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  • Dr. Ashwani Bhardwaj, Adv.
  • Ms. Kamlesh Sabharwal, Adv.
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  • Mukta Gupta, J.
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  • Dr. Ashwani Bhardwaj, Adv.
  • Ms. Kamlesh Sabharwal, Adv.
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  • Mukta Gupta, J.
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Smart Summary

Judgment Summary — Mukta Gupta, J.

Factual and Procedural Background

The present petition challenges the order dated 25 July 2013 which dismissed the tenant's application for leave to defend an eviction petition brought under Section 14(1)(e) read with Section 25B of the Delhi Rent Control Act (DRC Act). The eviction petition was filed by the respondent (the purchaser/landlord) claiming bona fide requirement of the premises.

Relevant factual averments in the eviction petition and the leave-to-defend affidavit include:

  • The petitioner had been running a Sub Post Office in a portion (471 sq. ft.) of property No. WZ-246A, Plot No. 5, Inderpuri, New Delhi, originally let to him by the previous owner by a lease deed dated 7 February 1984 for five years @ Rs. 1,413 per month.
  • The property was sold to the respondent and his brother by registered sale deed dated 6 March 2004; following the sale the respondent claimed the tenanted portion as his share under a family settlement and asserted ownership and landlordship of the tenanted premises.
  • On a prior occasion this Court (order dated 16 July 1996) held that eviction of the tenant could only be decided under the DRC Act and not by arbitration; only a dispute as to market rent was referred to an arbitrator (who was not appointed).
  • The respondent asserted that he and his family (wife, three children aged 15, 14 and 4, and his parents) lived in a two-room Janta Flat and bona fide required at least four bedrooms and other residential accommodation; he stated there was no other reasonable suitable accommodation available.
  • The tenant/petitioner filed a leave-to-defend application, admitting the landlord–tenant relationship, asserting punctual payment of rent and electricity charges, and seeking time on grounds of inconvenience to shift the Sub Post Office; the petitioner denied the landlord's claim of bona fide requirement and stated no fresh lease deed was executed after sale.

The learned Additional Rent Controller (ARC) refused leave to defend on the ground that the landlord had shown bona fide requirement and no triable issue was raised that would non-suit the respondent. The impugned order dated 25 July 2013 granted statutory time of six months for eviction. This Court stayed that order on 6 March 2014. The present petition sought relief against the refusal to grant leave to defend; on 19–21 January 2015 the tenant's counsel sought time to obtain instructions about how much time would be required to vacate but could not state a period.

Legal Issues Presented

  1. Whether the tenant's affidavit in support of the leave-to-defend application disclosed facts sufficient to non-suit the landlord and therefore justify grant of leave to defend under Section 25B of the DRC Act.
  2. Whether the landlord had established a bona fide requirement for possession under Section 14(1)(e) read with Section 25B, and whether the leave-to-defend application raised triable issues on that ground.
  3. Whether the inconvenience or hardship to the tenant resulting from shifting (here, the Sub Post Office) is a legally sufficient ground to refuse an eviction petition based on bona fide requirement.

Arguments of the Parties

Tenant's (Petitioner) Arguments

  • The tenant did not dispute the landlord–tenant relationship and stated rent and electricity charges were punctually paid.
  • After the sale of the property to the respondent and his brother, the tenant sought execution of a fresh lease deed but the respondent did not execute one; the tenant relied on the terms of the original lease with the erstwhile landlady.
  • The tenant denied that the landlord's claimed requirement was bona fide and emphasised the practical inconvenience in immediately shifting the Sub Post Office; he sought time to vacate and to make alternative arrangements.

