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Citation Codes
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citation codes
Case Number
Attorney(S)
  • Mr. K.K Bhuchar, Advocate.
  • Mr. Sanjiv Bahal and Mr. Eklavya Behal, Advocate.
Judges
  • M.L Mehta, J.
Acts
  • U/S 25-B(8) of Delhi Rent Control Act (DRC Act) r/w S. 115 CPC
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Mr. K.K Bhuchar, Advocate.
  • Mr. Sanjiv Bahal and Mr. Eklavya Behal, Advocate.
Judges
  • M.L Mehta, J.
Acts
  • U/S 25-B(8) of Delhi Rent Control Act (DRC Act) r/w S. 115 CPC
See more information ...
Smart Summary

Judgment Summary — Civil Revision Petition (M.L. Mehta, J.)

Factual and Procedural Background

This Civil Revision Petition was filed under Section 25-B(8) of the Delhi Rent Control Act read with Section 115 CPC against an order dated 21.03.2012 of the Learned Senior Civil Judge-cum-Rent Controller which dismissed the petitioner's application for leave to defend in eviction petition E-32/2009.

The eviction petition was filed by the respondent concerning property No. 19, Nizamuddin East, New Delhi, which was let by the predecessor-in-interest of the respondent to the petitioner under a lease dated 01.05.1973 at a monthly rent of Rs. 2,450 for residential purposes. The respondent, who resides in Mumbai with her husband and son, alleged that she and her husband visit Delhi five to six times a year, had no place to stay in Delhi, and required the demised property for herself and family members. The respondent further averred that the first floor of the suit property was occupied by her brother, Mr. Anil Verman, and therefore unavailable to meet the family's requirement.

The learned Rent Controller dismissed the petitioner's leave to defend application; the present revision challenges that dismissal and the finding on leave to defend.

Legal Issues Presented

  1. Whether the learned Rent Controller erred in dismissing the petitioner's application for leave to defend in the eviction petition.
  2. Whether the respondent had satisfactorily proved bona fide requirement of the premises for herself and family, including frequent visits to Delhi and lack of alternative accommodation.
  3. Whether the first floor of the suit premises was in fact occupied by the respondent's brother, and if not, whether that raised a triable issue entitling the petitioner to leave to defend.
  4. Whether, even if the first floor was occupied by the respondent's brother, the brother could be treated as a family member dependent on the respondent for residence (i.e., whether the case was one of family requirement or additional accommodation).
  5. Whether the prima facie material placed by the tenant (petitioner) raised triable issues sufficient to entitle him to cross-examination and adducing of further evidence before final adjudication.

Arguments of the Parties

Petitioner's (Appellant's) Arguments

  • Denied the relationship of landlord and tenant between the parties.
  • Contended that the respondent did not place documentary evidence to prove frequent visits to Delhi, and therefore did not establish bona fide requirement.
  • Asserted that the respondent's brother, Mr. Anil Verman, was permanently settled in Goa and not residing on the first floor of the suit property; to support this, the petitioner produced a Residents Directory showing Mr. Verman as resident at D-251, Defence Colony, New Delhi.
  • Submitted that copies of air tickets produced by the respondent related to a period after filing of the leave to defend application and largely corresponded to the Commonwealth Games period, thus not proving regular prior visits.
  • Contended that the plea that the first floor was occupied by the brother was concocted and that, if the first floor was in fact available, the case would be one of additional accommodation where leave to defend ought to be granted (relying on precedents).

Respondent's Arguments

  • Urged no interference with the reasoned and speaking order of the Rent Controller, asserting that no triable issue was established by the petitioner to merit leave to defend.
  • Maintained that ample proof of bona fide requirement by the landlord existed and therefore the leave to defend rightly deserved dismissal.
  • Relied on Saroj Khemka v. Indu Sharma (2000 (54) DRJ) to support the contention that dismissal of leave to defend was appropriate where the landlord had ample proof.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Dr. S.M. Mishra v. D.D. Malik (2001 (1) SCC 255) Authority cited for the proposition that in cases of additional accommodation leave to defend should be granted. The petitioner relied on this case to argue that leave to defend ought to have been granted; the court referenced it as part of authorities supporting leave in additional accommodation cases.
Santosh Devi v. Chand Kiran (2001 (8) Scale 346) Held that where the case is one of additional accommodation, the question of need must be decided on merits at a full trial. The court relied on this decision to conclude that the respondent's claimed need required adjudication at trial and supported granting leave to defend.
Saroj Khemka v. Indu Sharma (2000 (54) DRJ) Authority relied upon to support dismissal of leave to defend where the landlord has ample proof of bona fide requirement. The respondent relied on this authority; the court noted the reliance but found the Rent Controller erred given triable issues raised by the petitioner.
S.M. Mehra v. D.D. Mallik (referenced) Held that there is no need for summary procedure in cases of additional accommodation. The court cited this authority to support the proposition that additional accommodation cases require fuller adjudication rather than summary disposal.
Inderjeet Kaur v. Nirpal Singh (2001) 1 SCC 706 At the leave-to-defend stage, it is sufficient for the tenant to prima facie make out a case by disclosing facts which would disentitle the landlord from obtaining eviction. The court applied this principle to hold that the petitioner had raised a prima facie case and should have been allowed to lead further evidence and cross-examine witnesses.
Charan Dass Duggal v. Brahma Nand (1983) 1 SCC 301 Burden is on the landlord to prove bona fide requirement, especially where landlord resides outside Delhi; the landlord's assertion must be tested. The court invoked this precedent to emphasize that the respondent had not discharged the burden of proof of bona fide requirement to the court's satisfaction.
Nandlal Goverdhandhas & Co. v. Samratbai Lilachand Shah (AIR 1981 Bom 1) Held that bona fide requirement is a state of mind and, unless the claimant is subjected to cross-examination, requirement without evidence cannot be established. The court relied on this proposition to stress the necessity of cross-examination and further evidence before accepting the respondent's claim of bona fide requirement.

