In this revision petition, the landlord sought to quash the Additional Rent Controller's order allowing a tenant leave to defend an eviction petition. The Controller allowed leave because the landlord needed the premises to run a school in India despite living in the USA. The revision was dismissed.
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Signature Not Verified RC.REV.284l20rr Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data i s as p er the physical file and no page is missing.
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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.
(iD 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.
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the petitioner has filed eviction petition against all othertenants 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 filmsand 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 thepremises inquestion,the learned Additional Rent Controller has dealt with the plea raised by the respondentthat 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 applicanthas stated that he intends to permanently move backto 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 controlby 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 isthatthe premises are not required by him for his immediateuse; whereas, the contention of the applicant is that hehas bona fideintention and determinationto open a school in the
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premises once the same is got vacated from therespondent and other tenants. In the considered opinionof the Court in the light of the contents of the affrdavits ofthe respondent and the applicant, there is a triablepoint regardingthebona fideof the applicantin openinga school and such bonafide intention cannot be tested unless theapplicant is examined in the witness box. Obviously, there isa triablepoint on this aspect of the case."
It has been submitted by thelearned counsel for the petitioner that the aforesaid reasoninggiven by the learnedAdditional Rent Controllercannotbe sustained at all and the leave applicationshould have beenrejected on the ground that it did not disclose any triable issueat all. Learned counselfor the petitioner has placed reliance on onejudgment ofthe Hon'bleSupremeCourt in "Sarla Ahuja Vs. tlnited India InsuranceCompany Ltd.u, (1998) I SCC 119 and one decision of this Court in "sarwsnDassBange V* Ram Prakash",2010 IV AD (DELHI) 2s2.
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I have considered the avermentsmadein the eviction petitionas wellas the pleas raised by the respondentwhileseeking leave to defend and also the aforesaid reasoning of thelearnedAdditional Rent Controller to the effect that the respondent has raised triable issueregarding bona fidereqtirement of the petitioner. I do not find any material inegularity orperversrty in the said reasoning of the AdditionalRent Controllerjustifiingany interferenceby this Court in exercise of its revisionaljurisdiction.The judgmentscited by the counsel for the petitioner were rendered onthe facts ofthosecases and as far as the guidelines laid down by the Supreme Courtwhich have to be kept in mind by the Courts while decidingsuch like leave applicationsfiled by the tenantsare concerned the trial Court hasafter refening to variousjudgments passed the impugned order keeping in mind thoseguidelines. In one of the judgments of the supreme court in"Inderjeet Kaurvs. Nirpal singh", JT 2001 (1) 308, which has been relied upon by thelearnedAdditional Rent Controlleralso in the present case in the impugned order, the landlordand his familywere settled in United Kingdom and the evictionpetitionunder Sectionla(lXe) of the Delhi Rent
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Control Act was filed bythe landlordagainsthis tenant in his propertyin Delhi alleging that though he wasearlier permanently settled in the United Kingdom but he had returned back to Indiato settle here and that his son was still there but he had also decided to retum toIndia after winding up his affairsin the United Kingdom. The tenant inthat case hadsought leaveto defend the eviction petition and one of the pleas taken byher was that the landlordand his family were permanently settled in the UnitedKingdomandhad no intentions of coming back to India. The AdditionalRent Controller had declined leave to defend to the tenant and this Court alsodismissed her revision petition filedagainstthe order of the Additional Rent Controller.The tenant took the matter to the Supreme Court by the Supreme Courtwhere the orders of the AdditionalRent Controllerand this Court were set aside bymaking the followingobservations in para no. 17 of judgment:
" 17. With the background, we now turnto the factsof the case in hand. It is clear fromthe reading of the order of the Addl. RentController that he has taken pains towritean elaborateorder as if he was writingan order after a full-,dressedtrial of evictionpetition he has considered merits of the iespeciivecontentionsat the stageof grantingleoveto defend under Section iSn O withoutkeeping in mind the scope of the provisionsand statutory duty cast on him.He exceeded the jurisdictionvested in him in refusing leave to defend tothe appellant. It appears to us that he did not ficusiis attention to the scope and contentof Section 258(5). Having regard to the facts staedand groundsraised in the affidavit filedby the appellant tttiingleave to defend which we have already narratedabove, it is not possible totakea view that no triable issue arose forconsideration. The ficts stated inthe affidavitof the appellant in support of his application seeking leave todefendprima faciedo disclose that the respondentwould be diintitled to obtainan order forthe recoveryof possessionof the premises from the appellantparticularly whenother cases are pending between theparties and defencedoes not appear to be frivolousor untenable on the face of it.The Addl.Rent Controllerhasactedwith material irregularity and committeda rnanifesterror in acceptingthecase of the respondent-landlordwhen the factswere seriously disputed andthe coryectneis or otherwise ofthe documentsrequiredto be examined. Whether the suitpremises wasused forresidential'cum-commercial purposes from the inceptionand whetherthe respondent and ltisson and -other members of the famity are pernxanently and contfurtably settled in U.K. and whether therequirementof thepremisesby the respondent was bona fide, arethe materswhich could not be adiudicatedas hasbeen done by the Addt. Rent Controllerat the stageof dealingwith the application to grant leave to defend. Inthis viewof the matter, we have no hesitationto say that the ord-erpassed by the Addl. Rent Controller refusing leave to difend to the appellant cannotbe sustained.Unfortunately,theHigh Court also has affirmed it withouttaking into considerationthecorrect legal
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-the position indicated abovehavingregardto the factsof the case. We are of view that the Addl.Rent Controller and the High Court bothwere in error in refusing tograntleave to the appellontto contestthe eviction petition."
The afore-said observationsof the SupremeCourt fully support the case of the tenant herein. Infact, in the presetcase,the landlord undisputedlyis still living in U.S.A.
This revisionpetition is accordinglydismissedin limine.The judgments cited by the counsel forthe petitioner were renderedon the facts of thosecases and so of no help tothe Petitioner.
Leamed counsel forthe petitionernow submits that at leastthe learned Additional Rent Controllershould be directed to disposeof the eviction petitionat the earliestpossible considering the fact that it is a case of bonafiderequirement of the landlord. It isneedlessto state and it is hoped also thatthe learnedtrial Court shall makeall effortsto dispose of the eviction petition at the earliest possible.
AUGUST 03' 2011/Pg
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2 issues framed by the court
Whether the Additional Rent Controller committed material irregularity in allowing leave to defend based on the landlord's bona fide requirement to run a school.
Whether a landlord based in the USA has a bona fide requirement to possess premises in Delhi for alleged future educational purposes.
Colour shows how this judgement treated each authority
Sarla Ahuja Vs. United India Insurance Company Ltd.Referred¶23
(1998) I SCC 119 · Who else cites this
Sarwan Dass Bange V. Ram PrakashReferred¶23
2010 IV AD (DELHI) 252
Inderjeet Kaur vs. Nirpal SinghExplained¶25
JT 2001 (1) 308 · Who else cites this
1 provisions across 1 enactments
Ashkan Harsh Nayyar
Dr. Sushila Nayar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
