Mohan Singh v. Vishan Dass Narang

15. The primary ground raised by the Petitioner/tenant is that service was incomplete in view of the defective summons. In addition, it has been contended that the payment of Rs. 12,000/- was made for construction of a second basement by the Petitioner/tenant. It is the admitted case of the parties that the payment was adjusted at a monthly rent of Rs. 1,000/- for each of the three premises taken on rent from the Respondent/landlord i.e., two basements and a ground floor which form subject matter of the present Petition being R.C Rev 196/2018 and connected R.C. Rev No. 197/2018, and R.C. Rev No.198/2018. 15.[1] It is thus contended that since the triable issues were raised in terms of the judgment of the Directorate of Education case, a substantial defence had been raised by the Petitioner/tenant, entitling the Petitioner/tenant to Leave to Defend.

16. The Respondent/landlord, on the other hand, contends that the summons were duly served on the Petitioner/tenant and in the summons itself, it is stated that the tenant is required to appear within 15 days of service thereof to obtain leave of the controller to contest the Application for Eviction. In addition, it is contended that the Petitioner/tenant did not approach the Court with clean hands. The Impugned Order was challenged by the Petitioner/tenant in a Review Petition and the same was dismissed with costs by order dated 11.04.2018 by the learned Trial Court which costs have not been paid till today by the Petitioner/tenant.

17. It is further averred that the Petitioner/tenant has been in continuous occupation of the subject premises which is in a prime location in South Delhi area being right next to the Central Market, Lajpat Nagar, New Delhi. The premises is abutting a Master Plan Road and have been declared a “Mixed Land Use Premises”. It is thus contended by the Respondent/landlord that the Respondent/landlord is entitled to user and occupation charges/damages in the sum of Rs. 2 lakhs per month for the subject premises.

18. Lastly, it is contended that the Petitioner/tenant owns several properties while the Respondent/landlord has no other alternate premises. Thus, the Petitioner/tenant has failed to make out any case for grant of Leave to Defend.

19. The record shows that an Eviction Petition was filed wherein it was stated that the subject premises is required by the Respondent/landlord for opening a ladies garment boutique to be run by his daughter-in-law. It was stated that she would run a boutique as well install sewing machines and the subject premises was best suited for this kind of business given its location adjacent to Central Market and that the subject premises was required to open such a boutique.

20. As stated above, the only ground that was taken by the Petitioner/tenant in his Application for Leave to Defend filed on 27.07.2017 were that the summons were not in accordance with Schedule III of the DRC Act and were not duly served on the Petitioner/tenant. It was further stated that the summons received failed to set out the next date of hearing and that since, the Courts were closed for vacation from 10.06.2017 to 30.06.2017, the Petitioner/tenant could not appear. 20.[1] The Application for Leave to Defend further goes on to state that the summons are not in accordance with law as they failed to inform the next date of hearing. In addition, it is stated therein that upon receipt of summons, the Petitioner approached his regular Counsel who was unavailable as he was travelling. It is further stated therein that the other Counsel of the Petitioner/tenant was hospitalised at that time. 20.[2] It was further stated by the Petitioner/tenant, that he went to the Court to enquire about the case and on 05.07.2017, he was informed about the case and the next date of hearing. In addition, it is also stated that on 19.07.2017, once again the Petitioner/tenant appeared before the Court. Learned Counsel for the Respondent/landlord thus submits that the Leave to Defend Application was rightly disallowed. 20.[3] Paragraphs 1, 3 and 4 of the Leave to Defend Application [annexed at page 143 and 144 of the case file] are extracted below:

leave to defend, in his own wisdom filed an application entering appearance, under a conception that the summons will be issued to his address.”

21. Since, the learned Trial Court record was available, the summons were examined by the Court during the hearing. The summons set out the date of the order, the proceedings and also that they were issued on 03.06.2017. The record also shows that the summons are in accordance with Schedule III of the DRC Act. The service report for the issue of summons sets out that the summons were issued on 03.06.2017 but remained unserved. 21.[1] The contentions of the Petitioner/tenant are belied from the record and his pleading itself. A memo of appearance was filed along with a copy of site plan by Petitioner/tenant on 05.07.2017. Thus, even if the report of Process Server of 14.07.2017 were to be taken into consideration as being unserved, the fact that the first summons was received by the Petitioner/tenant admittedly on 07.06.2016, the Leave to Defend was not filed within 15 days thereof.

22. In addition, the summons clearly set out therein that the Petitioner/tenant is required to appear before the Controller within 15 days of the service to obtain Leave to Defend. Although the report of the process server dated 14.07.2017 sets out that the summons was unserved. However, much prior to the said date, the Petitioner/tenant had entered appearance before the Court and filed his memorandum of appearance. The Petitioner/tenant also appeared on 05.07.2017 and 19.07.2017 before the Court. 22.[1] Since the Application for Leave to Defend/Contest the Eviction Petition is required to be filed within 15 days from the date of receipt of summons. There is no significance as regards of the next date of hearing. The response of a tenant is required to be filed within 15 days in terms of Sub-section (4) of Section 25(B) of the DRC Act and the third Schedule of the DRC Act.

