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IN THE HIGH COURT OF'
RC.REV.284l20tr
HARSH VARDHAN NAYYAR
Through:
DELHI AT NEW DELHI..... Petitioner
Mr. Akshay Makhija, Advocate
RC.REV.284l20tr
HARSH VARDHAN NAYYAR
Through:
DELHI AT NEW DELHI..... Petitioner
Mr. Akshay Makhija, Advocate
VERSUS
..... Respondent
*
%
Dr. K.B. HASTI
Through: None
%
Dr. K.B. HASTI
Through: None
CORAM:
HON'BLE MR. JUSTICE P.K. BHASIN
03.08.2011
I have heard the learned counsel for the petitioner.
The petitioner, who claims to be the owner and landlord of the premises in question, which is one of the cabins in a hall of flat no.32, Shankar Market, Connaught Place, New Delhi, had left India way back in the year 1970 and settled in U.S.A. and has now decided to open a school for acting, drama and performing arts in Delhi in the said flat after getting the cabins, which had been let out to different doctors by his aunt late Dr. Sushila Nayyar from whom he claims to have inherited the said property after her death, vacated from the tenants. The petitioner while continuing to stay in U.S.A. is stated to have filed separate eviction petitions against five tenants including the present one. The relevant averments made in para no. 18 (a) of the eviction petition are re-produced below:
"(i) That the premises in question were let out by late Dr. Sushila
Nayar to the respondent for commercial purpose for running of
Doctors' Clinic. Late Dr. Sushila Nayar was a renowned Doctor, social worker, educationist and Parliamentarian. Dr. Sushila
Nayar passed away on 3'o January, 2001. She was unmarried and was survived by her nephew, i.e. petitioner herein and her niece, Dr. Nandini Khosla, w/o Shri Prem Khosla. Dr. Nandini Khosla has relinquished her share in the premises in favour of the petitioner vide Deed of Release dated l6* January,2004, iql
-al
RC.REV.284l20rr Pase I of6
2011:DHC:15681 i:
%
(iD registered as document No. 10384, Book No. IV, Vol. No. 1018, page 107 to 109, with the office of the Sub-Registrar, New Delhi. The petitioner is, thus the owner/landlord of the saic premises. The petitioner has no other reasonably suitable commercial premises/accommodation available to him. The premises are require bona fide by the petitioner for starting his own business and a School for Acting, Drama and Performing
Arts.
That Dr. Sushila Nayar was allotted Flat No. 32, New Central
Market, New Delhi (now called Shankar Market, Connaught
Place) vide order No. HRO/\4G/10939 dated 20"' December, 1957 by the office of Housing and Rent Offrcer, Delhi, Gokhale
Market, Delhi. Subsequent thereto, the Directorate of Estates of the then Ministry of Works & Housing, Government of India, Nirman Bhawan, New Delhi granted Ownership/Leasehold. rights of Flat No. 32, Shankar Market, Connaught Place, New Delhi to Dr. SushilaNayarvide letterNo. DEAyIKT/FL 32/II{CM dated 1 5tl' January, 1979.
That the petitioner herein is a Mechanical Engineer with B.Tech
(Hons.) Degree from I.I.T., Kharagpur. The petitioner went to the USA in the year 1970 to obtain a Master's degree in the field of Mechanical Engineering from North Carolina State
University. However, during the course of his studies, he became interested in pursuing acting as a career. The petitioner got a degree of Master of Fine Arts from New York University, School of the Arts, Graduate Acting Program and has been a professional actor since the year 1975 and has settled in New
York, USA. The petitioner has acted in various movies, theatre productions, television series, etc. Some of his better known parts are that of Nathuram Godse in the film Gandhi, role of
Khwaja Aziz Mondanabosh in the theatre production
Homebody/Kabul, etc. The petitioner has his own professional webs ite www. harsh nay.var.com.
That the petitioner is now 61 years of age and has decided to open a school for acting, drama and performing arts in Delhi so that he can utilize his 30 years' experience in acting and impart the same to young students of his own homeland.
That the petitioner also intends to eventually move back to India once he can make his school for acting, drama and performing arts a sustainable business. The petitioner has no other reasonably suitable commercial accommodation available to him at Delhi.
That as stated above, the premises at 32 Shankar Market are occupied by seven different tenants and the petitioner requires the entire property to be able to give shape to his plan to run a school for acting, drama and performing arts and for this reason, (iv)
(v)
(vi)
(viii)
RC.REV.28412011 Paee? of6
03.08.2011
I have heard the learned counsel for the petitioner.
