RCR No.34/09 page 1 of 28 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 11.09.2009 % Judgment delivered on: 06.10.2009 + RC.REV. NO. 34/2009 MUKESH KUMAR .....Petitioner Through: Mr. Pankaj Gupta, Advocate versus RISHI PRAKASH .....Respondent Through: Mr. Rishi Prakash, respondent in person. CORAM: HON’BLE MR. JUSTICE VIPIN SANGHI 1. Whether the Reporters of local papers may No be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? J U D G M E N T VIPIN SANGHI, J. 1. In challenge in this revision petition is the order dated 20.04.2009 passed by Sh. Balwant Rai Bansal, ARC (Central) Tis Hazari Courts, Delhi in E-380/08 titled as “Sh. Mukesh Kumar Vs. Sh. Rishi Prakash” whereby the learned ARC has granted to the respondent tenant, the leave to defend the eviction petition preferred by the petitioner/landlord under Section 14 (1) (e) of the Delhi Rent Control Act. 2. Undisputedly, the petitioner is the landlord in respect of RCR No.34/09 page 2 of 28 premises let out to the respondent comprising of one room situated at the second floor of property bearing no.3649, Gali Rura Acharwali, Chawri Bazar, Delhi, 110006 as shown in red colour in the site plan filed by the petitioner/landlord as annexure „A‟ with the eviction petition. The respondent was inducted as a tenant in the said premises on 08.12.1980 at a monthly rent of Rs. 75/-. It was enhanced to Rs. 99/- per month w.e.f. 01.07.2001. The petitioner claims that the same was further enhanced to Rs. 600/- per month by issuing a notice in consonance with the decision of this court in Raghunandan Saran Ashok Saran (HUF) Vs. UOI 95 (2002) DLT 508 (DB). However, according to the respondent the rent is Rs.99/- per month as the respondent does not admit the increase of rent to Rs. 600/- per month. 3. The petitioner preferred the eviction petition on the ground of bona fide requirement by disclosing that he is carrying on his business in hardware, rubber and iron goods, aluminum and brass doors and window fittings, industrial and other trolley wheels, Castor wheels etc. at 3663, Chawri Bazar, Delhi-110006. He disclosed that he has three sons. His second son Shri Pankaj Gupta is a practicing Advocate. He stated that he requires the tenanted premises for his second son Shri Pankaj Gupta who intends to start/maintain his office as a lawyer. He further stated that the petitioner has no other suitable space to meet the requirement of his son. The petitioner also contended that the tenanted premises is lying locked / unutilized which shows that the same is not required by the respondent. RCR No.34/09 page 3 of 28 4. Upon issuance of notice in the prescribed form the respondent, who is himself an advocate, filed his application to seek leave to defend the eviction petition. The respondent contended that the petitioner is not the owner of the property bearing no. 3649, Gali Rura Acharwali, Chawri Bazar, Delhi – 110006 (herein referred to as “property bearing No.3649”). He admitted that he is the tenant in respect of suit premises under the petitioner. The respondent contended that the petitioner had not made a complete disclosure of the accommodation available with him. It was contended that the petitioner is already in possession of more than sufficient and suitable accommodation for his requirement, which is lying vacant. The respondent contended that property bearing no.3649 in which the suit premises is situated is comprised of four floors, out of which the petitioner is already in actual physical possession of entire first floor, third floor and fourth floor. In addition, the petitioner is also in actual physical possession of shop nos. 2 and 11 on the ground floor which are lying vacant. It was averred that the petitioner has recently got possession of shop nos. 2 and 11 on the ground floor and the entire first floor of the said property from the earlier tenants/occupants. The respondent also contended that even according to the plan filed by the petitioner, the first floor consists of as many as 5-6 rooms, one bath room cum latrine (one toilet for common use) and open terrace which has been recently vacated by the earlier tenant M/s. Saraswati Publications. It was also averred that the entire first floor is in possession of the petitioner and is being used by his son Sh. Pankaj RCR No.34/09 page 4 of 28 Gupta, Advocate as his office. It was further averred that the other two sons of the petitioner namely Sh. Rajiv Gupta and Amit Gupta are carrying on business with the petitioner under the name and style of M/s. Mukesh Kumar and Sons in property bearing no. 3663, Chawri Bazar, Delhi. Various other allegations were made by the respondent against the petitioner of harassment. However, the same are not relevant to these proceedings. The petitioner filed his reply to the application seeking leave to defend, and the respondent also file his rejoinder. The learned ARC has, as aforesaid, granted leave to defend to the respondent on the basis of the pleadings for the parties. 