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Tuesday, May 20, 2014

Delhi Rent control Act - Leave to defend - Bonafide requirement of shop rented situated in main road for his business purpose as his business is located in a lane in exchange and not getting good business - Leave to defendant was rejected as there is no triable point - High court granted leave permission - Apex court held that What the tenant contends is that the landlord has several other shop houses from which he is carrying on different business and further that the landlord has other premises from where the business proposed from the tenanted premises can be effectively carried out. It would hardly require any reiteration of the settled principle of law that it is not for the tenant to dictate to the landlord as to how the property belonging to the landlord should be utilized by him for the purpose of his business.Also, the fact that the landlord is doing business from various other premises cannot foreclose his right to seek eviction from the tenanted premises so long as he intends to use the said tenanted premises for his own business. The grounds on which leave to defend was sought by the tenant and has been granted by the High Court runs counter to the fundamental principles governing the right of a tenant to contest the claim of bonafide requirement of the suit premises by the landlord under the Delhi Rent Control Act, 1958. Even assuming the assertions made by the tenant to be correct, the same do not disclose any triable issue so as to entitle the tenant to grant of leave to defend.We are, therefore, of the view that the impugned order dated 20.09.2012 of the High Court of Delhi is not legally sustainable. We, accordingly, set aside the same and allow this appeal and restore the order dated 02.09.2011 passed by the learned Additional Rent Controller, Delhi.= Anil Bajaj & Anr. ... APPELLANT (S) VERSUS Vinod Ahuja ... RESPONDENT (S) = 2014 (May. Part) http://judis.nic.in/supremecourt/filename=41524

  Delhi Rent control Act - Leave to defend - Bonafide requirement of shop rented situated in main road for  his business purpose as his business is located in a lane  in exchange and not getting good business - Leave to defendant was rejected as there is no triable point - High court granted leave permission - Apex court held that What the tenant contends is that the landlord has  several  other shop houses from which he is carrying  on  different  business  and  further that the landlord has other premises from where the business  proposed  from the tenanted premises can be  effectively  carried  out.   It  would  hardly require any reiteration of the settled principle of law that it is  not  for the tenant to dictate to the landlord as to how the  property  belonging  to the landlord should be utilized by him for  the  purpose  of  his  business.Also, the fact that the  landlord  is  doing  business  from  various  other premises cannot foreclose his right  to  seek  eviction  from  the  tenanted premises so long as he intends to use the said  tenanted  premises  for  his own business.  The grounds on which  leave  to  defend  was  sought  by  the tenant and  has  been  granted  by  the  High  Court  runs  counter  to  the fundamental principles governing the right of a tenant to contest the  claim of bonafide requirement of the suit  premises  by  the  landlord  under  the Delhi Rent Control Act, 1958.  Even assuming  the  assertions  made  by  the tenant to be correct, the same do not disclose any triable issue  so  as  to entitle the tenant to grant of leave to defend.We  are,  therefore,  of  the  view  that  the  impugned  order  dated 20.09.2012 of the High Court of Delhi is not legally sustainable.  We, accordingly, set aside the same and allow this appeal and restore  the order  dated  02.09.2011  passed  by  the  learned   Additional Rent Controller, Delhi.=

The appellants, who are the landlords, seek to  challenge  the  order
dated 20.09.2012 passed by the High Court of Delhi  granting  leave  to  the
respondent-tenant to contest the proceedings for his eviction under  Section
14(1)(e) of the Delhi Rent Control Act,  1958.  The order of the High  Court
is in reversal of the order dated 02.09.2011 passed by the  Additional  Rent
Controller who had refused to grant leave to defend to the tenant. =

In the present case it is clear that  while  the  landlord  (appellant
No. 1) is carrying on his business from a shop premise located in  a  narrow
lane, the tenant is in occupation of the premises located on the  main  road
which the landlord considers to be more suitable for his own business.   
The
materials on record, in fact, disclose that the landlord had offered to  the
tenant the premises located in the narrow lane in exchange for the  tenanted
premises which offer was declined by the tenant.  
It  is  not  the  tenant’s
case that the landlord-appellant No. 1  does  not  propose  to  utilize  the
tenanted premises from which eviction is sought  for  the  purposes  of  his
business.  
It is also not the tenant’s case that the  landlord  proposes  to
rent out/keep  vacant  the  tenanted  premises  after  obtaining  possession
thereof or to use the same is any way inconsistent  with  the  need  of  the
landlord.  
What the tenant contends is that the landlord has  several  other
shop houses from which he is carrying  on  different  business  and  further
that the landlord has other premises from where the business  proposed  from
the tenanted premises can be  effectively  carried  out.   
It  would  hardly
require any reiteration of the settled principle of law that it is  not  for
the tenant to dictate to the landlord as to how the  property  belonging  to
the landlord should be utilized by him for  the  purpose  of  his  business.