23. Thus, quite clearly the Petitioner was aware of the proceedings and in pursuance of receipt of summons on 07.06.2017, he first made enquires with his lawyers and when they were found to be unavailable, he himself visited the Court on 05.07.2017 and filed a memo of appearance through his Counsel and went to Court on 19.07.2017 as well. 23.[1] As stated above, the memo of appearance sets out that he had received summons on 07.06.2017. The memo of appearance being brief is extracted below: “1. That the abovesaid case is pending before the Hon’ble, Court and the same is fixed for appearance of the defendant.

2. That the defendant received a summon for appearance from this Hon’ble Court on 7.6.2017.

3. That the appearance of the defendant be entered in the present case.

4. That the address of the defendant is “SH.

MOHAN SINGH, PROPRIETOR OF ADAMS INTERNATIONAL, S/O LATE BALWANT SINGH, R/O I-56, BASEMENT HALL 15’X45’, LAJPAT NAGAR-II, NEW DELHI-110024”, to serve the summons.

PRAYER It is, therefore, most respectfully prayed that the appearance of the defendant may kindly be taken on record, in the interest of justice. Sd/- DEFENDANT NEW DELHI DATED 5.7.2017 (MOHAN SINGH) S/O LATE BALWANT SINGH R/O I-56, LAJPAT NAGAR-II, NEW DELHI” 23.[2] Subsequently, an Application for leave to contest/defend was filed by the Petitioner/tenant wherein in addition to setting out that summons have been received on 07.06.2017, there is an admission by the Petitioner/tenant that he went to the Court on 05.07.2017 and enquired about the case.

24. The record also shows that in the Application for Leave to Defend, no grounds have been taken that would entitle the Petitioner/tenant for leave. The relationship of the landlord-tenant is not disputed. With respect to the bona fide need, it has been contended in the Affidavit dated 27.07.2017 filed along with the Application for Leave to Defend/Contest sets out that the Respondent/landlord has not set out the exact area needed to run the boutique shop, and in any event, some another portion of the first floor can be used by the daughter-in-law of the Respondent, to run her boutique shop. The Respondent/landlord has in the Eviction Petition, has clearly set out that the boutique shop will require space for instalment of machinery for tailoring, staff, display area and even storage. As such the space available on the first floor, is insufficient to run the boutique shop, without utilizing the subject premises. 24.[1] The Supreme Court in the case of Prativa Devi (Smt) v. T.V. Krishnan[4] has held that tenant cannot dictate the terms of use of a property to a landlord and that the landlord is the best judge of his requirements. It is not for the Courts to dictate in what manner and how a landlord should live. This Court while relying on the Prativa Devi case has in the R.S. Chadha (thr. SPA) v. Thakur Dass[5] held: “13.[1] It is settled law that the tenant cannot dictate the terms of use of a property to a landlord and that the landlord is the best judge of his requirements. It is not for the Courts to dictate in what manner and how a landlord should live. It is also not for the Courts to adjudicate that the landlord has a bonafide need or not. The Courts will generally accept the landlords need as bonafide. The Supreme Court in the case of Prativa Devi (Smt) v. T.V. Krishnan [ (1996) 5 SCC 353] has directed:

13.[2] In any event, it is only the Respondent/landlord and his family who can decide what is sufficient space as per their needs and requirements. Sufficiency of residential accommodation for any person would essentially be dependent on multiple factors, including his living standard and general status in society. In view of the fact that admittedly the Respondent/landlord has a large family, it is not open to the Petitioner/tenant to contend that requirement of 6 rooms as pleaded by the Respondent/landlord, is not bonafide. 13.[3] The Trial Court has dealt with the sufficiency of accommodation of the Respondent/landlord in the Impugned Order. This Court finds no reason to impugn these findings.”

25. The primary ground that has been sought to be agitated by the Petitioner/tenant is that in the year 2003, the Respondent/landlord had filed a civil suit seeking recovery of possession of the subject premises, mesne profits/damages which was dismissed on 30.09.2011. It is thus contended that the copy of the order dated 30.09.2011 passed by the learned District Judge Central Delhi shows that the suit was dismissed as being barred by the provisions of Section 50 of the DRC Act since the rate of the rent claimed, was within the threshold of premises covered by the DRC Act. Thus, the defence of a higher rate of rent as set out in the Revision Petition is also without any merit.

