IN THE COURT OF MS. BHAWANI SHARMA: ACJ/CCJ/ARC SHAHDARA: KARKARDOOMA COURTS: DELHI E - 18/2014 [CASE NUMBER] Sh. [ENTITY] S/o late Sh. Murli Dhar, R/o H. No.82 & 83, South Anarkali, Delhi. Petitioner Versus Sh. [ENTITY] S/o Sh. Basant, R/o Shop at ground floor, H.No. 82 & 83, South Anarkali, Delhi110051. Respondent Application for Eviction of tenant under [SECTION] of the [ACT]. Petition filed on : 14.02.2014 Order reserved on : 03.03.2015 Date of Order : 03.03.2015 Decision : Leave to defend application of the respondent - dismissed and eviction order passed. ORDER
1. This is a petition for eviction of tenant under [SECTION] of the [ACT] (herein after referred to as the '[ACT]').
2. The petitioner [ENTITY] filed a petition under Section 14 (1)
(e) of the [ACT]. Summons under prescribed format were served upon the respondent on 24.02.2014. An application seeking leave to defend the petition was filed on 26.02.2014.
3. (a) The petitioner has sought an eviction against the respondent [ENTITY] in respect of one shop at the ground floor of the property bearing no. 82 & 83, South Anarkali, Delhi110051 stating that the petitioner is owner/landlord of the above said premises. The mother of the petitioner Smt. [ENTITY] had purchased the suit property vide sale deed dated 09.01.1963. Smt. [ENTITY] had let out the said premises to the respondent in the year 1970. It is submitted that Smt. [ENTITY] had expired on 09.10.2004 and after her death, the suit property was partitioned between the petitioner and his brother and the tenanted premises has come under the share of the petitioner. It is submitted that the petitioner alongwith his family members have been residing at second floor in the suit property and also having one room at ground floor at the back side including attached bathroom therein. The other portion/flats were got constructed in the said premises have been sold out by the petitioner.
(b) It is submitted that the petitioner's family consists of E - 18/14 himself, his wife and four children. One daughter of the petitioner has already got married and three other children i.e. two daughters and one son are grownup children. The petitioner's two daughters are unmarried and studying in higher classes but his son has no interest is study and he left studies in 10th class last year.
(c) It is submitted that the petitioner runs a small shop of electric press and it's handle etc. measuring about 2' x 5' on rent at Sadar Bazar, Delhi but having no sufficient and regular income from the same. The petitioner wants to start and open his own shop/business of grocery and general merchant in the tenanted shop and extends his new business of the same. It is further submitted that the petitioner also wants to settle his only son in such new work/business as he is not doing anything. It is submitted that the petitioner has no other suitable and/or place or accommodation available to him for starting and running his own work/business.
(d) It is submitted that the respondent is in arrears of rent of the tenanted premises since the year 2005. However the respondent has paid the rent in the court under [SECTION] of the [ACT]. The other shop as coming under the share of the petitioner is also occupied by other tenant and the petitioner has filed a civil suit titles as "[ENTITY] vs. Sanjeev Kumar & Anr." which is pending adjudication before the concerned court at Karkardooma court, Delhi. E - 18/14
4. (a) Ld. counsel for the respondent has argued through his leave to defend application that the petitioner has not disclosed the correct detail of the accommodation which is in possession of the petitioner and other accommodation which have been let out by the petitioner to the another tenant. It is submitted that the accommodation available with the petitioner is much more sufficient for the business of the petitioner and other family members.
(b) It is submitted that the respondent is regularly paying the rent to the mother of the petitioner and after her demise, he paid rent to the petitioner and his brother time to time. But in the year 2010, when the petitioner and his brother refused to accept the rent, the respondent started submitting the rent in the court in the year 20122013.
(c) It is submitted that the respondent is an old person and having liability of his wife as the respondent has three sons out of which two sons are living separately from the respondent and one is residing with the respondent but he is not capable to maintain the respondent and his wife. The respondent is earning his livelihood by running the tenanted shop. It is further stated that the respondent is an illiterate person and also not having any experience of other kind of work, the respondent can only earning his livelihood by ironing the clothes and there is legal liability of his wife over him. There is no E - 18/14 alternate remedy for the respondent to maintain himself and his wife.
