In the Court of Sh. [ENTITY] : Additional Rent Controller-02, Central District, Tis Hazari Courts, Delhi. E. No. 973/14 Unique ID No. 02401C0424372014 In the matter of: [ENTITY] W/o Late Sh. C.K. Agarwala R/o 1-A, Cornfield Road, Kalkata-700019 Petitioner VERSUS 1. [ENTITY] S/o Late Sh. Mahendra Kumar Jain 2. [ENTITY] 3. [ENTITY] Both S/o Sh. [ENTITY] All At 1872/P, First Floor, Mahalaxmi Market, Chandni Chowk, Delhi-110006 Respondents Date of Institution : 04.09.2014 Date of Arguments : 21.04.2016 Date of Order : 05.05.2016 ORDER:
1. This order shall decide the question whether the respondents be granted leave to contest the present application under [SECTION] of the [ACT] (hereinafter referred to as [ACT] ).
2. The brief facts for the decision of the application as per petitioner are that she is the owner and landlady of the suit property i.e. shop no. 1872/P, F.F., Mahalaxmi Market, Chandni Chowk, Delhi-110006 having dochati portion within the said premises and the respondents are the tenants in respect of the said shop on present monthly rent of Rs. 584.62 per month. The said tenanted shop including dochati has been shown in the attached site plan. That the premises was let-out agreement dt. 11.02.1992 for commercial purpose and the respondents have been running the business of electric items in the same. That the abovesaid tenanted premises is bona-fidely required by the petitioner for herself, who is aged 77 years and for her son, who is dependent upon her and therefore, the petitioner has requested the respondent through its partner to vacate the said tenanted premises and to hand over the peaceful vacant possession of the same to the petitioner. That the rent is not being paid to the petitioner just to harass her in the old age. That the petitioner is living at Kolkata. That the family of the petitioner consists of her son namely Sh. [ENTITY], her daughter-in-law and two grand daughters aged about 19 and 17 years respectively. That the grand daughters of the petitioner are in growing age and therefore the petitioner and her other family members want to shift in Delhi for the higher education of her grand daughters. That the petitioner has no commercial property in KolKata and Delhi in her possession. Moreover, the petitioner owns various commercial properties situated particularly in Chandni Chowk, Delhi and all the properties owned by petitioner are under the occupation of different tenants. Hence, it is very difficult for the petitioner and her son to manage her properties and therefore the petitioner and her son want to shift to Delhi for the better management and supervision of the properties of petitioner and the petitioner and her son want to start the business of electric items in the tenanted premises, which is a suitable accommodation for the intended business, which is known and famous for electrical business in Asia. Therefore, the premises in question is required bonafidely by the petitioner for herself and for her other family members particularly for her son, who is dependent upon her. That the adjacent Shop bearing No. 1869 situated at the G.F. is also under the tenancy of A.M. Electric through its partner, who is Respondent no.1, which is also a suitable premises for the petitioner and her other family members and therefore, the petitioner has filed the separate eviction petition in respect of the said tenanted premises also as both the premises are required for the said electrical business for the purpose of showroom, office and godown. That the son of the petitioner at present has no business at Kolkata as he has no place of running of business at Kolkata and therefore, the premises in question is bonafidely required by the petitioner and her son as the petitioner wants to settle her son in Delhi in her lifetime.
3. By filing leave to defend application alongwith the affidavit, it is contended by the respondents that the contents of the petition are vague, indefinite and the same lacks cause of action. That the petitioner has not disclosed in the petition as to what kind of electrical goods business shall be carried out by them. That the petitioner has concealed the true facts from the court and therefore, the alleged averments would be tested only after the cross-examination of the petitioner. That the adjacent property no 1869 situated at the first floor is also a suitable premises for the petitioner. That the petitioner has not disclosed as to in what manner the son of the petitioner was involved in earning livelihood at Kolkata for the last more than 25 years. That the petitioner has concealed the fact that her son was in occupation with various companies and earning livelihood through finance business and as a builder. That the petitioner owns various commercial properties in particular in Chandni Chowk, Delhi and all the properties in Delhi are under the occupation of different tenants. That accordingly, the application be allowed.
