Delhi High Court - OrdersSmt Poonam Bangia vs Harbhagwan Dass Chandiramani on 22 July, 2021Author:Najmi WaziriBench:Najmi Waziri$~15 (1)\n                              *    IN THE HIGH COURT OF DELHI AT NEW DELHI\n                              +    RC.REV. 16/2021 & CM APPL. 2959/2021\n                                   SMT POONAM BANGIA                   ..... Petitioner\n                                               Through: Mr. Namit Bangia, Adv.\n\n                                                      versus\n\n                                   HARBHAGWAN DASS CHANDIRAMANI ..... Respondent\n                                              Through: Mr. S.N. Choudhri, Adv.\n\n                                     CORAM:\n                                    HON'BLE MR. JUSTICE NAJMI WAZIRI\n                                                  ORDER%              22.07.2021\n                                       The hearing has been conducted through video conferencing.1. On 28.01.2021, it was recorded inter alia as under:"....1. The possession of the erstwhile tenanted premises is\n                                        stated to have been taken over by the landlord through\n                                        execution proceedings. The learned counsel for the\n                                        respondent submits that nothing remains in this petition\n                                        as it has become infructuous....."2. The impugned eviction order of the learned Rent Controller passed on\n                                  01.02.2020 ended a six-decade old tenancy. Through execution\n                                  proceedings, possession of the tenanted premises was handed over to the\n                                  respondent-landlord a year later, on 28th January 2021.3. The learned counsel for the respondent submits that nothing survives in\n                                  this petition therefore it may be dismissed. He relies upon the decision\n                                  of the Supreme Court inN.C. Daga v. Inder Mohan Singh Rana, AIRSignature Not VerifiedDigitally signed By:KAMLESHKUMARSigning Date:23.08.202118:39:352003 Supreme Court 587, which in similar circumstances had held, inter\n                              alia, as under:"..."....... Leave granted.Challenge in this appeal is to judgment of the Delhi High\n                                   Court upholding decision of the Additional Rent Controller,\n                                   Delhi (in short 'the Rent Controller') declining leave to the\n                                   present appellant to contest in a proceeding under theDelhi\n                                   Rent Control Act, 1958(hereinafter referred to as 'the Act').\n                                   Brief reference to the factual aspects would suffice. The\n                                   respondent-landlord filed a petition for eviction on several\n                                   grounds; primarily on the ground of personal requirements.\n                                   Before the Rent Controller an application was moved\n                                   underSection 25-Bof the Act by the appellant-tenant for\n                                   grant of leave to defend said eviction petition filed\n                                   underSection 14(1), proviso (e) of the Act, by the present\n                                   respondent-landlord. On 10.9.1999 landlord had filed the\n                                   eviction petition alleging that he wanted the premises for his\n                                   personal use, since the accommodation available to him was\n                                   not suitable and he does not own any other property in Delhi.\n                                   Tenant resisted the eviction petition on many grounds. It was\n                                   contended that there was no relationship of landlord and\n                                   tenant between the parties, and in any event the premises\n                                   were let out for residential/commercial purposes as\n                                   mentioned in the Lease Agreement executed between the\n                                   parties on 1st September, 1971, and, therefore, he is entitled\n                                   to grant of leave to defend. Additionally, it was stated that the\n                                   petition was mala fide and an abuse of process of law, barred\n                                   by res judicata as earlier petitions filed by one Smt. Tejinder\n                                   Kaur Rana on the ground of bona fide requirement, and\n                                   another petition filed by the mother of the landlord were\n                                   dismissed. Reply to the application for grant of leave to\n                                   defend was filed by the landlord, where he denied the\n                                   allegations made, though he admitted that earlier petitions\n                                   had been filed. It was, however, contended that the principles\n                                   of res judicata were not applicable, and there was no bar on\n                                   filing fresh petition for eviction on the ground of bona fideSignature Not VerifiedDigitally signed By:KAMLESHKUMARSigning Date:23.08.202118:39:35requirement in the changed circumstances. Rejoinder was\n                              filed by the tenant. The Rent Controller held that there was\n                              prima