In the Court of Sh. [ENTITY] : Additional Rent Controller-02, Central District, Tis Hazari Courts, Delhi. E. No. 204/15 New no. 78648/16 In the matter of: [ENTITY], W/o Mukesh Garg R/o 61/6, Ramjas Road, Karol Bagh, New Delhi petitioner VERSUS [ENTITY], S/o Tilak Raj Babbar Shop no.2/2120/58, Bank Street, Karol Bagh, New Delhi respondent Date of Institution : 25.07.2015 Date of Arguments : 02.08.2016 Date of Order : 01.10.2016 ORDER:
1. This order shall decide the question whether the respondent be granted leave to contest the present application under [SECTION] to [SECTION] of the [ACT] (hereinafter referred to as [ACT] ).
2. The brief facts for the decision of the application are that the petitioner is the owner of the suit premises duly registered dt. 22.07.2010. That the property was let-out by the predecessor-in-title in favour of the respondent in the year 1977. That the petitioner purchased the suit property and information was given to the respondent. That the petitioner has three issues. That his eldest daughter [ENTITY] is 22 yrs old and is jobless, who has done graduation and one year diploma from National Institute of Fashion Technology (herein after referred as NIFT). That the suit premises is required for Nupur E204/15[ENTITY] Vs [ENTITY] Page no.1/10 Garg as she wants to open her own boutique from the suit premises and has no other alternative accommodation to start her business.
3. By filing leave to defend application filed by respondent alongwith affidavit, it is contended by the respondent that the petitioner has no locus-standi to file the petition as the mutation of the suit premises is under challenged. That in case the petitioner had intended to set-up a boutique for her daughter, the entire first floor would have been more appropriate. That the premises no. 10577 WEA, Karol Bagh is purchased in the name of [ENTITY] in March 2014. That the premises no. 2732/24, Beadon Pura, Karol Bagh and the premises no. 1409, Dev Nagar, Karol Bagh and the premises no. 16/3676, Regar Pura, Karol Bagh (basement) are purchased by the family of the petitioner. That the premises no. 15A/12 WEA Karol Bagh purchased by M/s Pooja Buildtech Pvt. Ltd (Company of the family of the petitioner) in the year 2014. That there are several shops on the first floor of premises no. 2120/58, Bank Street, Karol Bagh, New Delhi which are lying unoccupied and locked for the last several years. That accordingly, the application be allowed.
4. The application is contested by the petitioner by way of a written reply supported by affidavit of the petitioner, wherein the contents of the application are denied and the facts of the petition are re-iterated and re-affirmed. It is also stated that the petitioner is entitled to eviction of the respondent from the premises as the same is required by the petitioner for her daughter namely [ENTITY] as she wants to open her own boutique from the suit premises and has no other alternative accommodation to start her business. 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 1958.