4. The application is contested by the petitioner by way of a written reply supported by counter-affidavit of the petitioner wherein it is stated that the petitioner is entitled to eviction of the respondent from the premises as the same is required by the petitioner as she and her son want to start a showroom for the business of electronic items, office and godown. That the petitioner wants to settle her son in Delhi in her lifetime That the application for leave to contest and the affidavit whereby no triable issues are raised and is liable to be dismissed and the petitioner is entitled to relief as claimed under [SECTION] of [ACT].
5. To the reply of the petitioner, rejoinder has been filed on behalf of the respondent wherein the contentions raised by way of the application for leave to defend have been reiterated and re-affirmed.
6. I have heard counsel for the parties and gone through the material on record carefully.
7. Having drawn my attention on the contents of the application for leave to contest, affidavit of the respondent, affidavit of the petitioner and law laid down in [PRECEDENT] and [PRECEDENT], it is submitted by counsel for the respondents that the present application for eviction has been made by the petitioner not for bona-fide reasons but due to malafide reasons as the petitioner does not require the premises bona-fide for her son, who is already in occupation with various companies and earning livelihood. It is also submitted by Ld. counsel for the respondents that he has raised several triable issues in his affidavit and if the respondents are allowed to lead evidence on those issues, the petitioner shall be disentitled from recovering the possession of the premises from the respondents. It is further submitted by Ld. counsel for the respondents that the application for leave to contest be allowed.
Per-contra, having drawn my attention on the application for eviction, affidavit of the petitioner, documents filed on behalf of the petitioner in support of the application for eviction, it is submitted by Ld. counsel for the petitioner that she is the owner and landlord of the premises and require premises bona-fidely for her son for setting up a showroom for the business of electronic items, office and godown for her son Sh. [ENTITY], who is having no business at Kolkata. That the petitioner and her other family member want to shift in Delhi for the higher education of her grand daughter. It is further submitted by counsel for the petitioner that no other reasonably suitable accommodation is available with the petitioner in Kolkata and Delhi. That therefore, the application for eviction be allowed and the application for leave to contest made by the respondents be dismissed.
I have given my thoughtful consideration to the submissions made on behalf of the parties.
The present petition for eviction is under [SECTION] [SECTION] of [ACT] which reads as under :-
14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: * * *
(e) that the premises let for residential purposes are required bona fide by t he landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation :
Explanation. For the purpose of this clause, "premises let for residential purposes"
include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes;
* * * As per the law laid down by the Hon'ble Supreme Court in Satyawati Sharma v. Union of India and another, 148 (2008) DLT 705 (SC) [SECTION] [SECTION] of [ACT] is also applicable to the premises let out for purpose other than residential purpose The Hon'ble Supreme Court in [PRECEDENT] while dealing with the question in the matter of granting leave to contest the eviction petition filed on the ground of personal requirement, in para 5 has stated thus:-
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 nonsuit 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 [PRECEDENT]). At the stage of granting the leave parties rely in support of their rival contentions on affidavit and assertions and counterassertions on affidavit 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.
In the same judgment, in para 7 it is further observed:-
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 provide 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. Maybe 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 affidavit 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 crossexamination of witnesses who have filed their affidavit. 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 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.
Further in [PRECEDENT] the Hon'ble Supreme Court having discussed the relevant provisions of [ACT] held as follows:
The Controller has to confine himself to the affidavit filed by the tenant under subsec. (4) and the reply if any On perusing the affidavit filed by the tenant and the reply if any filed by landlord the Controller has to pose to himself the only question, `Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in cl. (e) of the proviso to [SECTION]?' The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavit against the other set of affidavit.
