Delhi High Court
Sita Ram vs Sudershan Kumar Jain on 13 February, 2025
$~211
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 13.02.2025
+ RC.REV. 644/2018, CM APPL. 38079/2024
SITA RAM .....Petitioner
Through: Mr. Pradeep Kumar Arya, Mr. Aditya
Kumar Yadav, Mr. Gaurav
Chaudhary, Mr. Rishabh Malhotra,
Mr. Rishabh, Advs.
versus
SUDERSHAN KUMAR JAIN .....Respondent
Through: Mr. T.K. Tiwari, Mr. Shakti Kant
Pattnaik, Advs.
CORAM:
HON'BLE MS. JUSTICE TARA VITASTA GANJU
TARA VITASTA GANJU, J.: (Oral)
CM APPL.54462/2018 [Seeking condonation of delay]
1. This is an Application filed on behalf of the Petitioner/tenant seeking
condonation of delay of 1840 days in filing the present Petition.
2. The present Petition seeks to challenge the judgment dated
09.09.2013 [hereinafter referred to as “Impugned Order”] passed by the
learned ARC-1, Central, Tis Hazari Courts, Delhi. By the Impugned Order,
the leave to defend Application filed by the Petitioner/tenant was dismissed.
3. Learned Counsel for the Petitioner/tenant contends that the
Petitioner/tenant filed a Review Application seeking review of the Impugned
Order on 09.10.2013 [hereinafter referred to as “Review Application”]
before the learned Trial Court, which was dismissed by an order dated
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15.12.2018 by the learned Trial Court.
3.1 Learned Counsel for the Petitioner/tenant submits that the
Petitioner/tenant has filed the present Petition on 20.12.2018 and thus, the
delay of 1840 days be condoned.
4. No Reply to the present Application was filed by the
Respondent/landlord, however learned Counsel for the Respondent/landlord
has contended that no ground for condonation of delay has been made out in
the present Application.
5. As stated above, the Impugned Order was passed on 09.09.2013 and
subsequently, on 09.10.2013, the Petitioner/tenant filed the review
Application. The Application was finally decided by an order dated
15.12.2018 and the present Petition under Section 25-B(8) of the Delhi Rent
Control Act, 1958 [hereinafter referred to as “DRC Act“] was filed on
20.12.2018.
6. It is no longer res integra that the limitation for filing of a Petition
under Section 25-B(8) of the DRC Act is three years from the date of
passing of the Eviction Order. A Coordinate Bench of this Court in Jai
Prakash v. Jean Conea1 has held that since there is no period of limitation
provided for a petition under Section 25-B(8) of the DRC Act, the limitation
as is prescribed in Article 137 of the Limitation Act, 1963 [hereinafter
referred to as the “Limitation Act“] is applicable which provides that the
period of limitation is three years from the date when the right to sue
accrues. The relevant extract of Jai Prakash case is below:
“(5) The matter came up for consideration before the Supreme Court in The
1
MANU/DE/0465/1980Signature Not Verified
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Kerala State Electricity Board vs. I.P. Kunhaliumma MANU/SC/0323/1976:
[1977]1SCR996. After referring to its earlier decisions, the Supreme Court
differed with the earlier view taken by it in Athani Municipal Council Ca:e
(Supra) and held that Article 137 of the Limitation Act, 1963, is not confined
to applications contemplated by or under the CPC. The interpretation,
which was given to Article 181 of the Limitation Act, 1908, was held to be
not applicable with regard to Article 137 of the Limitation Act, 1963. In
view of this latest pronouncement of Supreme Court in The Kirala case
(Supra), it seems that application or petition under any law for which no
period of limitation is provided elsewhere in the Third Division of the
Limitation Act is governed by Article 137 of the Limitation Act, 1963. The
petition under Section 25-B(8) of the Act is a revision petition to this
court, and no period of limitation is specified in the Third Division of the
Limitation Act and as such Article 137 of the Limitation Act is applicable.
This Article provided that any other application for which no period of
limitation is provided elsewhere in this division i.e. Third Division of the
Schedule of the Limitation Act, the period of limitation is three years from
the date when the right to apply accrues. Thus, I am of the view that the
revision petition under the proviso to sub-section (8) of Section 25-B of
the Act is governed by Article 137 to the Limitation Act. The impugned
order of the Controller was passed on 29th April, 1978 and the present
revision petition was filed on 17th May, 1980 and as such the revision
petition seems to be within time…”
[Emphasis supplied]
6.1 This position has been affirmed by another Coordinate Bench of this
Court in the case of Sudesh Kumar Bansal v. Ajay Saini and Ors.2, which
has held that rent revision is covered under Article 137 of the Limitation Act
and the limitation period is three years from the date of the impugned order.
The relevant extract is reproduced below:
“3. Learned counsel further submits that in any event this being a rent
revision, is covered by Article 137 of the Limitation Act and the limitation
period is three years from the impugned order and even if it is calculated
from the date of re-filing the petition is within time.
4. In view of the above and for the reasons stated in the application, the
delay in re-filing is condoned. The application stands disposed of.”