5. To the reply of the petitioner, affidavit 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.
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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 respondent 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 suit premises for her daughter as they already have sufficient accommodation available with them. It is also submitted by counsel for the respondent that he has raised several triable issues in his affidavit and if the respondent is allowed to lead evidence on those issues, the petitioner shall be disentitled from recovering the possession of the premises from him. It is further submitted by counsel for the respondent 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 daughter namely [ENTITY], (who is unemployed) to open a boutique and has no other suitable business accommodation with her and therefore, the application for eviction be allowed and the application for leave to contest made by the respondent 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] to [SECTION] of [ACT] which reads as under :-
14.(1) Notwithstandinganythingtothecontrarycontainedinanyotherlaw or contract, no order or decree for the recovery of possession of any premisesshallbemadebyandcourtorControllerinfavourofthelandlord againstatenant:
ProvidedthattheControllermay,onanapplicationmadetohiminthe prescribedmanner,makeanorderfortherecoveryofpossessionofthe premisesononeormoreofthefollowinggroundsonly,namely: E204/15[ENTITY] Vs [ENTITY] Page no.3/10 * * *
(e)thatthepremisesletforresidentialpurposesarerequiredbonafidebyt helandlordforoccupationasaresidenceforhimselforforanymemberof hisfamilydependentonhim,ifheistheownerthereof,orforanyperson forwhosebenefitthepremisesareheldandthatthelandlordorsuchperson hasnootherreasonablysuitableresidentialaccommodation:
Explanation.Forthepurposeofthisclause,"premisesletforresidentialpurposes"
includeanypremiseswhichhavingbeenletforuseasaresidenceare,withoutthe consentofthelandlord,usedincidentallyforcommercialorotherpurposes;
* * * 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] to [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 appearstobeamistakenbeliefthatunlessthetenantatthatstagemakesout suchastrongcaseaswouldnonsuitthelandlord,leavetodefendcannotbe granted.Thisapproachiswhollyimproper.Whenleavetodefendissought, thetenantmustmakeoutsuchaprimafaciecaseraisingsuchpleasthata triableissuewouldemergeandthatinouropinionshouldbesufficientto grantleave.Thetestisthetestofatriableissueandnotthefinalsuccessin theaction(seeSantoshKumarv.BhaiMoolSingh).Atthestageofgranting theleavepartiesrelyinsupportoftheirrivalcontentionsonaffidavitsand assertions and counterassertions on affidavits may not afford such incontrovertibleevidencetoleadtoanaffirmativeconclusiononewayor the other. Conceding that when possession is sought on the ground of personal requirement, an absolute needisnot to be satisfiedbut amere desireequallyisnotsufficient.Ithastobesomethingmorethanamere desire.Andbeinganenablingprovision,theburdenisonthelandlordto establishhiscaseaffirmatively.Ifasitappearsinthiscase,thelandlordis stayingatPathankot,thatahouseispurchased,maybeinthenameofhis sonsanddaughters,buttheremaynotbeanapparentneedtoreturntoDelhi in his old age, a triable issue would come into existence and that was sufficientinouropiniontograntleavetodefendinthiscase.
E204/15[ENTITY] Vs [ENTITY] Page no.4/10 In the same judgment, in para 7 it is further observed:-
7.Thegenesisofourprocedurallawsistobetracedtoprinciplesofnatural justice,theprincipalamongstthembeingthatnooneshallsuffercivilor evilorpecuniaryconsequenceathisbackwithoutgivinghimanadequate andeffectiveopportunitytoparticipatetodisprovethecaseagainsthim andprovidehisowncase.Summaryproceduredoesnotclotheanauthority with power to enjoy summary dismissal. Undoubtedly wholly frivolous defencemaynotentitleapersonleavetodefend.Butequallyatriableissue raised,enjoinsadutytograntleave.Maybeintheendthedefencemay fail.Itisnecessarytobearinmindthatwhenleavetodefendisrefusedthe party seeking leave is denied an opportunity to test the truth of the avermentsoftheoppositepartybycrossexaminationandrivalaffidavits maynotfurnishreliableevidenceforconcludingthepointonewayorthe other.Itisnotforamomentsuggestedthatleavetodefendmustbegranted onmereaskingbutitisequallyimpropertorefusetograntleavethough triableissuesareraisedandthecontroversycanbeproperlyadjudicated afterascertainmentoftruththroughcrossexaminationofwitnesseswho have filed their affidavits. Burden is on the landlord to prove his requirementsandhisassertionisrequiredtobetestedmoresowhenitis shownthatforlongheisstayingoutsideDelhi,thathehasabuildingalbeit standinginthenamesofhissonsanddaughterswhereheisstayingandat whichplacehereceiveshisnormalcorrespondence.Ifinsuchasituation onecansaythatatriableissueisnotraised,oneisatalosstofindout where,whenandinwhatcircumstancessuchanissuewouldarise.Weare, therefore,satisfiedthatthisisacaseinwhichtriableissueswereraisedand both the learned Rent Controller and the High Court were in error in refusingtogranttheleave.
