N.C. DAGA v. lNDER MOHAN SINGH RANA

DECEMBER 5, 2002

[SYED SHAH MOHAMMED QUADRl AND ARlJIT PASAYAT, JJ.]

Delhi Rent Control Act, 1958-Sections 14(1) proviso (e), 25-B-Eviction petition on ground of bonafide requirement-Leave to defend-Rent Controller C declining leave to defend and passing eviction order-High Court upholding the same-Appeal-Plea of tenant raised for the first time that for more than two decades tenant carrying on commercial activities, thus implied consent- Held: since possession has been taken on execution of the eviction order and absence of specific stand regarding implied consent, it is not necessary t'o go into the details.

Respondent-landlord filed eviction petition on the ground of bonajide requirement. Appellant-tenant filed application for grant of leave to defend. It was contended tha.t there was no relationship of landlord and tenant between the parties, and in any event the premises were let out for residential/commercial purposes. Rent Controller held that there was E primafacie material to show that applicant was the landlord and the owner of the premises; that the lease-deed did not indicate that the premises were let out for residential cum commercial purposes, on the contrary it indicated availability of option to use the premises for commercial purposes after requisite formalities were observed; and that the tenant F failed to make out a case for grant of leave to defend. Rent Controller passed eviction order. Aggrieved tenant filed Revision Petition. High Court held that the tenant had not filed any document to support the plea in regard to the commercial use of the premises and also that no primafacie case was made out by the tenant and dismissed the revision.

Appellant contended that a bare reading of lease agreement made it clear that the premises were let out for residential and commercial purposes and that the jurisdiction to grant leave or refuse the same is to be exercised on the basis of the affidavit filed by tenant; and that even if it is conceded for the sake of argument that lease agreement did not make 619

A out a case for commercial user, yet the fact that for more than two decades the tenant was carrying on commercial activities in the tenanted premises clearly made out a case of consent.

Respondent-landlord contended that the whole case built up by tenant centered round the lease deed and plea of implied consent was B raised for the first time before this Court. It was further contended that in any event, matter has become infructuous because. the possession was taken pursuant to execution of the order passed by Rent Controller.

Dismissing the appeal, the Court

C HELD: In view of the admitted position that pursuant to the order passed by the Rent Controller, possession has been taken on execution of the order permitting eviction, and absence of specific stand regarding implied consent it is, however, not necessary to go into the finerdetails and to examine the' rival stand in the background of legal position as it D would amount to rendering decision on a purely academic question.

[622-D-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8131 of 2002.

From the Judgment and Order dated 7.9.2001 of the Delhi High Court in C.R. No. 12 of 2001.

Jaspal Singh, K.C. Diwan and Ms. C.K. Sucharita, for the Appellant.

Salman Khurshid, Vivek Singh and Devendra Singh, for the Respondent.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. L.eave granted.

Challenge in this appeal is to judgment of the Delhi High Court G upholding decision of the Additional Rent Controller, Delhi (in short 'the Rent Controller') declining leave to the present appellant to contest in a proceeding under the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act').

Brief reference to the factual aspects would suffice. The respondent- H landlord filed a petition for eviction on several grounds; primarily on the

N.C. DAGA v. l.M.S. RANA [ARIJIT PASAYAT, J.] 621

ground of personal requirements. Before the Rent Controller an application A was moved under Section 25-B 9f the Act by the appellant-tenant for grant of leave to defend said eviction petition filed under Section 14(1), proviso (e) of the Act, by the present respondent-landlord. On I 0.9. I 999 landlord had filed the eviction petition alleging that he wanted the premises for his personal use, since the accommodation available to him was not suitable and he does B not own any other property in Delhi. Tenant resisted the eviction petition on many grounds. It was contended that there was no relationship of landlord and tenant between the parties, and in any event the premises were let out for res.idential/commercial purposes as mentioned in the Lease Agreement executed between the parties on !st September, 1971, and, therefore, he is entitled to grant of leave to defend. Additionally, it was stated that the petition C was ma/a fide and an abuse of process oflaw, barred by res judicata as earlier petiti9ns filed by one Smt. Tejinder Kaur Rana on the ground of bona fide requirement, and another petition filed by the mother of the landlord were dismissed. Reply to the application for grant of leave to defend was filed by the landlord, where he denied the allegations made, though he admitted !\lat earlier petitions had been filed. It was, however, contended that the principles D of res judicata were not applicable, and there was no bar on filing fresh petition for eviction on the ground of bona fide requirement in the changed circumstances. Rejoinder was filed by the tenant. The Rent Controller held that there was prima facie material to show that the applicant was the landlord and the owner of the premises. Coming lo the plea taken that the premises E were let out for commercial purposes it was noticed that the paragraph 7 of the lease-deed on which reliance was placed did not indicate that the premises were let out for residential cum commercial purposes. On the contrary, what the said paragraph indicated was availability of option to use the premises for commercial purposes after requisite formalities were observed. It was held that before leave to defend is granted, the respondent must show that some tiable issues which disentitled the applicant from getting the order of eviction against the respondent and at t.lie same time entitled the respondent to leave to defend existed. The onus is prima facie on the respondent and if he fails, the eviction follows. The respondent has failed to make out a case for grant

of leave to defend. Accordingly, eviction order was passed under Section G 14(I)(e) of the Act, but it was directed that the applicant will not be entitled to execute eviction order before the expiry of six months in terms of Section

14(7) of the Act. The revision before the High Court of Delhi was also dismissed. It was, inter alia, observed that the tenant had not filed any document to support the plea in regard to the commercial use of the premises. It was H

A further held that no prima facie case was made out by the tenant.

In support of the appeal Mr. Jaspal Singh. learned senior counsel submitted that a bare reading of Clause 7 of the Lease Agreement made the position clear that the premises were let out for residential and commercial purposes, and, therefore, the courts below were not justified in refusing leave B to contest. The jurisdiction to grant leave or refuse the same is to .be exercised on the basis of the affidavit filed by the tenant. Even if it is conceded for the sake of argument that clause (7) did not make out a case for commercial user, yet the fact that for more than two decades the tenant was carrying on commercial activities in the tenanted premises clearly made out a case of C consent.

In response, counsel for the respondent-landlord submitted that the whole case built up by the tenant centered round clause (7) and the plea of implied consent has been raised for the first time before this court. Such plea was even not raised before the High Court. In any event, according to him, D the matter has become infructuous because the possession has been taken pursuant to execution of the order passed by the Rent Controller.

In view of the admitted position that pursuant to the order passed by the Rent Controller, possession has been taken on execution of the order permitting eviction, and absence of specific stand regarding implied consent E it is, however, not necessary to go into the finer details and to examine the rival stand in the background of legal position as it would amount to rendering decision on a purely academic question. The appeal is, therefore, dismissed, without any order as to costs.

NJ.

Appeal dismissed.

',_