Full Text
HIGH COURT OF DELHI
37196/2019, CM APPL. 41461/2022 & CM APPL.
3277/2023 M/S G D SEIGELL & CO PVT .....Petitioner
Through: Mr. Rajat Navet, Advocate V SWARN NIJHAWAN & OTHERS .....Respondents
Through: Mr. Murari Tiwari, Mr. Rahul Kumar, Ms. Madhu Tiwari, Ms. Nimisha Gupta, Mr. Arujna Kumar and
Mr. Mukund Gupta, Advocates
JUDGMENT
1. The present revision petition is filed under section 25B (8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as “the Act”) on behalf of the petitioner/tenant to challenge the order dated 23.03.2019 (hereinafter referred to as “the impugned order”) passed RC.REV. 491/2019 Page 2 by the court of Ms. Susheel Bala Dagar, CCJ-cum-ARC, Central District, Tis Hazari Courts, Delhi, (hereinafter referred to as “the trial court”) in eviction petition bearing no. E-347/18 titled as Swarn Nijhawan and Others V M/s G.D. Seigell & Co. Pvt. Ltd. whereby the application for leave to defend filed by the petitioner was dismissed and as a consequence of which, an eviction order was passed in respect of the tenanted premises i.e. one shop admeasuring about 210 square yards having 02 doors with verandah backside situated at the ground floor forming part of the property bearing no. 1560 (also known as 1/1560), Church Road, Kashmere Gate, Delhi-110006 (hereinafter referred to as “the tenanted premises”) as shown in red colour in the site plan annexed with the eviction petition.
2. The respondents filed the eviction petition bearing no. E-347/18 titled as Swarn Nijhawan and others V M/s G.D. Seigell & Co. Pvt. Ltd. against the petitioner by pleading that the father-inlaw of the respondent no. 1 let out the tenanted premises to the petitioner which was being used as office for marketing of lifting machines. The respondents claimed ownership of the tenanted RC.REV. 491/2019 Page 3 premises on the basis of the Settlement Agreement dated 12.02.2014 executed between the legal heirs of the father-in-law of the respondent no. 1 including Rajinder Nijhawan who was the predecessor-in-interest of the respondents and the order dated 20.02.2014 passed by the Coordinate Bench of this Court in a partition suit bearing no. CS(OS) 109/2008 titled as Rajinder Nijhawan V Vinod Nijhawan and others. 2.[1] The respondent no. 1 is publishing law journals and needs the tenanted premises for running office as well as for doing the editing work of the law journals published by her. The respondents no. 2 and 3 are stated to have been occupying half of 1st and 2nd floor of the property bearing no. 1562 1/2, Church Road, Kashmere Gate, Delhi– 110006 and are assisting the respondent no. 1 but half of 1st and 2nd floor is not sufficient for assisting the respondent no 1. The respondent no. 2 also requires the tenanted premises to expand the business to earn his livelihood. The respondent no. 3 is also stated to be unemployed and wants to open her office and showroom in the tenanted premises which is situated at the ground floor. The respondent no. 1 is a senior citizen and aged about 79 years. The RC.REV. 491/2019 Page 4 respondent no. 1 is suffering from acute arthritis and as such cannot climb stairs. The respondent no. 1 due to the paucity of accommodation is not able to manage the office properly and is doing the editing work from her car. The respondent no.1 does not have any other suitable premises on the ground floor where she can make her office except the tenanted premises. The respondents no. 2 and 3 are also helping the respondent no. 1 from the 1st and 2nd property bearing no. 1562 1/2, Church Road, Kashmere Gate, Delhi– 110006 which is not sufficient to carry out the publication work. The petitioner is running the business from E-17B, Sector-40, Noida, Uttar Pradesh and the tenanted premises is lying almost vacant. Accordingly, it was prayed that the eviction order be passed in favour of the respondents and against the petitioner.