Further in [PRECEDENT] the Hon'ble Supreme Court having discussed the relevant provisions of [ACT] held as follows:
TheControllerhastoconfinehimselftotheaffidavitfiledbythetenant undersubsec.(4)andthereplyifanyOnperusingtheaffidavitfiledbythe tenantandthereplyifanyfiledbylandlordtheControllerhastoposeto himselftheonlyquestion,`Doestheaffidavitdisclose,notprove,factsas woulddisentitlethelandlordfromobtaininganorderfortherecoveryof possessiononthegroundspecifiedincl.(e)oftheprovisotoSection14 (1)?'TheControllerisnottorecordafindingondisputedquestionsoffacts orhispreferenceofonesetofaffidavitsagainsttheothersetofaffidavits.
That is not the jurisdiction conferred on the Controller by [SECTION] because the Controller while examining the question whether there is a proper case for granting leave to contest the application has to confine himselftotheaffidavitfiledbythetenantdisclosingsuchfactsaswould E204/15[ENTITY] Vs [ENTITY] Page no.5/10 primafacieandnotoncontestdisentitlethelandlordfromobtaininganorder forrecoveryofpossession.Atthestagewhenaffidavitisfiledundersub sec.(4)bythetenantandthe sameisbeingexaminedforthepurposeof subsec.(5)theControllerhastoconfinehimselfonlytotheavermentsin theaffidavitandthereplyifanyandthatbecomemanifestlyclearfromthe languageofsubsec.(5)thattheControllershallgivetothetenantleaveto contesttheapplicationiftheaffidavitfiledbythetenantdisclosessuchfacts as would disentitle the landlord from recovering possession etc. The jurisdictiontograntleavetocontestorrefusethesameistobeexercisedon thebasisoftheaffidavitfiledbythetenant.Thataloneatthatstageisthe relevantdocumentandonemustconfinetotheavermentsintheaffidavit.If theavermentsintheaffidavitdisclosesuchfactswhich,ifultimatelyproved tothesatisfactionoftheCourt,woulddisentitlethelandlordfromrecovering possession,thatbyitselfmakesitobligatoryupontheControllertogrant leave.Itisimmaterialthatfactsallegedanddisclosedarecontrovertedby the landlord because the stage of proof is yet to come. It is distinctly possiblethatatenant mayfailtomakegoodthedefenceraisedbyhim. Plausibility of the defence raised and proof of the same are materially differentfromeachotherandonecannotbringintheconceptofproofatthe stagewhenplausibilityhastobeshown.
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/tenantintheapplicationforleavetodefendaresuchwhichif establishedbyadducingevidencewoulddisentitlethepetitioner/landlord ofanorderof evictionunder [SECTION] of the Act.Ordinarily, when a tenant approaches an advocate for drafting a leave to defend application,theadvocate,usinghislegalacumenwoulddisputeeachand every plea of the landlord in the eviction petition. However, merely E204/15[ENTITY] Vs [ENTITY] Page no.6/10 becausethetenantsodisputesandcontrovertsthepleasofthelandlord doesnotimplythattheprovisionsofsummaryprocedureintroducedinthe Actwithrespecttogroundofevictiononthegroundofrequirementisto be set at naught. The Controller is required to sift/comb through the applicationforleavetodefendandtheaffidavitfiledtherewithandtosee whether the tenant has given any facts/particulars which require to be established by evidence and which if established would disentitle the landlordfromanorderofeviction.Thetestisnotofthetenanthaving controverted/deniedtheclaimofthelandlordandthusdisputedquestions of fact arising; the test is to examine the pleas of facts and then to determinetheimpactthereof.
8. In the present case, the respondent had sought leave to contest the application for eviction mainly one ground i.e. that the petitioner is having sufficient alternate accommodation available with her.
