* IN THE HIGH COURT OF DELHI AT NEW DELHI
% RCR NO. 241/2010
+ Date of Decision: 19th September, 2011
# LAXMI NARAIN ...Petitioner
! Through: Mr. P.D. Gupta, Advocate
Versus
$ SHYAM MOHAN SHARMA ....Respondent
Through: Mr. S.D. Sharma & Mr. Gaurav
Bhardwaj, Advocates
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed
to see the judgment? (No)
2. To be referred to the Reporter or not? (No)
3. Whether the judgment should be reported in the digest? (No)
ORDER
P.K BHASIN,J:
This revision petition under Section 25 B (8) of the Delhi Rent
Control Act, 1958 (hereinafter „the Act‟) has been filed by the petitioner-
tenant against the order dated 27-07-2010 passed by the Additional Rent
Controller whereby his application of leave to defend the eviction petition
filed against him by the respondent-landlord under Section 14(1)(e) of the
Delhi Rent Control Act, 1958(„the Act‟ in short) in respect of one shop on
RCR No. 241/2010 Page 1 of 11
the ground floor of property bearing no. 970, Bhojpura, Maliwara,
Delhi(hereinafter „tenanted shop) has been dismissed and he has been
ordered to vacate.
2. The brief facts leading the filing of this revision petition are that the
respondent filed the eviction petition against the petitioner in respect of the
tenanted shop on the ground of bonafide requirement. The respondent-
landlord claimed in the eviction petition in para no. 18(a) as under:
“That the premises are required bona fide for use as a residence by
the petitioner who is the owner/landlord for the use as accommodation for
the petitioner for himself. The family of the petitioner comprise of himself
and his wife. The two married sons of the Petitioner living are living in
their own accommodation.The accommodation in possession of the
petitioner has been shown in blue colour in the plan annexed herewith
which is insufficient. The petitioner has six married sisters, namely (1)
Sangita Sharma, (2) Subh Laxmi (3) Neelam Sharma (4) Sunita Sharma
(5) Daya Sharam and (6) Vinod Sharma (deceased) leaving behind her
children, therefore, petitioner requires one guest room and petitioner has
no drawing-cum-dining room. The petitioner is 63 years old and requires
accommodation at lower floors. The petitioner is an income tax payee.
The petitioner has no other reasonable suitable residential
accommodation.”
3. An application under Section 25-B(4) of the Act was filed by the
petitioner for grant of leave to contest the eviction petition on the grounds
that his landlord was not residing in the premises in question and in fact he
was living with his wife and one son in his another newly built four
storeyed house at Hudson Lines, Kingsway Camp. The petitioner-tenant
also pleaded that the ground floor of the property in question was purely
RCR No. 241/2010 Page 2 of 11
commercial in nature and cannot be used for residential purposes. It was
also claimed that the respondent-landlord is a builder by profession and
was in fact having his office on the second floor of the premises in
question and so he did not require the tenanted premises for his residence.
4. The respondent-landlord filed a reply to the leave to defend
application denying the allegations made by the petitioner-tenant and
submitted as under in para no. 4 of his reply:-
4. …………………………………….it is denied that the petitioner does
not live in the property. It is denied that the petitioner lives in House No.
2274, Hudson Lines, Kingsway Camp, Delhi- 110009 as alleged. The said
premises is owned by the wife and sons of the petitioner who are living
with their families in the said property. There is no basement in the said
property. The petitioner wants to live comfortably in his own house.
5. The petitioner-tenant then appears to have been permitted by the
trial Court to file a rejoinder. That power the Rent Controller had as per the
Full Bench decision of this Court in the case of “Mohan Lal vs Tirath Ram
Chopra & anr.”, AIR 1982 Delhi 405. In that rejoinder the petitioner-
tenant further clarified his stand in view of the aforesaid plea taken by his
landlord in respect of the ownership and availability of the alternative
accommodation with him at Hudson Lines in para no. 4 as under:-
“4. That para no. 4 of the reply is wrong and is denied. Para No. 4 of the
application is reiterated. It is wrong and is denied that the petitioner live in
the disputed property. It is wrong and is denied that the petitioner does not
live at 2274, Hudson Lane, Delhi. The said property was purchased by the
petitioner on the basis of General Power of Attorney and is residing thereRCR No. 241/2010 Page 3 of 11
with his family for several years. The documents submitted by the
petitioner on record establish this fact that the petitioner has converted the
said property in the name of his wife and son in the capacity of General
Attorney after getting it free hold. It is wrong and is denied that the
property bearing no. 2274, Hudson Lane, Delhi does not have basement.