3. The petitioner, after service of summons as per the Third Schedule of the Act filed an application for grant of leave to defend along with an affidavit of Anil Seigell, Director of the petitioner. It is stated that the respondents have claimed ownership rights in respect of the property bearing no. 1/1560, Church Road, Kashmere Gate admeasuring 210 square yards but the area of the said property is RC.REV. 491/2019 Page 5 only 55.4’ × 24.4’ i.e. 149 square yards on which property tax is being paid to the MCD and rest of the area shown as open courtyard in the site plan is a separate property bearing no.1560/A which is occupied/owned by the petitioner since 1948 and has never been a part of the property bearing no. 1/1560, Church Road, Kashmere Gate or occupied by the respondents or their predecessor-in-interest. The property bearing no. 1560/A falls in the slum area and has its own separate entry and exit gate, passage and address. The petitioner is paying the property tax on the property bearing no. 1560/A in its own name for last several years and this area has never been part of the building at Church Road, Kashmere Gate, Delhi. The site plan annexed by the respondents is misleading and filed with ulterior motive to displace the petitioner from the said area. The petitioner also filed a site plan of the properties bearing nos. 1/1560 and 1560/A, property record of the property bearing no.1560/A and property tax receipts of property bearing no. 1560/A and the tenanted premises. 3.[1] The respondents are not the owners of the tenanted premises. The respondents are claiming ownership on the basis of mutual RC.REV. 491/2019 Page 6 settlement wherein the actual measurement of the property was not given and only property no. 1560 was given. The decree passed by this Court was not an executable decree as the parties therein did not pay stamp duty. The respondents have failed to file any title documents to show their ownership. The back portion i.e. property no. 1560/A which is occupied by the petitioner since 1948 is not a part of the property no. 1/1560, Church Road, Kashmere Gate, Delhi. The Custodian of Evacuee Property auctioned the building only and not any other plot or open area. The respondents filed present eviction petition without impleading Simran Joshi who is a necessary party being one of the legal heirs of Late Rajinder Nijhawan, predecessor-in-interest of the respondents. The tenanted premises is not lying vacant as claimed by the respondents. The petitioner is not running its business from property bearing no. E-17B, Sector-40, Noida, Uttar Pradesh which is a residential property of the directors of the petitioner. The petitioner is engaged in the business of manufacturing and supplying Ratchet Lever Hoists used by the Indian Railways and the machinery and equipment are lying at the tenanted premises. The petitioner was a tenant of the Custodian of RC.REV. 491/2019 Page 7 Evacuee Property since 1948 and Ramesh Chander Nijhawan, predecessor-in-interest of Rajinder Nijhawan who was the predecessor-in-interest of the respondents became the landlord of the building in the year 1961. The petitioner has deposited the rent without any delay and is not a habitual defaulter in payment of rent but the respondents refused to accept the rent on various occasions just to create a false ground of eviction. It was agreed between Late G.D. Seigell, promoter of the petitioner company and Late Ramesh Chander Nijhawan that the petitioner company would continue to work from the tenanted premises till its existence and some consideration was also given to Ramesh Chander Nijhawan at a later stage but these facts were concealed by the respondents. The tenanted premises was not let out by the father-in-law of the respondent no.1 namely Chaman Lal Nijhawan who was only attorney holder of Ramesh Chander Nijhawan. The respondent no.1 is running her office since long at property bearing no. 1562, Church Road, Kashmere Gate but said fact has been concealed from the court. There is ample space available to manage work related to the company of the respondent no. 1. The respondent no.1 is not coming RC.REV. 491/2019 Page 8 to the office since a long time stating to be of old age and unable to work. The respondents no. 2 and 3 do not need any additional space. The respondent no. 3 is not unemployed and working as a freelance editor with Rupa Publications and Leph Book Company as uploaded by her on her Linkedin profile and as such she does not need any office. The requirement of the respondents is not bonafide. The petitioner stated triable issues are raised which need consideration and prayed that leave to defend the eviction petition be granted.
4. The respondents filed a reply to the application for leave to defend wherein denied all the averments and contentions stated by the petitioner. The respondents stated that the petitioner has acquired an alternative accommodation for running its business at E-17B, Sector-40, Noida, U.P. and the property bearing no. 1542, Church Road, Kashmere Gate, Delhi opposite to the tenanted premises. The petitioner does not require the tenanted premises for continuing its commercial transactions. The petitioner has admitted the relationship of tenant and landlord between the petitioner and the respondents as the petitioner filed two petitions under section 27 of the Act for deposition of rent. The open court yard is not a separate property and RC.REV. 491/2019 Page 9 belongs to the suit property. The petitioner is not in occupation of the property bearing no. 1560/A since 1948. The entire property in question has been under the ownership of the respondents as per the Settlement Agreement dated 12.02.2014 and the order dated 20.02.2014 passed by this Court in CS(OS) 109/2008. The decree passed by this Court is an executable decree. The payment of property tax by the petitioner does not alter the landlord-tenant relationship between the parties. The site plan filed by the petitioner is false and fabricated. The eviction petition can be filed by the co-owners for eviction of a tenant from a property jointly owned by the co-owners. The tenanted premises is lying vacant and no commercial transactions take place from there. The petitioner was not a tenant of the Custodian of Evacuee Property since 1948. The petitioner is a regular defaulter in payment of rent. There was no agreement between G D Seigell and Ramesh Chander Nijhawan that the petitioner company will work from the tenanted premises till its existence. The respondent no. 3 requires the tenanted premises to set up her publishing house as she is not fully employed and doing only freelance work. The petitioner has not raised any triable issue which RC.REV. 491/2019 Page 10 requires evidence. It was prayed that the application for grant of leave to defend the eviction petition be dismissed.