5. The submission of learned counsel for the petitioner is that the impugned order has not been passed in accordance with the law. To further substantiate his submission, learned counsel has referred to the reply filed by the petitioner to the above said application filed by the respondent/ tenant to seek leave to defend the eviction petition. In the said reply the petitioner, inter alia, made the following categorical statements : “…….In this behalf, it is submitted that the property bearing no. 3649, Gali Rura Achar Wali, Chawri Bazar, Delhi – 110006 has available office space/rooms only at the second floor of the said property and the rented premises in question is situated at that floor itself. Rest on the portion/space in the said property is being used by the other tenants and occupants including the petitioner either for trading purpose or for storing the goods as godown.” “……..Presently the petitioner is maintaining the said stock at the shop-cum-godown space available at the ground floor of the property, at RCR No.34/09 page 5 of 28 the first floor of the property, third floor of the property and in the tin shed built up at the roof at the third floor. In maintaining the said stock at such places, the petitioner has to incur huge expenditure in the form of loading and unloading charges/cartage besides the goods which are stocked in the tin shed at the roof of third floor get damaged being exposed directly to sunlight and rain. The said expenditure can be substantially reduced in case more space is available to the petitioner at lower floors. Besides maintaining the stock at present available space is otherwise very difficult as for meeting the requirements of the customer in business frequent visits are required to made to the godown. Therefore, the petitioner is otherwise in genuine and bonafide need of more space at lower floors including ground floor for his business and it is thus cannot be said/concluded that petitioner has sufficient space as sought to be contended by the respondent/tenant. Without prejudice to above it is submitted that for the purpose stated in the petition, rented premises is the most suitable as the same was being used for office of an advocate and is required for identical purpose.” “In reply to the averments/contents stated in respect to first floor of the property it is submitted that the entire first floor is being utilized/used by the petitioner for storing his goods/stocks for his trade/business requirement. Due to the space constraints, the petitioner is constrained to store goods in the open area of said floor exposing them directly to the sun and rain. Therefore, it is incorrect to say/suggest on behalf of the respondent-tenant that the petitioner is having sufficient accommodation as contended to in para under reply.” “…….It is submitted that the size of the rented premises in possession of the respondent tenant is almost similar to the size of lawyer‟s chambers as available in Court complex. Further since the rented premises was being used as the office of a lawyer and the same is required for maintaining the similar office, it is submitted that the said accommodation is the RCR No.34/09 page 6 of 28 best suitable accommodation which is required by the petitioner genuinely and bonafidely.” 6. The respondent filed his rejoinder to the aforesaid reply of the petitioner. In his rejoinder the respondent, inter alia, stated as follows: “…….It is denied that any stocks are required to be maintained by the petitioner for the purpose of business run by him. It is also emphatically denied that the petitioner has ever maintained any stocks on the ground floor and first floor of above described property of which suit premises forms part. In fact there is no godown space on ground and first floor portion of the property in question. The first floor portion of the property has always been used as office accommodation by the earlier tenants and the same is still being used as office by Sh. Pankaj Gupta, Advocate 2nd son of petitioner, since the time of its vacation by the tenant. As is rightly admitted by the petitioner he has been carrying on his entire business activities including maintaining of business stocks, if any from shop no. 3663, Chawri Bazar, Delhi for the last more than 30 years or so which is a very big/ spacious shop and is more than sufficient for petitioner‟s business activities. All other commercial activities connected with the business of petitioner, if any, though not admitted are being carried on by him on the 3rd and 4th floor of the above described bigger suit property.” “…….It is emphatically denied that tenancy premises is in any manner suitable for the office of Sh. Pankaj Gupta, Advocate, son of petitioner, as the same is a very small kothri, measuring about 7‟.5” x 10‟.11” and the same is being used by respondent for keeping his law-books, decided case files and other records as the same has been rendered unusable as a result of illegal activities of petitioner, whereas said son of petitioner is running his office in entire 1st floor of property in question as already submitted.” 7. Learned counsel for the petitioner submits that the learned RCR No.34/09 page 7 of 28 ARC did not correctly understand and comprehend the pleadings of the parties. He submits that the learned ARC while allowing the respondent‟s application to seek leave to defend the eviction petition observed as follows: “9. The petitioner has set out a case in the petition that the petitioner is owner and landlord of the suit premises and he is running business in hardware, rubber, iron goods etc. and the suit premises are required by the him bonafidely for his second son who intends to start his office as lawyer and petitioner has no other suitable space to meet this requirement. On the other hand, the respondent has categorically stated in his leave to defend application supported with the affidavit that the petitioner is having sufficient and suitable accommodation and the petitioner has got shop no. 2 & 11 at the ground floor of property no. 3649, Gali Rura Achar Wali, Chawri Bazar, Delhi – 6 which are lying vacant along with entire first floor of the said property. The petitioner has not controverted this fact in his reply to leave to defend application. Similarly, the respondent has categorically averred that the first floor of the said property consists of 5-6 rooms along with facility of bathroom cum latrine and the same has been recently vacated by earlier tenant namely M/s. Saraswati Publications and the entire first floor is in the possession of petitioner which is being used by his son Sh. Pankaj