Vijender Jain, J.— Revision Petition has been filed aggrieved by the order of the Additional Rent Controller rejecting the leave to defend application of the Petitioner-tenant.
Mr. R.P Bansal, learned counsel appearing for the Petitioner, has vehemently contended that the Petition was bad for mis-joinder of I D Khemka, the husband of the Petitioner as he was not a tenant. Another contention of the learned counsel for the Petitioner was that premises were taken for composite purposes i.e residential-cum-non-residential purposes. Main stress of the arguments of the learned counsel for the Petitioner was that the premises were not required by the Respondent bona fidely for her residence or for her family. Lastly it was contended by Mr. Bansal that the affidavit of property broker showing that the Respondent was interested in selling the property after getting it vacated from the present Petitioner has not been considered by the learned Additional Rent Controller while rejecting the application for grant of leave.
Learned Additional Rent Controller while disposing of the application of the present Petitioner had held that it was on account of the fact that Mr. I D Khemka was also claiming to be a tenant in the premises in question and was dealing with the Respondent along with his wife, Petitioner herein Smt. Saroj Khemka, therefore to avoid any complication/confusion both were impleaded as respondents in the eviction Petition. It has been further recorded by the learned Additional Rent Controller that along with the eviction Petition, Petitioner/Respondent had filed lease deed which was between the Respondent and I D Khemka, although the lease deed has been disputed by Mr. Bansal. No photocopy of the lease deed, which was sought to be filed in this Court dated 27.5.1995 was filed with the leave to defend application and same was filed after hearing of the arguments on the application for leave to defend were over: Therefore, there is no force in the arguments of learned counsel for the Petitioner that lease deed was forged and that Mr. I D Khemka was not a necessary party.
There is no force in the arguments of the learned counsel for the Petitioner with regard to the purpose of letting. As per the case of the Petitioner the premises were let out in April 1987 for residential purposes and as per clause 1(ii) of the lease deed filed along with the Petition dated 10.4.1986 signed by I D Khemka, Respondent No. 2 Page: 219herein, it was agreed that lessee shall use the premises for the residential use of himself and the family members dependent upon him. Therefore, it was rightly recorded by the learned Additional Rent Controller that the initial purpose of letting was residential. As a matter of fact, learned Additional Rent Controller has recorded the finding that in the affidavits filed by both Smt. Saroj Khemka, present Petitioner, and Mr. I D Khemka, Respondent No. 2 herein, the details of commercial purposes for which the premises were let out by the present Respondent to them, were not mentioned. As to what commercial activities they were carrying out in the premises in question to make the user of the premises from residential to commercial. Therefore, there is no force in the arguments of the learned counsel for the Petitioner that the premises were let out for composite purposes.
The next contention of Mr. Bansal is that the premises were not required bona fidefy by the Respondent as the Respondent has settled permanently in U.S.A and the husband of the Respondent No. 1 was a Doctor and earning a handsome amount and there is no likelihood of the Respondent to shift to India. Mr. Bansal has contended that Section 14(1)(e) of the Delhi Rent Control Act (for short ‘Act’) is not attracted for casual visit to India by the owner/landlady of the premises. He has further contended that the short stay would not amount that the owner/landlady requires the premises bona fidefy for residence as the Respondent could stay with their relatives. In support of his contentions, learned counsel for the Petitioner has relied upon Sh. Manohar Lal… v. Smt. Pushpawati Jain…. 49 (1993) DLT 653 and has stated that as the Respondent has not appeared in the witness box, mere here statement that she requires the premises bona fidefy for her residence, cannot be taken at its face value. I am afraid that Manohar Lal & Anr's case (supra) is of no help to the counsel for the Petitioner as in that case there was an eviction proceedings in respect of different tenants of the same building on the ground of bona fide requirement for residence of the landlady where in the evidence the landlady has not appeared as a witness to prove the case. In this case it is the Petitioner, who has to stand on her own legs as she has to incorporate such facts in the leave to defend application so that owner-respondent is dis-entitled to get an order of eviction without trial.
Learned counsel for the Petitioner has contended that mere desire without substantiated either by oral or documentary evidence cannot be accepted to be genuine on its face and he has contended that the statement of the owner-petitioner in the eviction Petition was merely a state of mind which ought to have explained by adducing evidence and giving an opportunity to the Petitioner to cross-examine. Learned Counsel has contended that mere desire was not sufficient and it does not prove the case of the owner and dismissal of the application for leave to defend without recording evidence on this ground was not justified. In support of his contentions he has cited Sh. Chander Sain Berry v. Dr. Avinash Mithal 1997 III A.D(DELHI) 509, a single Bench decision of this Court.
In Precision Steel & Engineering Works and another v. Prem Deva Niranjan Deva Tayal AIR 1982 SC 1518 Supreme Court held:—
Page: 220“………The Controller has to confine himself to the affidavit filed by the tenant under Sub-sec.(4) and the reply, if any. On perusing the affidavit filed by the tenant and the reply if any filed by landlord the Controller has to pose to himself the only question: Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in Cl.(e) of the proviso to Section 14(1)? The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against other set of affidavits. That is not the jurisdiction conferred on the Controller by Sub-sec. (5) because the Controller while examining the question whether there is a proper case for granting leave to contest the application has to confine himself to the affidavit filed by the tenant disclosing such facts as would prima facie and not on contest disentitle the landlord from obtaining an order for recovery of possession…….”