5. The petitioner filed rejoinder. The petitioner is conducting its business from the tenanted premises. The property bearing no. 1542, Church Road, Kashmere Gate, Delhi is only a small godown occupied by the petitioner as a tenant. The petitioner is the owner of property bearing no. 1560/A which the respondents have falsely made part of the tenanted premises. The petitioner has raised many triable issues and is thus entitled to grant of leave to defend.
6. The trial court vide the impugned order dismissed the application for grant of leave to defend filed by the petitioner. The trial court held that the ownership of the respondents with respect to the tenanted premises and the existence of landlord-tenant relationship between the parties stood duly proved. The eviction petition filed by the respondents being co-owners of the tenanted premises is maintainable. The trial court also held that the bonafide requirement of the respondents in respect of the tenanted premises stood duly proved and the petitioner had failed to prove the RC.REV. 491/2019 Page 11 availability of alternative accommodation with the respondents. The trial court held as under: Thus, from the discussion made above, respondent has failed to raise any triable issue, which requires evidence to be proved. The petitioners, on the other hand, have clearly established their bonafide requirement regarding tenanted premises. Hence, the application for leave to defend filed by respondent is ordered to be dismissed. Consequently, eviction order is liable to be passed against the respondent u/s Section 25 B (4) of the Act. In view of above, petitioners are held entitled for recovery of the tenanted premises, i.e., one shop having two doors with verandah backside on the ground floor bearing no. 1560 also known as 1/1560, situated at Church Road, Kashmere Gate, Delhi-110006 measuring about 210 square yards, as shown in red colour in site plan annexed with the petition. However, the petitioners would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act.
7. The petitioner being aggrieved, filed the present petition to challenge the impugned order. The petitioner stated that the respondents did not file any document to show their title in respect of the tenanted premises. The respondent no. 2 stated that he wanted to expand his business but failed to provide details of the business. The respondent no. 2 does not have any business and as such there is no question of expansion of the same. The respondents have deliberately concealed the fact of them being in possession of a ground floor RC.REV. 491/2019 Page 12 premises. The respondents are also in possession of the 1st and 2nd floor of property bearing no. 1/1562, Church Road, Kashmere Gate, Delhi. The availability of such a huge area with the respondents is sufficient for alleged business requirement of the respondents and present case pertains to a case of additional accommodation, therefore, leave to defend ought to have been granted to the petitioner. 7.[1] The petitioner challenged impugned order on grounds that the impugned order is illegal, suffers from serious infirmities and irregularities, and shows non-application of mind. The trial court wrongly disregarded the petitioner’s claim about the respondents’ other properties. The impugned order is legally and factually unsound as the trial court did not address all the triable issues raised by the petitioner. The respondents falsely claimed the extent of property no. 1/1560 as measuring 210 square yards by including property bearing no. 1560/A whereas the tenanted premises actually measures only 149 square yards and the trial court did not acknowledge that properties bearing nos. 1/1560 and 1560/A are separate properties. The trial court erred in holding that if there is accession by RC.REV. 491/2019 Page 13 encroachment, the tenant must surrender such accession together with the leased premises without appreciating the fact that possession of property bearing no. 1560/A was independent of the tenancy with respect to the tenanted premises. The trial court failed to appreciate that the only document of alleged ownership was a consent decree obtained by virtue of a settlement deed and the trial court ought to have called for the record of the suit bearing no. CS(OS) 109/2008 to verify whether the respondents had filed documents of ownership in the said suit. The trial court failed to appreciate that the petitioner was a tenant of the Custodian of Evacuee Property since 1948 whereas the said property was allegedly acquired by Ramesh Chander Nijhawan in 1961. The respondents pleaded proposed expansion of business of the respondent no. 2 but no details of the alleged business have been provided. The petitioner also raised several other grounds and prayed that the impugned order passed by the trial court be set aside and the petitioner be granted leave to defend the eviction petition.