Gupta as his office. The petitioner, in his counter affidavit and reply to leave to defend application, has not refuted this fact. Therefore, the respondent has raised a triable issue that the petitioner is having sufficient accommodation and the alleged need of the son of the petitioner who intends to start his business as lawyer stands satisfied when he is running his office at the first floor which is in the possession of the petitioner. (emphasis supplied). RCR No.34/09 page 8 of 28 10. So far the contention of the petitioner that the petitioner only requires the particular space for running office of his second son at the second floor and petitioner has no other suitable space and the petitioner needs the accommodation for keeping the goods at the lower floors is concerned, the petitioner has nowhere stated in his petition that he needs the lower floors for keeping the goods or that he is shortage of space for keeping the goods. The petitioner has only set out his case that he requires the tenanted premises for the bonafide requirement of his second son as his office but as the petitioner is having two rooms at the ground floor and entire first floor in his possession which has been recently vacated and same is being used by his son as his office as asserted by the respondent which has not been denied by the petitioner. Therefore, the respondent has raised a triable issue that whether the petitioner requires the tenanted premises bonafidely or not.” (emphasis supplied) 8. He submits that the approach of the learned ARC while dealing with the application of the respondent was erroneous. By reference to the above extracted averments contained in the reply filed by the petitioner to the respondent‟s application to seek leave to defend it is contended that, on the face of it, the learned ARC has erred in concluding that the petitioner had not contraverted the allegation of the respondent that the entire first floor of the said property was lying vacant or that it was being used by the petitioner‟s son Shri Pankaj Gupta, Advocate. He submits that the petitioner had categorically and repeatedly stated that apart from the second floor, the entire property bearing no.3649 was being used either by other tenants/occupants or by the petitioner for trading purpose or for RCR No.34/09 page 9 of 28 storing his goods. It has also been stated that the petitioner maintains the stock at the shop-cum-godown space available at the ground floor, the first floor, the third floor and in the tin shed built up at the roof of the third floor. In view of such categorical and repeated averments made in the reply, learned counsel for the petitioner submits, that the learned ARC gravely erred in concluding that a triable issue arises regarding the availability of the first floor of property bearing no.3649 with the petitioner for the purpose of running of his professional office by the petitioner‟s second son who is a practicing Advocate. He further submits that the learned ARC has completely failed to appreciate the reply filed by the petitioner to the application seeking leave to defend, inasmuch as, he has concluded that the petitioner has not refuted the allegation that the first floor premises was being used by his son Sh. Pankaj Gupta as his office. 9. Learned counsel for the petitioner further submits that since the eviction petition had been filed specifically to address the need of the petitioner‟s son Shri Pankaj Gupta, Advocate for office space, in the eviction petition the petitioner was obliged to disclose the availability of only that accommodation with the petitioner which is suitable for the said purpose, and the petitioner was not expected to disclose the availability of other accommodation that the petitioner may have, and which is being used by the petitioner for his own aforesaid business. As that accommodation (which was being used by the petitioner for his own trading business in hardware) was not available with the petitioner for the purpose of setting up his son‟s professional office, the petitioner RCR No.34/09 page 10 of 28 could not have been expected to state about the same in the eviction petition. He submits that when the respondent alleged the availability of the accommodation on the ground floor and the first floor in property bearing no.3649 with the petitioner (in his application seeking leave to defend), the petitioner comprehensively dealt with the same and refuted the allegation of the respondent. He submits that a triable issue would not arise merely because the respondent had alleged the availability of alternative suitable accommodation on the ground floor and first floor of property bearing No.3649, and also alleged that the first floor of property No.3649 was being used by Shri Pankaj Gupta, Advocate as his office. He submits that such bald averments, without any supporting evidence to even, prima facie, establish their correctness, would not give rise to a triable issue. 10. He submits that the respondent had resorted to making deliberately and knowingly false statements in his application seeking leave to defend, only with a view to somehow seek leave to defend the eviction petition. He submits that no material whatsoever has been filed by the respondent in support of his case that Sh. Pankaj Gupta, the second son of the petitioner was running his professional office from the first floor of property bearing no.3649. A bald assertion of the respondent in this regard could not have been given credence by the learned ARC. Mr. Gupta, learned counsel for the petitioner further submits that the petitioner, even as per the respondent‟s admission is storing the goods in which he trades on the third floor and the terrace covered with tin shed over the third floor. He submits that the articles RCR No.34/09 page 11 of 28 stored by the petitioner on the terrace floor are exposed to the vagaries of weather and often gets spoiled. He submits that it is unthinkable that the petitioner would use the third floor and the terrace floor for storing his goods and not use the lower floors for the said purpose when the petitioner has to incur substantial expense towards labour charges and breakage in transporting the goods to the higher floors. He submits that this fact itself shows that the stand taken by the respondent is totally baseless and unsubstantiated. Learned counsel for the petitioner has placed reliance on the following decisions in support of his submissions: 1. V.K. Sarin v. Pigott Champman & Co., 46 (1992) DLT 352 2. Meenakshi v. Ramesh Khanna & Anr., 60 (1995) DLT 524 3. Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, 80 (1999) DLT 731 4. Rajender Kumar Sharma & Ors. v. Smt. Leela Wati & Ors., 155 (2008) DLT 383 11. The respondent, on the other hand submits that the petitioner did not state in the eviction petition that he requires any portion of property bearing no.3649 for his own business. He did not even disclose that he is using any portion of the said property for his own trading business. He submits that only in response to the respondent‟s application the petitioner stated that the petitioner is using two shops in the ground floor, the first floor, the third floor and the terrace above covered with tin shed for purpose of storing the goods in which he RCR No.34/09 page 12 of 28 trades. He submits that if the petitioner‟s action had been bonafide, he would have come out with the said disclosure in his eviction petition. He further submits that in the reply filed by the petitioner to the respondent‟s application to seek leave to defend, the allegation of the respondent that the first floor premises of property bearing no.3649 was being used by the petitioner‟s second son, who is an advocate, for his office, has not been denied. He further submits that he has not made any irresponsible statements in his application seeking leave to defend or in his rejoinder to the reply filed by the petitioner. He submits that his challenge to the ownership of the petitioner cannot be said to lack bonafides. He submits that the tenant is entitled to raise the issue with regard to the ownership of the tenanted premises, as it is essential for the landlord to also be an owner of the tenanted premises to be able to maintain a petition under Section 14 (1) (e) of the Delhi Rent Control Act. He seeks to place reliance on the decision of the Supreme Court in Sheela & Ors. v. Firm Prahlad Rai Prem Prakash, AIR 2002 SC 1264 in support of his submission. 12. In these proceedings this Court is not hearing an appeal from the order passed by the learned ARC. It is not for the Court to take a different view merely because the Court is so inclined on the basis of the materials placed on record by both the parties. The scope of these proceedings is to examine whether the impugned order has been passed in accordance with the law, that is, in accordance with the established principles of law. It is the approach of the learned ARC RCR No.34/09 page 13 of 28 which is under examination, to see, whether it is misdirected or not. 13. Having heard the arguments of the parties and perused the record, the case laws cited by both the parties, I am of the view that the impugned order cannot be sustained as it does not appear to be in accordance with the law. The approach of the learned ARC cannot be said to be rational and one which a prudent person would adopt. 14. It has been held in K.K. Sarin (supra) that due to paucity of accommodation the tenants are likely to plead facts with a view to create triable issues even in a case where there may be none, so as to seek leave to defend the eviction petition filed on the ground of bona fide requirement of the landlord. This is so because upon grant of leave to defend, the eviction proceedings are likely to take considerable time for disposal as a regular trial would ensue. Therefore, even if a tenant has no triable issue to raise, he still endeavors to prolong the litigation so as to postpone the date when he is faced with eviction. This factor, in my view, is even more pronounced in this case as the respondent himself is a seasoned advocate. In the present case, the so called defence set up by the respondent, which appears to have impressed the learned ARC, is that the son of the petitioner Sh. Pankaj Gupta, Advocate is already running his professional office on the first floor of property bearing no.3649 after the same was vacated by his tenant M/s. Saraswati Publications. According to the learned ARC, the contradictory stands of the parties with regard to the user of the first floor of property bearing no.3649 RCR No.34/09 page 14 of 28 gave rise to a triable issue particularly when, according to the learned ARC, the petitioner has not disputed the respondent‟s allegation that the petitioner is running his office from the first floor of the said property. 15. On the face of it, the approach of the learned ARC appears to be rather simplistic. However when one marshals all the facts and circumstances which have come on record, and considers the fact that the primary defence of the respondent has not been corroborated by any material on the record, on the application of the case law cited by the petitioner, it cannot be said that the approach of the learned ARC was correct, legal or according to law. As held by this Court in K.K. Sarin (supra), while deciding the application seeking leave to defend, what is required of the Rent Controller is to observe the rules of natural Justice and to give opportunity to both the parties to produce the facts and the material on which they rely. When the leave to defend is sought