Rest of the para is wrong and is denied. It is submitted that the petitioner is
a builder by profession and has been pressurizing and extending threats to
vacate the disputed premises for some times after the purchase of the
property to which the disputed premises form part.”
6. The availability of the house at Hudson Lines with the respondent-
landlord was the main plea which appears to have been urged before the
learned trial Court and that plea alone was urged before this Court as well.
The trial Court dealt with this plea raised by the petitioner-tenant in his
leave to defend application in paras no. 10-13 of the impugned order which
are re-produced below:-
“10. In reply to the application for leave to defend, petitioner denied that
he is living at House no. 2274, Hudson Lane, Delhi as alleged. It is stated
that the said property is owned by his wife and sons and his sons are living
in the said property with their families. There is no basement in the
property and petitioner wants to live comfortably in his own house.
Petitioner placed on record the copies of some documents viz. Income Tax
Returns, Election I card and the notice issued from said property, to show
that he is the resident of property bearing no. 970, Bhojpura, Maliwara,
Delhi. On perusal of the said documents, it is apparent that petitioner is
residing at the property bearing no. 970, Bhojpura, Maliwara, Delhi.
11. I observe that requirement of the petitioner to live at the ground floor
in the property is justified on account of the fact that he is 63 years of age
and as per settled law, tenant cannot dictate the terms to landlord as to his
convenience and the suitability of accommodation. I am of the considered
view that petitioner has bona fide requirement of the premises in dispute
for use and occupation as his residence. Petitioner has every right to shift
in the better situated and improved structured rooms as per settled law.
Even otherwise, need of the old aged men/women to live on the ground
floor cannot be said to be mala fide……………………………………………”
RCR No. 241/2010 Page 4 of 11
12. Thus, requirement of the petitioner for a guest room is also found
bonafide…………………………………………………………………….
13. In the light of above discussions, I observe that petitioner has bonafide
requirement for the premises in dispute for the use and occupation of
himself and his family members and that has no other reasonably suitable
accommodation.”
7. Feeling aggrieved, the petitioner filed the present revision and
alongwith the petition he had also moved one application for taking on
record some document for consideration of this Court. Those documents
are as follows:
(i) Electricity Bill dated 16.8.2010 pertaining to the month of June, 2010
in respect of property bearing No. 2274, Hudson Lines, Kingsway Camp,
Delhi- 110009 in the name of the Respondent.
(ii) Telephone Bill dated 9.7.2010 pertaining to the month of June, 2010
installed in property bearing No. 2274, Hudson Lines, Kingsway Camp,
Delhi- 110009 in the name of the Respondent.
(iii) Telephone Bill dated 9.8.2010 pertaining to the month of July, 2010
installed in property bearing No. 2274, Hudson Lines, Kingsway Camp,
Delhi- 110009 in the name of the Respondent.”
Notice of that application was also given to the respondent but he chose
not to file any reply to that application.
8. I have heard the learned counsel for the parties and perused the
record.
9. It is common case of the parties that the petitioner was let out the
shop in question on the ground floor and the first floor was also let out to
the petitioner‟s wife who is using the same for commercial purposes.
RCR No. 241/2010 Page 5 of 11
Against her also the respondent-landlord had filed the eviction petition
under Section 14(1)(e) of the Act and she has also been denied the leave to
contest the eviction petition and eviction order stands passed against her
also. She has also filed a separate revision petition challenging the order of
the Rent Controller. Both the revision petitions were heard together and
are being decided today, but by separate orders.
10. The controversy whether the respondent is living in a house at Civil
Lines as is the case of the petitioner-tenant, or is living in a part of the
property in question at Nai Sadak as is the case of the respondent-landlord,
cannot be answered without recording evidence of the parties. The
petitioner-tenant has placed on record documents, referred to already,
which show that the respondent is living in a house at Civil Lines, a prime
residential colony of Delhi. The respondent has not disputed the
genuineness of those documents before this Court and has also not
explained as to how those documents have come into existence if he was
not living at Civil lines. In case the petitioner is able to establish that the
respondent is actually not living in the property in question but at Civil
Lines then the respondent would be disentitled from getting an order of
eviction against the petitioner. In any event, he shall have to justify as to
why he wants to shift from a prime residential area to a commercial area of
RCR No. 241/2010 Page 6 of 11
Nai Sarak. That can be done only if evidence is adduced during the trial
and the petitioner is given an opportunity to cross-examine him on this
aspect.
