Full Text
HIGH COURT OF DELHI
Date of Decision: 11.03.2025
KAMLESH KHANNA .....Petitioner
Through: Dr. Ajay Chaudhary, Mr. Vikram Singh, Mr. Bharat Chaudhary and Mr. Anurag Singh Tomar, Advocates for
LR-2 of the Petitioner.
Through: Mr. Abhishek Kumar and Mr. Sumit Kashyap, Advocates.
JUDGMENT
1. The present Petition seeks to challenge an order dated 04.06.2016 passed by the learned SCJ/RC (East), Karkardooma Courts, Delhi [hereinafter referred to as “Impugned Order”]. By the Impugned Order, the Application for Leave to Defend/Contest filed by the Petitioner/tenant has been dismissed. The premises in issue are one shop in property bearing No. A-11, Gali No.1, Jagat Puri, Delhi-51 as shown in the red colour in the site plan annexed with the Eviction Petition [hereinafter referred to as “subject premises”].
2. Learned Counsel for the Petitioner/tenant has made two submissions before this Court. He submits in the first instance that the need of the Respondent/landlord as set out in the Eviction Petition is “cosmetic”. Learned Counsel for the Petitioner/tenant submits that soon after the filing of the present Petition, in fact 13 days later, the Respondent/landlord let out an adjacent shop bearing No. A-15/3, Jagat Puri, Delhi to a third party. It is thus contended that in view of the letting out of the shop, the bona fide need does not exist. 2.[1] Secondly, it is contended by the learned Counsel for the Petitioner/tenant that there are several additional properties which were set out in the Application for Leave to Defend/Contest. It is contended that these properties are available with the Respondent/landlord. Thus, the ingredients of Section 14(1)(e) of the Delhi Rent Control Act, 1958 [hereinafter referred to as “DRC Act”] are not stand satisfied.
3. Learned Counsel for the Respondent/landlord on the other hand submits that the need as was set out by the Respondent/landlord in the Eviction Petition was for settling his son. It was stated therein that the son wishes to start a business of a fast food chain from the subject premises. It was further contended that the shop is situated on the main road in Jagat Puri market and it was further stated in the Eviction Petition that it is a good option for setting up a fast food shop.
4. Learned Counsel for the Respondent/landlord further submits that the premises that are being discussed by the learned Counsel for the Petitioner/tenant as being available with the Respondent/landlord are premises which are much smaller than the subject premises and is situated in the residential area.
5. It is further submitted by learned Counsel for the Respondent/landlord that so far as concerns the several properties mentioned by the learned Counsel for the Petitioner/tenant in his Leave to Defend/Contest, the same have already been addressed by the Respondent/landlord in Reply to Leave to Defend/Contest. Reliance is placed on the following extract of Paragraph 7 in this behalf, which is below: “7. That the contents of para no.7 of the application are denied in toto. It is denied that the petitioner is having other properties in her name or that as well as benami properties in the name of her dears and nears or that it is denied that the petitioner is the owner of the Two shops and two floors at A-15, Jagat Puri, Delhi or that A-11, Jagat Puri, Delhi-51 consisting three shops and four storied building or that 4, Arjun Nagar, Delhi-51, consisting two shops or that A-17, Jagat Puri, Delhi consisting four stories or that 21, South Anarkali, Delhi including shop or that A-7, Jagat puri, Delhi or that 128, Old Anarkali, Delhi including shop or that 33 A, Radhey Puri Extn, Delhi including shop or that E-64, South Anarkali, Delhi or that A-1, Jagat Puri, Delhi or that 51, Anarkali Garden, Delhi or that Shop at Khasra No.32/23/2, Plot No.3, Harsh Vihar, Delhi or that details of Benami Properties one second floor at H-32, Shastri Park, Delhi or that third floor at H-32, Shastri Park, Delhi or that first floor at 153, Old Anarkali, Delhi or that second floor at 153, Old Anarkal, Delhi or that third floor at 153, Old Anarkali, Delhi or that 2, New Layalpur Extn., Delhi or that third floor at N-85, Raghuvir Nagar, Delhi or that first floor at 67, Khasra No. 28/2, Baldev Park, Delhi or that 132/A/3, Jagat