Let us examine the plea of Petitioner in the application for leave to defend. A statement made in the counter affidavit that the owner while staying in U.S.A and the income of the husband of the owner-landlady was enormous and they are accustomed to the lifestyle of U.S.A and Respondent was only coming in a year for couple of days to meet its relatives and therefore, the requirement of the Petitioner for their stay in Delhi does not amount to bona fide requirement. It is not denied that the owner had not any other place to stay in Delhi or anywhere else except the house of the relatives/parents. Along with the Petition, present respondent/owner-landlady had filed an record before the Trial court bills from Hotel Vasant Continental showing that they had to stay in a Hotel. Respondent-landlady has also filed the letter from Centre for Policy Research dated 4.6.1995, inter alia, granting internship to the daughter of the Respondent to start her assignment in or around September' 1994 wherein it was specifically mentioned that the daughter of the Respondent would have to provide her own housing and transportation arrangements and as no accommodation was available to the daughter, Charunidhi Sharma, she could not join Centre for Policy Research. 1 do not see any force in the arguments of the learned counsel for the Petitioner that even if the Petitioner visits India, she cannot have her own hose for her casual stay as her residence and she has to go to the house of the relatives or has to stay in a hotel in spite of the fact she has a flat of her own in Delhi. No Court can compel a person to stay in a house of a relative or a hotel and because the said person is staying abroad, he/she has no right to stay in his/her own premises. That will be totally negating the provisions of Section 14(1) (e) of the Act. If a person is residing abroad, he/she owns a flat or a house in Delhi, he/she wants to spend a few weeks or a few months then he/she must be allowed to stay in his/her own house. I do not find any infirmity with the finding recorded by learned Additional Rent Controller on this score also.
Supreme Court in Mrs. Meenal Eknath Kshirsagar v. M/s Traders & Agencies & Anr. JT 1996 (6) SC 468 held:—
“In view of the rival submissions, what we have to consider is whether the Appellate Bench and the High Court applied the correct test while determining Page: 221the question whether the appellant requires the suit premises bona fide and reasonably for her occupation. The fact that the appellant is the owner of the suit premises and that she does not own any other premises in the City of Bombay is not in dispute. She does not possess, even as a tenant, any premises in Bombay, No doubt, she would be entitled to stay in the premises of which her husband is a tenant but if for any reason her husband had parted with possession of such premises and the same were occupied by her husband's brother, it cannot be said that the said premises were available to her and by not referring to those facts she had come to the court with unclean hands and that by itself was sufficient to disentitle her from getting a decree of eviction. If the appellant believed that the ‘Olympus’ flat of which her husband was a tenant was not available for occupation as the same was vacated by her husband many years back and was occupied by Sridhar and his family and that it was not possible or convenient for her and her family to go and stay there, it was not absolutely necessary for her to refer to those facts in her plaint. It would have been better if she had referred to those facts but mere omission to state them in the plaint cannot be regarded as sufficient for disentitling her from claiming a decree for eviction, if otherwise she is able to prove that she requires reasonably the suit premises for her occupation. We are, therefore, of the opinion that the Appellate Bench and the High Court clearly went wrong in holding that the said omission was sufficient to disentitle her from getting a decree of eviction and it also disclosed that her claim was mala fide and not bona fide as required by law.”
Repelling the contention of Mr. Bansal that eviction Petition has not been filed by the Respondent but by her attorney, Mr. Arun Bhardwaj, learned counsel for the respondent, has contended that Rule 7 of the Delhi Rent Control Rules provided that a Petition can be filed by an authorised representative on behalf of the owner-landlord/landlady and, therefore, there was no infirmity in the eviction Petition. Learned counsel for the Respondent has also cited the case of T.D Dhingra… v. Pritam Rai Khanna…. 48 (1992) DLT 208, a Single Bench decision of this Court, to show that even an Indian, who had acquired foreign citizenship, is not disentitled to enjoy residence in his own property in India when he chooses to return to India.
Last but not he least I would like to comment upon the affidavits of the property dealers and prospective buyer, which have been filed by the present Petitioner before the Trial Court. The conduct of the Petitioner in not filing these documents along with leave to defend application and subsequently bringing them on record shows that the same are procured one. Petitioner is using all sorts of tactics to deny the right of legitimate use of the premises to the respondent. Adequate safeguards are provided in the Act in case after an order of eviction on the ground of bona fide requirement is passed the premises are sold.
Eviction order was passed on 12.7.1995, however, that order was executable after a period of six months and that six months expired in January 1996. On account of the Page: 222interim order granted by this Court, the present Petitioner has enjoyed the tenanted premises for more than three years.
I find no ground to interfere with the impugned order of the learned Additional Rent Controller. Revision Petition is dismissed.