Delhi High Court
Kanta Gupta vs Goverdhan Dass Daga (Deceased) Thr Lrs on 15 February, 2024
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 07.02.2024
Judgment pronounced on: 15.02.2024
+ RC.REV. 130/2020
+ RC.REV. 131/2020
KANTA GUPTA ..... Petitioner
Through: Mr Hemant Kumar with Mr
Venkatesh Kumar and Mr Bhavishya
Mohaniya, Advs.
versus
GOVERDHAN DASS DAGA (DECEASED) THR LRS
..... Respondents
Through: Mr Ashok Chhaparia, Adv
CORAM:
JUSTICE GIRISH KATHPALIA
GIRISH KATHPALIA, J.:
1. By way of these petitions, brought under proviso to Section 25B(8) of
the Delhi Rent Control Act (hereinafter referred to as "the Act"), the
petitioner/landlord has challenged dismissal after full dress trials of the two
eviction petitions under Section 14(1)(e) of the Act pertaining to two
different portions (hereinafter referred to as "the subject premises") on
ground floor of the larger premises bearing No. 1779, Kucha Latto Shah,
Dariba Kalan, Delhi. The factual and legal matrix being similar, these
petitions are taken up together for disposal through this common judgment.
On notice, the respondents/tenants entered appearance through counsel. I
heard learned counsel for both sides and examined the trial court record.
RC.REV. 130/2020 & 131/2020 Page 1 of 12 pages
Digitally Signed
By:VAISHALI CHAUHAN
GIRISH GIRISH KATHPALIA
Signing Date:15.02.2024
18:29:17 KATHPALIA Date: 2024.02.15
10:40:56 +05'30'
2. Briefly stated, circumstances leading to the present petitions are as
follows.
2.1 The petitioner, claiming herself to be the owner of ground floor (of
which subject premises are part) and first floor of the said larger premises
No. 1779, Kucha Latto Shah, Dariba Kalan, Delhi, by virtue of registered
Sale Deed dated 06.06.1989, filed two eviction petitions, pleading that Shri
Goverdhan Dass Daga, father of the respondents was inducted in the subject
premises as a tenant and after his death, the respondents are using the
subject premises for commercial purposes; that presently, son of the
petitioner is running a small shop of golgappa, papri etc (snacks) and is also
taking orders for catering in marriages; that the small shop from where son
of petitioner is running his business is not sufficient for his work, so
petitioner/landlord is in bona fide requirement of the subject premises to be
used by her son; and that the petitioner/landlord has no other reasonably
suitable alternate accommodation.
2.2 On service of summons in the prescribed format, the
respondents/tenants filed applications seeking leave to contest the eviction
petitions on the grounds that the petitioner/landlord had concealed material
facts by not correctly disclosing the accommodation available with her; that
the petitioner/landlord is also in possession of third floor and fourth floor of
the property no. 1778, Kucha Latto Shah, Dariba Kalan, Delhi, in addition to
the said larger premises No. 1779; that one of the subject premises is being
run by the respondents/tenants as a shop of electrical goods while the other
RC.REV. 130/2020 & 131/2020 Page 2 of 12 pages
GIRISH Digitally signed by GIRISH
KATHPALIA
Digitally Signed
By:VAISHALI CHAUHAN KATHPALIA Date: 2024.02.15 10:40:26 +05'30'
Signing Date:15.02.2024
18:29:17
subject premises is being used as a godown of electrical goods; that
according to the Sale Deed dated 06.06.1989, there were five tenants namely
Ram Devi, Bhag Chand, N.K. Pandya, Gopal Bhargav and Prakash Chand in
different portions on the ground floor of the said larger premises, all of
whom had already vacated the respective portions under their occupancy;
that in addition, the tenants namely Manikant and Nirmal Electric, who
were occupying different portions on first floor of the larger premises also
had vacated the portions under their respective occupancy; that besides, the
petitioner/landlord also has concealed having one shop, one big hall, one
godown and a basement in the said larger premises; that the vacant portions
of the ground floor are lying locked and thus, the petitioner/landlord is in
occupation of the entire first floor, second floor, third floor and fourth floor
of the said larger premises and the same are lying locked; that accordingly,
the entire building of the said larger premises is lying vacant and is available
to the petitioner/landlord alongwith roof, so an illusory requirement has been
set up by the petitioner/landlord, therefore, leave to contest deserves to be
granted.