Puri, Delhi or that ground floor at F-4, Jagat Puri, Delhi or that land in village Badalpur, Dadri, purchased from Bhanwar Singh. xxx xxx xxx It is submitted that the property No.15/3 is three storeys and is being used by the petitioner and her family members. There are two shops of the ground floor portion out of which one shop was already given on rent by the petitioner and one shop is lying vacant but the same is not a suitable accommodation for the purpose of running the desired business further the property bearing No.A-11, is having three shops, one is in the possession of respondent, one is in the possession of other tenant Smt. Manisha W/o Late Madan Lal and another one was vacated by another tenant Smt. Santosh Sharma after filling of similar application, which was withdrawn by the petitioner from the Ld. Predecessor of this Hon’ble Court further the property bearing No.4, Arjun Nagar is having two shops out of which one shop is under the tenancy of one tenant and another one is lying vacant but the same is not a suitable accommodation for the purpose of desired business. Further property No.A-17, Jagatpuri is not in the name of petitioner. Further the petitioner is only the owner of one shop at property No. 21, South Anarkali, Delhi, which was sold by her before 5-6 year back. Further with regard to property No.A-7, Jagatpuri, it is submitted that the petitioner is having no concern over the same and the husband of the petitioner namely Hemraj Sardana is the tenant in the same from the last 2-3 years at a month by rent of Rs.532/- P.M. The rent receipt is enclosed herewith for kind perusal of this Hon'ble Court. Further the petitioner had already sold the property No.128, Old Anarkali, Delhi before 10-12 years back and at present she is having no concern with the same. Further the petitioner had already sold the property No.33-A, Radhey Purl Extn, Delhi before 4-5 years back and at present she is having no concern for- the same. Further the petitioner is the owner of only IInd floor portion of premises No.E-64, South Anarkali, Delhi, which is residential one and the same was given on rent by the petitioner. Further the petitioner was l/he owner of only IInd floor portion of premises No.A-1, Jagat Puri, Delhi and the same was disposal off by the petitioner before 7-8 years and at present, the petitioner is having no concern with the same present. Further the petitioner is having no concern with property No.51, Anarkali Garden and the same was disposed off by her before 10 years back and at present she is having no concern with the same. Further Khasra No.32/23/2; Plot No.3, Harsh Vihar, Delhi is not a shop rather the same is Plot and the petitioner is having no concern with the same nor the same is in the name of petitioner. It is pertinent to mention here that the petitioner had not disclosed about the above stated properties as the same is not the subject matter for the purpose of deciding the present application as the same were already disposal above. The petitioner had disclosed her present status in the application and had disclosed the bonafide requirement of herself and her family member over the suit premises and as such merely mentioning the details of properties, which were already disposed off by the petitioner is of no help for the respondent. The law is otherwise well settled that a tenant can not dictate the landlord as to and in what manner the landlord shall use his premises.” [Emphasis Supplied]
6. Learned Counsel for the Respondent/landlord additionally submits that the plea that was taken by the Petitioner/tenant before the learned Trial Court in the Leave to Defend/Contest was that the son of the Respondent/landlord was already doing a business of sale/purchase of property. However, it is contended that the said business is being done by the Respondent/landlord.
7. It is further contended that the only reason that this contention was made by the Petitioner/tenant as was set out in his Leave to Defend/Contest, is that the number of the son of the Respondent/landlord was appearing on the sign boards of the business being run by the Respondent/landlord. Learned Counsel lastly contends that the need is to set up the son of the Respondent with an independent business, thus the need is bona fide.
