IN THE COURT OF MS BHAWANI SHARMA: ACJ/CCJ/ARC SHAHDARA: KARKARDOOMA COURTS: DELHI E - 112/2013 Unique Identification No.02402C0300922013 Sh. [ENTITY] S/o Sh. Jaswant Rai, R/o G6/272, Sector16, Shahbad Daulatpur, Rohini, Delhi110065. Petitioner Versus Smt. [ENTITY] W/o late Sh. Nand Kishore, R/o 99A, First Floor, Old Anarkali, Delhi110051 Respondent Application for Eviction of tenant under [SECTION] of the [ACT] Petition filed on : 16.09.2013 Order reserved on : 09.03.2015 Date of Order : 31.03.2015 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 petitioners Sh. [ENTITY] filed a petition under Section 14 (1)
(e) of the [ACT]. Summons under prescribed format were served upon the respondent on 09.09.2014. An application seeking leave to defend the petition was filed on 22.09.2014.
3. (a) The petitioner has sought an eviction against the respondent namely Smt. [ENTITY] stating that the petitioner is the landlord/owner of the suit property bearing no. 99A, Old Anarkali, Delhi110051 and the respondent is a tenant in respect of two room set with kitchen and toilet etc. on the first floor of the above said property at a monthly rent of Rs.3000/ excluding other charges more specifically shown with red colour in the site plan attached
(b) It is submitted that the suit property was let out to the respondent by the petitioner. It is further submitted that due to some job related compulsions, the petitioner had to shift alongwith his family in a tenanted premises at G6/272, Sector16, Rohini, Delhi.
(c) It is further submitted that the tenanted premises is required by the petitioner for his residence because the purpose for which he shifted at Rohini, Delhi and now due to financial constraints and change of circumstances, the petitioner requires the suit property E - 112/13 for his personal residence.
(d) It is further submitted that earlier the respondent has filed a civil suit bearing no.52/2013 titled as "Sukhpal Devi vs. [ENTITY]"
which was assigned to the court of Sh. [ENTITY], Civil Judge, KKD Courts, Delhi and in the said suit, the petitioner gave statement on 15.03.2013 that he would not dispossess the respondent without the due process of law. It is submitted that the respondent is habitual defaulter in making the payment of rent and she has not made the payment of rent since August 2012. It is also submitted that the petitioner has no other alternative and suitable accommodation except the suit property. It is, therefore, prayed to pass an eviction order against the respondent.
4. (a) Ld. counsel for the respondent has argued through his leave to defend application that the present petition is not maintainable as the present petition is false, frivolous, baseless and misconceived. It is further argued that the petitioner has the sufficient accommodation available for him and for his family members at Rohini and the requirement of residential accommodation, if any can be fulfilled by the petitioner in the abovesaid properties. It is submitted that the petitioner is not required the tenanted premises for him and his family members. It is also argued that the petitioner is E - 112/13 having the sufficient accommodation for the residential purposes.
(b) It is further argued that the respondent is a widow and senior citizen and residing in the tenanted premises alongwith her two young daughters of marriageable age and the tenanted premises is the only residential accommodation available to the respondent and the respondent has no other alternative accommodation to live in.
(c) It is argued that the respondent was inducted as tenant about five years back and the petitioner is the landlord but not the owner of the tenanted premises. The petitioner has filed the false and fabricated document in support of ownership. It is argued that the tenanted premises was let out by the petitioner to some other tenant and at present, the respondent is the tenant under the landlordship of the petitioner. It is argued that the respondent is paying the rent @ Rs. 1200/ per month by way of depositing the rent in the court as the petitioner refused to take the rent. It is argued that the sole motive of the petitioner is to evict the respondent from the tenanted premises and to sell the same on huge premium.
Thus, it is argued on behalf of the respondent that she has raised triable issues and the respondent is entitled to leave to defend.
