to the leave to defend
application filed by the Tenant denying the allegations of the
Tenant and reiterating the averments made in the eviction
petition. In the reply, it is contended that once the landlord-
tenant relationship is established, the ownership of the former
cannot be challenged. It is further stated that the Tenant has not
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provided any documentary evidence establishing that the
Landlord is not the owner of the tenanted premises. The
affidavit further states that the Tenant has also not provided any
documentary evidence to substantiate his allegations pertaining
to the aforementioned properties as well as his allegation
pertaining to the son of the Landlord running and operating his
business elsewhere. The affidavit states that the Landlord has
categorically provided true and complete details of the
properties under Paragraph 18(v) of the petition and requires
the tenanted premises for his son.
vi. After going through the material on record, the learned Rent
Controller declined to grant leave to defend to the Tenant by
holding as under:
a) That there is no dispute regarding the landlord-tenant
relationship, and that once the tenant has admitted the
relationship, it is now not open for the tenant to turn
around and dispute the ownership of the tenanted
premises.
b) The learned Rent Controller did not accept the contention
of the Tenant that the Landlord is in possession of
sufficient alternate accommodation and the tenanted
premises is not required by the Landlord. The learned
Rent Controller held that the fact of availability of
alternative accommodation has been denied by the
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Landlord and no documents have been placed on record
by the Tenant to substantiate his contention.
c) The learned Rent Controller rejected the contention of the
tenant that the son of the Landlord, for whom the
tenanted premises is required, is running the guest house
from the Property No. 4083, Urdu Bazar, Jama Masjid,
Delhi, and, therefore, the need of the Landlord is not
bona fide. The learned Rent Controller held that even
assuming that the guest house is being run by the son of
the Landlord, then also it cannot be said that there is any
bar on the son of the Landlord to start an independent
business of his own other than helping his father in
running the guest house.
d) The learned Rent Controller rejected the contention of the
Tenant that the entire first, second and third floor of
property bearing No. 2386, Gali Dr. Inayat Khan Chelan,
Darya Ganj, New Delhi are lying vacant. The learned
Rent Controller held that this fact has been denied by the
Landlord by stating that three godowns on the ground
floor, and one room each on the first and second floor of
the said premises are owned and possessed by Adbul Rais
and Adbul Rahat, both sons of late Adbul Rashid, and
Maqsood, son of Abdul Kareem. The learned Rent
Controller held that no document has been produced by
the Tenant to rebut the submission of the Landlord that
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the entire first, second and third floor of property bearing
No.2386, Gali Dr. Inayat Khan Chelan, Darya Ganj, is
not in his possession.
e) The learned Rent Controller also rejected the contention
of the Tenant that the Landlord has four shops within the
commercial area of Gazipur Mandi and he recently got
one shop vacated, which was situated near the shop of the
Tenant and sold the same, on the ground that no
supporting document has been filed by the Tenant to
show that the Landlord has other premises. The learned
Rent Controller held that mere bald assertions cannot
raise a triable issue and some documents/material has to
be produced by the Tenant in order to substantiate his
contention that an alternative accommodation is available
to the Landlord.
vii. It is this order against which the Petitioner/tenant has
approached this Court by filing the instant petition.
3. Mr. R. K. Saini, learned counsel appearing for the Petitioner/Tenant,
draws the attention of this Court to certain photographs to show that the
property bearing No. 4083, Urdu Bazar, Jama Masjid, Delhi, bearing the
board of Nawab Guest House, is lying vacant. He, therefore, states that this
fact itself raises a triable issue and the learned Rent Controller ought to have
granted leave to defend to the Tenant to show that rooms are available in the
said premises itself to enable the son of the Landlord to conduct the
business. Learned counsel for the Petitioner also states that a room, which
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was lying vacant in the property No. 2386, Gali Dr. Inayat Khan Chelan,
Darya Ganj, has been sold by the Landlord. He states that the said premises
could have been used by the Landlord to establish his son. He states that
instead of establishing his son in that property, the Landlord chose to sell the
same which shows that the need put forth by the Landlord is not genuine.
Learned counsel for the Petitioner also places reliance on the judgment of
this Court in Arvind Kumar Jain v. Jagdish Lal Khanijo, 254 (2018) DLT
664, to contend that since the Landlord is already running one business,
leave to defend ought to have been granted to the Tenant for the Landlord to
establish that he requires the tenanted premises for supporting his son.
4. Per contra, Mr. G. M. Farooqui, learned counsel for the
Respondent/Landlord, contends that photographs do not indicate that the
room, which has been shown as locked in the photograph, is available to the
Landlord. He states that the said room is a part of the Guest House which is
run by the Landlord. He further draws the attention of this Court to sale deed
dated 26.06.2010 and contends that the room which was sold by the
Landlord was sold in the year 2010 and the instant eviction petition has been
instituted in the year 2015 and, therefore, this cannot be a ground to grant
leave to defend to the Tenant. He further contends that the said shop was
only 18 Sq. m., which, even if available, would not have been suitable for
running a business.