8. Learned Counsel for the Petitioner/tenant has contended that given the fact that there were several properties mentioned by the Petitioner/tenant in his Application for Leave to Defend/Contest, the Leave to Defend/Contest ought to have been allowed. He seeks to rely upon his Application for Leave to Defend/Contest filed before the learned Trial Court wherein several properties have been mentioned as being the properties of the Respondent/landlord and details of various “Benami” properties have also been mentioned. It is thus contended that the Leave to Defend/Contest ought to have been allowed by the learned Trial Court.
9. The Supreme Court in Abid-ul-Islam v. Inder Sain Dua[1] has while relying on the judgment in Inderjeet Kaur v. Nirpal Singh[2] has held that the Leave to Defend sought for cannot be granted for the mere asking or in routine manner, nor can it be refused on the basis of a mere desire. The relevant extract of the Abid-ul-Islam case is as follows: “16. We may usefully refer to the decision of this Court in Inderjeet Kaur v.
11. As is evident from Sections 25-B(4) and (5) of the Act, burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in clause (e) of the proviso to Section 14(1) of the Act, with which we are concerned in this case, are good enough to grant leave to defend.
12. A landlord, who bona fide requires a premises for his residence and occupation should not suffer for long, waiting for eviction of a tenant. At the same time a tenant cannot be thrown out from a premises summarily, even though prima facie he is able to say that the claim of the landlord is not bona fide or untenable and as such not entitled to obtain an order of eviction. Hence the approach has to be cautious and judicious in granting or refusing leave to defend to a tenant to contest an eviction petition within the broad scheme of Chapter III-A and in particular having regard to the clear terms and language of Section 25-B(5).
13. … A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter III-A of the Act. Leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of a landlord to recover possession of the premises from a tenant under clause (e) of the proviso to sub-section (1) of Section 14, when as a matter of fact the requirement may not be bona fide. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to him and his family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction. At the stage of granting leave to defend, parties rely on affidavits in support of the rival contentions. Assertions and counter-assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend were either frivolous, untenable or most unreasonable. Take a case when possession is sought on the ground of personal requirement, a landlord has to establish his need and not his mere desire. The ground under clause (e) of the proviso to sub-section (1) of Section 14 enables a landlord to recover possession of the tenanted premises on the ground of his bona fide requirement. This being an enabling provision, essentially the burden is on the landlord to establish his case affirmatively. In short and substance, a wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend, but when a triable issue is raised a duty is placed on the Rent Controller by the statute itself to grant leave. At the stage of granting leave the real test should be whether facts disclosed in the affidavit filed seeking leave to defend prima facie show that the landlord would be disentitled from obtaining an order of eviction and not whether at the end defence may fail….” [Emphasis supplied]
10. The need as set out by the Respondent/landlord in the Eviction Petition is to set up a fast food shop for the son of the Respondent/landlord and it has also been specified that the subject premises is best suited for the purpose of opening of a fast food shop since it is situated on the main road of Jagatpuri and is on the ground floor. The relevant extract of the Eviction Petition is reproduced below:
11. The Petitioner/tenant has in its Application for Leave to Defend mentioned several properties including the property at A-15/3, Jagat Puri, A- 11, Jagat Puri, two shops at property No.4, Arjun Nagar; A-17, Jagat Puri; property No.21, South Anarkali and Property No.128, Old Anarkali; 33A, Radhey Puri Extension, No.A-1, Second Floor, Jagatpuri, Delhi; and Property No.51, Anarkali Garden, Delhi No.32/23/2, Harsh Vihar, Delhi; Property No.E-64, South Anarkali; Shop No. A[7], Jagatpuri, Delhi. The learned Trial Court has after an examination found that the properties are either tenanted, unavailable or not suitable for the business that the Respondent/landlord intends to run in the subject premises. 11.