S.P Kapoor. v. Kamal Mahavir Prasad Murarka & Others

R.C Chopra, J.— This petition under Section 25-B (8) of Delhi Rent Control Act (hereinafter referred to as “the Act” only) is directed against an order dated 3rd September, 2001, passed by learned Additional Rent Controller, Delhi by which the petitioner's application for leave to defend under Section 25-B (4) of the Act was dismissed and respondents' eviction petition under Section 14(1)(e) read with Section 25-B of the Act was allowed.

2. I have heard Sh. L.R Gupta, Sr. Advocate for the petitioner and Sh. V.K Makhija, Sr. Advocate for the respondents. I have gone through the Trial Court records.

The facts relevant for the disposal of this petition, briefly stated are, that the respondent No. 1, claiming to be the owner-landlord by property No. D-281, Defence Colony, New Delhi, filed an eviction petition under Section 14(1)(e) read with Section 25-B of the Act alleging that the petitioner-tenant was let out the suit property for residential purpose by Mrs. Raj Sondhi, the previous owner of the property. In 1976, this property was sold by Mrs. Raj Sondhi to the respondents/landlords. On account of a settlement between the family, the property in question fell to the exclusive share of respondent No. 1. The petitioner-tenant had attorned to respondents after the purchase of the property. The respondent No. 1, a permanent resident of Mumbai alleged that he had been a Member of Parliament and a Minister and even now he was the Secretary of Samajwadi Janta Party and as such, visiting Delhi several times. Sometimes his visits were even two to three times a month. He was a Director of M/s. Gannon Dunkerley and Company Ltd., Nehru Place, New Delhi and had to visit Delhi with a view to manage and attend to the affairs of the said Company. He was sometimes visiting Delhi with his wife also and facing inconvenience for not having any place to stay at Delhi. He was also Vice-President of Board for Control of Cricket in India (BCCI), the meetings of which were sometimes held at Delhi. The respondent No. 1 prayed for eviction of the petitioner-tenant mainly on the ground that he bona fide required the premises in question for his residence at Delhi during his visits to Delhi.

3. The petitioner-tenant moved an application under Section 25-B (4) of the Act for leave to defend mainly on the ground that the respondent No. 1 was not the exclusive owner of the premises in question and was merely a co-owner and as such, could not file the eviction petition. It was further contended that the respondent No. 1 was a permanent resident of Mumbai and did not require the premises in question for his residence or the residence of his family members. His daughters were stated to be married and living at Calcutta and Singapore. It was also pleaded that the respondent was having a Government Bungalow No. 12, Tin Murti Marg, New Delhi for his stay on his visits to Delhi. However, this plea was not pressed later as the said Bungalow had been withdrawn from respondent No. 1 after he ceased to be a Member of Rajya Sabha. The petitioner asserted that the petition filed by respondent No. 1 did not disclose any bona fide need and it was a false, frivolous, motivated, vexatious and mis-conceived petition.

4. Learned Additional Rent Controller, after considering the averments made by the petitioner and the reply filed by the respondent No. 1, held that the respondent No. 1 had impleaded other co-owners also in the eviction petition and as such, the petition filed by him was maintainable. It was held that since the respondent No. 1 had no residential accommodation for stay in the course of his visits to Delhi he had a bona fide need for the premises in question. The leave to defend application filed by the petitioner was dismissed and an eviction order under Section 14(1)(e) of the Act was passed against him.

5. Shri L.R Gupta, Sr. Advocate for the petitioner has vehemently argued that the petition filed by respondent No 1 under Section 14(1)(e) of the Act did not disclose any bona fide need for residence in respect of the premises in question for the reason that respondent No. 1 was a permanent resident of Mumbai and neither he had any intention to shift to Delhi nor he needed it for bona fide residence even during his occasional visits to Delhi He points but that two earlier eviction petitions filed by respondent No. 1 were dismissed but this fact was not disclosed in the eviction petition which showed the mala fides on the part of respondent No. 1. It was also contended that the daughters of respondent-landlord were married and happily settled at Singapore and Calcutta and as such, respondent No. 1 does not require the premises in question for the residential needs of himself or his family. Regarding the hotel bills placed on record by respondent No. 1, it was submitted that these were manipulated with a view to set up a plea of bona fide requirement and could not be taken into consideration by the Court as this evidence was procured for the purposes of this litigation only. This evidence was stated to be in the nature of “post litem motam” as defined by Supreme Court in AIR 1983 SC 684