5. Heard Mr. R. K. Saini, learned counsel for the petitioner, Mr. G. M.
Farooqui, learned counsel for the Respondent, and perused the material on
record.
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6. It is trite law that the purpose of Chapter III-A of the Delhi Rent
Control Act,1958, is to ensure expeditious disposal of an eviction petition
filed by a landlord on the ground that the premises is required by the
landlord. Special category of landlords, as mentioned in Section 25(B)(1) of
the Delhi Rent Control Act, are entitled to the benefit of summary
proceedings for eviction of tenants if the premises is required for their own
bona fide use. When any of the category of landlords, as mentioned in
Section 25(B)(1) of the Delhi Rent Control Act, files an eviction petition for
bona fide requirements, there exists a presumption that the need of the
landlord is genuine. It is also well settled that while filing an application
seeking leave to defend, if a tenant makes averments intending to disentitle
the landlord from invoking the summary provisions, then such statements
must be specific and must contain all particulars which would lead to a
triable issue for the learned Rent Controller not to give the benefit of
summary procedure to the landlord and, therefore, relegate the landlord to
go through the usual procedure for evicting the tenant on the ground of
bona fide requirement. A tenant has to give all necessary facts supported by
documentary material, if available, in the leave to defend application so that
the learned Rent Controller is in a position to adjudicate and decide the
question as to whether the facts so disclosed would compel the landlord to
enter into the witness box and prove his bona fide need.
7. A perusal of the application filed by the Tenant for leave to defend
shows that other than making bald assertions that the Landlord has got other
premises, details of any such premises have not been provided by the Tenant.
The photographs showing that one room locked in property bearing No.
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4083, Urdu Bazar, Jama Masjid, Delhi, does not raises a triable issue as it
has been stated by the Landlord that the said shop is a part of his Guest
House. The learned Rent Controller has noted that other than stating that the
entire first, second and third floor premises of House No. 2386, Gali Dr.
Inayat Khan, Kucha Chelan, Darya Ganj are lying vacant, nothing has been
produced by the Tenant to substantiate the same. Futher, the Landlord has
stated that three godowns on the ground floor, one room each on the first and
second floor of the said property are owned by other persons, and, therefore,
it cannot be said that those rooms are available to the Landlord to establish
his son. The Tenant has not produced any document to rebut the submission
of the Landlord and substantiate that there are alternate accommodations
available with the Respondent/landlord which may be sufficient to meet his
bona fide requirement. As noted above, in the application filed by the Tenant
for leave to defend, the Tenant has contended that the Landlord has four
shops within the commercial area of Gazipur Mandi. However, other than
stating that the shops are in Gazipur Mandi, no details have been provided by
the Petitioner/tenant to substantiate his claim.
8. The Supreme Court has consistently opined on how vague assertions
by the tenant are not sufficient for the learned Rent Controller to grant leave
to defend. In Abid-ul-Islam vs. Inder Sain Dua, 2022 SCC OnLine SC 419,
the Apex Court has held as under :
"15. For availing the leave to defend as envisaged
under Section 25B(5), a mere assertion per
se would not suffice as Section 14(1)(e) creates a
presumption subject to the satisfaction of the
learned Rent Controller qua bona fide need in
favour of the landlord which is obviously
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rebuttable with some material of substance to the
extent of raising a triable issue. The satisfaction
of the Rent Controller in deciding on an
application seeking leave to defend is obviously
subjective. The degree of probability is one of
preponderance forming the subjective satisfaction
of the Rent Controller. Thus, the quality of
adjudication is between a mere moonshine and
adequate material and evidence meant for the
rejection of a normal application for eviction.
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22. Learned Rent Controller passed a detailed
speaking order. On undertaking such an exercise,
he found that the bona fide need is satisfied; the
averments of the respondent regarding alternative
accommodation are vague; the title of the
appellant cannot be questioned; and the embargo
under the Enemy Property Act does not get
attracted. Thus, having found that the defense set
up by the respondent is only a moonshine, the
application filed seeking leave to defend was
accordingly rejected.
****
24. The High Court, while ignoring the aforesaid
conduct of the respondent, as noted by the learned
Rent Controller, proceeded to allow the revision
by treating it like an appeal. It did not even reverse
the findings of the learned Rent Controller, but
proceeded to hold that the denials of the appellant
in his reply to the application seeking leave to
defend are vague, qua the plea of alternative
accommodation, notwithstanding the rejection of
the contention of the respondent that he cannot
question the title. This approach, in our considered
view, cannot be sustained in the eye of law.
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****
26. We have already discussed the scope of
Section 14(1)(e) vis a vis Section 25B(8) of the
Act. Therefore, the mere existence of the other
properties which are, in fact, denied by the
appellant would not enure to the benefit of the
respondent in the absence of any pleadings and
supporting material before the learned Rent
Controller to the effect that they are reasonably
suitable for accommodation."