[1] As set out in Paragraph 5 above, the Respondent/landlord in his Reply to Leave to Defend has specifically discussed the properties mentioned by the Petitioner/tenant and has given reasons for why these properties are either unavailable or not suitable for the need for which the Respondent/landlord requires the subject premises. In the Reply Affidavit, it has been stated that two shops in property No.A-15/3, Jagatpuri, Delhi are in residential area and in a narrow street, as such is not suitable for him to start the fast food business. In respect of the three shops at property No.A-11 Jagat Puri, it has been stated that an eviction order is passed in respect of one of the shops which was under the tenancy of Smt. Santosh Sharma and possession of this shop has been received by the Respondent, but it cannot be used until and unless the shop which has been occupied by the Petitioner/tenant is also vacated as these shops are very small in size. Regarding the two shops at property No.4, Arjun Nagar, Delhi, it is contended that these shops are on the first floor and occupied by tenants. With regard to the property No.A-17, Jagatpuri, Delhi, it is stated to be residential property owned by the husband of the Respondent/landlord. The properties No.21, South Anarkali; No.128, Old Anarkali, No.33A, Radhey Puri Extension; No.A-1, Second Floor, Jagatpuri, Delhi; and property No.51, Anarkali, Delhi have since been sold, 7-10 years ago and are not available with the Respondent/landlord. Qua the property No.52/25/2, Harsh Vihar, Delhi it is stated to be an open plot of land. Regarding the second floor of property No.E-64, South Anarkali it’s a residential floor occupied by the tenants and that shop No.A[7], Jagatpuri, Delhi is occupied by husband of Respondent as a tenant. The property No.A-75/5, Jagatpuri, Delhi is in residential area and in narrow street, but no site plan thereof has been filed. Even the site plan of property No.A-11, Jagatpuri, Delhi is also not on record. Thus, each and every shop/property mentioned by the Petitioner/tenant has been dealt with by the Respondent/landlord and none of these are available as alternate suitable accommodation.
12. The provisions of Section 14(1)(e) of the Act have been provided with care by the legislature, not only is the accommodation to be ‘alternate’, but it is also required to be suitable. The Supreme Court in the Shiv Sarup Gupta v. Mahesh Chand Gupta[3] has held that for an Eviction Petition to fail on the ground of availability of alternate suitable accommodation, the availability of another accommodation must be suitable and convenient in all respects as the tenanted accommodation from which the landlord seeks eviction of the tenant. It was held that:
has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the court that the alternative residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternative accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant factors. While considering the totality of the circumstances, the court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come.” 12.[1] In addition, it is well-settled that the ground floor is more suitable for commercial purposes and businesses. If there is availability of space on the ground floor with the landlord, there is no question of the tenant asking the landlord to take alternate premises or to operate from another floor. With regard to the properties mentioned by the Petitioner/tenant, these are either on an upper floor or contained in a residential area. In Uday Shankar Upadhyay v. Naveen Maheshwari[4], the Supreme Court has held that the Court cannot dictate to the landlord as to the extent which floor he must use for his business. Besides shops and businesses are usually set up on the ground floor. The relevant extract of the Uday Shankar Upadhyay case is reproduced below:
is being used for residential purpose was, in our opinion, wholly arbitrary, and hence cannot be sustained. As regards the finding that the sons of Plaintiff 1 are getting a salary of Rs 1500 from the firm, in our opinion, this is wholly irrelevant and was wrongly taken into consideration by the High Court.”
13. Since, the accommodations mentioned by the Petitioner/tenant were either not available or not suitable for the requirement of the Respondent/landlord, these were not set out in the Eviction Petition.
14. So far as concerns the property at 15/3, Jagat Puri, learned Counsel for the Respondent/landlord submits that the property is in a residential area and thus, is not suitable for the business of running of a fast food chain. Learned Counsel for the Respondent/landlord further submits that this issue was not raised by the Petitioner/tenant in his Application for Leave to Defend/Contest.
14.1. This Court in the case of Swaranjit Singh v. Saroj Kapoor[5], while relying on the judgement passed by a Coordinate Bench of this Court in the case of K.B. Watts v. Vipin Kalra[6], has held that a tenant cannot take new pleas beyond those taken in the Application for leave to defend as the amendment would have the effect of extending the time to file the leave to defend Application, which is not permissible. The relevant extract of the Swaranjit Singh case is reproduced below:
2015 SCC OnLine Del 9488 it has been observed:
” 14.[2] This Court thus finds no infirmity with the finding of the learned Trial Court in this regard.