Landlord's (Respondent) Pleadings

  • The respondent averred that after purchase and family settlement the tenanted portion fell to his share and he became the owner/landlord of the premises.
  • The respondent stated he resided with his wife, three children (ages 15, 14 and 4) and his parents in a two-room Janta Flat owned by his mother and bona fide required more suitable accommodation (at least 4 bedrooms, drawing room, dining room, etc.).
  • The landlord asserted there was no independent access or reasonable suitable accommodation elsewhere and therefore he genuinely required possession of the premises.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Precision Steel & Engineering Works v. Prem Deva Niranjan Deva Tayal, AIR 1982 SC 1518 That under Section 25B(4) & (5) of the Act the onus lies on the tenant to disclose facts in the affidavit that would disentitle the landlord from obtaining possession under Clause (e) of the proviso to Section 14(1). The Court applied this principle to hold that the tenant had not disclosed facts sufficient to non-suit the landlord.
Inderjeet Kaur v. Nirpal Singh, (2001) 1 SCC 706 Support for the proposition that the onus is on the tenant under Section 25B to disclose facts that would defeat the landlord's claim. Relied upon to confirm that the leave-to-defend affidavit must contain facts which would disentitle the landlord; the tenant's affidavit failed this test.
Rita Lal v. Raj Kumar Singh, AIR 2002 SC 3341 That a defence which is moonshine, sham or illusory cannot be treated as a triable issue for granting leave to defend. The Court considered this principle in concluding that the tenant's defence (largely inconvenience in shifting) did not raise a bona fide triable issue.
Charan Dass Duggal v. Brahma Nand, (1983) 1 SCC 301 Similar principle that sham or illusory defences are not triable issues for leave to defend. Used to support the refusal of leave where the defence would not non-suit the landlord.
Mohd. Ayub v. Mukesh Chand, (2012) 2 SCC 155 That comparative hardship is not a legal ground to refuse eviction; hardship to tenant may be mitigated by granting more time, but bona fide requirement should not be defeated by tenant's hardship or length of occupation. The Court relied on this to hold that inconvenience in shifting the Post Office is not a ground to grant leave to defend; it noted that the landlord's hardship from denial of possession would be greater and that time can be given to the tenant to vacate.
S N Kapoor (Dead) by Legal Rights Services v. Basant Lal Khatri, JT 2001 (9) SC 456 That the landlord's choice or need must not be whimsical or fanciful but courts should allow some discretion in favour of the landlady/landlord and not impose their own views on the landlord's affairs solely on grounds of tenant hardship. Applied to support the view that courts should not substitute their own assessment for the landlord's bona fide claim; discretion lies with the landlord.
Ajit Singh v. Inder Saran, 1979 (1) RCJ (Rent) 152 That Courts must strike a reasonable balance between the bona fide needs of the owner and minimum protection to tenants; hardship to tenants is not a ground to deny owner's bona fide need. Invoked to reinforce that hardship to tenants (such as difficulty in finding similar premises) does not negate a bona fide requirement of the owner.

Court's Reasoning and Analysis

The Court followed a structured approach grounded on the statutory framework and binding precedents:

  1. The Court first noted the settled legal standard under Section 25B(4) & (5) of the DRC Act and related authorities: the burden is on the tenant in the leave-to-defend affidavit to disclose facts which would disentitle the landlord from obtaining possession under Clause (e) of Section 14(1).
  2. It examined the tenant's leave-to-defend affidavit and found: (a) the landlord–tenant relationship was not disputed; (b) rent and electricity were punctually paid; (c) the tenant relied on the earlier lease terms and complained that no fresh lease was executed after the sale; and (d) primarily pleaded inconvenience and need for time to shift the Sub Post Office, but did not plead additional facts that would non-suit the landlord.
  3. Relying on authorities that prohibit sham or illusory defences from being treated as triable issues, the Court held that the tenant's asserted inconvenience did not amount to a bona fide triable defence which would defeat the landlord's claim.
  4. The Court accepted the ARC's factual finding that the landlord had shown bona fide requirement: the landlord's family situation (four elders and three minors living in a two-room flat) could not be equitably compelled to continue in cramped accommodation, and the landlord had no other reasonable suitable accommodation.
  5. Addressing comparative hardship, the Court applied Supreme Court authority (Mohd. Ayub and others) to hold that comparative hardship is not a legal ground to refuse eviction; the tenant's difficulty in shifting the Post Office, by itself, could not justify grant of leave to defend. The Court noted that hardship to the tenant can be mitigated by granting time to vacate, but such hardship does not override a bona fide requirement established by the landlord.
  6. Considering the procedural history, the Court recorded that the impugned order originally granted statutory six months' time for eviction (25 July 2013) and that this Court then stayed the order on 6 March 2014; subsequent proceedings in January 2015 showed that the tenant's counsel could not quantify the time required to vacate.
  7. On this composite basis — insufficiency of facts in the leave-to-defend affidavit to non-suit the landlord, recognition of bona fide need, and settled law disfavoring comparative-hardship defences — the Court found no merit in the petition and dismissed it.