8. The respondents filed a reply to the present revision petition wherein they denied all the averments and contentions of the RC.REV. 491/2019 Page 14 petitioner. The petitioner has admitted the relationship of landlordtenant between the parties. The petitioner had attempted to be impleaded as a party before this Court in the suit for partition decided on 20.02.2014 but its application under section 151 CPC was dismissed as withdrawn. The respondent no. 1 is in dire need of the tenanted premises for setting up her office. The respondents no. 2 and 3 have occupied half of 1st and 2nd floor of the property bearing no. 1562 1/2, Church Road, Kashmere Gate, Delhi–110006 and helping the respondent no. 1 in maintaining and stocking the law journals published by her and the said area is insufficient for the aforesaid purpose. The petitioner was not allotted shop bearing no. 1/1560, Church Road, Kashmere Gate, Delhi–110006 as a tenant by the Custodian of Evacuee Property by way of allotment letter dated 08.07.1948 and the said letter is manipulated and fabricated, therefore it was never produced before the trial court. The petitioner was never in possession of an independent plot admeasuring 42 sq. meters behind the said tenanted premises. The petitioner forged and fabricated false property tax receipts of the tenanted premises. The petitioner was inducted in the said premises only as a tenant by Late RC.REV. 491/2019 Page 15 Chaman Lal Nijhawan. The respondents also denied the other contentions and grounds which are raised by the petitioner in the present petition and prayed that the petition be dismissed.
9. The counsel for the petitioner advanced oral arguments and also filed written submissions. He argued that the respondents have mala fide included a separate property i.e. 1560/A as a part of the tenanted property i.e. 1/1560, Church Road, Kashmere Gate, Delhi by filing a false site plan. The property bearing no. 1560/A abuts the tenanted premises at the back having separate entry and exit, passage and address and is in the slum area behind the Church Road building. The property no. 1560/A is a separate property and is in occupation of the petitioner/promoter of the petitioner since 1948 as owner by way of adverse possession and the respondents have no concern with property no. 1560/A. The property no. 1560/A is being assessed separately for the purposes of house tax and the petitioner is paying house tax in its own name. The property tax records of property no. 1/1560 show its area as 125 sq. meters. The respondents have wrongly included a separate property as a part of the tenanted premises which entitles the petitioner for grant of leave to defend. RC.REV. 491/2019 Page 16 9.[1] The decree for partition dated 20.02.2014 passed by this Court in CS(OS) 109/2008 is mandatorily required to be stamped. The present case is a case of additional accommodation. There is no proof of the respondent no.1 being involved in the publication business of the respondents. The respondent no. 2, who stated that he wanted to expand his business, did not file any document to demonstrate existence of business and capacity to expand the said business. The respondent no. 3 who claims to be unemployed did not provide any details as to what business she wanted to start. 9.[2] The trial court despite noticing the ratio of the judgment titled as Deena Nath V Pooran Lal, (2001) 5 SCC 705 had failed to correctly apply the said ratio to the present case. The issue of the petitioner occupying a separate property and the respondents being entitled to evict the petitioner therefrom could not have been adjudicated summarily especially when the respondents did not file a single document to show the area of the tenanted premises. The reliance of the trial court on section 108 (d) of the Transfer of Property Act, 1882 also gives rise to a triable issue. The petitioner had raised several triable issues regarding bonafide requirement as RC.REV. 491/2019 Page 17 such leave to defend ought to have been granted and the impugned order is liable to be set aside.