facie material to show that the applicant was the\n                              landlord and the owner of the premises. Coming to the plea\n                              taken that the premises were let out for commercial purposes\n                              it was noticed that the paragraph 7 of the lease-deed on which\n                              reliance was placed did not indicate that the premises were let\n                              out for residential cum commercial purposes. On the\n                              contrary, what the said paragraph indicated was availability\n                              of option to use the premises for commercial purposes after\n                              requisite formalities were observed. It was held that before\n                              leave to defend is granted, the respondent must show that\n                              some triable issues which disentitled the applicant from\n                              getting the order of eviction against the respondent and at the\n                              same time entitled the respondent to leave to defend existed.\n                              The onus is prima facie on the respondent and if he fails, the\n                              eviction follows. The respondent has failed to make out a case\n                              for grant of leave to defend. Accordingly, eviction order was\n                              passed underSection 14(1)(e)of the Act, but it was directed\n                              that the applicant will not be entitled to execute eviction order\n                              before the expiry of six months in terms ofSection 14(7)of the\n                              Act. The revision before the High Court of Delhi was also\n                              dismissed. It was, inter alia, observed that the tenant had not\n                              filed any document to support the plea in regard to the\n                              commercial use of the premises. It was further held that no\n                              prima facie case was made out by the tenant.In support of the appeal Mr. Jaspal Singh, learned senior\n                              counsel submitted that a bare reading ofSection 7of the\n                              Lease Agreement made the position clear that the premises\n                              were let out for residential and commercial purposes, and,\n                              therefore, the courts below were not justified in refusing leave\n                              to contest. The jurisdiction to grant leave or refuse the same is\n                              to be exercised on the basis of the affidavit filed by the tenant.\n                              Even if it is conceded for the sake of argument that clause (7)\n                              did not make out a case for commercial user, yet the fact that\n                              for more than two decades the tenant was carrying on\n                              commercial activities in the tenanted premises clearly made\n                              out a case of consent.Signature Not VerifiedDigitally signed By:KAMLESHKUMARSigning Date:23.08.202118:39:35In response, counsel for the respondent-landlord submitted\n                                that the whole case built up by the tenant centered round\n                                clause (7) and the plea of implied consent has been raised for\n                                the first time before this court. Such plea was even not raised\n                                before the High Court. In any event, according to him, the\n                                matter has become infructuous because the possession has\n                                been taken pursuant to execution of the order passed by the\n                                Rent Controller.In view of the admitted position that pursuant to the order\n                                passed by the Rent Controller, possession has been taken on\n                                execution of the order permitting eviction, and absence of\n                                specific stand regarding implied consent it is, however, not\n                                necessary to go into the finer details and to examine the rival\n                                stand in the background of legal position as it would amount\n                                to rendering decision on a purely academic question. The\n                                appeal is, therefore, dismissed, without any order as to\n                                costs..." .(emphasis supplied)4. The facts narrated in the afore-cited case are akin to the present\n                                 case. A joint tenancy was created in 1958 in favour of one Pyare\n                                 Lal and his son for a shop, two rooms, a toilet and a verandah in\n                                 the rear side, on the ground floor of property bearing no. F-30\n                                 Central Market, Kirti Nagar, New Delhi - 15. After the demise of\n                                 Pyare Lal, his daughter Champa Rani inherited the tenancy. The\n                                 petitioner is her widowed daughter-in-law. The latter has been\n                                 residing in the premises since 1984. At some stage, her\n                                 predecessors-in-interest had constructed a bathroom and a kitchen\n                                 in the rear side of the building.5. The landlord claims ownership on the basis of his deceased\n                                 father's Will dated 29.5.1994. He was about 75 years old and his\n                                 wife of 71 years, when the eviction petition was filed. The latterSignature Not VerifiedDigitally signed By:KAMLESHKUMARSigning Date:23.08.202118:39:35suffers from cardiological ailments - three stents have been put in\n                                 her heart. The landlord too has age-related knee problems.