2.3 In replies to the applications for leave to contest, the
petitioner/landlord vaguely pleaded thus: "The alleged portions vacated by
the tenants is not fit for the purpose of shop as the same are inside the
property while the shop in possession of the respondent is in front portion
and can be used as a shop and is being used as shop. As per own allegation
of the respondents the third and fourth floor are constructed illegally
therefore they can be demolished by the MCD and the use thereof can be
RC.REV. 130/2020 & 131/2020 Page 3 of 12 pages
Digitally Signed GIRISH Digitally signed by GIRISH
KATHPALIA
KATHPALIA Date: 2024.02.15 10:37:53
By:VAISHALI CHAUHAN
Signing Date:15.02.2024 +05'30'
18:29:17
deprived at any time. Property No. 1778 has been sold more than five years
back in the year 2012".
2.4 By way of orders dated 28.05.2018, the learned Additional Rent
Controller after detailed discussion held that the petitioner/landlord appears
to be concealing the material facts pertaining to the nature and extent of
business of her son and availability of other premises, so bona fide
requirement of the petitioner/landlord should be tested by way of trial.
Accordingly, leave to contest was granted to the respondents/tenants and
after full dress trial through completion of pleadings and recording of
evidence adduced by both sides, the impugned eviction orders were passed,
thereby dismissing both eviction petitions.
2.5 In the impugned eviction orders, the learned Additional Rent
Controller after detailed discussions of pleadings and evidence arrived at the
findings that the ownership of the petitioner/landlord over the subject
premises and jural relationship of tenancy between the parties are not in
dispute; that four tenants namely Ram Devi, Bhag Chand, N.K. Pandya and
Prakash Chand on ground floor and two tenants namely Manikant and
Nirmal Electric on first floor of the said larger premises have already
vacated their respective portions, which were available to the petitioner and
her son; that the petitioner/landlord during her cross examination stated that
the said larger premises consist of ground floor, first floor, second floor and
third floor while her son PW3 stated that the said premises consist of ground
floor plus four floors, which is a vital contradiction and besides that, the
RC.REV. 130/2020 & 131/2020 Page 4 of 12 pages
GIRISH Digitally signed by GIRISH
KATHPALIA
Signing Date:15.02.2024
18:29:17 KATHPALIA Date: 2024.02.15 10:37:24
+05'30'
petitioner/landlord in the site plan Ex PW1/B has depicted only two floors;
that similarly there are many vital contradictions in the statements of the
petitioner/landlord and her son as regards presence of other tenants in the
said larger premises and no document in that regard was filed; and that on
the basis of pleadings and evidence, it also stood established that the
petitioner/landlord has concealed correct description of the subject premises
and the portions available with her. After meticulous examination of
pleadings and evidence, the learned Additional Rent Controller held that the
petitioner/landlord had failed to establish bona fide requirement with regard
to the subject premises. As such, both eviction petitions were dismissed by
way of orders impugned in the present petitions.