6. Learned counsel for the petitioner relies upon the Apex Court decisions in. “Inderjeet Kaur v. Nirpal Singh” 2001 (57) DRJ 182 : 2000 (2) RCJ 655 and “Liaq Ahmed & Ore. v. Habeeb-Ur-Rehman” 2000 (56) DRJ (Suppl) 217 : (2000) 5 SCC 708 to contend that triable issues had been raised by the petitioner which were not baseless, unreal or unfound and as such, the learned ARC erred in law in refusing leave to defend. He also relies upon judgments of this Court in Santosh Jain v. Suresh Chand Bhargava” 1998 (2) RCJ 79 and Chander Sain Berry v. Avinash Mithal” 1997 (42) DRJ 44 and submits that the mere desire of a landlord to use the premises in question during his visits to Delhi cannot be accepted at its face value and it has to be established by way of leading evidence after allowing leave to defend.

7. Learned counsel for the respondent No. 1, on the other hand, argues that the impugned order passed by learned ARC refusing leave to defend to the petitioner does not suffer from any legal infirmity or jurisdictional error calling for interference by this Court under Section 25-B(8) of the Act. Relying upon the judgment of the Apex Court in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta” 1999 (6) SCC 222 it is argued that whenever an order passed under Section 25-B (4) of the Act is found to be in accordance with law and the conclusions not wholly unreasonable, the High Court must refrain from interfering with the same.

8. Learned counsel for respondent No. 1 relies upon the judgments in “Calcutta Film Library & Associates v. Dr. Shila Sen” 1994 (2) Rent LR 480, “Mehra & Mehra v. Dr. (Mrs.) Sant Kaur Grewal” 1982 (1) Rent LR 460, Tara Singh v. Capt. Damanjit Singh Malik” 1977 Rent LR 974 and “Saroj Khemkja v. Indu Sharma” 1999 (49) DRJ 719 to contend that it is not necessary that the respondent No. 1 should require the premises in question for permanent residence and in case he has a bona fide need for using the premises for his residence on his occasional visits to Delhi, a case for bona fide requirement is made out. Learned counsel for the respondent No. 1 also submits that considering the social status, stature, life style and habits of respondent No. 1, it cannot be said that his requirement for the premises in question for residential use in the course of his visits to Delhi is unreasonable or not bona fide.

9. Before coming to the merits of the plea raised by learned counsel for the parties, this Court would like to remind itself that its powers under Section 25-B(8) of the Act are limited to the question as to whether the impugned order passed by the learned ARC is according to law or not. This Court is not to substitute its own findings or opinion in regard to the factual controversies determined by learned ARC unless it can be stated that the view taken by ARC is so unreasonable that no reasonable and prudent man could have come to that conclusion or the order suffers from some patent legal infirmity or jurisdiction error. The guide-lines laid down by the Apex Court in Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta (supra) are the parameters within which the High Court must act while exercising jurisdiction under Section 25-B(8) of the Act.

10. After considering the submissions made by learned counsel for the parties, this Court is of the considered view that Section 14(1)(e) of the Act nowhere provides that the bona fide need of a landlord/owner in respect of his residential premises should be for a permanent residence only. If a landlord/owner is permanently settled outside Delhi but his visits to Delhi are frequent his need even for temporary stay in his own premises has to be viewed as bona fide need. No landlord/owner, inspite of having his own property in Delhi, can be compelled to live here and there and face inconvenience. It is true that a Single Judge of this Court in Chander Sain Berry's case (supra) held that mere desire of a landlord/owner cannot be equated with bona fide need and as such leave to defend ought to be granted to a tenant so that he may show that there is no bona fide need but the facts of the said case were entirely different in as much as it was not clear from the material on record that the desire of the landlord/owner to shift to India was genuine. However, in a case where the facts and circumstances clearly suggest that the desire of landlord/owner isnot a mere pretence or a made up plea to evict a tenant, the prayer for bona fide need may be accepted and leave to defend declined with a view to accomplish the underlying object to Section 14(1)(e) read with Section 25-B of the Act.