Court's Reasoning and Analysis

The court undertook a step-by-step analysis of the record and submissions:

  1. Ownership: The court accepted the respondent's title to the suit property based on a will dated 03.08.1970 executed in her favour, rejecting the petitioner's contention that the respondent was not the owner (para 8).
  2. Triable Issues as to Occupancy: The court reviewed the petitioner's material disputing the brother's occupancy of the first floor. It observed that the mobile phone bills produced by the petitioner showed roaming charges for the brother's phone, which cast doubt on his alleged long-term residence at the suit premises (para 9). The court held that this was an important triable issue necessitating cross-examination and additional evidence.
  3. Legal Characterisation — Family Member vs Additional Accommodation: The court reasoned that even if the brother were occupying the first floor, a brother of a married woman cannot be treated as a family member dependent on her for residence; such a situation would constitute a claim for additional accommodation rather than family requirement (para 10).
  4. Application of Authority: The court relied on the principle in Santosh Devi and S.M. Mehra that additional accommodation cases ought to be tried fully rather than summarily; it also relied on Inderjeet Kaur to hold that a tenant need only make out a prima facie case at the leave-to-defend stage (paras 10–11).
  5. Failure of Respondent to Discharge Burden: The court noted that the respondent's proof of frequent visits was limited to air tickets from the Commonwealth Games period and there was no documentary evidence of visits prior to filing the eviction petition. Applying Charan Dass Duggal and the Bom. High Court authority, the court held that the burden to prove bona fide requirement was not satisfactorily discharged and that the respondent's assertion required testing by cross-examination (para 12).
  6. Procedural Error by Rent Controller: The court found that the Rent Controller erred in refusing the petitioner the opportunity to adduce additional evidence on the Defence Colony residence directory issue and in prematurely rejecting triable issues raised by the petitioner (para 11, 14–16).
  7. Conclusion from Analysis: Given the above, the court concluded that substantial triable issues were raised which should have led to the grant of leave to defend; accordingly, the impugned order dismissing leave to defend was illegal (paras 15–16).

Holding and Implications

Core Ruling: The Civil Revision Petition was allowed: the impugned order dismissing the petitioner's application for leave to defend was set aside and the petitioner was granted leave to contest the eviction petition (paras 16–17, 18).

Direct consequences ordered by the court:

  • The impugned order allowing the eviction petition while dismissing leave to defend was held to suffer from illegality and was set aside.
  • The petitioner was granted leave to contest the eviction petition.
  • The parties were directed to appear before the learned Senior Civil Judge-cum-Rent Controller on 31.7.2012 (para 16).

Broader implications: The opinion applies settled principles on leave to defend, burden of proof of bona fide requirement, and the need for full trial in additional accommodation cases. The judgment does not purport to create a new legal precedent beyond its application of existing authorities; it resolves the matter by setting aside the impugned order and granting leave to defend to the petitioner.

Show full summary ...

    Accebeen Steel Pvt. Ltd. & Ors. Petitioners v. Jai Shree Khanna

    M.L MEHTA, J.

    1. The present Civil Revision Petition has been preferred U/S 25-B(8) of Delhi Rent Control Act (DRC Act) r/w S. 115 CPC against the order dated 21.03.2012 passed by Learned Senior Civil Judge-cum-Rent Controller wherein, the leave to defend application filed by the petitioner in eviction petition E-32/2009 was dismissed.