That is not the jurisdiction conferred on the Controller by subsec. (5) because the Controller while examining the question whether there is a proper case for granting leave to contest the application has to confine himself to the affidavit filed by the tenant disclosing such facts as would prima facie and not on contest disentitle the landlord from obtaining an order for recovery of possession. At the stage when affidavit is filed under [SECTION] by the tenant and the same is being examined for the purpose of subsec. (5) the Controller has to confine himself only to the averments in the affidavit and the reply if any and that become manifestly clear from the language of subsec. (5) that the Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from recovering possession etc. The jurisdiction to grant leave to contest or refuse the same is to be exercised on the basis of the affidavit filed by the tenant. That alone at that stage is the relevant document and one must confine to the averments in the affidavit. If the averments in the affidavit disclose such facts which, if ultimately proved to the satisfaction of the Court, would disentitle the landlord from recovering possession, that by itself makes it obligatory upon the Controller to grant leave. It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. It is distinctly possible that a tenant may fail to make good the defence raised by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown.
From the law laid down by the Hon'ble Supreme Court it can be discerned that while deciding the question of the grant of leave to contest under the provisions of [SECTION] of [ACT], the Rent Controller should see the affidavit filed by the tenant and the counter affidavit filed by the landlord. From the decisions of the Hon'ble Supreme Court it is also clear that while deciding the question of the grant of leave, the Controller is not required to conduct a full fledged trial and should only see that if the affidavit of the tenant raise any triable point the decision on which may disentitle the landlord from recovering possession of the premises. At the time of the decision on the question of leave, the Controller is not required to seek the proof of the defence of the tenant.
In [PRECEDENT] it has been observed by the Hon'ble High Court of Delhi as follows:-
The Controller has not discussed as to how the pleas raised by the respondent/tenant in the application for leave to defend are such which if established by adducing evidence would disentitle the petitioner/landlord of an order of eviction under [SECTION] of the Act. Ordinarily, when a tenant approaches an advocate for drafting a leave to defend application, the advocate, using his legal acumen would dispute each and every plea of the landlord in the eviction petition. However, merely because the tenant so disputes and controverts the pleas of the landlord does not imply that the provisions of summary procedure introduced in the Act with respect to ground of eviction on the ground of requirement is to be set at naught. The Controller is required to sift/comb through the application for leave to defend and the affidavits filed therewith and to see whether the tenant has given any facts/particulars which require to be established by evidence and which if established would disentitle the landlord from an order of eviction. The test is not of the tenant having controverted/denied the claim of the landlord and thus disputed questions of fact arising; the test is to examine the pleas of facts and then to determine the impact thereof.
8. In the present case, the respondents have sought leave to contest the application for eviction mainly on two grounds, namely, (1) whether the petitioner has concealed the material facts from the court; (2) whether the petitioner is already having the sufficient alternate accommodation available with her.
In the application for leave to contest, the respondents have not disputed the fact that they were the tenant under the petitioner and also that the rent was being paid to her but at page no. 15 of the affidavit annexed with the leave to defend application, nor the landlordship of the petitioner is demised/ disputed in this case.
9. The respondents relied upon [PRECEDENT], [PRECEDENT]. [PRECEDENT], [PRECEDENT] decided on 11.01.1982 passed by the Hon'ble Apex Court, [PRECEDENT], [PRECEDENT] and [PRECEDENT].
10. According to the respondents there are triable points regarding the bona-fide necessity of the petitioner. It is also contended on behalf of the respondents that the petitioner cannot claim eviction on the basis of her and her son's whim, fancy or desire and that the petition is based on a fabricated story. It is also contended that the son of the petitioner, who is already in occupation with various companies and earning livelihood.
It was held by the Hon'ble Apex Court in [PRECEDENT] that a person can start a new business even if he has no experience in new business.
It was also held by the Hon'ble High Court of Delhi in [PRECEDENT] that the leave to defend not to be granted to the tenant on the basis of false affidavit and false averments and assertions. It was further held that only those averments in the affidavit are to be considered by the Rent Controller which have some substance in it and are supported by some material.