11. In Calcutta Film Library & Associates v. Dr. Shila Sen (supra) a Single Judge of the Calcutta High Court upheld the plea of the landlady regarding her bona fide requirement in respect of a house in Calcutta although she was permanently settled at Delhi. The learned Single Judge was of the view that the Courts could not suggest to a landlord/owner that he should hire another accommodation or should stay with his relatives. It was held that even during temporary visits a landlord may require his own premises and could not be suggested to stay in some Hotel or in some friends or relative's house. Learned Single Judge was further of the view that it was not necessary that the need should not permanent or continuous. His Lordship Hon'ble Mr. Justice B.N Kirpal (as his lordship then was), in Mehra & Mehra v. Dr. (Mrs.) Sant Kaur Grewal (supra) upheld a claim under Section 14(1)(e) of the Act, by a landlord who was living at Srinagar and wanted her premises in Delhi only to pass winter months, holding that it was her bona fide need. It was held that since the landlady had no other alternative accommodation available to her in Delhi her need was to be treated as bona fide. In Saroj Khemka's case (supra) a Single Judge of this Court upheld an order of the Controller, rejecting leave to defend application, in case of a landlord/owner who was living abroad and wanted his premises at Delhi for stay in India for short durations. It was categorically observed that an owner can not be compelled to stay at a Hotel or have an alternative accommodation.

12. In the case in hand it is satisfactorily shown on record that the respondent No. 1 the landlord/owner of the premises in question, although a permanent resident of Mumbai has to visit Delhi off and on in connection with his political and business matters. He is a man of status who needs sufficient accommodation even in the course of his short visits to Delhi so that he may live comfortably and discharge his social and business obligations effectively. It is true that his two daughters are already married but the averment in the petition is that they may also stay in the premises in question during their visits to Delhi. This demand is neither unjust or unfair. He has no other suitable alternative accommodation available to him at Delhi. The Courts have no justification to insist that he should either live in Hotels or hire some other accommodation merely for the sake of protecting the tenancy of the petitioner. The respondent No. 1 owner/landlord cannot be asked to face inconvenience and adjust in smaller accommodation here and there in the course of his visits to Delhi. This Court, therefore, has no hesitation in concluding that the claim of respondent No. 1 in regard to his bona fide need of the premises in question for his residential use was reasonable and bona fide. The plea of the petitioner that this plea is not bona fide or a mere pretence to evict him is unfounded and does not give rise to any triable issue for grant of leave to defend to him.

13. The respondent No. 1 had neither made any concealment nor any mis-statement of facts in his eviction petition so as to suggest that he was acting mala fide and his need was not bona fide. He had clearly mentioned in his petition that he had earlier filed an eviction petition against the petitioner for fixation of standard rent and thereafter had filed a petition under Section 14(1)(d) of the Act also which was not pressed as it was shown that the petitioner/tenant was living in the premises in question. He had also not made any mis-statement in regard to his family and had categorically stated that his both the daughters were married out of Delhi. Their need was not set up for permanent residence in the premises in question and the suggestion was they may also use the premises during their visits to Delhi. The respondent No. 1 had impleaded other co-owners also as proforma respondents and as such no arguments have been addressed on the question of locus of respondent No. 1 to file the eviction petition. The hotels bills placed on record by respondent No. 1 even if ignored on the principle of ‘post litem motam’ the affidavit filed by respondent No. 1 in regard to his political and business engagements in Delhi can be safely accepted to hold that respondent No. 1 needs the premises in question bona fide for his residential use during his visits to Delhi The leave to defend application and affidavit filed by petitioner did not disclose that respondent No. 1 was not visiting Delhi off and on as pleaded. This Court is therefore, of the considered view that the learned ARC was fully jtistified in refusing leave to defend to the petitioner and passing an eviction order under Section 14(1) (e) of the Act in favour of respondent No. 1.

14. The Court of Rent Controller has to weigh the pleas of the parties very delicately to ensure that neither a landlord/owner should succeed in abusing the process of law by throwing out a tenant on the pretext of bona fide need nor a tenant should succeed in delaying the passing of an eviction order on false and frivolous grounds raised merely with a view to obtain leave to defend. This Court has no hesitation in concluding that the impugned order passed by learned ARC is according to law and does not suffer from any legal infirmity. The view taken by learned ARC in regard to the bona fide need of the premises in question for residential use by respondent No. 1 is justified and based on fairly acceptable pleas raised by respondent No. 1. Therefore there are no good grounds for interfering with the impugned order.

15. Accordingly, the impugned order passed by learned Additional Rent Controller is upheld and the petition under Section 25-B(8) of the Act filed by the petitioner is dismissed.