The petitioner, who claims to be the owner and landlord of the premises in question, which is one of the cabins in a hall of flat no.32, Shankar Market, Connaught Place, New Delhi, had left India way back in the year 1970 and settled in U.S.A. and has now decided to open a school for acting, drama and performing arts in Delhi in the said flat after getting the cabins, which had been let out to different doctors by his aunt late Dr. Sushila Nayyar from whom he claims to have inherited the said property after her death, vacated from the tenants. The petitioner while continuing to stay in U.S.A. is stated to have filed separate eviction petitions against five tenants including the present one. The relevant averments made in para no. 18 (a) of the eviction petition are re-produced below:
"(i) That the premises in question were let out by late Dr. Sushila
Nayar to the respondent for commercial purpose for running of
Doctors' Clinic. Late Dr. Sushila Nayar was a renowned Doctor, social worker, educationist and Parliamentarian. Dr. Sushila
Nayar passed away on 3'o January, 2001. She was unmarried and was survived by her nephew, i.e. petitioner herein and her niece, Dr. Nandini Khosla, w/o Shri Prem Khosla. Dr. Nandini Khosla has relinquished her share in the premises in favour of the petitioner vide Deed of Release dated l6* January,2004, iql
-al
RC.REV.284l20rr Pase I of6
2011:DHC:15681 i:
%
(iD registered as document No. 10384, Book No. IV, Vol. No. 1018, page 107 to 109, with the office of the Sub-Registrar, New Delhi. The petitioner is, thus the owner/landlord of the saic premises. The petitioner has no other reasonably suitable commercial premises/accommodation available to him. The premises are require bona fide by the petitioner for starting his own business and a School for Acting, Drama and Performing
Arts.
That Dr. Sushila Nayar was allotted Flat No. 32, New Central
Market, New Delhi (now called Shankar Market, Connaught
Place) vide order No. HRO/\4G/10939 dated 20"' December, 1957 by the office of Housing and Rent Offrcer, Delhi, Gokhale
Market, Delhi. Subsequent thereto, the Directorate of Estates of the then Ministry of Works & Housing, Government of India, Nirman Bhawan, New Delhi granted Ownership/Leasehold. rights of Flat No. 32, Shankar Market, Connaught Place, New Delhi to Dr. SushilaNayarvide letterNo. DEAyIKT/FL 32/II{CM dated 1 5tl' January, 1979.
That the petitioner herein is a Mechanical Engineer with B.Tech
(Hons.) Degree from I.I.T., Kharagpur. The petitioner went to the USA in the year 1970 to obtain a Master's degree in the field of Mechanical Engineering from North Carolina State
University. However, during the course of his studies, he became interested in pursuing acting as a career. The petitioner got a degree of Master of Fine Arts from New York University, School of the Arts, Graduate Acting Program and has been a professional actor since the year 1975 and has settled in New
York, USA. The petitioner has acted in various movies, theatre productions, television series, etc. Some of his better known parts are that of Nathuram Godse in the film Gandhi, role of
Khwaja Aziz Mondanabosh in the theatre production
Homebody/Kabul, etc. The petitioner has his own professional webs ite www. harsh nay.var.com.
That the petitioner is now 61 years of age and has decided to open a school for acting, drama and performing arts in Delhi so that he can utilize his 30 years' experience in acting and impart the same to young students of his own homeland.
That the petitioner also intends to eventually move back to India once he can make his school for acting, drama and performing arts a sustainable business. The petitioner has no other reasonably suitable commercial accommodation available to him at Delhi.
That as stated above, the premises at 32 Shankar Market are occupied by seven different tenants and the petitioner requires the entire property to be able to give shape to his plan to run a school for acting, drama and performing arts and for this reason, (iv)
(v)
(vi)
(viii)
RC.REV.28412011 Paee? of6
the petitioner has filed eviction petition against all other tenants as well.
(ix) That the petitioner, in fact, is craving to come back and live in his own counfir, however, he needs to set up a sustainable source of income for himself in Delhi/India as his source of income is cunently from working in international films and television shows which require him to be based'in New York, and the acting profession there is mired in uncertainty right now as to its future."
The respondent after entering appearance sought leave to defend eviction petition as required under Section 25-B(4) of the Delhi Rent Control Act,1958.
The learned Additional Rent Controller has allowed the application for leave to defend moved by the respondent vide impugned order. Regarding the bona fide requirement of the petitioner in respect of the premises in question, the learned
Additional Rent Controller has dealt with the plea raised by the respondent that the petitioner does not require the premises bonafide and has accepted that plea.
