Date of decision : 30.04.2004

Section 14(1)(e) of the Delhi Rent Control Act 1958 leave to defend

Shri Hari Shanker ....PETITIONER

Through : Mr. V.B. Andley, Sr. Advocate

with Mr. Rajinder Mathur, Advocate.

VERSUS

Shri Madan Mohan Gupta ...RESPONDENT

Through : Mr. Anshu Mahajan, Advocate.

CORAM:

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL

1.Whether the Reporters of local papers may be allowed

to see the judgment? Yes

2.To be referred to Reporter or not? Yes

3.Whether the judgment should be reported in the Digest? Yes

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL (Oral)

1. The petitioner tenant has filed the present revision petition aggrieved by the impugned order of the Additional Rent Controller dated 23.3.2001 dismissing the application of the petitioner for leave to defend the eviction petition filed in the proceedings of eviction initiated by the respondent landlord.

2. The respondent filed an eviction petition under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the said Act') against the petitioner claiming to be owner landlord of the tenanted premises consisting of three rooms with the mezzanine inside one of the rooms, store, kitchen, two bathrooms on the first floor of property No.927, Gali Inderwali, Kuch Pati Ram, Bazar Sita Ram, Delhi. The respondent claimed title to the property by virtue of a Will dated 25.10.1986 executed by his mother in his favour as also a registered Gift Deed dated 13.5.1946. The premises was stated to be let out for residential purposes to the petitioner and the possession was sought on the basis that the premises were required bona fide by the respondent landlord and there was no other alternative suitable reasonable accommodation available to him.

3. The family of the respondent consists of himself, his wife, one unmarried son and three married daughters and he was in occupation of one room, one store, one kitchen, one bathroom, open court-yard, small kolki on the ground floor, one small barsati with tin-shed on the ground floor. The tin-shed was stated to be not capable of being used for residence. The requirement of the petitioner was set out as three bedrooms, one drawing-cum-dining room and a study room besides puja room and a guest room and one room for his business purposes since he carried on the business of gota garlands and rakhi.

4. The respondent also set out that one room on the ground floor was let out to one Shri Shiv Kumar in 1993 for use as a go-down but when the respondent came under financial stringency in 1995-96 and required money for his family necessity, he had to sell the same room to Shri Ashok Kumar. The accommodation in occupation of the respondent was also stated to be not suitable for him on account of medical ailment.

5. The respondent landlord claimed to have let out initially a portion of the first floor of the property and in 1991 further potion was let out but both the tenancies were consolidated in 1993.

6. The first plea raised by learned counsel for the petitioner is that in view of the averment in the affidavit in support of leave to defend application to the effect that the premises were let out for residential-cum-commercial purposes, the leave ought to have been granted since it was not for the trial court to proceed on an enquiry as if evidence had been led by the parties. In this behalf, learned counsel for the petitioner has referred to the judgment of the Supreme Court in Precision Steel & Engineering Works & Anr. v. Prem Deva Niranajan Deva Tayal, (1982) 3 SCC 270. Learned counsel contended that the Supreme Court had held that the leave to the tenant to contest the landlord's eviction application should be granted if the tenant's affidavit discloses facts which, if proved, would disentitle the landlord from recovering the possession. The Supreme Court, however, further held that the stage of deciding the leave to contest the application was a stage of judging the plausibility of defence and the stage of proof was later.

7. The plea of the petitioner has thus to be considered within the aforesaid parameters. There is no doubt that there is an averment in the application for leave to defend that the premises were being used for commercial activity, but admittedly rent receipts had been issued from 1993 onwards till the eviction petition was filed in the year 2000 clearly specifying the purpose of letting as residential. Before that the purpose of letting was not at all mentioned. Learned counsel for the petitioner states that in 1993, a notice had been issued by the petitioners in this behalf but it is not disputed that thereafter no action was taken. In fact, it is not disputed that the tenanted building is meant for residential purposes and has even been assessed to property tax as such. The objection raised by the petitioner vide notice dated 26.8.1993 was replied to by the respondent on 9.9.1993. The nature of the premises was also residential. It is in view of all these facts that the Additional Rent Controller found that the purpose of letting was residential.

8. In my considered view, this finding of the Additional Rent Controller does not require to be interfered with. No doubt, the stage for the test of substantial defence had not arisen but there has to be at least a plausibility of defence. Otherwise, in every eviction petition, the mere averment that the premises were let out for residential-cum-commercial use, would automatically give rise to an order for leave to contest the petition. This is not what is the law laid down by the Supreme Court. There was not even plausibility of the defence raised by the petitioner since for seven years, the petitioner had been accepting the rent receipts without any demur or protest during this period of seven years about the purpose of letting being specified as residential.

9. In so far as the issue of the ownership of the premises is concerned, there is a mere denial by the petitioner though in the affidavit it has been simultaneously stated that the suit premises were let out to the petitioner. It is in this context that the Additional Rent Controller came to a finding that mere denial of ownership is no denial and referred to the judgment in Mrs. Meenakshi v. Ramesh Khanna etc., 1995 RLR 322.

10. The title to the property has also been set out by the respondent which is through a registered document. The original title deed was in favour of Shri Chhajju Mal who gave it to his daughter Smt. Basanti Devi who in turn had given it to the respondent being her adopted son. It is not for the petitioner to challenge the gift made in favour of the respondent specially in view of the observations made in Rameshwar Narain (deceased) through LRs v. Sarla Sarin, 46 (1992) DLT 70. It was held that the word 'owner' in Section 14(1)(e) of the Act is not used in the sense of an absolute owner. It is only used in contradistinction with a landlord as defined, who is not an owner but who holds the property for the benefit of another person. A landlord as defined, who is holding the property for himself and for his own benefit and not for the benefit of another person is certainly the owner/landlord.