\n                                 Supporting medical documents have been filed. They live on third\n                                 floor (top floor) of building no.12/11 East Patel Nagar, New Delhi.\n                                 It does not have a lift facility. They have difficulty in climbing the\n                                 stairs, nor is it medically advisable for them to do so. They need to\n                                 shift to a ground floor residence. Their unmarried daughter needs\n                                 space to start a business enterprise. She is dependent on her father\n                                 for such space. The landlord owns the tenanted premises including\n                                 the first floor of the building. It has no second floor. His son\n                                 carries-out his business from the first floor of the building. The\n                                 son, the daughter in-law, their two children, the daughter are\n                                 dependent upon him for accommodation. It has two bed rooms, a\n                                 drawing room, a dining room, a toilet and a kitchen. The said\n                                 accommodation is neither suitable nor sufficient for his and the\n                                 needs of this dependents.6. The other shop on the ground floor of the said property no. F-30\n                                 Central Market, Kirti Nagar, New Delhi - 15, was long rented-out,\n                                 to one Dr. Jagan Nath Khurana who has since passed away, his\n                                 legal heirs continue to occupy that shop. It is not available for the\n                                 petitioner's occupation and use. In any case it is not suitable for\n                                 either the landlord, his wife and their daughter because this other\n                                 shop does not have residential rooms, dining room, kitchen,\n                                 washrooms, etc. for their needs.Signature Not VerifiedDigitally signed By:KAMLESHKUMARSigning Date:23.08.202118:39:357. The tenant's contentions in the application for leave to defend\n                                 were found untenable; they did not raise any triable issue,\n                                 therefore it was dismissed and the eviction order ensued. The\n                                 learned Rent Controller found that: i) the landlord had his father's\n                                 Will to maintain the eviction petition (Bharat Bhushan Vij vs Aarti\n                                 Tekchandani 153 (2008) DLT 247); ii) the tenant has not denied\n                                 that she was residing in the premises as a tenant, she is obliged to\n                                 disclose as to who was the landlord, if not the eviction-petitioner\n                                 himself (Rajender Kumar vs Leela Wati155 (2008 DLT 383); iii)\n                                 the landlord's daughter did not require proof of experience to start\n                                 a new business (Ram Babu Agarwal vs Jay Kishan Das2010 AIR\n                                 SC 721); iv) the tenant's bald statement doubting the correctness\n                                 site plan of the premises filed by the landlord, is not sufficient to\n                                 disregard it, the tenant should have filed his own site-plan (Mukesh\n                                 Kimar vs Rishi Prakash RCR34/09, date of decision 6.10.2009)v); to determine the sufficiency and suitability of the required\n                                 premises for his bonafide need, is the prerogative of the landlord\n                                 and the tenant cannot dictate terms in this regard (Yashpal Juneja\n                                 vs Satish Kumar Civil Revision No.3248/2008 date of decision\n                                 30.50.2008)8. The learned Rent Controller, found that the landlord had proven\n                                 his bona fide requirement and that he had no alternate\n                                 accommodation. The tenancy lasted for six decades. The landlord\n                                 has received possession of the tenanted premises though execution\n                                 proceedings.InN C Daga(supra) the Supreme Court has held thatSignature Not VerifiedDigitally signed By:KAMLESHKUMARSigning Date:23.08.202118:39:35where possession had been taken on execution of the order\n                                      permitting eviction, the issues raised by the tenant remained purely\n                                      academic and it was not necessary to go into the finer details.\n                                      Same is the position in the present case as well. Therefore, in view\n                                      of the N C Daga principle, the petition is dismissed.9. The order be uploaded on the website forthwith.NAJMI WAZIRI, J\n                              JULY 22, 2021\n                              ABSignature Not VerifiedDigitally signed By:KAMLESHKUMARSigning Date:23.08.202118:39:35