In the Court of Sh. [ENTITY] : Additional Rent Controller-02, Central District, Tis Hazari Courts, Delhi. E-31/16 New no.80497/16 In the matter of: Mr. [ENTITY] S/o Late M. Ahmed, Chamber no.611, Western Wing, THC, Delhi. petitioner VERSUS Mr. [ENTITY] S/o Mr. Madan Lal, Shop no.2033, Rodgran, Lal Kuan, Delhi-06. respondent Date of Institution : 24.02.2016 Date of Arguments : 07.09.2016 Date of Order : 24.09.2016 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 [ENTITY], was the sole and absolute owner of the suit premises, who during his life time, created a Wakf- Ul-Aulad of his properties by virtue of a registered deed dt. 23.09.1993 and became the Wakif and first mutawali. That after the death of [ENTITY], the petitioner became the [ENTITY]/beneficiary/landlord and successor-in-interest of the suit premises on 22.02.2015. That the petitioner requires the suit premises bonafide to set up his professional office from the suit premises. That the petitioner is in possession and occupation of another office space bearing no. 835, first floor, Bazar Ballimaran, Delhi, which is a tenanted premises.
E31/16 [ENTITY] Vs [ENTITY] Page no.1/10 That the petitioner is presently sharing Chamber No.611, Western Wing, THC, Delhi, which is otherwise allotted in the name of Mr. [ENTITY], Advocate. That the petitioner is in possession and occupation of a farm house at 669/27 Arbindo Marg, New Delhi, which is an agricultural land and cannot be used for an advocate office. That the predecessor in interest of the petitioner got eviction orders of the shop no. 2034 adjacent to the suit property and the said order already been confirmed by the Hon'ble High Court of Delhi. That the petitioner requires the suit premises bonafidely so that he can amalgamate all three shops into one and use the same for his professional office. That subject to the aforesaid the petitioner is not in possession or occupation of any other commercial property in Delhi, fromwhere he can carry out his professional activities. That the family of the petitioner consists of himself and his wife and his son, who is also pursuing law as a carrier.
3. By filing leave to defend application filed by respondent alongwith affidavit, it is contended by him that the petitioner is neither the owner nor has any right, title or interest in the suit shop. That the property is not required by the Wakf but the same is required by the petitioner for his personal gains. That the petition has been filed in his personal capacity and not in the capacity of [ENTITY]. 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 petition are re-iterated and re-affirmed and prayed for the dismissal of the application for the want of triable issues.
5. To the reply of the petitioner, no rejoinder affidavit was filed by the respondent despite ample opportunities.
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 E31/16 [ENTITY] Vs [ENTITY] Page no.2/10 application for eviction has been made by the petitioner not for bona fide reasons but due to malafide reasons as the petitioner do not require the premises bona fide as he already has sufficient accommodation available with him. 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 the respondent. 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 he is the owner of the suit shop and require the same bona-fidely for setting up his professional office from the suit premises as the office space bearing no. 835, first floor, Bazar Ballimaran, Delhi, which is a tenanted premises and that the Chamber No.611, Western Wing, THC, Delhi, which is otherwise allotted in the name of Mr. [ENTITY]. It is further submitted by counsel for the petitioner that no other reasonable suitable accommodation is available with the petitioner 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: * * *
(e)thatthepremisesletforresidentialpurposesarerequiredbonafidebyt helandlordforoccupationasaresidenceforhimselforforanymemberof hisfamilydependentonhim,ifheistheownerthereof,orforanyperson forwhosebenefitthepremisesareheldandthatthelandlordorsuchperson E31/16 [ENTITY] Vs [ENTITY] Page no.3/10 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.
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 E31/16 [ENTITY] Vs [ENTITY] Page no.4/10 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 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 himselftotheaffidavitfiledbythetenantdisclosingsuchfactsaswould 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 E31/16 [ENTITY] Vs [ENTITY] Page no.5/10 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 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.
E31/16 [ENTITY] Vs [ENTITY] Page no.6/10
8. In the present case, the respondent had sought leave to contest the application for eviction mainly two grounds i.e. 1). That the petitioner is not the owner/landlord of the suit premises and 2). That the petitioner is having sufficient accommodation available with him.