26. The Impugned Order was initially challenged by way of filing a review before the learned Trial Court. The learned Trial Court by its order dated 11.04.2018 dismissed, the Application for review of the Impugned Order filed by the Petitioner/tenant on 11.04.2018 and imposed costs of Rs. 20,000/- on the Petitioner/tenant to be deposited with the Army Welfare Fund Battle Casualties. The Court is informed that even this payment has not been made by the Petitioner/tenant.

27. The test as set out in the Directorate of Education case is a dual requirement fulfilment test. The Petitioner/tenant has failed to show that there were any reasons beyond its control for applying Leave to Defend within the prescribed time. The Petitioner/tenant was admittedly served and on basis such service, the enquiries were made and applications/memos of appearance were filed as is set out in the narration above. Thus, the Petitioners/tenants contention that he was not aware of the proceedings and was not served is belied from the record itself.

28. In addition, no case much less a substantial case for consideration has been made out by the Petitioner/tenant. Neither the relationship of landlordtenant nor the ownership of the Respondent/landlord has been disputed. The receipt evidencing payment of Rs. 12,000/- to the Respondent/landlord by the Petitioner/tenant has been explained as advance rent for the basement. So far as concerns the averment of the Petitioner/tenant with respect to the alternate accommodation available in Nehru Palace/Greater Kailash-I and Faridabad and Zamrudpur, the Eviction Petition contains a reference to a rented accommodation in Zamrudpur which is being used by the son of the Petitioner for running his real estate business. However, the Petitioner along with his Leave to Defend/Contest has not filed any document or even set out details qua any of the properties mentioned above. Except setting out the names of 2-3 colonies, no other details have been provided by the Petitioner/tenant. 28.[1] A Coordinate Bench of this Court in Rajender Kumar Sharma & Ors. v. Leela Wati & Ors.[6] has held that only averments which have some substance in them and are supported by material are required to be considered while granting leave to defend. Merely mentioning ownership of other buildings and other residences without any details or supporting documents is not sufficient for grant of leave to defend[7]. It was further held that the Court cannot allow vague and unsubstantiated assertions in an Application for leave to defend, as this would defeat the whole purpose of Section 25(B) of the DRC Act. The relevant extract is reproduced below: “ … 11…..Only those averments in the affidavit are to be considered by the Rent Controller which have same substance in it and are 2008 (106) DRJ 471 See Rajiv Kumar and Another v. Chaman Lal and Others: 2024 SCC OnLine Del 833 supported by some material. Mere assertions made by a tenant in respect of landlord’s ownership of other buildings and in respect alternate accommodation are not to be considered sufficient for grant of leave to defend. If this is allowed, the whole purpose of Section 25-B shall stand defeated and any tenant can file a false affidavit and drag a case for years together in evidence defeating the very purpose of the statute. The Rent Controller is thus not precluded from considering the material placed before it by the landlord in response to leave to defend to show that the tenant’s assertions and averments were totally false.” 28.[2] In the present case, the Petitioner/tenant has in his Affidavit simply set out the names of two three colonies in an around Delhi NCR, and stated that the Respondent/landlord has additional accommodation in these places. No address or any any details about the accommodation has been stated therein.

29. The Directorate of Education case sets out that a substantial defence is required to be shown by the tenant to entitle him extension of time to file an Application for Leave to Defend. In addition, what has been stated in the Eviction Petition is that the Petitioner is a habitual defaulter and has even failed to make payment of electricity and other charges for the last several years The Respondent/landlord has clearly stated that he has no other suitable alternate accommodation and no averment or document has been placed on record with respect to the availability of suitable alternate accommodation with the Respondent/landlord. Thus, the Petitioner/tenant has failed to raise any defence as would entitle the Petitioner/tenant Leave to Defend under the provisions of sub-Section (4) and (5) of Section 25(B) of the DRC Act.

30. As is evident from the discussions above, the test as set out in the Directorate of Education case, is not satisfied in the present case.

31. In terms of the law as settled in the answer to the reference, we find that the Impugned Order does not suffer from any infirmity.

32. The Supreme Court in Atma Ram case and Martin and Harris case sets out that user and occupation charges are to be paid by the Petitioner/tenant during the pendency of a Revision Petition upon the Execution. 32.[1] In the Martin and Harris case, the Supreme Court has held that if the appellate court grants a stay, delaying the execution of the decree of eviction, it has to compensate the decree holder for the loss occasioned by the delay by imposing reasonable terms and conditions including payment of mesne profits at market rent. The relevant extract of the Martin and Harris case is below:

32.[2] After the eviction order was passed, the Petitioner has remained in occupation of the subject premises since 04.01.2018 without making any payment for the loss occasioned by the delay in execution of the Impugned Order. Thus, the Respondent/landlord is at liberty to file appropriate proceedings for the recovery of use and occupation charges/mesne profits in accordance with law.

33. The Petition and all pending Applications are accordingly dismissed. Consequently, all interim orders stand vacated.

TARA VITASTA GANJU, J OCTOBER 8, 2024