10. The counsel for the respondents advanced oral arguments and filed written submissions as well. The counsel for the respondents argued that the petitioner has admitted relationship of landlords and tenant between the parties as the petitioner had filed two petitions under section 27 of the Act for deposition of rent in favour of the respondents. The petitioner has illegally manipulated self-assessed property/house-tax receipts in respect of one shop having 02 doors with backside verandah on the ground floor forming part of property bearing no. 1560 @ 1/1560, Church Road, Kashmere Gate, Delhi–
110006. The documents placed before the trial court by the petitioner mention the address of the premises as 1/1560, Church Road, Kashmere Gate, Delhi–110006. 10.[1] The counsel for the respondents referred section 108 (d) of the Transfer of Property Act, 1882 which provides that if during the continuance of the lease any accession is made to the property, such accession shall be deemed to be comprised in the lease and said legal proposition was also laid down in RC REV. 370/2017 titled as RC.REV. 491/2019 Page 18 Mukesh Nigam & Another V Arun Kumar Khandelwal & Others decided on 18.08.2017. The counsel for the respondents also referred Chapsibhai Dhanjibhai Danad V Purushottam, (1971) 2 SCC 205 wherein it was held that if accession is by encroachment and the tenant acquires title thereto by prescription, he must surrender such accession together with leased premises to the landlord. 10.[2] The respondent no.1 is in dire need of the premises in question for her office. The respondents no. 2 and 3 have occupied half of 1st and 2nd floor of the property bearing no. 1562 1/2, Church Road, Kashmere Gate, Delhi–110006 and helping the respondent no.1 in maintaining and stocking the law journals published by her and the said area is insufficient for the aforesaid purpose. The respondent no.1 is aged about 84 years and suffering from Leukaemia and acute arthritis and does not have any other suitable premises on the ground floor where she can set up her office. The respondent no.2 requires the premises in question to expand the business. The respondent no.3 requires the premises in question to start her office/showroom. 10.[3] The counsel for the respondents further argued that the respondents have clearly established their bona fide need regarding RC.REV. 491/2019 Page 19 the tenanted premises and the petitioner has not raised any triable issue which would require evidence to prove. The counsel for the respondents also relied on Ambika Savartiya & others V Sanjay Sharma & others, Civil Appeal No. 7360/2016; Bega Begum & others V Abdul Ahad Khan & others, (1979) AIR 272 and Mohd Ayub V Mukesh Chand, (2012) 2 SCC.
11. The trial court in the impugned order mentioned that proviso (e) to section 14 (1) of the Act is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bona fide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso (e) of the section 14 (1) of the Act are that the tenanted premises are bonafide required by the landlord either for himself or for his family member and they do not have any other reasonable suitable accommodation. The trial court referred Deena Nath V Pooran Lal, (2001) 5 SCC 705 wherein the Supreme Court observed as under: The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which RC.REV. 491/2019 Page 20 means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The „bonafide requirement‟ must be in present and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in subsection (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is duty-bound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable non-residential accommodation in his occupation in the city/town is available. The judgment/order of the court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind that statutory mandate incorporated in Section 12(l)(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bona fide requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment. RC.REV. 491/2019 Page 21
12. Section 14 (1) (e) of the Act reads as under:
14. Protection of tenant against eviction: (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:xxx xxx xxx (e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation. Explanation.–For the purposes of this clause, "premises let for residential purposes" include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes. 12.[1] The Supreme Court in various judgments elaborated scope of section 14 (1) (e) of the Act. The Supreme Court in Sarla Ahuja V United India Insurance Co. Ltd., (1998) 8 SCC 119 held as under:
14. The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation, the Rent Controller shall not proceed on the presumption that the requirement is not RC.REV. 491/2019 Page 22 bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself. 12.[2] The Supreme Court in Inderjeet Kaur V Nirmal Singh, (2001) 1 SCC 706 discussed the relevant factors to be considered at the time of consideration of an application for grant of leave to defend and held as under:
9. Chapter III-A deals with summary trial of certain applications expressly stating that every application by a landlord for recovery of possession on the ground specified in clause (e) of the proviso to sub-section (1) of Section 14 of the Act, or under Section 14-A or 14-B or 14-C or 14-D shall be dealt with in accordance with the special provisions prescribed in Section 25-B of the Act. As per the broad scheme of this Chapter a tenant is precluded from contesting an application filed for eviction on the grounds mentioned in the aforementioned provisions unless he obtains leave from the Controller to contest the eviction petition. In default of obtaining leave to defend or leave is refused to him an order of eviction follows. It appears recourse to summary trial is adopted having due regard to nature of the grounds on which the eviction is sought with a view to avoid delay so that the landlord should not be deprived or denied of his right to immediate possession of premises for his bona fide use. RC.REV. 491/2019 Page 23
10. At the same time, it is well settled and accepted position in law that no one shall be subjected to suffer a civil consequence like eviction from a premises resulting in hardship to him without providing adequate and effective opportunity to disprove the case against him and establish his case as pleaded.
