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HIGH COURT OF DELHI
RC.REV.285/2011
HARSH VARDHAN NAYYAR Petitioner
Through: Mr.Acshay Makhija,Advocate
HIGH COURT OF DELHI
RC.REV.285/2011
HARSH VARDHAN NAYYAR Petitioner
Through: Mr.Acshay Makhija,Advocate
VERSUS
Dr.R.C.KAKKAR Respondent
Through: None
Through: None
CORAM:
HON'BLE MR.JUSTICE P.K.BHASIN
03.08.2011 I have heard the learned counselfor the petitioner.
The petitioner,who claims to bethe owner and landlord ofthe premisesin question, which is one of the cabins in a hall of flat no.32, Shankar Market, Cormaught 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 relevantaverments madein para no.18(a)ofthe eviction petition arere-produced below:
"(i) That the premises in question were let out by late Dr. Sushila Nayar to the respondent for commercial purpose for ranning of
Doctors' Clinic. Late Dr. Sushila Nayar was a renowned Doctor, social worker, educationist and Parliamentarian. Dr. Sushila Nayar passed away on 3"^ January,2001.She was unmarried and was survived by her nephew,i.e. petitioner herein and her niece.
Dr.Nandini Kliosla, w/o Shri Prem Khosla. Dr.Nandini Khosla hasrelinquished her share in the premisesinfavour ofthe
03.08.2011 I have heard the learned counselfor the petitioner.
The petitioner,who claims to bethe owner and landlord ofthe premisesin question, which is one of the cabins in a hall of flat no.32, Shankar Market, Cormaught 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 relevantaverments madein para no.18(a)ofthe eviction petition arere-produced below:
"(i) That the premises in question were let out by late Dr. Sushila Nayar to the respondent for commercial purpose for ranning of
Doctors' Clinic. Late Dr. Sushila Nayar was a renowned Doctor, social worker, educationist and Parliamentarian. Dr. Sushila Nayar passed away on 3"^ January,2001.She was unmarried and was survived by her nephew,i.e. petitioner herein and her niece.
Dr.Nandini Kliosla, w/o Shri Prem Khosla. Dr.Nandini Khosla hasrelinquished her share in the premisesinfavour ofthe
RC.REV.285/2011 Page1 of6
2011:DHC:15685 petitioner vide Deed of Release dated 16"* January, 2004, registered as documentNo.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 said premises. The petitioner has no other reasonably suitable commercial premises/accommodation available to him. The premises are require bonafide by the petitioner for starting his own business and a School for Acting, Drama and Performing
Arts. - (ii) That Dr. Sushila Nayar was allotted Flat No. 32, New Central
Market, New Delhi (now called Shankar Market, Cormaught
Place) vide order No. HRO/MG/10939 dated 20''' December, 1957 by the office ofHousing and Rent Officer,Delhi, Gokhale
Market, Delhi. Subsequent thereto,the Directorate ofEstates 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. Sushila Nayar vide letter No.DE/MKT/FL 32/NCM
^ dated 15"'January,1979.
(iv) 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 ofhis 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 website www.harshnavvar.com.
(v) 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 ofhis own homeland.
(vi) Thatthe 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.
(viii) 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
2011:DHC:15685 petitioner vide Deed of Release dated 16"* January, 2004, registered as documentNo.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 said premises. The petitioner has no other reasonably suitable commercial premises/accommodation available to him. The premises are require bonafide by the petitioner for starting his own business and a School for Acting, Drama and Performing
Arts. - (ii) That Dr. Sushila Nayar was allotted Flat No. 32, New Central
Market, New Delhi (now called Shankar Market, Cormaught
Place) vide order No. HRO/MG/10939 dated 20''' December, 1957 by the office ofHousing and Rent Officer,Delhi, Gokhale
Market, Delhi. Subsequent thereto,the Directorate ofEstates 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. Sushila Nayar vide letter No.DE/MKT/FL 32/NCM
^ dated 15"'January,1979.
(iv) 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 ofhis 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 website www.harshnavvar.com.
(v) 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 ofhis own homeland.
(vi) Thatthe 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.
(viii) 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
RC.REV.285/2011 Page2of6 school for acting,drama and performing arts and for this reason, 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 country, however, he needs to set up a sustainable source of income for himself in Delhi/India as his source of income is currently 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)ofthe 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 bonafide requirement ofthe petitioner in respect ofthe 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 bonafi ide and has accepted that plea.
The relevant portion ofthe 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 bonafi ide 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 schoolfor acting,drama and performing arts, a sustainable business. Further, in paragraph no. 17 ofhis counter affidavit, the applicant has stated that he intends to permanently move back to India in the next 5-6 years. From the contents ofthe application as well as the counter affidavit, it appears that the applicant has no immediate plan to move back to India. From the counter affidavit 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 school 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 ofthe applicantis that he has bona
RC.REV.285/2011 Page3of6 fide intention and determination to open a school in the premises once the same is got vacated from the respondent and other tenants. In the considered opinion ofthe Court in the light ofthe contents ofthe affidavits ofthe respondent and the applicant,there is a triable pointregarding the bona fide ofthe applicantin 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 aspectofthe case."