5. The petitioner filed reply to the application seeking leave to defend and denied the contentions of the respondent reaffirming the E - 112/13 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 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 [PRECEDENT], it was held that the essential ingredients to establish a case under [SECTION] of the [ACT] are :
(a) The applicant has to be the landlord/owner.
(b) The premises should have been let out for residential or commercial purposes or both.
(c) The said premises are required bona fide by the E - 112/13 landlord for occupation for himself or for his family member dependent upon him.
(d) The said landlord or family member dependent upon him has no other reasonably suitable residential accommodation.
8. In the present case the petitioner has filed the present petition stating that he is the owner/landlord of the tenant/respondent in respect of two room set with kitchen and toilet etc. on the first floor in the property bearing no. 99A, Old Anarkali, Delhi110051. The petitioner has also claimed that the reason for eviction is a bonafide requirement for his residential accommodation as he has no other property except the present property in the vicinity of Delhi.
9. 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:
10. The first ground on which leave to defend is sought is that the present petition is not maintainable as the present petition is false, frivolous, baseless and misconceived. It is further argued that the petitioner has the sufficient accommodation available for him and for his family members at Rohini and the requirement of residential E - 112/13 accommodation, if any can be fulfilled by the petitioner in the abovesaid properties. It is submitted that the petitioner is not required the tenanted premises for him and his family members. It is also argued that the petitioner is having the sufficient accommodation for the residential purposes.
11. The ground/objection of saying availability of alternative accommodation at Rohini, Delhi cannot be allowed in the light of the fact no cogent documentary proof to substantiate the fact that the petitioner is having accommodation available with him (without disclosing the address). The petitioner has specifically denied of having any other sufficient property in Delhi. Admittedly, the respondent is stated to be residing on rent about five years back. In absence of any documentary proof, the averment remains a bald statement raising no triable issue for the purpose of proceeding with the trial with the present petition. In [PRECEDENT] while following case of [PRECEDENT], it was held that mere assertion made by a tenant in 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. As regards property bearing no.6/81, Gali No.1, Vishwas Nagar, Shahdara, the present petition has been filed. In [PRECEDENT], it has been held that genuine requirement of landlady for premises in question made out for her and her family's residence - landlady's requirement of premises of her own use is not confined to actual physical use by landlady herself - requirements includes requirement of other family members of the landlady who are living with her and dependent on landlady for residence or on whom the landlady is a dependent for her care, security and wellbeing and who are living with landlady because of love and affection - court while considering requirement under [SECTION] was to Act independent under [SECTION] of the Act as requirement under [SECTION] was more rigorous under [SECTION] of the Act. E - 112/13 The test is to be applied whether the requirement pleaded may properly be regarded as landlady's own requirement and the requirement of the family members i.e. her son and daughters living with her.
12. As regards, the maintainability of the present petition is concerned, the needs of the petitioner for residence for himself as well as for his family members is taken into consideration and it is pertinent to mention as held in [PRECEDENT] decided on 13.09.1991 that "landlord can seek eviction of tenant from more than one premises if he establishes his need. Specified landlord seeking relief under [SECTION], [SECTION], [SECTION], tenant cannot contest the application on the ground specified in [SECTION] of the Act [1977 (2) RCR 233(SC) relied]."
13. Next ground taken by the respondent is that she is a widow lady and a senior citizen and residing in the tenanted premises alongwith her two young daughters of marriageable age and the tenanted premises is the only residential accommodation available to the respondent and the respondent has no other alternative accommodation to live in.
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14. The arguments as advanced on behalf of the respondent to contend the bonafide requirement of the petitioner by stating that she is the widow lady having dependents and she does not have any other residential property except the tenanted premises, 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 petitioner requires the suit premises for the bonafide requirement for himself and his family members. Thirdly, the bonafide requirement of the petitioner has been generally challenged. 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.