The relevant portion of the impugned order dealing with that plea is reproduced below:-
"Further, it is the contention of the respondent that the applicant does not require the premises for his bona fide use and has no immediate plan to come to Delhi. In this regard, the attention of the Court has been drawn on the contents of the application and the affidavit of applicant filed in reply to the affidavit of the respondent. In his application, the applicant has stated that he intends to move back to India once he can make his school for acting, drama and performing arts, a sustainable business. Further, in paragraph no. 17 of his counter affidavit, the applicant has stated that he intends to permanently move back to India in the next 5-6 years. From the contents of the application as well as the counter affidavit, it appears that the applicant has no immediate plan to move back to India. From the counter affrdavit of the applicant, it also appears that he does not want to run the school under his direct control by staying in India but instead wants to run such schoo,- through other agency. On the basis of the contents of the counter affidavit and the application, as I have already observed, the contention of the respondent is that the premises are not required by him for his immediate use; whereas, the contention of the applicant is that hehas bona fide intention and determination to open a school in the
RC.REV.284l20ll Paee 3 of6 tt
A premises once the same is got vacated from the respondent and other tenants. In the considered opinion of the Court in the light of the contents of the affrdavits of the respondent and the applicant, there is a triable point regardingthe bona fide of the applicant in opening a school and such bonafide intention cannot be tested unless the applicant is examined in the witness box. Obviously, there is a triable point on this aspect of the case."
It has been submitted by the learned counsel for the petitioner that the aforesaid reasoning given by the learned Additional Rent Controller cannot be sustained at all and the leave application should have been rejected on the ground that it did not disclose any triable issue at all. Learned counsel for the petitioner has placed reliance on one
(ix) That the petitioner, in fact, is craving to come back and live in his own counfir, however, he needs to set up a sustainable source of income for himself in Delhi/India as his source of income is cunently from working in international films and television shows which require him to be based'in New York, and the acting profession there is mired in uncertainty right now as to its future."
The respondent after entering appearance sought leave to defend eviction petition as required under Section 25-B(4) of the Delhi Rent Control Act,1958.
The learned Additional Rent Controller has allowed the application for leave to defend moved by the respondent vide impugned order. Regarding the bona fide requirement of the petitioner in respect of the premises in question, the learned
Additional Rent Controller has dealt with the plea raised by the respondent that the petitioner does not require the premises bonafide and has accepted that plea.
The relevant portion of the impugned order dealing with that plea is reproduced below:-
"Further, it is the contention of the respondent that the applicant does not require the premises for his bona fide use and has no immediate plan to come to Delhi. In this regard, the attention of the Court has been drawn on the contents of the application and the affidavit of applicant filed in reply to the affidavit of the respondent. In his application, the applicant has stated that he intends to move back to India once he can make his school for acting, drama and performing arts, a sustainable business. Further, in paragraph no. 17 of his counter affidavit, the applicant has stated that he intends to permanently move back to India in the next 5-6 years. From the contents of the application as well as the counter affidavit, it appears that the applicant has no immediate plan to move back to India. From the counter affrdavit of the applicant, it also appears that he does not want to run the school under his direct control by staying in India but instead wants to run such schoo,- through other agency. On the basis of the contents of the counter affidavit and the application, as I have already observed, the contention of the respondent is that the premises are not required by him for his immediate use; whereas, the contention of the applicant is that hehas bona fide intention and determination to open a school in the
RC.REV.284l20ll Paee 3 of6 tt
A premises once the same is got vacated from the respondent and other tenants. In the considered opinion of the Court in the light of the contents of the affrdavits of the respondent and the applicant, there is a triable point regardingthe bona fide of the applicant in opening a school and such bonafide intention cannot be tested unless the applicant is examined in the witness box. Obviously, there is a triable point on this aspect of the case."
It has been submitted by the learned counsel for the petitioner that the aforesaid reasoning given by the learned Additional Rent Controller cannot be sustained at all and the leave application should have been rejected on the ground that it did not disclose any triable issue at all. Learned counsel for the petitioner has placed reliance on one
ORDER
of the Hon'ble Supreme Court in "Sarla
Ahuja Vs. tlnited India Insurance Company Ltd.u, (1998) I SCC 119 and one decision of this Court in "sarwsn Dass Bange V* Ram Prakash", 2010 IV AD
(DELHI) 2s2.