(emphasis supplied)
9. Similarly, this Court in Rajender Kumar Sharma v. Smt. Leela Wati &
Ors., 155 (2008) DLT 383, has observed as under :
"11. ....... Only those averments in the affidavit
are to be considered by the rent Controller which
have same substance in it and are supported by
some material. Mere assertions made by a tenant
in respect of landlord's ownership of other
buildings and in respect alternate
accommodation are not to be considered
sufficient for grant of leave to defend. If this is
allowed the whole purpose of Section 25-B shall
stand defeated and any tenant can file a false
affidavit and drag a case for years together in
evidence defeating the very purpose of the statute.
The Rent Controller is thus not precluded from
considering the material placed before it by the
landlord in response to leave to defend to show
that the tenant's assertions and averments were
totally false. " (emphasis supplied)
10. If bald assertions were to raise triable issues, then the whole purpose
of Chapter IIIA of the Delhi Rent Control Act, 1958, would be defeated. The
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sale deed which has been produced by the tenant to substantiate the
argument that had the need of the Landlord been bona fide, he would have
settled his son in the shop which was sold by him. This does not raise a
triable issue inasmuch as the sale deed was signed on 26.06.2010 and the
instant eviction petition was filed by the Landlord only in 2015.
11. It is well settled that the landlord is the best judge of his requirements
and he also has the complete authority to prioritize the needs of his family as
well as those who are dependant on him over any hardship that might be
caused to the tenant. Further, the Apex Court in Anil Bajaj v. Vinod Ahuja,
(2014) 15 SCC 610, has reiterated that it is not for the tenant to dictate the
terms to the landlord and advise him on what he should do and what he
should not do. The relevant portion of the aforesaid Judgment has been
reproduced as under:
"6. In the present case it is clear that while the
landlord (Appellant 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 1, does
not propose to utilise 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
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contends is that the landlord has several other
shop houses from which he is carrying on different
businesses 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 utilised 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. (emphasis supplied)
12. Similarly, this Court in Anil Jain v. Bhagwan Shankar Khanna, 2014
SCC OnLine Del 3855, has held as follows :
"11 (c)....This Court is in agreement with the
reasoning and finding of the learned ARC.
Moreover, it is well settled that a landlord is the
best judge of his requirement. It is neither open
for the Court or for the tenant to dictate terms to
the landlord. Furthermore, the contention of the
tenant that the son in the past never intended to
start such a business and that too from a small
bye lane situated in old Delhi which has no
potential for such business is without any merit.
A tenant cannot be permitted to dictate terms to
the landlord as to the suitability of the premises
for purposes under which the eviction is sought.
Therefore, the finding of the learned ARC does
not warrant any interference by this Court."
13. In Joginder Pal v. Naval Kishore Behal, (2002) 5 SCC 397, the Apex
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Court has observed as under:
" 24. ........ Keeping in view the social or socio-
religious milieu and practices prevalent in a particular
section of society or a particular region, to which the
landlord belongs, it may be the obligation of the
landlord to settle a person closely connected with him
to make him economically independent so as to support
himself and/or the landlord. To discharge such
obligation the landlord may require the tenancy
premises and such requirement would be the
requirement of the landlord. If the requirement is of
actual user of the premises by a person other than the
landlord himself the court shall with circumspection
inquire: (i) whether the requirement of such person can
be considered to be the requirement of the landlord,
and (ii) whether there is a close interrelation or
identity nexus between such person and the landlord so
as to satisfy the requirement of the first query.
Applying the abovesaid tests to the facts of the present
case it is clear that the tenancy premises are required
for the office of the landlord's son who is a chartered
accountant. It is the moral obligation of the landlord to
settle his son well in his life and to contribute his best
to see him economically independent. The landlord is
not going to let out the premises to his son and though
the son would run his office in the premises the
possession would continue with the landlord and in a
sense the actual occupation by the son would be the
occupation by the landlord himself. It is the landlord
who requires the premises for his son and in substance
the user would be by the landlord for his son's office.
The case squarely falls within the scope of Section
13(3)(a)(ii) of the Act."
14. Therefore, it is not up to the tenant to advise the landlord as to how he
can adjust himself without getting possession of the tenanted premises. In
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the instant case, the son of the Respondent/Landlord is currently
unemployed, has no other source of financial income, and is, therefore,
dependant on his father for commercial space. Therefore, it cannot be said
that the requirement of the Respondent/Landlord is not bona fide.
15. In light of the above, this Court does not find any perversity in the
Order dated 11.10.2018, passed by the learned Additional Rent Controller,
Central District, Tis Hazari Courts, Delhi in E-160/15. The findings in the
Order dated 11.10.2018 are legally firm and do not warrant the interference
of this Court.
16. Accordingly, the instant revision petition is dismissed along with the
pending application(s), if any.
SUBRAMONIUM PRASAD, J.
JULY 11, 2022
Rahul
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SINGH KIRMOLIYA
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