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 fidely 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. We are of the considered view that at a stage when the tenant seeks leave to defend, it is enough if he prima facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. It would not be a right approach to say that unless the tenant at that stage itself establishes a strong case as would non-suit the landlord, leave to defend should not be granted when it is not the requirement of Section 25-B(5). 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 RC.REV. 491/2019 Page 24 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. It is well to remember that when leave to defend is refused, serious consequences of eviction shall follow and the party seeking leave is denied an opportunity to test the truth of the averments made in the eviction petition by cross-examination. It may also be noticed that even in cases where leave is granted provisions RC.REV. 491/2019 Page 25 are made in this very Chapter for expeditious disposal of eviction petitions. Section 25-B(6) states that where leave is granted to a tenant to contest the eviction application, the Controller shall commence the hearing of the application as early as practicable. Section 25-B(7) speaks of the procedure to be followed in such cases. Section 25-B(8) bars the appeals against an order of recovery of possession except a provision of revision to the High Court. Thus a combined effect of Sections 25-B(6), (7) and (8) would lead to expeditious disposal of eviction petitions so that a landlord need not wait and suffer for a long time. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims. 12.[3] The Supreme Court in Abid-Ul-Islam V Inder Sain Dua,
15. Section 14(1)(e) carves out an exception to the regular mode of eviction. Thus, in a case where a landlord makes an application seeking possession of the tenanted premises for his bona fide requirement, the learned Rent Controller may dispense with the protection prescribed under the Act and then grant an order of eviction. Requirement is the existence of bona fide need, when there is no other “reasonably suitable accommodation”. Therefore, there has to be satisfaction on two grounds, namely, (i) the requirement being bona fide, and (ii) the non-availability of a reasonably suitable residential accommodation. Such reasonableness along with suitability is to be seen from the perspective of the landlord and not the tenant. When the learned Rent Controller comes to the conclusion that there exists a bona fide need coupled with the satisfaction that there is no reasonably suitable residential accommodation, the twin conditions mandated under Section 14(1)(e) stand satisfied. RC.REV. 491/2019 Page 26 xxx xxx xxx
18. For availing the leave to defend as envisaged under Section 25-B(5), a mere assertion per se would not suffice as Section 14(1)(e) creates a presumption subject to the satisfaction of the learned Rent Controller qua bona fide need in favour of the landlord which is obviously rebuttable with some material of substance to the extent of raising a triable issue. The satisfaction of the Rent Controller in deciding on an application seeking leave to defend is obviously subjective. The degree of probability is one of preponderance forming the subjective satisfaction of the Rent Controller. Thus, the quality of adjudication is between a mere moonshine and adequate material and evidence meant for the rejection of a normal application for eviction.
19. Before a presumption is drawn, the landlord is dutybound to place prima facie material supported by the adequate averments. It is only thereafter, the presumption gets attracted and the onus shifts on the tenant.
13. The petitioner pleaded that the respondents are not the owners of the tenanted premises. The respondents are claiming ownership of the tenanted premises on the basis of an unstamped and unregistered consent decree to establish their ownership in respect of the tenanted premises. The counsel for the petitioner also stated that the decree of partition dated 20.02.2014 passed in CS(OS) 109/2008 as relied upon by the respondents to establish their title was mandatorily required to be stamped. RC.REV. 491/2019 Page 27 13.[1] The trial court in the impugned order observed that the respondents, to prove their ownership in respect of the tenanted premises, have relied on the copy of the settlement agreement dated 12.02.2014 which was approved by this Court vide order dated 20.02.2024 passed in partition suit bearing no. CS(OS) 109/2008 titled as Rajinder Nijhawan V Vinod Nijhawan and Others and out of these documents, Rajinder Nijhawan, who was the predecessor-in-interest of the respondents became the exclusive owner of the property in question including the tenanted premises and other properties as mentioned in the Settlement dated 12.02.2014. The trial court has also observed that the respondents being the legal heirs of Rajinder Nijhawan, have become the co-owners of the properties left by late Rajinder Nijhawan including the tenanted premises by operation of law. The trial court also placed reliance on two DR petitions filed under section 27 of the Act by the petitioner against the respondents no. 1 and 2 for deposition of the rent in respect of the tenanted premises. The petitioner has also placed on record a copy of the letter dated 26.05.2014 which was sent by the petitioner to the respondents no. 1 and 2 asking the details of RC.REV. 491/2019 Page 28 the bank account for deposition of the rent every month. The trial court in the impugned judgment also relied upon other documents. The trial court has also observed that the petitioner is also estopped as per section 116 of the Indian Evidence Act, 1872 from challenging the title of the respondents in respect of the tenanted premises. The trial court accordingly held that the ownership of the respondents qua the tenanted premises as well as the existence of landlord and tenant relationship between the parties stood duly proved. 13.[2] The landlord is required to establish that he has a better title in respect of the tenanted premises than the tenant for the purpose of section 14 (1) (e) of the Act. The respondents in the present case have derived their title out of the Settlement Agreement dated 12.02.2014 which was approved by this Court vide consent order dated 20.02.2014 passed in partition suit bearing no. CS(OS) 109/2008 titled as Rajinder Nijhawan V Vinod Nijhawan and Others. The petitioner has also filed two petitions under section 27 of the Act against the respondents no. 1 and 2 for deposition of rent. Accordingly in these circumstances the trial court has rightly RC.REV. 491/2019 Page 29 observed that the respondents are the owners for the purpose of section 14 (1) (e) of the Act in respect of the tenanted premises and there exists a relationship of landlord and tenant between the parties.