I have considered the averments made in the eviction petition as well as the pleas raised by the respondent while seeking leave to defend and also the aforesaid reasoning of the learned Additional Rent Controller to the effect that the respondent has raised triable issue regarding bona fide reqtirement of the petitioner. I do not find any material inegularity or perversrty in the said reasoning of the Additional Rent Controller justifiing any interference by this
Court in exercise of its revisional jurisdiction. The judgments cited by the counsel for the petitioner were rendered on the facts of those cases and as far as the guidelines laid down by the Supreme Court which have to be kept in mind by the
Courts while deciding such like leave applications filed by the tenants are concerned the trial Court has after refening to various judgments passed the impugned order keeping in mind those guidelines. In one of the judgments of the supreme court in"Inderjeet Kaur vs. Nirpal singh", JT 2001 (1) 308, which has been relied upon by the learned Additional Rent Controller also in the present case in the impugned order, the landlord and his family were settled in United
Kingdom and the eviction petition under Section la(lXe) of the Delhi Rent
RC.REV.28412011
S.,-\-;'
\F"
Control Act was filed by the landlord against his tenant in his property in Delhi alleging that though he was earlier permanently settled in the United Kingdom but he had returned back to India to settle here and that his son was still there but he had also decided to retum to India after winding up his affairs in the United
Kingdom. The tenant in that case had sought leave to defend the eviction petition and one of the pleas taken by her was that the landlord and his family were permanently settled in the United Kingdom and had no intentions of coming back to India. The Additional Rent Controller had declined leave to defend to the tenant and this Court also dismissed her revision petition filed against the order of the Additional Rent Controller. The tenant took the matter to the Supreme Court by the Supreme Court where the orders of the Additional Rent Controller and this
Court were set aside by making the following observations in para no. 17 of judgment:
" 17. With the background, we now turn to the facts of the case in hand. It is clear from the reading of the order of the Addl. Rent Controller that he has taken pains to write an elaborate order as if he was writing an order after a full-,dressed trial of eviction petition he has considered merits of the iespeciive contentions at the stage of granting leove to defend under
Section iSn O without keeping in mind the scope of the provisions and statutory duty cast on him. He exceeded the jurisdiction vested in him in refusing leave to defend to the appellant. It appears to us that he did not ficus iis attention to the scope and content of Section 258(5). Having regard to the facts staed and grounds raised in the affidavit filed by the appellant tttiing leave to defend which we have already narrated above, it is not possible to take a view that no triable issue arose for consideration.
The ficts stated in the affidavit of the appellant in support of his application seeking leave to defend prima facie do disclose that the respondent would be diintitled to obtain an order for the recovery of possession of the premises from the appellant particularly when other cases are pending between the parties and defence does not appear to be frivolous or untenable on the face of it. The Addl. Rent Controller has acted with material irregularity and committed a rnanifest error in accepting the case of the respondent-landlord when the facts were seriously disputed and the coryectneis or otherwise of the documents required to be examined.
Whether the suit premises was used for residential'cum-commercial purposes from the inception and whether the respondent and ltis son and
-other members of the famity are pernxanently and contfurtably settled in
U.K. and whether the requirement of the premises by the respondent was bona fide, are the maters which could not be adiudicated as has been done by the Addt. Rent Controller at the stage of dealing with the application to grant leave to defend. In this view of the matter, we have no hesitation to say that the ord-er passed by the Addl. Rent Controller refusing leave to difend to the appellant cannot be sustained. Unfortunately, the High Court also has affirmed it without taking into consideration the correct legal
RC.REV. 28412011 Pase 5 of 6
A position indicated above having regard to the facts of the case. We are of
-the view that the Addl. Rent Controller and the High Court both were in error in refusing to grant leave to the appellont to contest the eviction
. petition."
The afore-said observations of the Supreme Court fully support the case of the tenant herein. In fact, in the preset case, the landlord undisputedly is still living in U.S.A.
This revision petition is accordingly dismissed in limine. The judgments cited by the counsel for the petitioner were rendered on the facts of those cases and so of no help to the Petitioner.
Leamed counsel for the petitioner now submits that at least the learned
Additional Rent Controller should be directed to dispose of the eviction petition at the earliest possible considering the fact that it is a case of bona fide requirement of the landlord. It is needless to state and it is hoped also that the learned trial
Court shall make all efforts to dispose of the eviction petition at the earliest possible.
AUGUST 03' 2011/Pg
-.(
I
RC.REV.28412011
Paee 6 of 6
Ahuja Vs. tlnited India Insurance Company Ltd.u, (1998) I SCC 119 and one decision of this Court in "sarwsn Dass Bange V* Ram Prakash", 2010 IV AD
(DELHI) 2s2.