In the affidavit annexed with the application, it is stated by the respondent that the petitioner is neither the owner of the suit premises nor has any right, title or interest in the suit shop. In the counter affidavit filed by the petitioner and in the petition itself, it is stated by the petitioner that [ENTITY] was the sole and absolute owner of the suit premises, who during his lifetime created a Waqf-Ul-Aulad of his properties by virtue of a registered deed Dt. 23.09.1993 and became the Wakif and [ENTITY] on 22.02.2015. That the petitioner requires the suit premises bonafide to set up his professional office from the suit premises. That the petitioner is in possession and occupation of another office space bearing no. 835, first floor, Bazar Ballimaran, Delhi, which is a tenanted premises. That the petitioner is presently sharing Chamber No.611, Western Wing, THC, Delhi, which is otherwise allotted in the name of Mr. [ENTITY], Advocate. That the petitioner is in possession and occupation of a farm house at 669/27 Arbindo Marg, New Delhi, which is an agricultural land and cannot be used for an advocate office.
Admittedly, the respondent is a tenant in the suit premises and he paid the last rent @ Rs.300/- p.m. It was held by the Hon'ble Apex Court in [PRECEDENT] that the tenant having been inducted by the landlord so long as he remains in possession cannot deny the title of his landlord in view of the rule of estoppel contained in [SECTION] [ACT]. It was further held that the plea raised in the affidavit seeking leave to defend does not amount to raising a triable issue.
It was held by the Hon'ble High Court of Delhi in [PRECEDENT] that in a suit for eviction-the tenant is estopped from questioning the title of the landlord.
In [PRECEDENT] it was held by the Hon'ble High Court of Delhi that mere denial of ownership of the landlord does mean that every E31/16 [ENTITY] Vs [ENTITY] Page no.7/10 case must be sent for trial involving years. It was further held that mere denial of ownership is no denial at all and it has to be something more.
It was held by the Hon'ble High Court of Delhi in [PRECEDENT] that where the tenant denies the ownership of landlord, he is obliged to disclose who was the owner/landlord and further that the landlord is not supposed to prove absolute ownership as required under [ACT]. It was further held therein that the landlord is required to show only that he is more than tenant.
It is contended by the petitioner that in a petition u/[SECTION] [ACT], he is supposed to show prima-facie that he is the owner/landlord of the suit premises.
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, it seems that the petitioner is the owner/landlord and 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 accommodation available with him.
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 setting up his professional office from the suit premises as the office space bearing no. 835, first floor, Bazar Ballimaran, Delhi, which is a tenanted premises and that the Chamber No.611, Western Wing, THC, Delhi, which is otherwise allotted in the name of Mr. [ENTITY] and that he has no other reasonable, suitable accommodation.
It is stated by the respondent that the petitioner is already having sufficient accommodation available with him. It is also stated in para 6 of the affidavit that the petitioner during the lifetime, Sheikh [ENTITY] has got evicted two adjoining shops no. 2032 & 2034 on the same ground but the said shops were again let-out @ Rs.9000/- p.m to the same tenants. In para 7 of the affidavit it is stated that the petitioner may submit the detailed affidavit regarding his entire property for proper adjudication of the petitioner.
E31/16 [ENTITY] Vs [ENTITY] Page no.8/10 It is pertinent to mention here that in the present petition, the suit premises is required bona-fide by the petitioner and not by Sheikh [ENTITY]. Moreover, [ENTITY] already been expired on 22.12.2015. It need not be mentioned here that it is the duty of the respondent to show as to what is the sufficient alternate accommodation available with the petitioner.
In the case in hand, the requirement of the suit premises is for the purpose of setting up the office of Advocacy. It need not be mentioned here that the profession of an Advocate is a kind of social service.
10. In the considered opinion of the court, the contentions of the respondent are without merit and cannot be sustained as the petitioner is the owner/landlord of the suit 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.
The petitioner have pleaded the bonafide requirement of the suit premises on the grounds that same is required by the petitioner for setting up his professional office from the suit premises as the office space bearing no. 835, first floor, Bazar Ballimaran, Delhi, which is a tenanted premises and that the Chamber No.611, Western Wing, THC, Delhi, which is otherwise allotted in the name of Mr. [ENTITY] dependant family members and that he has no other reasonable, suitable accommodation.
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 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].
E31/16 [ENTITY] Vs [ENTITY] Page no.9/10 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.
11. 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. 2033, Rodgran, Delhi-06, 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 24th Sep. 2016 Central/Tis Hazari Courts E31/16 [ENTITY] Vs [ENTITY] Page