14. The petitioner also contended and as also argued by the counsel for the petitioner that the back portion in occupation of the petitioner which is shown as an open verandah in the site plan filed by the respondents is a separate property which is being occupied/owned by the petitioner since the year 1948 being property no. 1560/A. The petitioner has also disputed the site plan filed by the respondents and also filed its own site plan. The respondents have submitted that the entire property in question has been under the ownership of the respondents as per the Settlement Agreement dated 12.02.2014 approved by the Court vide order dated 20.02.2014 passed in partition suit bearing no. CS(OS) 109/2008 titled as Rajinder Nijhawan V Vinod Nijhawan and Others. 14.[1] The trial court observed that the perusal of the Settlement Agreement dated 12.02.2014 also reflects that the property bearing no.1560, Church Road, Kashmere Gate, Delhi was under occupation of the petitioner as a tenant on monthly rent of Rs.200/- and Rajinder RC.REV. 491/2019 Page 30 Nijhawan, predecessor-in-interest of the respondents, would alone be entitled to release of the rent deposited by the petitioner in the court. The trial court has also observed that the petitioner has failed to file any title documents to show its ownership of the portion mentioned as property no. 1560/A by the petitioner in his site plan as a separate property owned by him. The trial court did not accept the property tax challan in respect of the property bearing no. 1560/A as well as 1/1560 paid by the petitioner and observed that merely making payment of property tax vide two separate numbers by the petitioner does not alter the relationship of the landlord and tenant between the parties. The trial court has also relied upon the judgments passed in Mukesh Nigam & Another V Arun Kumar Khandelwal & Others (supra) and Chapsibhai Dhanjibhai Danad V Purushottam (supra). It was observed in Mukesh Nigam & Another V Arun Kumar Khandelwal & Others (supra) that as per section 108 (d) of Transfer of Property Act, 1882, if any accession is made to the leasehold property during the continuance of the lease, then such accession is deemed to be comprised in the lease. The Supreme Court in Chapsibhai Dhanjibhai Danad V Purushottam RC.REV. 491/2019 Page 31 (supra) held that if accession is by encroachment and the tenant acquires title thereto by prescription then he must surrender such accession together with leased premises to the landlord. 14.[2] The petitioner has not placed any relevant document which can reflect that the properties bearing nos. 1/1560 and 1560/A are two separate properties and property no. 1560/A is under the ownership of the petitioner as claimed by the petitioner. The trial court has rightly observed that merely making the payment of property tax separately in respect of property bearing nos. 1/1560 and 1560/A does not confer any ownership, right, title or interest in respect of the petitioner regarding property no. 1560/A. It is also an accepted proposition of law that if any accession is made in the tenanted premises, then the accession is also liable to be vacated in pursuance of the eviction order. The arguments as advanced by the counsel for the petitioner are without any force.
15. The counsel for the petitioner also raised an objection that the eviction petition was liable to be dismissed on the ground of non-joinder of necessary parties as all the legal heirs of late Rajinder Nijhawan were not impleaded in the eviction petition. It was further RC.REV. 491/2019 Page 32 stated that Simran Joshi was not included as one of the petitioners in the eviction petition though she was a party to the Settlement Deed before this Court. The trial court after relying upon various pronouncements, observed that even a co-owner can maintain an eviction petition against the tenant. There cannot be any dispute in respect of the said proposition of law and as such the argument advanced by the counsel for the petitioner that the eviction petition was liable to be dismissed due to non-joiner of necessary parties is misplaced and misconceived.