Holding and Implications

Holding: The Court concluded that the petition lacked merit and accordingly Petition and application are dismissed.

Direct consequences and practical implications for the parties:

  • The leave-to-defend application was correctly refused by the learned ARC because the tenant's affidavit did not disclose facts that would non-suit the landlord under Section 25B of the DRC Act.
  • The landlord's claim of bona fide requirement was accepted by the tribunal and upheld by this Court; therefore the landlord is entitled to possession under Section 14(1)(e) subject to procedural timelines in the impugned order.
  • The impugned order had granted the statutory six months for eviction (25 July 2013), although this Court stayed the operation of that order on 6 March 2014; the petition to overturn refusal of leave has now been dismissed.

No new legal principle or precedent was fashioned by this opinion; the Court applied established statutory requirements and existing Supreme Court authorities to decide the particular application for leave to defend.

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    Union Of India & Ors. Petitioners v. Rajender Kumar

    Mukta Gupta, J.

    1. Aggrieved by the order dated 25th July, 2013 dismissing the application filed by the petitioner seeking leave to defend in an eviction petition filed by the respondent under Section 14(1)(e) read with Section 25B of the Delhi Rent Control Act (in short DRC Act) the petitioner prefers the present petition.

    2. The petitioner pleaded in the eviction petition that he along with his brother purchased property bearing No. WZ-246A, Plot No. 5, Inderpuri, New Delhi vide registered sale deed on 6 March, 2004. A portion of the said property having carpet area measuring 471 sq. feet on the ground floor shown in red colour in the site plan was let out by the previous owner to the petitioner herein for running a Sub Post Office. After the suit property was purchased a family settlement was arrived at between the respondent and his brother and the portion situated on the west side including tenanted portion fell to the share of the respondent, hence the respondent was the owner and landlord of the tenanted premises. It was further stated that tenanted premises was let out to the petitioner vide lease deed dated 7 February, 1984 for a period of five years @ Rs. 1413 per month. The petitioner filed a petition under Section 20 of the Arbitration and Conciliation Act, 1940 before this Court in view of the Arbitration Clause in the lease deed, however this Court vide order dated 16 July, 1996 held that in view of the statutory tenancy being created, the petitioner could be evicted only in accordance with the provisions of DRC Act, 1958 and the same cannot be decided by the Arbitrator. However, the dispute with regard to the market rent was referred to the Arbitrator for adjudication, though no Arbitrator has been appointed. This order was challenged in appeal by the respondent which was dismissed. Hence to the extent of maintainability of the petition under Section 14(1)(e) of the DRC Act it cannot be now disputed.

    3. In the eviction petition it was further stated that the respondent along with his family comprising of his wife, three children aged 15 years, 14 years and 4 years and his parents was residing in a Janta Flat H-140, Naraina Vihar, New Delhi which was owned by his mother. The said Janta Flat has only two rooms which are insufficient for the respondent and his family members and he bonafidely needs at least 4 bed rooms, drawing room, dining room, one pooja room besides bath rooms, kitchen, etc. According to the eviction petition, the suit property besides the tenanted premises on the ground floor comprises of two small rooms on the back side of the Post Office and a hall and two rooms being used as store by the respondent on the first floor. It is stated that the two small rooms at the back portion of the tenanted premises cannot be used for residential purposes unless the tenanted premises is merged under the two rooms. Further there is no independent access to the said rooms on the back side and the respondent is presently using the ingress and egress to the said room from the portion of his brother.

    3. On service of summons petitioner entered appearance and filed a leave to defend application and stated that after the sale of the property to the respondent and his brother, the petitioner sought execution of fresh lease deed which was not done by the respondent. The petitioner denied the claim of the respondent of bona-fide requirement and stated that the petitioner has no place to shift the Post Office immediately and the same would take some time.