It has been submitted by the learned counsel for the petitioner that the aforesaid reasoning given by the leamed Additional Rent Controller cannot be sustained at all and the leave application should have been rejected on the ground that it did not diselose any triable issue at all. Leamed 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 country, however, he needs to set up a sustainable source of income for himself in Delhi/India as his source of income is currently 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)ofthe 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 bonafide requirement ofthe petitioner in respect ofthe 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 bonafi ide and has accepted that plea.
The relevant portion ofthe 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 bonafi ide 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 schoolfor acting,drama and performing arts, a sustainable business. Further, in paragraph no. 17 ofhis counter affidavit, the applicant has stated that he intends to permanently move back to India in the next 5-6 years. From the contents ofthe application as well as the counter affidavit, it appears that the applicant has no immediate plan to move back to India. From the counter affidavit 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 school 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 ofthe applicantis that he has bona
RC.REV.285/2011 Page3of6 fide intention and determination to open a school in the premises once the same is got vacated from the respondent and other tenants. In the considered opinion ofthe Court in the light ofthe contents ofthe affidavits ofthe respondent and the applicant,there is a triable pointregarding the bona fide ofthe applicantin 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 aspectofthe case."
It has been submitted by the learned counsel for the petitioner that the aforesaid reasoning given by the leamed Additional Rent Controller cannot be sustained at all and the leave application should have been rejected on the ground that it did not diselose any triable issue at all. Leamed counsel for the petitioner has placed reliance on one
ORDER
of the Hon'ble Supreme Court in "Sarla
Ahuja Vs. United India Insurance Company Ltd.",(1998)8SCC119 and one decision ofthis Court in "Sarwan Dass Bange Vs. Ram Prakash",2010IVAD
(DELHI)252.
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 ofthe leamed Additional Rent Controller to the effectthatthe respondent has raised triable issue regarding bona fide requirement of the petitioner. I do not find any material irregularity or perversity in the said reasoning of the Additional Rent Controller justifying any interference by this
Courtin exercise ofits revisionaljurisdiction.Thejudgments cited by the counsel for the petitioner were rendered on the facts of those cases ^d as far as the guidelines laid down by the Supreme Court which have to be keptin mind by the
Courts while deciding such like leave applications filed by the tenants are concemed the trial Court has after referring to various judgments passed the impugned order keeping in mind those guidelines. Inone ofthejudgments ofthe
Supreme Courtin"InderjeetKaur vs.NirpalSingh",JT2001(1)308,which has been relied upon by the leamed 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 14(l)(e)ofthe DelhiRent
Ahuja Vs. United India Insurance Company Ltd.",(1998)8SCC119 and one decision ofthis Court in "Sarwan Dass Bange Vs. Ram Prakash",2010IVAD
(DELHI)252.
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 ofthe leamed Additional Rent Controller to the effectthatthe respondent has raised triable issue regarding bona fide requirement of the petitioner. I do not find any material irregularity or perversity in the said reasoning of the Additional Rent Controller justifying any interference by this
Courtin exercise ofits revisionaljurisdiction.Thejudgments cited by the counsel for the petitioner were rendered on the facts of those cases ^d as far as the guidelines laid down by the Supreme Court which have to be keptin mind by the
Courts while deciding such like leave applications filed by the tenants are concemed the trial Court has after referring to various judgments passed the impugned order keeping in mind those guidelines. Inone ofthejudgments ofthe
Supreme Courtin"InderjeetKaur vs.NirpalSingh",JT2001(1)308,which has been relied upon by the leamed 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 14(l)(e)ofthe DelhiRent
RC.REV.285/2011 Page4of6
5' Control Act was filed by the landlord against his tenant in his property in Delhi alleging thatthough 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 return to India after winding up his affairs in the United
Kingdom. The tenantin thatcase had soughtleave to defend the eviction petition and one of the pleas talcen by her was that the landlord and his family were permanently settled in the United Kingdom and had no intentions ofcoming back to India. The Additional Rent Controller had declined leave to defend to the tenant and this Court also dismissed her revision petition filed againstthe order of the Additional Rent Controller. The tenant took the matter to the Supreme Court where the orders ofthe Additional Rent Controller and this Court were set aside by the Supreme Court by making the following observations in para no. 17 of judgment:
"17. With the background, we now turn to thefacts ofthe case in hand. It is clearfrom the reading ofthe order ofthe Addl. Rent Controller that he has taken pains to write an elaborate order as ifhe was writing an order after afull-dressed trial ofeviction petition he has considered merits ofthe respective contentions at the stage ofgranting leave to defend under
Section 25B (5) without keeping in mind the scope ofthe provisions and statutory duty cast on him. He exceeded thejurisdiction vested in him in refusing leave to defend to the appellant. It appears to us that he did not focus his attention to the scope and content ofSection 25B(5). Having regard to thefacts staed and grounds raised in the affidavitfiled by the appellantseekingleave to defend which we have already narrated above, it is notpossible to take a view that no triable issue arosefor consideration.
