Delhi High Court
Suresh Chand vs Vijay Shankar on 22 April, 2024
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 09.04.2024
Judgment pronounced on: 22.04.2024
+ RC.REV. 209/2018 & CM APPL. 19800/2018
SURESH CHAND ..... Petitioner
Through: Mr Kuldeep Jauhari, Ms A. Mishra,
Ms Antra Verma and Mr Anubhav
Tyagi, Advs.
versus
VIJAY SHANKAR ..... Respondent
Through: Ms Sonali Malhotra, Adv.
+ RC.REV. 210/2018 & CM APPL. 19803/2018
SURESH CHAND ..... Petitioner
Through: Mr Kuldeep Jauhari, Ms A. Mishra,
Ms Antra Verma and Mr Anubhav
Tyagi, Advs.
versus
VIJAY SHANKAR ..... Respondent
Through: Ms Sonali Malhotra, Adv.
CORAM: JUSTICE GIRISH KATHPALIA
COMMON JUDGMENT
1. These two petitions brought under proviso to Section 25B(8) of the
Delhi Rent Control Act are taken up together for disposal on account of
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similar factual and legal matrix. Both these petitions assailed orders of the
learned Additional Rent Controller whereby applications for leave to
contest filed by the present petitioner in proceedings under Section 14(1)(e)
of the Act were dismissed. On issuance of notice, the respondent/landlord
entered appearance through counsel. I heard learned counsel for both sides.
2. Briefly stated, circumstances leading to the present petitions are as
follows.
2.1 The present respondent filed two eviction petitions, both against the
present petitioner, pertaining to shops No. 1 and 2 (hereinafter collectively
referred to as "the subject premises") forming part of first floor of the
larger premises bearing No. 37, Vijay Market, Main Bazar, Paharganj, New
Delhi, owned by the present respondent. In the said eviction petitions filed
under Section 14(1)(e) of the Act, the present respondent pleaded that the
present petitioner was inducted as a tenant for non-residential purposes in
the subject premises by way of rent note dated 24.12.1981; that the present
respondent is in occupation of shops no. 11 and 13 as well as a godown on
the ground floor and two godowns on the first floor of the said larger
premises, besides which he also has residential accommodation consisting
of four rooms, latrine, bathroom and open terrace on first floor of the said
larger premises; that the present respondent is engaged in trading of
electronic and electrical goods in shops no. 11 and 13, using the godowns
for storage of stock; that his son Aakash Goel graduated in electronics from
Delhi University in 2015 and wants to start his independent business of
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export of garments and handicrafts, for which he needs atleast 100 sq yards
in the said larger premises for creating his office and godowns on the first
floor; that therefore, the subject premises are bona fide required by the
present respondent for his son and they have no reasonably suitable
alternate accommodation for that purpose.
2.2 On service of summons in the prescribed format, the present
petitioner filed applications in both eviction petitions, seeking leave to
contest mainly on the grounds that the requirement set up by the present
respondent is not bona fide as he owns a number of properties including
property bearing No. 86, Krishna Gali, Main Bazar, Paharganj, Delhi,
where he and his family are residing; that the present respondent also owns
commercial properties in Laddu Ghati Paharganj, Ram Nagar, Sadar Bazar,
and Bhagirath Place, Delhi; that even in the said larger premises No. 37,
Main Bazar, Paharganj, New Delhi, the present respondent is in possession
of shops bearing Nos. 1,1A, 2, 3, 4 and 5 out of which shop No. 4 is lying
locked for many years as its tenant had vacated the same while shops
No.1A and 5 were sublet unauthorizedly, but the present respondent took
no action; that shop No. 6 situated behind the subject premises also has
been lying closed for past more than five years after the same was vacated
by tenant Ram Prasad; that on ground floor of the said larger premises also,
the present respondent is in possession of shops no. 11,12 and 13 which can
be used for his son; that the present respondent also raised fresh
construction on front portion of the said larger premises in the form of one
small shop and two big shops and one big hall on first floor about two years
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back and the same are lying vacant; that a big hall on first floor and shops
no. 14 and 15 on the ground floor of the said larger premises are in
occupation of tenants Kesar Dass and Ravi Arora, who have their own shop
in the Main Bazar, Paharganj; that the entire rooftop of the first floor
including a tin shed is in possession of the present respondent; that the
present respondent alongwith his son is engaged in flourishing business of
electronic and electrical goods, so it is not believable that son of the present
respondent would start new independent business; and that the present
respondent and his sister also own a commercial property bearing No.
4A/44, Old Rajender Nagar, New Delhi, which is lying vacant.
2.3 The present respondent filed detailed replies to the applications for
leave to contest, thereby reiterating the eviction petition contents and
denying the averments made in the applications. In the said replies, the
present respondent also explained the status of the alleged alternate
accommodation. After hearing both sides, the learned Additional Rent
Controller passed the impugned orders, thereby dismissing the applications
for leave to contest and consequently, passing eviction orders.