3. During final arguments, learned counsel for petitioner/landlord took
me through the above record and contended that the impugned orders are not
sustainable in the eyes of law as the petitioner/landlord had successfully
established her cases under Section 14(1)(e) of the Act. It was submitted on
behalf of petitioner/landlord that according to the testimony of PW1, the
tenants Ram Devi and Prakash Chand vacated the portions in their
respective possession in or about 1992 and 2013 respectively but the date,
month or year, when the remaining tenants vacated the portions in their
respective occupancy are not known. It was submitted by learned counsel
for petitioner/landlord that the tenant Gopal Bhargav continued to be in
tenancy even at the time of filing the eviction petition. Learned counsel for
petitioner/landlord contended that although the facts pertaining to the
remaining portions of the said larger premises were not disclosed in the
RC.REV. 130/2020 & 131/2020 Page 5 of 12 pages
Digitally Signed GIRISH Digitally signed by GIRISH
KATHPALIA
KATHPALIA Date: 2024.02.15 10:37:00
By:VAISHALI CHAUHAN
Signing Date:15.02.2024 +05'30'
18:29:17
eviction petitions, but those facts were clearly brought out in the testimony
of petitioner and her son, so there is no concealment.
4. On the other hand, learned counsel for respondents/tenants supported
the impugned orders and contended that the revision petitions are totally
devoid of merit. It was contended on behalf of respondents/tenants that the
petitioner/landlord not only concealed the vital facts in the eviction petition,
but also did not answer the questions properly in her cross examination.
5. 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.
5.1 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
RC.REV. 130/2020 & 131/2020 Page 6 of 12 pages
Digitally Signed GIRISH Digitally signed by
GIRISH KATHPALIA
KATHPALIA Date: 2024.02.15
By:VAISHALI CHAUHAN
Signing Date:15.02.2024
18:29:17 10:36:37 +05'30'
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.
5.2 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.
5.3 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
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Digitally Signed GIRISH Digitally signed by GIRISH
KATHPALIA
KATHPALIA Date: 2024.02.15 10:36:12
By:VAISHALI CHAUHAN
Signing Date:15.02.2024
18:29:17 +05'30'
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
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. It is not permissible for the High Court in such proceedings to
arrive at a finding of fact different from the one recorded by the Rent
Controller, unless the findings of fact recorded by the Rent Controller were
so unreasonable that no Rent Controller would have recorded the same on
the material available.
6. The present cases revolve around the question as to whether the
findings arrived at by the learned Additional Rent Controller with regard to
the alleged concealment and consequently absence of bona fide requirement
are sustainable in the eyes of law or not. In the case of Shiv Sarup Gupta vs
Mahesh Chand Gupta, (1999), 3SCR 1260, the Supreme Court held that the
RC.REV. 130/2020 & 131/2020 Page 8 of 12 pages
GIRISH Digitally signed by GIRISH
KATHPALIA
By:VAISHALI CHAUHAN
Signing Date:15.02.2024 KATHPALIA Date: 2024.02.15 10:35:47
+05'30'
18:29:17
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. Keeping in mind that limited scope of
the present proceedings, I have examined the entire record.
7. The core issue in the present cases being concealment of vital facts, it
needs to be understood that not every failure to disclose facts amounts to
concealment. It is non-disclosure of only the vital facts, which is tantamount
to concealment. The test is as to whether the court would have allowed the
petition or plaint, as the case may be, on the basis of incomplete facts, had
the respondent or defendant, as the case may be, had not appeared or not
contested the proceedings. In a case where the respondent/defendant on
appearing before the court discloses certain vital facts which would non-suit
the petitioner/plaintiff and which facts were not disclosed in the originally
filed petition/plaint, it would be a case of concealment. Such concealment,
being a fraud attempted on a court vitiates any order which could be
obtained by the petitioner/plaintiff in such proceedings.
8. The requirement of tenanted premises by the landlord approaching the
court under Section 14(1)(e) of the Act has to be bona fide requirement and
not a mere fanciful desire or evil design to recover possession of the
tenanted premises with an object to make unjust financial gains.
RC.REV. 130/2020 & 131/2020 Page 9 of 12 pages
GIRISH Digitally signed by GIRISH
KATHPALIA
Signing Date:15.02.2024
18:29:17 KATHPALIA Date: 2024.02.15 10:35:21
+05'30'
Concealment of vital facts is anathema to bona fide. In case, the landlord is
found to have concealed vital facts, the requirement of tenanted premises
projected by him cannot be accepted as a bona fide requirement.