16. The respondents in eviction petition pleaded that they need the tenanted premises bonafide for the requirement of the respondent no. 1 who is publishing law journals under the name and style of International Law Book Company and the respondents no. 2 and 3 who are in occupation of half of the 1st floor and 2nd property bearing no. 1562 1/2, Church Road, Kashmere Gate, Delhi are helping the respondent no. 1 in publishing of law journals but the said accommodation is not sufficient for the respondents. It is also stated that the respondent no. 3 at present is unemployed and wants to open her office and showroom in the tenanted premises being RC.REV. 491/2019 Page 33 situated at the ground floor. It is also submitted that no other premises is available to the respondent no.3 where she can start her office and showroom. The respondents also pleaded that the respondent no.1 is a senior citizen aged about 79 years and is suffering from various ailments from the last 20 years. The respondents are not having any other suitable accommodation available with them. The petitioner pleaded that the respondent no. 1 is running an office in the name and style of International Law Book Company since long and is having ample space available in the property to manage all work related to the publication of law journals. The petitioner also stated that the respondent no. 3 is a freelance editor working with various publication houses and she does not need any accommodation. The petitioner has also denied the bonafide requirement of the respondent no. 2. 16.[1] The trial court after referring and relying on the medical records of the respondent no.1 dated 07.10.2017 observed that the respondent no. 1 being an old lady cannot be forced to perform her commercial activities from her car or to take pain of climbing the stairs when she can easily set up her office at the ground floor. The RC.REV. 491/2019 Page 34 trial court has also observed that the respondent no. 2 also wants to expand the business from the tenanted premises to earn his livelihood and the petitioner being a tenant cannot dictate the terms to the respondent no. 2 regarding the expansion of business. The trial court also believed that the respondent no. 3 is unemployed and wants to open her office and showroom in the tenanted premises. The trial court, after relying upon Sarla Ahuja V United India Insurance Co. Ltd., (1998) 8 SCC 119, observed that the respondents need tenanted premises bonafide for their requirement. 16.[2] The respondent no. 1 is an old aged lady and suffering from various ailments and cannot be forced to climb the stairs. The respondent no. 1 is having legitimate expectation to run her office of publishing law journals from the ground floor of the property and she cannot be forced to climb stairs. The respondent no. 1 due to her medical and physical condition is seeking eviction of the petitioner being the tenant and her requirement cannot be termed as malafide and is perfectly bonafide. The petitioner also cannot dictate the respondent no. 2 from where and how to start and expand his business. The respondent no. 3 at present is a freelance editor and RC.REV. 491/2019 Page 35 now wants to set up her own office and showroom and her requirement is also appearing to be genuine. The Supreme Court in Sait Nagjee Purushotham & Co. Ltd. V Vimalabai Prabhulal & Others, (2005) 8 SCC 252 held that it is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business. The Supreme Court in Anil Bajaj V Vinod Ahuja, (2014) 15 SCC 610 held that it is not for the tenant to dictate to the landlord as to how the property belonging to the landlord should be utilized by him for the purpose of his business and if the landlord is doing business from various other premises cannot foreclose his right to seek eviction from the tenanted premises so long as he intends to use the said tenanted premises for his own business. The contentions of the petitioner raised to negate bonafide requirement of the respondents and arguments advanced by the counsel for the petitioner are misplaced and cannot be accepted. The respondents are able to establish their bonafide requirement in respect of tenanted premises and the same cannot be doubted. The respondents being the RC.REV. 491/2019 Page 36 owners/landlords of the tenanted premises are within their rights to enjoy the tenanted premises to satisfy their genuine bonafide needs and requirements.
17. The trial court has rightly considered all the facts and has taken into consideration the rival contentions of the parties in the right perspective and has also rightly considered the essential components of section 14(1) (e) of the Act while passing the impugned order which is well reasoned and supported by case laws. The petitioner has failed to raise any triable issue in its application for leave to defend and the accompanying affidavit. The impugned order does not call for any interference from this Court. Hence, the present revision petition is dismissed along with pending applications.
SUDHIR KUMAR JAIN (JUDGE) SEPTEMBER 20, 2024 SK/AM