3. Hence, the present petitions.
4. During arguments, learned counsel for petitioner/tenant took me
through the above mentioned record and contended that the orders
impugned in these petitions are not sustainable in the eyes of law. It was
argued on behalf of petitioner/tenant that the requirement of the subject
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premises as set up by the present respondent in his eviction petitions does
not appear to be bona fide because son of the respondent/landlord graduated
in electronics and the respondent/landlord already being engaged in a
flourishing business of electronic goods, it is not believable that his son
would engage himself in the new business of handicraft export. Besides, it
was argued by learned counsel for petitioner/tenant that the
respondent/landlord is already in possession of a number of premises which
can be utilized by his son for running his business.
5. On the other hand, learned counsel for respondent/landlord supported
the impugned orders and contended that the petitions are devoid of merit.
Learned counsel for respondent/landlord argued that no material at all has
been placed on record by the petitioner/tenant to support his plea of
alternate accommodation in possession of the respondent. It was further
argued that merely because son of the respondent/landlord has graduated in
electronics, his decision to start business of handicraft export cannot be
looked down with suspicion.
6. Thence, the issues of ownership of the respondent/landlord over the
subject premises and jural relationship of tenancy between the parties are
not in dispute. The questions to be examined in these cases are as regards
the bona fide requirement and availability of reasonably suitable alternate
accommodation.
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7. At this stage, it would be apposite to briefly traverse through the
legal position culled out of various judicial pronouncements, which should
be guiding light for this court while exercising jurisdiction under proviso to
Section 25B(8) of the Act.
7.1 By way of an amendment in the year 1976, Chapter IIIA was inserted
into the Delhi Rent Control Act with retrospective effect from 01.12.1975
in order to stipulate summary trials pertaining to the eviction claims largely
dealing with the situations where the landlord was in bona fide need of the
tenanted accommodation. One such situation was already on the statute
book in the form of Section 14(1)(e) of the Act and one more such situation
was added by amendment of the year 1976 in the form of Section 14A.
Subsequently, the amendment in the year 1988 added more such situations
in the form of Section 14B to Section 14D of the Act. The broad scheme of
Chapter IIIA precludes a tenant from contesting the eviction proceedings of
those specific situations as a matter of right, unless the tenant obtains leave
to contest from the Controller; and if the leave is declined, an order of
eviction would necessarily follow. The whole idea is that a landlord who
bona fide requires the tenanted premises should not suffer for long,
awaiting eviction, though at the same time, the tenant also must not be
subjected to eviction like any other civil consequence without being
afforded an effective opportunity to defend himself in such civil
proceedings. The court has to cautiously and judiciously strike a fine
balance between the right of the landlord to eviction through summary
proceedings and right of the tenant to continue tenancy.
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7.2 At the stage of seeking leave to contest, it is sufficient if the tenant
makes out a case by disclosing such facts as would disentitle the landlord
from obtaining an eviction order. At the stage of seeking leave to contest,
the tenant is not required to establish such a strong case that would non-suit
the landlord. At the stage of seeking leave to contest, the test to be applied
is as to whether the facts disclosed in the affidavit of the tenant prima facie
show that the landlord would be disentitled from obtaining the eviction
order and not that the defence may fail in the end.
7.3 At the same time, the court also has to be conscious that a leave to
contest cannot be granted for mere asking or in a routine manner, as that
would defeat the object behind Chapter IIIA of the Act. It is only when the
pleas and contentions raised by the tenant in the application seeking leave
to contest make out a triable issue and the dispute on facts demands that the
matter be exhaustively adjudicated upon after ascertaining the truth through
cross-examination of witnesses that leave to contest must be granted. Each
case has to be decided on its merits and not on the basis of any generalized
suppositions. The court also cannot ignore a situation where the case set up
by the tenant has been so set up with the sole object of protracting the
proceedings so as to lead to the landlord giving up in frustration, which
would in turn frustrate the process of law. Where the tenant seeks leave to
contest, pleading anything and everything, pulled out of thin air and claims
to have raised a prima facie case, the court is under a duty to read between
the lines so as to ensure justice to the process established by law.
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7.4 Notably, the provision under sub-section (8) of Section 25B of the
Act places complete embargo on any appellate scrutiny of an order for
recovery of possession of the tenanted premises passed by the Rent
Controller in accordance with the summary procedure laid down under
Section 25B. The underlying principle was to ensure expeditious remedy to
the landlord who is in bona fide need of the tenanted premises. It is also
significant to note that the proviso, enacted in Section 25B(8) of the Act to
lift the blanket of scrutiny in a limited manner has to be understood and
used in such a manner that it does not negate the legislative intendment of
expeditious remedy in certain specific kind of cases.