Also, the fact that the  landlord  is  doing  business  from  various  other
premises cannot foreclose his right  to  seek  eviction  from  the  tenanted
premises so long as he intends to use the said  tenanted  premises  for  his
own business.  
The grounds on which  leave  to  defend  was  sought  by  the
tenant and  has  been  granted  by  the  High  Court  runs  counter  to  the
fundamental principles governing the right of a tenant to contest the  claim
of bonafide requirement of the suit  premises  by  the  landlord  under  the
Delhi Rent Control Act, 1958.  
Even assuming  the  assertions  made  by  the
tenant to be correct, the same do not disclose any triable issue  so  as  to
entitle the tenant to grant of leave to defend.

We  are,  therefore,  of  the  view  that  the  impugned  order  dated
      20.09.2012 of the High Court of Delhi is not legally sustainable.  We,
      accordingly, set aside the same and allow this appeal and restore  the
      order  dated  02.09.2011  passed  by  the  learned   Additional   Rent
      Controller, Delhi.

2014 (May. Part) http://judis.nic.in/supremecourt/filename=41524
SUDHANSU JYOTI MUKHOPADHAYA, RANJAN GOGOI

                             NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                      CIVIL APPEAL  NO.   5513  OF 2014
        (Arising out of Special Leave Petition (C) No. 35943 OF 2012)


Anil Bajaj & Anr.                                  ...  APPELLANT (S)

                                   VERSUS

Vinod Ahuja                                   ...  RESPONDENT (S)



                               J U D G M E N T

RANJAN GOGOI, J.

1.    Leave granted.

2.     The appellants, who are the landlords, seek to  challenge  the  order
dated 20.09.2012 passed by the High Court of Delhi  granting  leave  to  the
respondent-tenant to contest the proceedings for his eviction under  Section
14(1)(e) of the Delhi Rent Control Act,  1958.  The order of the High  Court
is in reversal of the order dated 02.09.2011 passed by the  Additional  Rent
Controller who had refused to grant leave to defend to the tenant.

3.    The matter lies within a short compass notwithstanding  the  elaborate
application filed by the respondent-tenant seeking leave duly  supported  by
an affidavit and the detailed manner in which  the  appellant-landlords  had
contested the claim of the tenant.

      Briefly stated, leave was sought by the tenant on the ground that  the
landlords own several other properties  in  the  vicinity  of  the  tenanted
premises from where they are carrying on business or  have  rented  out  the
same.  As such, the tenanted premises i.e. No.38-UB,  Jawahar  Nagar,  Kamla
Nagar, Delhi is not bonafide required for the use of the landlords.

      In response, the landlords contend  that  the  first  appellant,  Anil
Bajaj is running a kiryana shop in premises No. 25-UB, Jawahar Nagar,  which
is located in a lane 15 feet in  width.   According  to  the  appellants  on
account of the location of the tenanted  premises,  the  appellant  No.1  is
unable to generate sufficient business causing acute hardship to  his  large
family.  Therefore, the appellants  need  the  tenanted  premises  which  is
situated on the main road.  According to the  appellants  they  had  offered
the premises in possession of  the  Appellant  No.1  i.e.  No.25-UB  Jawahar
Nagar to the tenant in  exchange  for  the  tenanted  premises  i.e.  38-UB,
Jawahar Nagar which offer has been declined by the  tenant.  The  appellants
have further averred that while most of the other properties alleged  to  be
in their ownership are not presently owned by  the  appellants,  some  other
items of property mentioned by the tenant in the application  seeking  leave
to defend are owned and utilized by other family members of  the  appellants
and the first appellant has no connection with such properties  or  business
carried on by the other members of the family.

4.     On  the  aforesaid  broad  pleadings  of  the  parties,  the  learned
Additional Rent Controller thought it fit to come  to  the  conclusion  that
the contentions made by the tenant are mere  assertions  without  any  basis
and that no triable issue is disclosed warranting grant of leave to  defend.
 In reversal, the High Court held that the precise relationship between  the
two appellants and the holding/interest of  the  first  appellant  in  other
items of property standing in the name of other  family  members  require  a
probe for which leave ought to be granted. Hence the impugned order and  the
present appeal arising therefrom.