11. Learned senior counsel for the petitioner vehemently contends that there are in fact two tenancies in favour of the petitioner which commenced on different dates and one eviction petition in respect of two tenancies is not maintainable. It is not disputed that in the beginning only part of the present tenanted premises were given on rent to the petitioner but subsequently the balance portion was also given. These two tenancies are stated to be according to English calender month. The objection raised in 1993 by the petitioner was replied to by the respondent stating that these tenancies stood consolidated with mutual consent. During this period of time of seven years from 1993 till 2000, there was not even a murmur of protest by the petitioner about one rent receipt being issued. The Additional Rent Controller thus rightly concluded that the petitioner cannot now be permitted to rake up this stale issue. This was apart from the finding that even in case of two tenancies being joint in the same premises under the same landlord, an eviction petition would be held maintainable as held in Gobind Ram v. Vodha Ram, 1979 (2) RCR 255.

12. Learned senior counsel for the petitioner also raised the issue of the sale of a portion of the property of Shiv Kumar which was for family necessity and stated that instead of selling the property, the respondent ought to have borrowed from the market. This plea is stated only to be rejected. The petitioner cannot dictate to the respondent as to how the respondent has to solve his financial difficulties and hold it against the respondent that he had to sell a portion of the property which was rented out to a tenant as far back as in 1993.

13. The respondent was able to establish the size of his family and even filed a copy of the registered Adoption Deed dated 5.1.1982 showing that his son had been adopted. This was even prior to the induction of the petitioner as a tenant. A copy of the ration card was also produced.

14. The petitioner raised the issue of a larger accommodation available to the respondent since it was stated that walls had been removed to make a large size room instead of a smaller room. In my considered view, this aspect has to be considered keeping in mind the size of the room. If the wall had not been removed, even then one of the rooms would be about 10 x 9 sq.ft. and the other 10x10 sq.ft. A plea has also been raised about the kitchen size being large which could be used as a room. These kind of pleas advanced by learned senior counsel for the petitioner only go to show the same as a frivolous attempt on the part of the petitioner to somehow deny the accommodation to the respondent landlord.

15. Learned senior counsel for the petitioner has referred to the judgment in I.D. Rajput v. Ramji Dass, 24 (1983) DLT 23 to contend that even a barsati on the second floor can be considered as a living room in view of the paucity of the accommodation. This, to my mind, would depend on the condition of the barsati and the size. In the present case, the barsati is with a tin-shed which could be hardly called a living room. Learned senior counsel also sought to raise the issue of the size of living room by referring to a judgment of the learned Single Judge of this court in Ram Niwas Jain v. Bimal Prasad Jain, 85 (2000) DLT 316. The said judgment is of not much assistance to the learned counsel for the petitioner since this aspect has to be considered keeping in mind where the premises are located and what is the nature and extent of the same. In fact, the litmus test is whether there is in fact a bona fide requirement or not.

16. The Supreme Court in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, 80 (1999) DLT 731 has held that while considering the issue of a bona fide requirement by the landlord, it cannot be expected that landlord must squeeze his requirement to protect the occupancy of the tenant. The requirement of the respondent of one drawing-cum-dining room, one bedroom for himself and his wife, one bedroom for his adult and married son, one bedroom for his married daughters and for guests cannot be said to be an exaggerated requirement. The same would be the position of one study/puja room. The available accommodation with the respondent is much less of only three rooms.

17. In my considered view, there has to be at least a prima facie case on the basis of disclosure of facts for the tenant to be granted leave to defend. The Additional Rent Controller has found no such case and I see no reason to interfere with the said finding in the present Revision Petition. In fact, it was put to learned senior counsel for the petitioner during his elaborate submissions running into almost two hours, that the present case is one of revision petition and it is within those parameters that the impugned order has to be examined. The scope of enquiry may be more than a revision petition under Section 115 of the Code of Civil Procedure, 1908, since this is the first court after the order of the trial court which examines the matter. However, this is to be seen as per the legal pleas as are available to a tenant. The summary procedure in Section 25-B of the said act cannot be defeated by merely making frivolous and vague allegations which can never be substantiated. It is the stage before trial but there has to be some plausibility to the defence which could give rise to a conclusion that these are such facts as would require trial and if proved during the course of trial, would disentitle the landlord of an order of eviction. Applying the said parameters, the case of the petitioner cannot succeed.

18. It was put to the learned senior counsel for the petitioner whether the petitioner was willing to vacate the premises on the basis of an undertaking to be given subject to some time period to be granted for such vacation. Learned counsel stated that the petitioner is not interested in the same as he would like to further agitate his pleas before the Hon'ble Supreme Court.

19. Dismissed.

CM 1611/2001

Dismissed.

April 30, 2004 SANJAY KISHAN KAUL, J.

Leave to defend application dismissed - title by way of will and gift deed - let out for residential purpose - used as a godown - stage of deciding the leave to defend application was a stage of judging plausibility of defence and the stage of proof was later - mere denial of ownership is no denial - owner in 14(1)(e) is not used in the sense of an absolute owner - person holding property for himself - two tenancies commenced on different dates and consolidated later - tenants contends that landlord should have borrowed instead of selling the room.