In the application for leave to contest, the respondent has not disputed the fact that he was not the tenant under the petitioner and also that the petitioner was not the landlady/Owner of the premises and the rent is being paid. Therefore, in the light of the pleadings of the parties and other material placed before this court, in so far as the purpose of clause (e) of [SECTION] of [ACT] is concerned, the petitioner is found to be the owner of the premises and it is also found that there exists relationship of landlord and tenant between the parties.
9. According to the respondent there are triable points regarding the bonafide necessity of the petitioner. It is also contended on behalf of the respondent that the petitioner is already having sufficient alternate accommodation available with her.
So far as the property no. 10577, WEA, Karol Bagh is concerned, it is already disclosed by the petitioner in her counter-affidavit para 14 (a) that the same was occupied by Ms. [ENTITY] and on the ground floor owned by several other persons and that the petitioner, her daughter does not have the ownership of the same.
So far as the property no. 2732/24, Beadon Pura, Property no. 1429, Dev Nagar and 16/3676, Regar Pura, Karol Bagh are concerned, as per the counter-affidavit filed by the petitioner, the same does not belong to the petitioner or her family members.
E204/15[ENTITY] Vs [ENTITY] Page no.7/10 So far as the premises no. 15A/12 WEA, Karol Bagh, Delhi is concerned, it is stated by the petitioner in her counter-affidavit that the same was in the Company and that the said property has already been sold by the company.
It is pertinent to mention here that the respondent has not placed on record any document to show that any of aforesaid properties belongs to the petitioner.
It was 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.
10. It is also the plea taken by the respondent that in case the petitioner had intended to set up a boutique for her daughter, the same can be opened at 61/6, Ramjas Road, Karol Bagh. The respondent has not placed on record any document/photograph to show that how it was alternate accommodation with the petitioner. 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 is required by the petitioner for her daughter namely [ENTITY] as she wants to open her own boutique from the suit premises and has no other alternative accommodation to start her business and also that she has no other alternative accommodation to start her business.
So far as the contention of the respondent that the petitioner is having sufficient accommodation available with her and that the requirement of the petitioner is not bona-fide, the petitioner her already disclosed in the petition itself that she was a house wife and residing alongwith her husband and three children and also that she does not have any alternate accommodation with her to start a boutique for her elder daughter [ENTITY], who is jobless.
It was held by Hon'ble Apex Court in [PRECEDENT] that the landlord the best judge of his own requirement for residential or business purposes.
E204/15[ENTITY] Vs [ENTITY] Page no.8/10 It was held by Hon'ble Punjab & Haryana High Court in [PRECEDENT] DOD 30.05.2008 that it is for the landlord to decide as to how and in what manner he should fulfill his requirements.The tenant cannot dictate terms for his landlord as to how the latter can adjust him without asking for eviction of the tenanted premises. . In [PRECEDENT] tt was held by Hon'ble High Court of Delhi that any business which is run from ground floor will attract more customers then being run from the basement. Tenant cannot dictate landlord as to how and in what manner landlord should use his own property.
It was held by Hon'ble High Court of Delhi in [PRECEDENT] 06.10.09 that a bald statement without supporting material does not give rise to a triable issue entitling tenant for leave to defend.
In the considered opinion of the court, the contentions of the respondent are without merit and cannot be sustained as the petitioner are the owner and landlord of the premises. In so far as the question of necessity is concerned, the law is well settled that 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.
11. The petitioner has pleaded the bonafide requirement of the suit premises on the grounds that the same was required by her elder daughter [ENTITY], who is jobless, who wants to start a boutique. It is also pleaded by the petitioner that she is not having any other alternate accommodation with her to start the boutique.
In the absence of any substantial material brought before the court or pointed out by the respondent in the affidavit 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.
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12. 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] to [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.2, 2120/58, Bank Street, Karol Bagh, New Delhi-05, 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.
([ENTITY]) Announced in the open court Additional Rent Controller-02 on this 1st October 2016 Central/Tis Hazari Courts E204/15[ENTITY] Vs [ENTITY] Page no.10/10