11. There is no doubt that a tenant cannot dictate terms to the landlord
as to where and how he should live, as has been observed by the trial
Court, but it is also now well settled that a landlord has no unfettered right
to evict a tenant even when he is shown to have alternative
accommodation available with him and if the landlord has alternative
accommodation but chooses not to occupy the same and instead insists
upon the eviction of the tenant then the Court will ask from the tenant to
justify that decision.
12. The Supreme Court in “Shiv Sarup Gupta versus Dr. Mahesh
Chand Gupta”, (1999)6 SCC 222 had held that if landlord wants to get a
property vacated from a tenant despite his having in possession another
property then the Court can justifiably require the landlord to justify his
decision. This is what the Court had observed in para 14 of this judgment:-
“14. The availability of an alternative accommodation with the landlord
i.e. an accommodation other than the one in occupation of the tenant
wherefrom he is sought to be evicted has a dual relevancy. Firstly, the
availability of another accommodation, suitable and convenient in all
respects as the suit accommodation, may have an adverse bearing on
the finding as to the bona fides of the landlord if he unreasonably
refuses to occupy the available premises to satisfy his alleged need.
RCR No. 241/2010 Page 7 of 11
Availability of such circumstance would enable the court drawing an
inference that the need of the landlord was not a felt need or the state of
mind of the landlord was not honest, sincere, and natural. Secondly,
another principal ingredient of clause (e) of sub-section (1) of Section
14, which speaks of non-availability of any other reasonably suitable
residential accommodation to the landlord, would not be satisfied.
Wherever another residential accommodation is shown to exist as
available then the court has to ask the landlord why he is not occupying
such other available accommodation to satisfy his need. The landlord
may convince the court that the alternative residential accommodation
though available is still of no consequence as the same is not reasonably
suitable to satisfy the felt need which the landlord has succeeded in
demonstrating objectively to exist. Needless to say that an alternative
accommodation, to entail denial of the claim of the landlord, must be
reasonably suitable, obviously in comparison with the suit
accommodation wherefrom the landlord is seeking eviction.
Convenience and safety of the landlord and his family members would
be relevant factors. While considering the totality of the circumstances,
the court may keep in view the profession or vocation of the landlord
and his family members, their style of living, their habits and the
background wherefrom they come.”(emphasis laid )
13. Similarly, in “M.M. Quasim v. Manohar Lal Sharma and Others,
(1981)3SCC36″ also the Supreme Court had taken the same view. The
relevant observations of the Supreme Court in para no. 19 of its judgment
are reproduced below:-
19……………………………………………………….The time honoured
notion that the right of re-entry is unfettered and that the owner
landlord is the sole judge of his requirement has been made to yield to
the needs of the society which had to enact the Rent Acts specifically
devised to curb and fetter the unrestricted right of re-entry and to
provide that only on proving some enabling grounds set out in the Rent
Act the landlord can re-enter. One such ground is of personal
requirement of landlord. When examining a case of personal
requirement, if it is pointed out that there is some vacant premises with
the landlord which he can conveniently occupy, the element of need in
his requirement would be absent. To reject this aspect by saying that the
landlord has an unfettered right to choose the premises is to negative
the very raison de’etre of the Rent Act. Undoubtedly, if it is shown by theRCR No. 241/2010 Page 8 of 11
tenant that the landlord has some other vacant premises in his
possession, that by itself may not be sufficient to negative the landlord’s
claim but in such a situation the Court would expect the landlord to
establish that the premises which is vacant is not suitable for the
purpose of his occupation or for the purpose for which he requires the
premises in respect of which the action is commenced in the Court. It
would, however, be a bald statement unsupported by the Rent Act to say
that the landlord has an unfettered right to choose whatever premises he
wants and that too irrespective of the fact that he has some vacant
premises in possession which he would not occupy and try to seek to
remove the tenant. This approach would put a premium on the
landlord’s greed to throw out tenants paying lower rent in the name of
personal occupation and rent out the premises in his possession at the
market rate……………………………………………..”(emphasis supplied)
14. There is no doubt that the respondent-landlord here claims that the
property at Civil Lines is in the name of his wife and sons but in view of
the documents placed on record by the petitioner this aspect would also
need trial and cannot be decided on the basis of affidavits of the tenant and
landlord. In this regard useful reference can be made to a judgment of the
Supreme Court in the case of “Charan Dass Duggal vs Brahma Nand”,
1983(1)SCC301, which was cited by the learned counsel for the petitioner,
wherein also the landlord was having another property in the name of his
children and sale deed to that effect was produced before this Court by the
tenant who had been denied leave to contest by the Rent Controller but
this Court had also not granted leave to the tenant. However, that property
was considered by the Supreme Court to be alternative accommodation
with the landlord at least for the purpose of consideration of the tenant‟s
RCR No. 241/2010 Page 9 of 11
application for leave to contest the eviction petition and leave was granted.