Thefactsstatedin the affidavitofthe appellantin supportofhis application seeking leave,to defendprimafacie do disclose that the respondent would be disentitled to obtain an order for the recovery ofpossession of the premisesfrom 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 manifest error in accepting the case ofthe respondent-landlord when thefacts were seriously disputed and the correctness or otherwise of the documents required to be examined.
Whether the suit premises was used for residential-cum-commercial purposesfrom the inception and whether the respondent and his son and other members ofthefamily are permanently and comfortably settled in
U.K. and whether the requirement ofthe premises by the respondent was bonafide, are the maters which could not be adjudicated as has been done by the Addl. Rent Controller at the stage ofdealing with the application to grant leave to defend. In this view ofthe matter, we have no hesitation to say that the order passed by the Addl. Rent Controller refusing leave to defendto the appellantcannotbesustained. Unfortunately,the High Court also hasaffirmed itwithouttakinginto consideration the correctlegal
RC.REV.285/2011 Page5of6 position indicatedabove havingregardto thefactsofthe 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 appellant to contest the eviction petition."
The afore-said observations ofthe Supreme Courtfully supportthe 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.
Learned counsel for the petitioner now submits that at least the learned
Additional Rent Controller should be directed to dispose ofthe eviction petition at the earliest possible considering the fact that it is a case ofbonafide 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.
P.K.BHASIN,J ^ AUGUST 03,2011/pg
5' Control Act was filed by the landlord against his tenant in his property in Delhi alleging thatthough 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 return to India after winding up his affairs in the United
Kingdom. The tenantin thatcase had soughtleave to defend the eviction petition and one of the pleas talcen by her was that the landlord and his family were permanently settled in the United Kingdom and had no intentions ofcoming back to India. The Additional Rent Controller had declined leave to defend to the tenant and this Court also dismissed her revision petition filed againstthe order of the Additional Rent Controller. The tenant took the matter to the Supreme Court where the orders ofthe Additional Rent Controller and this Court were set aside by the Supreme Court by making the following observations in para no. 17 of judgment:
"17. With the background, we now turn to thefacts ofthe case in hand. It is clearfrom the reading ofthe order ofthe Addl. Rent Controller that he has taken pains to write an elaborate order as ifhe was writing an order after afull-dressed trial ofeviction petition he has considered merits ofthe respective contentions at the stage ofgranting leave to defend under
Section 25B (5) without keeping in mind the scope ofthe provisions and statutory duty cast on him. He exceeded thejurisdiction vested in him in refusing leave to defend to the appellant. It appears to us that he did not focus his attention to the scope and content ofSection 25B(5). Having regard to thefacts staed and grounds raised in the affidavitfiled by the appellantseekingleave to defend which we have already narrated above, it is notpossible to take a view that no triable issue arosefor consideration.
Thefactsstatedin the affidavitofthe appellantin supportofhis application seeking leave,to defendprimafacie do disclose that the respondent would be disentitled to obtain an order for the recovery ofpossession of the premisesfrom 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 manifest error in accepting the case ofthe respondent-landlord when thefacts were seriously disputed and the correctness or otherwise of the documents required to be examined.
Whether the suit premises was used for residential-cum-commercial purposesfrom the inception and whether the respondent and his son and other members ofthefamily are permanently and comfortably settled in
U.K. and whether the requirement ofthe premises by the respondent was bonafide, are the maters which could not be adjudicated as has been done by the Addl. Rent Controller at the stage ofdealing with the application to grant leave to defend. In this view ofthe matter, we have no hesitation to say that the order passed by the Addl. Rent Controller refusing leave to defendto the appellantcannotbesustained. Unfortunately,the High Court also hasaffirmed itwithouttakinginto consideration the correctlegal
RC.REV.285/2011 Page5of6 position indicatedabove havingregardto thefactsofthe 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 appellant to contest the eviction petition."
The afore-said observations ofthe Supreme Courtfully supportthe 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.
Learned counsel for the petitioner now submits that at least the learned
Additional Rent Controller should be directed to dispose ofthe eviction petition at the earliest possible considering the fact that it is a case ofbonafide 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.
P.K.BHASIN,J ^ AUGUST 03,2011/pg
RC.REV.285/2011 Page6of6