    2. The eviction petition was filed by the respondent in respect of property bearing No. 19 Nizamuddin East, New Delhi. The suit property was let out by predecessor in interest of respondent to the petitioner vide lease deed dated 01.05.1973 The demised property was let out at the monthly rent of Rs. 2450/- for residential purposes. In the eviction petition, it was submitted by the respondent that she lives with her husband and son in Mumbai in a tenanted flat. Respondent's husband is the Director of M/s Paramount Dyes and Chemicals Private Ltd. with its offices at Delhi and Gurgaon whereas the respondent is proprietor of M/s Tribaels India which is a firm dealing in carpets. It was the respondent's case that she and her husband visit Delhi 5-6 times a year and have no place to stay in Delhi and hence require the demised property for herself as well as for her family members who are dependent upon her for residence. The respondent also averred that the first floor of the suit property was occupied by her brother Mr. Anil Verman and hence the first floor was not available to meet the requirement of their family. It is also submitted that the respondent has no other alternative accommodation in Delhi and thus sought the eviction of the petitioner from the suit property on the ground of bona fide requirement.

    3. In the leave to defend application filed by the petitioner various contentions were raised disputing the alleged bona fide requirement as projected by the respondent. The relationship of landlord and tenant between the parties was denied by the petitioner. It was further submitted that the respondent has not placed on record any document to prove that she and her husband visit Delhi frequently and hence there was absolutely no bona fide requirement of the respondent qua the suit property. Another ground that was put forth by the petitioner in the leave to defend application was that the brother of the respondent Mr. Anil Verman was permanently settled at Goa and neither he nor his family members were living on the first floor of the suit property. To substantiate this contention, the petitioner also submitted that the brother of the respondent owns property No. D-251, Defence Colony, New Delhi and is not dependent on the respondent for the purpose of residence. While rejecting the contentions made by the petitioner the learned Rent Controller observed that the petitioner has not submitted any document to refute the claim made by the respondent regarding the occupancy of the first floor of the suit premises by the brother of the respondent. It was further observed that on the basis of the copy of a will placed on record by the respondent the ownership of the suit premises was transferred in favour of the respondent and hence the relationship of landlord and tenant between the parties cannot be disputed by the petitioner. The learned Rent Controller relied on the copies of the air tickets produced by the respondent to conclude that she and her husband were in fact frequently visiting Delhi from Mumbai for business purposes.

    4. The impugned order has been challenged by the petitioner on the ground that the learned Rent Controller has committed grave illegality in rejecting the contention of the petitioner that the present case was of requirement of additional accommodation as the first floor of the property was lying vacant and the plea taken up by the respondent that her brother was the occupant of the first floor of the suit property, was a concocted one. It has also been submitted that the present case being of additional accommodation leave to defend should have been granted to the petitioner as held in Dr. S.M Mishra v. D.D Malik, 2001 (1) SCC 255 and Santosh Devi v. Chand Kiran 2001 (8) Scale 346.

    5. It has been further urged by the petitioner that the copies of air tickets placed on record by the respondent pertained to the period after the filing of leave to defend application and show that respondent has not visited Delhi at any time prior to the filing of eviction petition. It has been submitted that most of the visits to Delhi of the husband of the respondent were during and around the period when the Commonwealth Games were under way and were for the said specified purpose and does not support the contention of the respondent that she and her husband are frequent flyers to Delhi and hence need the suit property for their residential purposes.

    6. On the other hand, the respondent has submitted that there is no requirement of interference with the well reasoned and speaking order of the learned Rent Controller. It has been submitted that no triable issue was established by the petitioner which would merit the grant of leave to defend application to him. It has been submitted that in case of ample proof of bona fide requirement by the landlord, the application for leave to defend deserves to be dismissed. Reliance has been placed on Saroj Khemka v. Indu Sharma 2000 (54) DRJ.

    7. I have heard the rival submissions and perused the record.

    8. I am in agreement with the observation of the learned Rent Controller regarding the issue of ownership of the suit property. There can be no dispute that by the virtue of will dated 03.08.1970 executed in favour of the respondent by Smt. Daya Verman who was the owner of the suit property, the title of the property now rests with the respondent and hence the contention of the petitioner that the respondent is not the owner of the property, is untenable.

    9. Moving on, the thrust of the arguments adduced by the petitioner is that the factum of occupancy of the first floor of the suit property by the brother of the respondent has not been proved by her and the learned Rent Controller has overlooked the documents produced by the petitioner to refute this claim. From the perusal of mobile bills of the respondent's brother brought on record it is evident that these bills pertain to roaming charges. This fact casts a shadow of doubt on the claim of the respondent that the first floor of the suit premises is unavailable to her as it is used by her brother for residential purposes. Had Mr. Anil Verman been residing in the suit premises from a long period of time as submitted by the respondent, the mobile bills of his phone would not show him to be in roaming territory. Undisputedly, this is an important triable issue which can be adjudicated only after cross-examination and submission of additional evidence in this regard.