This is what the Supreme Court had observed is paras no. 5&7:-
“5. What should be the approach when leave to defend is sought? There
appears to be a mistaken belief that unless the tenant at that stage makes
out such a strong case as would non-suit the landlord, leave to defend
cannot be granted. This approach is wholly improper. When leave to
defend is sought, the tenant must make out such a prima facie case
raising such pleas that a triable issue would emerge and that in our
opinion should be sufficient to grant leave. The test is the test of a triable
issue and not the final success in the action (see Santosh Kumar v. Bhai
Mool Singh). At the stage of granting the leave parties rely in support of
their rival contentions on affidavits and assertions and counter-
assertions on affidavits may not afford such incontrovertible evidence to
lead to an affirmative conclusion one way or the other. Conceding that
when possession is sought on the ground of personal requirement, an
absolute need is not to be satisfied but a mere desire equally is not
sufficient. It has to be something more than a mere desire. And being an
enabling provision, the burden is on the landlord to establish his case
affirmatively. If as it appears in this case, the landlord is staying at
Pathankot, that a house is purchased, may be in the name of his sons
and daughters, but there may not be an apparent need to return to Delhi
in his old age, a triable issue would come into existence and that was
sufficient in our opinion to grant leave to defend in this case.
7. The genesis of our procedural laws is to be traced to principles of
natural justice, the principal amongst them being that no one shall suffer
civil or evil or pecuniary consequence at his back without giving him an
adequate and effective opportunity to participate to disprove the case
against him and prove his own case. Summary procedure does not
clothe an authority with power to enjoy summary dismissal.
Undoubtedly wholly frivolous defence may not entitle a person leave to
defend. But equally a triable issue raised, enjoins a duty to grant leave.
May be in the end the defence may fail. It is necessary to bear in mind
that when leave to defend is refused the party seeking leave is denied an
opportunity to test the truth of the averments of the opposite party by
cross-examination and rival affidavits may not furnish reliable evidence
for concluding the point one way or the other. It is not for a moment
suggested that leave to defend must be granted on mere asking but it is
equally improper to refuse to grant leave though triable issues are
raised and the controversy can be properly adjudicated after
ascertainment of truth through cross-examination of witnesses who have
filed their affidavits. Burden is on the landlord to prove his requirements
and his assertion is required to be tested more so when it is shown that
for long he is staying outside Delhi, that he has a building albeit
RCR No. 241/2010 Page 10 of 11
standing in the names of his sons and daughters where he is staying and
at which place he receives his normal correspondence. If in such a
situation one can say that a triable issue is not raised, one is at a loss to
find out where, when and in what circumstances such an issue would
arise. We are, therefore, satisfied that this is a case in which triable
issues were raised and both the learned Rent Controller and the High
Court were in error in refusing to grant the leave.” (emphasis supplied)
15. I am, therefore, of the view that the defence raised by the petitioner
– tenant in the present case cannot be said to be frivolous or untenable.
The facts pleaded by him in his affidavit in support of the leave application
do raise triable issues which if decided in favour of the petitioner – tenant
would disentitle the respondent – landlord to get an order of eviction.
16. This revision petition accordingly is allowed. The impugned order
is set aside and consequently the petitioner – tenant gets leave to contest
the eviction petition. The matter is remanded back to the trial Court for
disposal of the eviction petition according to law. The case shall be taken
by the trial Court now on 30/09/2011 at 2:00 pm.
P.K. BHASIN, J
September 19, 2011
sh
RCR No. 241/2010 Page 11 of 11