(d) It is submitted that the petitioner wants to let out the premises on higher rent as there is no bonafide need of the petitioner. It is submitted that the son of the petitioner was in 10th class last year as stated in the petition meaning thereby he is not able to make a business or require the shop in question for his business. It is also submitted that the tenancy of the respondent has not been legally terminated.
Thus, it is argued on behalf of the respondent that he has raised triable issues and the respondent is entitled to leave to defend.
5. The plaintiff filed reply to the application seeking leave to defend and denied the contentions of the defendant and reaffirming the averments made in the petition.
6. Before adverting to the submissions of the parties, it would be apposite to encapsulate the legal provisions under [SECTION] of the [ACT], which governs the current litigation which read as under:
14. Protection of tenant against eviction.-(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 any court or Controller in favour of landlord against a tenant: Provided that the Controller may, on an E - 18/14 application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one ore more of the following grounds only, namely:
(e) that the premises are required bona fide by the landlord 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 accommodation.
7. In the present case the petitioner [ENTITY] has filed the petition stating that he is the landlord of the tenant/respondent [ENTITY] in respect of a tenanted premises i.e. one shop on the ground floor in the property bearing no. 82 & 83, South Anarkali, Delhi. The petitioner has also claimed that the reason for eviction is a bonafide claim for commercial purpose for himself as well as for his sons. He has no other property except the present property in the vicinity of Delhi.
8. What has to be seen now is whether the leave to defend application moved by the respondent has raised any triable issues or not for which evidence is to be led? I shall deal with all the defences raised in the leave to defend application of the respondent in a sequential manner:
9. The first ground on which leave to defend is sought is that the E - 18/14 petitioner has not disclosed the correct detail of the accommodation which is in possession of the petitioner and other accommodation which have been let out by the petitioner to the another tenant. It is submitted that the accommodation available with the petitioner is much more sufficient for the business of the petitioner and other family members. The petitioner wants to let out the premises on higher rent as there is no bonafide need of the petitioner. It is submitted that the son of the petitioner was in 10th class last year as stated in the petition meaning thereby he is not able to make a business or require the shop in question for his business.
10. Perusal of the case file reflects that no documentary proof in support of the contention of petitioner having other sufficient alternative accommodation, filed by the respondent. The petitioner has specifically denied of having any alternative suitable accommodation to his need for separate living as well as for the need of the residence of his family members. In absence of any documentary proof, the averment remains a bald statement raising no triable issue for the purpose of proceeding with the trial in the present petition. In [PRECEDENT] while following case of [PRECEDENT], it was held that mere assertion made by a tenant in E - 18/14 respect of landlords ownership of other buildings and in respect of alternate accommodation are not to be considered sufficient for the grand of leave to defend. If this is allowed, the whole purpose of [SECTION] of the Act shall stand defeated and any tenant can file a false affidavit and drag a case for years together in evidence, defeating the very purpose of statute. The Rent Controller is, thus, precluded from considering the material placed before it by the landlord in response to leave to defend to show that the tenant's assertions and averments were totally false. In [PRECEDENT], it was held that mere bald assertion made without any basis cannot create a triable issue.
11. The arguments as advanced is not tenable in the light of the fact that he is himself in need of the accommodation and that he herself is the best judge of his own requirements. In [PRECEDENT], the court observed that "It is not for tenant to dictate terms to landlord as to who else he can adjust himself without getting possession of tenanted premisessuitability has to be seen for convenience of landlord and his family members and on the basis of circumstances including their profession, vocation, style of living, habit and background." E - 18/14
12. In [PRECEDENT] while dealing with scope of [SECTION] of [ACT], it was held that the [SECTION] is a code in itself providing for summary procedure with object to facilitate expeditious disposal and unless a tenant is able to bring forth a challengeable credit to the assertion of bonafide need of the landlord, readily granted the tenant leave to defend has danger of reducing every summary proceedings intended to help speedy disposal into a regular trial thus defeating the very object of the provision.
13. It is argued on behalf of the respondent has raised triable issues and the respondent is entitled to leave to defend. In this regard reference can also be had to the judgment of Hon'ble High Court of Delhi in [PRECEDENT], wherein it was held that "It is important for the tenant, in any leave to defend application to submit relevant documents on record to support any triable issue raised by him. In absence of any material, the ARC cannot come to a conclusion as to the weight of the issue raised by the tenant. Thus impairing his power to decide whether an issue raised is triable or not."
