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.
-----------------------
[1] (1983) 1 SCC 301
[2] 1958 SCR 1211
-----------------------
7
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. =
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.
-----------------------
[1] (1983) 1 SCC 301
[2] 1958 SCR 1211
-----------------------
7