5.    The principles governing grant or refusal of  leave  to  defend  under
the Delhi Rent Control Act, 1958 had been  squarely  dealt  with  in  Charan
Dass Duggal vs. Brahma Nand[1].  The issue has been aptly summarized in  the
following observations of the Court.
      “5. What should be the approach when leave to defend is sought?  There
      appears to be a mistaken belief that unless the tenant at  that  stage
      makes out such a strong case as would non-suit the landlord, leave  to
      defend cannot be granted. This approach is wholly improper. When leave
      to defend is sought, the tenant must make out such a prima facie  case
      raising such pleas that a triable issue would emerge and that  in  our
      opinion should be sufficient to grant leave. The test is the test of a
      triable issue and not the final success in  the  action  (see  Santosh
      Kumar v. Bhai Mool Singh[2]). At  the  stage  of  granting  the  leave
      parties rely in support of their rival contentions on  affidavits  and
      assertions and counter-assertions on affidavits may  not  afford  such
      incontrovertible evidence to lead to an affirmative conclusion one way
      or the other. Conceding that when possession is sought on  the  ground
      of personal requirement, an absolute need is not to be satisfied but a
      mere desire equally is not sufficient. It has  to  be  something  more
      than a mere desire. And being an enabling provision, the burden is  on
      the landlord to establish his case affirmatively. …… …… ……. ….




      7. The genesis of our procedural laws is to be traced to principles of
      natural justice, the principal amongst them being that  no  one  shall
      suffer civil or evil or pecuniary  consequence  at  his  back  without
      giving him an adequate and effective  opportunity  to  participate  to
      disprove the  case  against  him  and  prove  his  own  case.  Summary
      procedure does not clothe an authority with  power  to  enjoy  summary
      dismissal. Undoubtedly wholly frivolous  defence  may  not  entitle  a
      person leave to defend. But equally a triable issue raised, enjoins  a
      duty to grant leave. May be in the end the defence  may  fail.  It  is
      necessary to bear in mind that when leave to  defend  is  refused  the
      party seeking leave is denied an opportunity to test the truth of  the
      averments  of  the  opposite  party  by  cross-examination  and  rival
      affidavits may not furnish reliable evidence for concluding the  point
      one way or the other. It is not for a moment suggested that  leave  to
      defend must be granted on mere asking but it is  equally  improper  to
      refuse to grant  leave  though  triable  issues  are  raised  and  the
      controversy can be properly adjudicated after ascertainment  of  truth
      through  cross-examination  of  witnesses   who   have   filed   their
      affidavits.”

6.    In the present case it is clear that  while  the  landlord  (appellant
No. 1) is carrying on his business from a shop premise located in  a  narrow
lane, the tenant is in occupation of the premises located on the  main  road
which the landlord considers to be more suitable for his own business.   The
materials on record, in fact, disclose that the landlord had offered to  the
tenant the premises located in the narrow lane in exchange for the  tenanted
premises which offer was declined by the tenant.  It  is  not  the  tenant’s
case that the landlord-appellant No. 1  does  not  propose  to  utilize  the
tenanted premises from which eviction is sought  for  the  purposes  of  his
business.  It is also not the tenant’s case that the  landlord  proposes  to
rent out/keep  vacant  the  tenanted  premises  after  obtaining  possession
thereof or to use the same is any way inconsistent  with  the  need  of  the
landlord.  What the tenant contends is that the landlord has  several  other
shop houses from which he is carrying  on  different  business  and  further
that the landlord has other premises from where the business  proposed  from
the tenanted premises can be  effectively  carried  out.   It  would  hardly
require any reiteration of the settled principle of law that it is  not  for
the tenant to dictate to the landlord as to how the  property  belonging  to
the landlord should be utilized by him for  the  purpose  of  his  business.
Also, the fact that the  landlord  is  doing  business  from  various  other
premises cannot foreclose his right  to  seek  eviction  from  the  tenanted
premises so long as he intends to use the said  tenanted  premises  for  his
own business.  The grounds on which  leave  to  defend  was  sought  by  the
tenant and  has  been  granted  by  the  High  Court  runs  counter  to  the
fundamental principles governing the right of a tenant to contest the  claim
of bonafide requirement of the suit  premises  by  the  landlord  under  the
Delhi Rent Control Act, 1958.  Even assuming  the  assertions  made  by  the
tenant to be correct, the same do not disclose any triable issue  so  as  to
entitle the tenant to grant of leave to defend.


   6. We  are,  therefore,  of  the  view  that  the  impugned  order  dated
      20.09.2012 of the High Court of Delhi is not legally sustainable.  We,
      accordingly, set aside the same and allow this appeal and restore  the
      order  dated  02.09.2011  passed  by  the  learned   Additional   Rent
      Controller, Delhi.
                                                                          7.
                                               …………………...........………………………J.
                    [SUDHANSHU JYOTI MUKHOPADHAYA]


                                               .…………………..........………………………J.
                       [RANJAN GOGOI]
NEW DELHI,
MAY    08, 2014.
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[1]    (1983) 1 SCC 301
[2]    1958 SCR 1211

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