I have considered the averments made in the eviction petition as well as the pleas raised by the respondent while seeking leave to defend and also the aforesaid reasoning of the learned Additional Rent Controller to the effect that the respondent has raised triable issue regarding bona fide reqtirement of the petitioner. I do not find any material inegularity or perversrty in the said reasoning of the Additional Rent Controller justifiing any interference by this
Court in exercise of its revisional jurisdiction. The judgments cited by the counsel for the petitioner were rendered on the facts of those cases and as far as the guidelines laid down by the Supreme Court which have to be kept in mind by the
Courts while deciding such like leave applications filed by the tenants are concerned the trial Court has after refening to various judgments passed the impugned order keeping in mind those guidelines. In one of the judgments of the supreme court in"Inderjeet Kaur vs. Nirpal singh", JT 2001 (1) 308, which has been relied upon by the learned Additional Rent Controller also in the present case in the impugned order, the landlord and his family were settled in United
Kingdom and the eviction petition under Section la(lXe) of the Delhi Rent
RC.REV.28412011
S.,-\-;'
\F"
Control Act was filed by the landlord against his tenant in his property in Delhi alleging that though he was earlier permanently settled in the United Kingdom but he had returned back to India to settle here and that his son was still there but he had also decided to retum to India after winding up his affairs in the United
Kingdom. The tenant in that case had sought leave to defend the eviction petition and one of the pleas taken by her was that the landlord and his family were permanently settled in the United Kingdom and had no intentions of coming back to India. The Additional Rent Controller had declined leave to defend to the tenant and this Court also dismissed her revision petition filed against the order of the Additional Rent Controller. The tenant took the matter to the Supreme Court by the Supreme Court where the orders of the Additional Rent Controller and this
Court were set aside by making the following observations in para no. 17 of judgment:
" 17. With the background, we now turn to the facts of the case in hand. It is clear from the reading of the order of the Addl. Rent Controller that he has taken pains to write an elaborate order as if he was writing an order after a full-,dressed trial of eviction petition he has considered merits of the iespeciive contentions at the stage of granting leove to defend under
Section iSn O without keeping in mind the scope of the provisions and statutory duty cast on him. He exceeded the jurisdiction vested in him in refusing leave to defend to the appellant. It appears to us that he did not ficus iis attention to the scope and content of Section 258(5). Having regard to the facts staed and grounds raised in the affidavit filed by the appellant tttiing leave to defend which we have already narrated above, it is not possible to take a view that no triable issue arose for consideration.
The ficts stated in the affidavit of the appellant in support of his application seeking leave to defend prima facie do disclose that the respondent would be diintitled to obtain an order for the recovery of possession of the premises from the appellant particularly when other cases are pending between the parties and defence does not appear to be frivolous or untenable on the face of it. The Addl. Rent Controller has acted with material irregularity and committed a rnanifest error in accepting the case of the respondent-landlord when the facts were seriously disputed and the coryectneis or otherwise of the documents required to be examined.
Whether the suit premises was used for residential'cum-commercial purposes from the inception and whether the respondent and ltis son and
-other members of the famity are pernxanently and contfurtably settled in
U.K. and whether the requirement of the premises by the respondent was bona fide, are the maters which could not be adiudicated as has been done by the Addt. Rent Controller at the stage of dealing with the application to grant leave to defend. In this view of the matter, we have no hesitation to say that the ord-er passed by the Addl. Rent Controller refusing leave to difend to the appellant cannot be sustained. Unfortunately, the High Court also has affirmed it without taking into consideration the correct legal
RC.REV. 28412011 Pase 5 of 6
A position indicated above having regard to the facts of the case. We are of
-the view that the Addl. Rent Controller and the High Court both were in error in refusing to grant leave to the appellont to contest the eviction
. petition."
The afore-said observations of the Supreme Court fully support the case of the tenant herein. In fact, in the preset case, the landlord undisputedly is still living in U.S.A.
This revision petition is accordingly dismissed in limine. The judgments cited by the counsel for the petitioner were rendered on the facts of those cases and so of no help to the Petitioner.
Leamed counsel for the petitioner now submits that at least the learned
Additional Rent Controller should be directed to dispose of the eviction petition at the earliest possible considering the fact that it is a case of bona fide requirement of the landlord. It is needless to state and it is hoped also that the learned trial
Court shall make all efforts to dispose of the eviction petition at the earliest possible.
AUGUST 03' 2011/Pg
-.(
I
RC.REV.28412011
Paee 6 of 6