9. In the present cases, the petitioner/landlord did not disclose in her
eviction petitions, vital facts on the nature and expanse of business of her
son and availability of a number of other premises from where her son could
start or expand his business. Had the respondents/tenants failed to appear
and/or failed to timely file applications for leave to contest, disclosing those
vital facts, the eviction petitions would have been allowed. Merely because
during trial, those vital facts came up before the court, it cannot be said that
the petitioner/landlord had not concealed those facts in the eviction petitions.
10. As reflected from record, the petitioner/landlord in the eviction
petitions pleaded that her son is engaged in selling golgappa and chat papri
etc and has been taking catering orders for marriages for which he does not
have sufficient place to be used as office. In order to establish bona fide
requirement, the petitioner/landlord ought to have specifically pleaded and
established by evidence the scale and expanse of business of her son, but the
same was not done despite clear pleadings in the applications for leave to
contest followed by the written statements as well as evidence.
11. Paragraph 8 of the eviction petitions to be filed under Section 14(1)(e)
of the Act mandates the landlord to truly and completely disclose details of
the accommodation available alongwith the site plan. In the eviction
RC.REV. 130/2020 & 131/2020 Page 10 of 12 pages
Digitally Signed GIRISH Digitally signed by
GIRISH KATHPALIA
KATHPALIA Date: 2024.02.15
By:VAISHALI CHAUHAN
Signing Date:15.02.2024
18:29:17 10:34:57 +05'30'
petition, from which RC Rev 130/2020 arose, the petitioner disclosed the
said accommodation in paragraph 8 as only one shop and in the eviction
petition from, which RC Rev 131/2020 arose, the petitioner disclosed the
said accommodation as only one godown. None of the portions of ground
floor or first floor which were already vacated by other tenants was
disclosed. The petitioner/landlord did not even disclose about availability of
four floors in the said larger premises.
12. As regards availability of other premises including No. 1778, Kucha
Latto Shah, Dariba Kalan, Delhi, as mentioned above, despite specific
pleadings in applications for leave to contest and the written statements, the
petitioner/landlord did not disclose the complete facts in replications. Even
in cross examination, the petitioner/landlord was completely evasive as to
when the other tenants vacated the portions in their respective possession
and when the premises No. 1778, Kucha Latto Shah, Dariba Kalan, Delhi
were sold away.
13. The eviction petitions having been filed in the year 2017, all these
particulars were necessary to be pleaded and established in evidence in order
to test the bona fide requirement projected by the petitioner/landlord by
ascertaining as to whether those other premises were got vacated in
proximity to the date of institution of eviction petitions.
14. It is not a case where the petitioner/landlord would disclose the
remaining portions of the larger premises available but would plead that
RC.REV. 130/2020 & 131/2020 Page 11 of 12 pages
Digitally Signed GIRISH Digitally signed by
GIRISH KATHPALIA
KATHPALIA
By:VAISHALI CHAUHAN Date: 2024.02.15 10:34:28
Signing Date:15.02.2024
18:29:17 +05'30'
none of those portions is reasonably suitable for the purpose for which
eviction from the subject premises is sought; in such a case, as per settled
law, this court would not have directed the petitioner/landlord to use any of
those alternate available premises instead of the subject premises. It is a
case in which the petitioner/landlord did not at all disclose the other
available premises.
15. In view of the aforesaid, I find no infirmity in the impugned orders, so
the same are upheld and the revision petitions are dismissed.
GIRISH GIRISH KATHPALIA
KATHPALIA Date: 2024.02.15
10:33:58 +05'30'
GIRISH KATHPALIA
(JUDGE)
FEBRUARY 15, 2024/as
RC.REV. 130/2020 & 131/2020 Page 12 of 12 pages