7.5 A careful examination of the proviso to Section 25B(8) of the Act
would show that it does not specifically use the term "revision". But the
provision read in its entirety shows that the power conferred under the said
proviso is a revisional power, completely distinct from appellate power in
the sense that the appellate power is wide enough to afford the appellate
court to scrutinize the entire case and arrive at fresh conclusion whereas the
revisional power is quite restricted to superintendence and supervision
aimed at ensuring that the subordinate courts and tribunals operate within
the bounds of law. The proviso to Section 25B(8) of the Act confines the
satisfaction of the High Court to the extent that the order impugned before
it was passed by the Controller under Section 25B "in accordance to law".
It is trite that the power of revision conferred upon the High Court by the
proviso to Section 25B(8) of the Act being in the nature of superintendence
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over the court of first adjudication on the decision making process,
including compliance with the procedure laid down by law, the High Court
cannot substitute and supplant its view over that of the court of the first
adjudication by exercising parameters of appellate scrutiny. The High
Court has a superintendence role only to the extent of satisfying itself on
the process adopted. The High Court in such proceedings is obliged to test
the order of the Rent Controller on the touchstone of whether it is according
to law and it is for the limited purpose of ascertaining whether the
conclusion arrived at by the Rent Controller is only unreasonable or is one
that no reasonable person acting with objectivity could have reached on the
material available that the High Court can examine the matter.
8. Falling back to the present case, merely because son of the
respondent/landlord graduated in electronics, in which field the
respondent/landlord has a flourishing business, decision of his son to enter
into a new venture of handicraft export cannot be looked down with
suspicion. Until and unless the tenant produces some cogent material or
argument, the genuineness of the requirement set up by the landlord cannot
be brought under shadow of doubt. In the present case, it cannot be said that
no reasonable person acting objectively would have disbelieved the bona
fide of the requirement set up by the respondent/landlord qua the subject
premises for being used by his son who plans to venture into the business of
handicraft. It is not unheard or even strange to find the younger generation
opting to test the waters independent of their parental generation. There are
countless cases where the grown up children would opt not to join the
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occupation of their parents, though in studies they would take up a
particular subject of their parents' ambition. The petitioner/tenant has not
brought even iota of material or any convincing argument to show that son
of the respondent/landlord cannot be believed to be desirous of entering
into a new business field. Therefore, I find no reason to suspect the bona
fide of the requirement set up by the respondent/landlord in these cases.
9. As regards the availability of reasonably suitable alternate
accommodation, it is no longer res integra that in the proceedings of the
present nature where a tenant alleges availability of reasonably suitable
alternate accommodation, he has to place before the Rent Controller some
reliable material showing the actual availability of such accommodation;
mere assertion of the tenant that the landlord has alternate accommodation
available would not suffice. Further, mere existence of actual availability of
accommodation other than the tenanted premises also is not enough to
decline eviction. That actually available accommodation has also to be
reasonably suitable to meet the requirement projected by the landlord. It is
also trite that landlord is the best judge to decide reasonable suitability of
the said premises. For example, where a landlord sets up requirement of
ground floor tenanted premises in commercial area for the purposes of
starting his own business, availability of accommodation with the landlord
on upper floors or in non commercial area would not be considered as
reasonably suitable alternate accommodation.
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10. In the present case, the petitioner/tenant, in his applications for leave
to contest alleged two kinds of properties in possession of the present
respondent, out of which one kind is where no specific particulars have
been disclosed while the other kind is where the property in question is not
vacant and/or available. The premises no.86, Krishna Gali, Paharganj, New
Delhi is a residential property, not suitable for commercial purposes
according to the present respondent; despite such clear stand of the present
respondent, no material was placed before the court by the present
petitioner to show otherwise. As regards the commercial property situated
in Laddu Ghati Paharganj, Ram Nagar, Sadar Bazar and Bhagirath Place,
allegedly in possession of the present respondent, no specific particulars
were disclosed by the petitioner/tenant in order to enable the court to
ascertain the suitability of the same for the purpose in question. As regards
the commercial premises bearing no.4A/44, Old Rajinder Nagar, New
Delhi, despite specific pleadings of the present respondent that the said
property is owned and possessed by his sister Ms. Sarita Aggarwal, no
material was produced by the present petitioner to show otherwise. As
regards the remaining shops in the said larger premises, even according to
the present petitioner, those shops are already in possession of other
tenants, so not available. In replies to the applications for leave to contest,
the present respondent specifically named the persons who are in
occupation of the remaining shops of the larger premises as tenants, but no
material was produced by the present petitioner to show otherwise. The
present petitioner, being a tenant, has no right to claim that the present
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respondent who is the landlord must get those other shops vacated instead
of seeking eviction of the petitioner.
11. In view of the aforesaid, I am unable to find any infirmity in the
impugned orders, so the same are upheld and both petitions as well as
pending applications are dismissed.
GIRISH GIRISH KATHPALIA
KATHPALIA Date: 2024.04.22
14:19:51 +05'30'
GIRISH KATHPALIA
(JUDGE)
APRIL 22, 2024/as/ry
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