15. Another ground taken by the respondent is that she was inducted as tenant about five years back and the petitioner is the landlord but not the owner of the tenanted premises. The petitioner has filed the false and fabricated document in support of ownership. It is argued that the tenanted premises was let out by the petitioner to some E - 112/13 other tenant and at present, the respondent is the tenant under the landlordship of the petitioner. It is argued that the respondent is paying the rent @ Rs.1200/ per month by way of depositing the rent in the court as the petitioner refused to take the rent. It is argued that the sole motive of the petitioner is to evict the respondent from the tenanted premises and to sell the same on huge premium.
16. In this regard, the respondent has not filed any proof to substantiate her claim. However, the petitioner has filed copies of GPA, Receipt etc. executed in favour of the petitioner by the previous owner with regard to the property in question. As regards the arguments for payment of rent by the respondent and non issuance of receipt by the petitioner do not raise any triable issue in the present petition filed under [SECTION] of the [ACT].
17. The respondent herself stated in her leave to defend application that she is under the landlorship of the petitioner. It means that she is admitting the relationship of landlord and tenant between them. The whole argument of the respondent is irrelevant as firstly, she does not dispute that the petitioner rented out the premise to her. It is clear that the petitioner and respondent have entered into the shoes of the landlord [ENTITY] and tenant Smt. [ENTITY] respectively. Therefore, the respondent cannot at this stage, deny the ownership of E - 112/13 the petitioner. Secondly, for the purpose of [ACT], what has to be established is the landlord tenant relationship, which is not denied here. Under the [ACT], the landlord is not supposed to prove absolute ownership as required under [ACT]. He is required to show that he is more than tenant. The petitioner does not have to prove absolute ownership under [ACT], but for the purpose of [ACT]. It was also held in [PRECEDENT] by the Hon'ble High Court of Delhi that "It is settled preposition of law that in order to consider the concept of ownership under [ACT], the Court has to see the title and right of the landlord qua the tenant." Even otherwise, under [SECTION] of the [ACT], the tenant is precluded from denying the title of the landlord and for the purpose of [ACT] as held in [PRECEDENT], cited as [PRECEDENT], "an owner U/[SECTION] need not be an absolute owner requiring registered Sale Deed in his favour contemplated by the general law in [SECTION], [ACT]. It is enough if he has paid for and built tenancy premises".
18. In [PRECEDENT], it was held by the Hon'ble High Court of Delhi that E - 112/13 "8. It is settled law that it is not for a tenant to dictate the terms to the landlord as to how and in what manner he should adjust himself, without calling upon the tenant to vacate a tenanted premises. While deciding the question of bonafides of requirement of landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted. When the landlord shows a prima facie case, a presumption that the requirement of the landlord is bonafide, is available to be drawn. It is also settled position of law that the landlord is the best judge of his requirement for residential or business purpose and he has got complete freedom in the matter and it is no concern of the Courts to dictate to the landlord how and in what manner, he should live or to prescribe for him a residential standard of their own. The tenant cannot compel a landlord to live in a particular fashion and method until and unless the requirement shown is tatally mala fide or not genuine."
Thus, it is clear that the petitioner and the respondent share landlordtenant relationship and the argument of the respondent in this regard is not acceptable.
19. 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 E - 112/13 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."
20. 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 and tenant cannot dictate the same to the landlord.
21. 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.
Conclusion:
22. It is well settled law that leave to defend can be granted to the E - 112/13 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 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.
23. 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.
24. Consequently, an eviction order is passed under Section 14 (1)
(e) of the [ACT] against the respondent in respect of two room set with kitchen and toilet etc. on the first floor in the property E - 112/13 bearing no. 99A, Old Anarkali, Delhi110051 as shown in red colour in the site plan filed by the petitioner in this case.
25. However in light of [SECTION] [ACT], the aforesaid eviction order shall not be executable for a period of six months from today.
26. The parties are left to bear their own costs.
27. File be consigned to Record Room after due compliance.
(Announced in the open ([ENTITY]) Court on 31.03.2015 ACJ/CCJ/ARC (Shahdara) (Order contains 16 pages.) Karkardooma Courts, Delhi. E - 112/13