14. It is also a settled law that it is for the landlord to decide how and what accommodation to use for meeting his bonafide requirement E - 18/14 and tenant cannot dictate the same to the landlord.
15. In [PRECEDENT], it was held that once it is not disputed that landlord is in bonafide need of premises, court cannot dictate to landlord which floor he should use for his business. Moreover, it is well settled law that it is the landlord's prerogative as to in which location he prefers to run business and law should not and cannot prevent such preference by a landlord in order to meet his bonafide requirement.
16. Next ground taken by the the respondent is that the respondent is regularly paying the rent to the mother of the petitioner and after her demise, he paid rent to the petitioner and his brother time to time. But in the year 2010, when the petitioner and his brother refused to accept the rent, the respondent started submitting the rent in the court in the year 20122013.
17. The arguments as advanced under this head cannot be allowed as the present petition is under [SECTION] of the [ACT] and not under [SECTION] of the [ACT], merely contending that the applicant is a regular pay master does not in itself invite any triable issue for the purpose of proceeding with trial in present petition under [SECTION] of the [ACT] with respect to the suit premises E - 18/14 which the petitioner requires for bonafide for himself as well as for his family members.
18. Next ground taken by the the respondent is that the respondent is an old person and having liability of his wife as the respondent has three sons out of which two sons are living separately from the respondent and one is residing with the respondent but he is not capable to maintain the respondent and his wife. The respondent is earning his livelihood by running the tenanted shop. It is further stated that the respondent is an illiterate person and also not having any experience of other kind of work, the respondent can only earning his livelihood by ironing the clothes and there is legal liability of his wife over him. There is no alternate remedy for the respondent to maintain himself and his wife. It is also submitted that the tenancy of the respondent has not been legally terminated.
19. The arguments as advanced on behalf of the respondent to contend the bonafide requirement of the petitioner by stating that respondent is earning livelihood from the tenanted shop and he is having the tenanted shop, only source of income, does not raise any triable issue for the purpose of adjudication of the present petition. Firstly, the financial status of the respondent or for that matter of the petitioner is not relevant for the purpose of determining whether a triable issue raised or not. Secondly, it is not disputed that the E - 18/14 petitioner requires the suit premises for the bonafide requirement of his unemployed son for settling him in his life. Thirdly, the bonafide requirement of the unemployed son has been generally challenged. Further, filing of present petition under [SECTION] of the [ACT] against the respondent in itself is notice for termination of tenancy of the respondent. In [PRECEDENT] it was held that it is not necessary for landlord to indicate nature of business intended to start - sons and grandsons of the landlord have no other suitable alternate accommodation to carry out business - application for leave to defend dismissed with cost.
Conclusion:
20. It is well settled law that leave to defend can be granted to the tenant in case of any triable issue has been raised by him, which can be adjudicated by consideration of additional evidence. The mere existence or averment of any triable issue is not sufficient. The nature of the triable issue raised by the tenant must be such that it would disentitle the landlord from obtaining the eviction order. The whole purpose and import of summary procedure under [SECTION] of the Act would otherwise be defeated. The prayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclosed a E - 18/14 prima facie case i.e. such facts which disentitles the landlord from obtaining an order of eviction, the Court should not mechanically & in routine manner grant leave to defend.
21. In the light of the aforesaid legal ratio, all the pleas taken by the respondent seems to be sham and moonshine, which have failed to raise any requisite triable issues. The contents of the application for leave to defend have failed to rebut the presumption of bonafide qua the need of the petitioner. The application for leave to defend filed by the respondent is thus rejected.
22. Consequently, an eviction order is passed under Section 14 (1)
(e) of the [ACT] against the respondent in respect of One shop at ground floor in the property bearing no.82 & 83, South Anarkali, Delhi110051 as shown in red colour in the site plan filed by the petitioner in this case.
23. However in light of [SECTION] [ACT], the aforesaid eviction order shall not be executable for a period of six months from today.
24. The parties are left to bear their own costs.
25. File be consigned to Record Room after due compliance.
(Announced in the open ([ENTITY]) Court on 03.03.2015 ACJ/CCJ/ARC (Shahdara) (Order contains 13 pages.) Karkardooma Courts, Delhi. E - 18/14