    10. Even if it is assumed for the sake of arguments that the brother of the respondent has been residing on the first floor of the demised property, the brother of a married woman cannot be termed as a family member dependent on her for residential purposes. Only the immediate family members of a person can claim the right of residence in the property owned by him/her. This effectively makes it a case of requirement of additional accommodation by the respondent and it is settled legal proposition that in such cases leave to defend must be accorded to the defendant. In Santosh Devi v. Chand Kiran (Supra) it has been held by the Hon'ble Apex Court that it is a case for additional accommodation and looking to the facts and circumstances, especially in the light of the additional accommodation which is subsequently made available to the respondent as mentioned by the appellant, the question of the respondent's need was required to be thrashed on merits by a full fledged trial. In S.M Mehra v. D.D Mallik. (Supra) the Hon'ble Apex Court has held that there is no need to take a summery procedure since it is a case of additional accommodation.

    11. Also it has been contended that the brother of the respondent is the owner of the property in Defence Colony, Delhi. In support of this contention, the petitioner placed on record the Residents Directory of D-Block, Defence Colony which mentions the brother of the respondent to be the resident at D-251, Defence Colony. But this fact seems to have been over looked by the Learned ARC who observed that nothing has been brought on record by the petitioner to prove this fact. In my considerate view, such an observation at the time of deciding the application of leave to defend was erroneous and contrary to settled legal position. The petitioner ought to have been afforded the opportunity to provide additional evidence in support of this claim which was refused to him. This is another very relevant triable issue that was raised by the petitioner and prematurely decided against the petitioner without giving sufficient opportunity to verify its authenticity. In Inderjeet Kaur v. Nirpal Singh(2001) 1 SCC 706 the Apex Court has held that

    “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……”

    12. The respondent has contended that she requires the premises for bona fide requirement of herself and her family and that she and her husband frequently visit Delhi for business purposes. However, the only proof that was submitted to support this contention was air tickets pertaining to the period during and around the Commonwealth Games. There is no document to show that the respondent had visited Delhi at any time prior to filing of the eviction petition. This raises doubt on the claim made by the respondent that she requires the suit premises for her stay at Delhi at regular intervals. It is pertinent to test the veracity of this claim for the disposal of the eviction petition. The discharge of burden of proof placed on the respondent in regard to this submission is germane to deciding the question of bona fide requirement as alleged by the respondent. In Charan Dass Duggal v. Brahma Nand(1983) 1 SCC 301 it has been observed by the Hon'ble Supreme Court that the burden is on the landlord to prove his requirements and his assertion is required to be tested more so when it is shown that he is staying outside Delhi. Further in Nandlal Goverdhandhas and Co. v. Samratbai Lilachand Shah (AIR 1981 Bom 1) it has been held that bona fide requirement is a state of mind and unless a person claiming requirement is subjected to cross-examination, requirement without his evidence cannot be established. In the present case such burden of proof has not been discharged by the respondent satisfactorily. Travel tickets pertaining to an isolated period of time do not prove the fact of regular visits by the respondent and her husband to Delhi.

    13. It is settled legal principle that leave to defend is granted to the tenant in case of any triable issue raised before the trial court which can be adjudicated by consideration of additional evidence. Where a prima facie case is made out by the tenant which disentitle the applicant from getting the order of eviction against the respondent and at the same time entitle the respondent to leave to defend, it would be erroneous to refuse such permission by outrightly rejecting the triable issues raised by the tenant. At the stage of granting leave to defend, the real test should be whether the facts disclosed in the affidavit filed seeking leave to defend prima facie shows that the landlord would be disentitled from obtaining an eviction order and not whether at the end the defence may fail. Leave to defend must not be granted on mere asking, but it is equally improper to refuse to grant leave when triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through cross-examination of witnesses.

    14. Applying the aforesaid legal proposition to the current factual matrix, it is evident that the learned Rent Controller committed manifest error in accepting the case of the respondent when the facts were seriously disputed and the veracity of the claims made by the opposing parties was yet to be determined.

    15. In my considerate view substantial and important triable issues were raised by the petitioner at the time of filing application leave to defend which should not have been prematurely decided. Having regard to the facts and circumstances of the case it would be erroneous to conclude that no triable issues were raised for consideration.

    16. In this background, the impugned order allowing the eviction petition while dismissing the application for leave to defend suffers from illegality and cannot be sustained. The impugned order is accordingly set aside and the petitioner is granted leave to contest the eviction petition. The respective parties are directed to appear before the learned Senior Civil Judge-cum-Rent Controller on 31.7.2012

    17. The petition is accordingly allowed.

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    Comments

    Accebeen Steel Pvt. Ltd. & Ors. Petitioners v. Jai Shree Khanna
    (Jul 23, 2012)