    4. A perusal of the leave to defend application would show that the jural relationship of landlord tenant has not been disputed. It is stated that the rent has been paid punctually along with the electricity charges and that the parties had amicably settled their disputes in the year 1999 when the rent was enhanced to Rs. 1990/- per month for the next three years. Thereafter the landlady sold the property in the joint name of the respondent and his brother on 6 March, 2004 and despite sending letters, the respondent has not entered into a lease deed. Thus, the terms of the lease deed entered with the erstwhile landlady have become final. Regarding the ground of eviction as taken by the respondent, it is only urged that the same cannot be a bona-fide reason for immediate eviction and that the Pose Office in question has no place to establish at some other place and would take some appropriate time. Thus, accept an averment that requirement cannot be bona-fide no other fact is pleaded in the leave to defend application which is not sufficient to non-suit the respondent/landlord.

    5. It is well settled that leave to defend can be granted only if the facts stated in the affidavit have the effect of non-suiting the landlord. It is settled law that as per Section 25B(4)&(5) of the Act, the onus is placed on the tenant to disclose such facts in his affidavit 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. (See Precision Steel & Engineering Works v. Prem Deva Niranjan Deva Tayal AIR 1982 SC 1518) and Inderjeet Kaur v. Nirpal Singh (2001) 1 SCC 706. Further, if the defence is practically moonshine, sham or illusory the same cannot be held to be a triable issue, else the whole purpose behind enacting the provision for granting leave to defend would stand defeated (See Rita Lal v. Raj Kumar Singh. AIR 2002 SC 3341 and Charan Dass Duggal V. Brahma Nand (1983) 1 SCC 301).

    6. The learned ARC considering this aspect and the fact that the landlord cannot be compelled to squeeze his family in a Janta Flat of two rooms, a family which comprises of 4 elders and 3 minors, held that the bona-fide requirement has been shown by the respondent and that he has no other reasonable suitable accommodation available to him and declined to grant leave to defend as no triable issue was raised which would non-suit the respondent.

    7. As regards the plea of inconvenience in shifting of the post office is concerned, the same cannot be a ground to grant leave to defend to the respondent. It is well settled that comparative hardship is not a legal ground to reject the eviction petition. In Mohd. Ayub v. Mukesh Chand (2012) 2 SCC 155, the Supreme Court held that the hardship the landlord would suffer by not occupying his premises would be far greater than the hardship the tenant would suffer by having to move out to another place, mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. The Supreme Court further observed that hardship of the tenant who is in occupation of the premises for a long time can be mitigated by granting him longer period to move out of the premises in his occupation so that in the meantime he can make an alternative arrangement. The Supreme Court cautioned that the length of tenancy ought not weigh with the Courts if the bona fide requirement of the landlord is made out.

    8. Even in S N Kapoor Dead By Legal Rights Services V. Basant Lal Khatri JT 2001 (9) SC 456 the Supreme Court held that though the choice or proclaimed need cannot be whimsical or mere fanciful yet certain amount of discretion has to be allowed in favour of the landlady too and the Courts should not also impose its own wisdom forcibly upon the landlady to arrange her own affairs, according to their own perception carried away only by the interests of hardship of the tenant and inconvenience that may result to him in passing an order of eviction.

    9. This Court in Ajit Singh v. Inder Saran 1979 (1) RCJ (Rent) 152 repelling the pleas of the tenant that he would have to spend time for house hunting, would be impossible to get a similar premises for residence in the vicinity of the clinic and would have to pay rent which will be many times more than the present noted that unfortunately this is one incident of occupation of a tenanted premises and in granting eviction Court has to strike a reasonable balance between the bona fide needs of the owner and the minimum required protection to the tenants. The Act unfortunately makes no provision for alternative accommodation for the evictees and the hardship that may be caused to them is not a ground to deny to the owners their bona fide of a premises.

    10. In the present case as noted above the main emphasis of the petitioner in the leave to defend application is the inconvenience likely to be caused in shifting the sub-post office and has pleaded for time to vacate. The impugned order was passed on 25 July, 2013 wherein statutory time of six months was granted for eviction of the premises. On 6 March, 2014 this Court stayed the operation of the impugned order. When the matter was part heard on 19 January, 2015 learned counsel for the petitioner sought time to take instructions from the competent authority as to how much time would be required to vacate the premises. On 21st January, 2015 learned counsel stated that he has instructions to argue the matter and couldnot make any statement as to how much time would be required to vacate the premises.

    11. In view of the legal position noted above, I find no merit in the petition. Petition and application are dismissed.

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    Comments

    Union Of India & Ors. Petitioners v. Rajender Kumar
    (Jan 29, 2015)