Revision against an Additional Rent Controller's order allowing a tenant to defend an eviction petition. The Controller held a triable issue existed regarding the landlord's bonafide need for the premises given his afterschools USA status. The revision was dismissed in limine, with the landlord living abroad not precluding a trial on merits.
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Signature Not Verified RC.REV. 292/2011 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.
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 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.
MO
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the petitioner has filed eviction petition against all other tenants as well.
The respondent after entering appearance sought leave to defend eviction petition as required under Section 25-13(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 Jide requirement of the petitioner in respect of the premises in question, the learned Additional Rent Controller has dealt with the plea raised by the respondent that the petitioner does not require the premises bonaJlde 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 JIde use and has no immediate plan to come to Delhi. In this regard, the attention of the Court has been drawn on the contents of the application and the affidavit of applicant filed in reply to the affidavit of the respondent. In his application, the applicant has stated that he intends to move back to India once he can make his school for acting, drama and performing arts, a sustainable business. Further, in paragraph no. 17 of his counter affidavit, the applicant has 4 stated that he intends to permanently move back to India in the next 5-6 years. From the contents of the application as well as the counter affidavit, it appears that the applicant has no immediate plan to move back to India. From the counter 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 of the applicant is that he has bona JIde intention and determination to open a school in the
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premises once the same is got vacated from the respondent and other tenants. In the considered opinion of the Court in the light of the contents of the affidavits of the respondent and the applicant, there is a triable point regarding the bona Jide of the applicant in opening a school and such bonafide intention cannot be tested unless the applicant is examined in the witness box. Obviously, there is a triable point on this aspect of the case."
It has been submitted by the learned counsel for the petitioner that the aforesaid reasoning given by the learned Additional Rent Controller cannot be sustained at all and the leave application should have been rejected on the ground that it did not disclose any triable issue at all. Learned counsel for the petitioner has placed reliance on one judgment of the Hon'ble Supreme Court in "Sarla Ahuja Vs. United India Insurance Company Ltd.", (1998) 8 SCC 119and one decision of this Court in "Sarwan Dass Bange Vs. Ram Prakash", 2010 IVAD (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 of the learned Additional Rent Controller to the effect that the respondent has raised triable issue regarding bona JIde 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 Court in exercise of its revisional jurisdiction. The judgments cited by the counsel for the petitioner were rendered on the facts of those cases and as far as the guidelines laid down by the Supreme Court which have to be kept in mind by the Courts while deciding such like leave applications filed by the tenants are concerned the trial Court has after referring to various judgments passed the impugned order keeping in mind those guidelines. In one of the judgments of the Supreme Court in "Inderjeet Kaur vs. Nirpal Singh ", JT 2001 (1) 308, which has been relied upon by the learned Additional Rent Controller also in the present case in the impugned order, the landlord and his family were settled in United Kingdom and the eviction petition under Section 14(l)(e) of the Delhi Rent
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Control Act was filed by the landlord against his tenant in his property in Delhi alleging that though he was earlier permanently settled in the United Kingdom but he had returned back to India to settle here and that his son was still there but he had also decided to return to India after winding up his affairs in the United Kingdom. The tenant in that case had sought leave to defend the eviction petition and one of the pleas taken by her was that the landlord and his family were permanently scttled in the United Kingdom and had no intentions of coming back to India. The Additional Rent Controller had declined leave to defend to the tenant and this Court also dismissed her revision petition filed against the order of the Additional Rent Controller. The tenant took the matter to the Supreme Court where the orders of the 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 the facts of the case in hand. It is clear from the reading of the order of the Add!. Rent Controller that he has taken pains to write an elaborate order as if he was writing an order afier a full-dressed trial of eviction petition he has considered merits of the respective contentions at the stage of granting leave to defend under Section 25B (5) without keeping in mind the scope of the provisions, and statutory duly cast on him. He exceeded the jurisdiction vested in him in refusing leave to defend to the appellant. It appears to us that he did not focus his attention to the scope and content of Section 25B(5). Having regard to the facts staed and grounds raised in the affidavit filed by the appellant seeking leave to defend which we have already narrated above, it is not possible to take a view that no triable issue arose for consideration. The facts stated in the affidavit of the appellant in support of his application seeking leave, to defend prima facie do disclose that the respondent would be disentitled to obtain an order for the recovery of possession of the premises from the appellant particularly when other cases are pending between the parties and defence does not appear to be frivolous or untenable on the face of it. The Add!. Rent Controller has acted with material irregularity and committed a manifest error in accepting the case of the respondent-landlord when the facts 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 purposes from the inception and whether the respondent and his son and other members of the family are permanently and comfortably settled in UK. and whether the requirement of the 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 of dealing with the application to grant leave to defend In this view of the matter, we have no hesitation to say that the order passed by the Addl. Rent Controller refusing leave to • �defend to the appellant cannot be sustained Unfortunately, the High Court Page 5 of 6
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also has affirmed it without taking into consideration the correct legal position indicated above having regard to the facts of the case. We are of the view that the Addi. 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 of the Supreme Court fully support the case of the tenant herein. In fact, in the preset case, the landlord undisputedly is still living in U.S.A.
This revision petition is accordingly dismissed in limine. The judgments cited by the counsel for the petitioner were rendered on the facts of those cases and so of no help to the petitioner.
Learned counsel for the petitioner now submits that at least the learned Additional Rent Controller should be directed to dispose of the eviction petition at the earliest possible considering the fact that it is a case of bonajIde 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 04, 2011/pg
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2 issues framed by the court
Whether there is any material irregularity or perversity in the Additional Rent Controller allowing leave to defend an eviction petition by finding a triable issue regarding bonafide requirement of th
Whether the Supreme Court observations in Inderjeet Kair nobalising the scope of Section 25B are applicable when the landlord is strictly settled abroad.
Colour shows how this judgement treated each authority
Sarla Ahuja Vs. United India Insurance Company Ltd.Referred¶20
Sarla Ahuja Vs. United India Insurance Company Ltd., (1998) 8 SCC 119 · Who else cites this
Sarwan Dass Bange Vs. Ram PrakashReferred¶20
Sarwan Dass Bange Vs. Ram Prakash, 2010 IVAD (DELHI) 252
Inderjeet Kaur vs. Nirpal SinghRelied on¶21
Inderjeet Kaur vs. Nirpal Singh, JT 2001 (1) 308 · Who else cites this
Harsh Nayyar
Dr. Sushila Nayar
P.K. Bhasin
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