15. It is settled law that neither the Court nor the tenants can dictate the landlord as to how to use his premises. This Court in the case of Swaranjit Singh v. Saroj Kapoor[7], while relying on the judgement of the Supreme Court in the case of Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai Prabhulal[8] and in Anil Bajaj v. Vinod Ahuja[9], has held that the tenant cannot dictate to the landlord as to which premises is more suitable for the landlord to run the business. The relevant extract of the Swaranjit Singh case is reproduced below:
his business. ….”
16. The landlord-tenant relationship has been admitted between the parties before the learned Trial Court and no contention has been raised before this Court to controvert the same.
17. The examination by a Court in a Revision Petition is limited and circumspect. The Supreme Court in Abid-ul-Islam case has held that the jurisdiction of this Court is only revisionary in nature and limited in its scope. The Supreme Court while interpreting the intendment of the legislature in removing two stages of Appeal that were earlier provided in the said Act has held that this is a conscious omission. The High Court is not expected to substitute and supplant its view with that of the learned Trial Court, its only role is to satisfy itself on the process adopted. Thus, the scope of revisionary jurisdiction of this Court has been limited to examine if there is an error apparent on the fact of the record or absence of any adjudication by the learned Trial Court, and it is only then should the High Court interfere. The legislature has consciously removed the two stages Appeal which existed priorly. The Supreme Court has also cautioned from converting the power of superintendence into that of a regular first Appeal under revisionary jurisdiction. The relevant extract of the Abid-ul-Islam case is as follows:
High Court is very restrictive and except in cases where there is an error apparent on the face of the record, which would only mean that in the absence of any adjudication per se, the High Court should not venture to disturb such a decision. There is no need for holding a roving inquiry in such matters which would otherwise amount to converting the power of superintendence into that of a regular first appeal, an act, totally forbidden by the legislature. xxx xxx xxx
25. The aforesaid decision has been recently considered and approved by this Court in Mohd. Inam v. Sanjay Kumar Singhal [Mohd. Inam v. Sanjay Kumar Singhal, (2020) 7 SCC 327: (2020) 4 SCC (Civ) 107]: (SCC pp. 340-41, paras 22-23) “22. This Court in Sarla Ahuja v. United India Insurance Co. Ltd. [Sarla Ahuja v. United India Insurance Co. Ltd., (1998) 8 SCC 119] had an occasion to consider the scope of proviso to Section 25-B(8) of the Delhi Rent Control Act, 1958. This Court found, that though the word “revision” was not employed in the said proviso, from the language used therein, the legislative intent was clear that the power conferred was revisional power. This Court observed thus: (SCC p. 124, para 11) ‘11. The learned Single Judge of the High Court in the present case has reassessed and reappraised the evidence afresh to reach a different finding as though it was exercising appellate jurisdiction. No doubt even while exercising revisional jurisdiction, a reappraisal of evidence can be made, but that should be for the limited purpose to ascertain whether the conclusion arrived at by the fact-finding court is wholly unreasonable.’ It could thus be seen, that this Court has held, that the High Court while exercising the revisional powers under the Delhi Rent Control Act, 1958 though could not reassess and reappraise the evidence, as if it was exercising appellate jurisdiction, however, it was empowered to reappraise the evidence for the limited purpose so as to ascertain whether the conclusion arrived at by the fact-finding court is wholly unreasonable.
18. As stated above, the revisionary jurisdiction of this Court is limited and circumspect. All that the Court is required to examine, in terms of the judgment of the Supreme Court in Abid-ul-Islam case, is whether there is absence of adjudication for interference by this Court or any error apparent on the face of the record. This Court finds that no ground for interference has been made out by the Petitioner/tenant.
19. From the examination above, this Court finds no reason to interfere with the Impugned Order.
20. The Petition is accordingly dismissed. order.