The Hon'ble High Court of Delhi in [PRECEDENT] held that a tenant cannot dictate to the landlord as to how he should manage his affairs so as not to result in eviction of tenant.
It is well settled law that it is the petitioner himself/ herself, who is the best person to explain as to what is his/ her bona-fide necessity. As per the petitioner in the case in hand, the suit premises was required by the petitioner as she and her son want to start a showroom for the business of electronic items, office and godown. That the petitioner wants to settle her son in Delhi in her lifetime. That the petitioner is not having any other suitable, reasonable and alternative accommodation available with her in Kolkata and Delhi.
11. So far as the contention of the respondents that the petitioner is having sufficient alternate accommodation available with her. As per respondents, the adjacent property no. 1872/P situated at the F.F. was also a suitable premises for the petitioner. It is also contended by the respondents that the petitioner owns various commercial properties in particularly in Chandni Chowk, Delhi and all the properties in Delhi are under the occupation of different tenants.
It is pertinent to mention here that merely by occupation of various properties by the petitioner does not ipso-facto makes it a triable issue. The respondents have failed to state and further how it had become a triable issue. As per the petitioner herself, all the other properties (under her occupation) are under different tenants. The petitioner has already mentioned all these facts in para 18 (1) (7) of the petition itself.
It is also contended by the respondent that the petitioner having adjacent property no. 1872/ P situated at the F.F. was also a suitable premises It is contended by the petitioner that all the other properties are already under the occupation of different tenants.
In [PRECEDENT] the Hon'ble High Court of Delhi held that where a landlord made a categorical statement that he has alternative house or shop, which were neither vacant nor suitable, but the suit premises was suitable for his need or business purpose, court would not interfere because landlord is the best judge or his requirement for residential or business purpose.
It is pertinent to mention here that in response to the said contentions, in the counter-affidavit filed by the petitioner, it is denied that the other properties at Delhi were under the occupation of various tenants.
12. In the considered opinion of the court, the contentions of the respondents are without merit and cannot be sustained as the petitioner is the owner and landlord of the premises. The law is well settled that in so far as the question of necessity is concerned, the landlord is the best judge of his necessity and he has got complete freedom in the matter. Therefore, a tenant cannot dictate the terms to the landlord regarding his necessity.
The petitioner has pleaded the bona-fide requirement of the suit premises on the grounds that same was required by her and her son want to start a show-room for the business of electronic items, office and godown and that the petitioner wants to settle her son in Delhi in her lifetime. That the petitioner is not having any other alternate accommodation except the suit premises.
In the absence of any substantial material brought before the court or pointed out by the respondents in their affidavits, it cannot be said that the present application for eviction is actuated by mala-fide and has not been made with bona fide intention. Merely stating in the affidavit that the application for eviction has been made with mala fide intention is not sufficient to sustain the contention of the respondent. The court is satisfied that there is no triable point between the parties.
As per the provisions of [SECTION] of [ACT] a tenant shall be entitled to leave to contest the petition for eviction if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the grounds specified in [SECTION] [SECTION] of [ACT].
Even if there is any issue the same is insignificant and does not entitle the respondent from seeking leave to contest the application for eviction.
In view of above discussion and the documents filed by the parties, this court is of the considered view that there is no triable issue between the parties which entitles the respondent for leave to contest the present application for eviction. The application for leave to contest is without merit and the same is dismissed.
As an off shoot of the dismissal of the application for leave to contest made by the respondent, the petitioner is found entitled to recover the possession of premises i.e. shop no. 1872/P, F.F., Mahalaxmi Market, Chandni Chowk, Delhi-110006 as shown in red colour in the site plan annexed with the application for eviction. The application for eviction is allowed. In the facts and circumstances of the case there shall be no order as to costs.
In view of the provisions of [SECTION] of [ACT] this order for recovery of possession of premises shall not be executed before the expiration of a period of six months from this date.
Announced in the open court ([ENTITY]) on this 05th May 2016 Additional Rent Controller-02 Central/Tis Hazari Courts