[Emphasis supplied]
2
2019 SCC OnLine Del 10437
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7. Concededly, the Petitioner/tenant was pursuing an alternate remedy as
is available under Section 25-B(9) of the DRC Act prior to filing of the
present Petition, as stated above. Thus, the delay would not be 1840 days but
for a period between 08.09.2016 and 20.12.2018 at best. In view of the fact
that the Petitioner was diligently pursuing an alternate remedy of a Review,
which Petition was dismissed on 15.12.2018 by the learned Trial Court, this
Court deems it apposite to condone the delay.
8. The Application is accordingly allowed.
RC.REV. 644/2018
9. The present Petition seeks to challenge the Impugned Order. By the
Impugned Order, the Leave to Defend/Contest Application filed by the
Petitioner/tenant was dismissed in view of the fact that the Petitioner/tenant
failed to raise any triable issue which requires evidence to be proved. The
premises which forms subject matter of the present Petition is a Shop
bearing No.4277, Main Bazar, Pahar Ganj, New Delhi [hereinafter referred
to as “subject premises”].
10. Briefly the undisputed facts are as follows:
10.1 It is the case of the Respondent/landlord that the Respondent/landlord
was a co-owner of the subject property along with his brother, Sh. Kuldeep
Kr. Jain. The subject premises was inherited from the predecessor-in-interest
of the Respondent/landlord. A Family Settlement Deed was executed
between the Respondent/landlord and his brother, Sh. Kuldeep Kr. Jain on
16.10.1987 [hereinafter referred to as the “MOFS”]. Subsequently, disputes
arose between the Respondent/landlord and his brothers and a partition suit
was filed before this Court. By an order dated 01.12.2010, a preliminary
decree was passed by this Court affirming the MOFS. In terms of theSignature Not Verified
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MOFS, three shops fell to the share of the Respondent/landlord and certain
other residential properties were divided between the Respondent/landlord
and his two brothers.
10.2 The need as set out by the Respondent/landlord was that the
Respondent/landlord was previously using one of the residential properties
for commercial use and needed further space for his business to be used as a
godown. It was further contended that son of the Respondent/landlord
required the subject premises to start his own business and the subject
premises is required for this purpose.
10.3 A Petition under Section 14(e) of the DRC Act was filed by the
Respondent/landlord seeking eviction of the Petitioner/tenant from the
subject premises. It was contented in the Eviction Petition that the
Respondent/landlord required the subject premises as an additional space for
using it as a godown and for the bona fide need of his son who wants to start
his business along with his wife.
10.4 The Petitioner/tenant filed a Leave to Defend/Contest Application. It
was contended by the Petitioner/tenant that the Respondent/landlord has
multiple properties available with him as alternate accommodations. In
addition, the bona fide need of the Respondent/landlord was challenged
stating that the son and daughter-in-law of the Respondent/landlord are
employed with a company. The Petitioner/tenant also challenged the MOFS.
10.5 In the Reply to the Leave to Defend/Contest Application, the
Respondent/landlord clarified that there were no suitable alternate
accommodations available with the Respondent and that the need of the
Respondent/landlord was bona fide.
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10.6 The learned Trial Court examined the matter and found that the
ownership of the subject premises and the existence of the landlord-tenant
relationship was not disputed by the Petitioner/tenant. It was not disputed
that the Respondent/landlord obtained ownership of some shops in terms of
the MOFS.
10.7 On the bona fide need, the learned Trial Court found that the MCD
had issued a notice and demolished certain portions of the properties in
occupation of the Respondent/landlord which were being used by the
Respondent/landlord as a godown and that the Respondent/landlord had a
requirement of the subject premises. The learned Trial Court after an
examination of the documents and the income tax returns of the son and
daughter-in-law of the Respondent/landlord found them to be self-employed
and working out of one of the properties in occupation with the
Respondent/landlord. Thus, it was held that need of the Respondent/landlord
is bona fide.
10.8 On the availability of alternate suitable accommodation, the learned
Trial Court examined the properties which were stated by the
Petitioner/tenant to be available with the Respondent/landlord and found that
none of these properties were available. The learned Trial Court also found
that no material has been placed on record by the Petitioner/tenant in support
of the assertions that the Respondent/landlord owns and possesses any of the
properties that were mentioned by the Petitioner/tenant in the Leave to
Defend/Contest Application.
10.9 It was thus held that no triable issue has been raised by the
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dismissed and the Eviction Petition was allowed.
11. The Petitioner/tenant then filed an application under Section 25B(9)
of the DRC Act for review of the Impugned Order. The Petitioner/tenant had
averred that the learned Trial Court has misinterpreted the law as laid down
in the judgment in Rajinder Kumar Sharma & Ors. v. Leelawati & Ors.3 It
was further stated that the judgment is in-curiam and has been passed by
ignoring the dictum of the Supreme Court as laid down in Inderjeet Kaur v.
Nirpal Singh4 and Liaq Ahmed v. Habeeb-ur-Rehman5. It was thus
contended that the Impugned Order suffers from an error apparent on the
face of the record.
11.1 The Respondent/landlord, on the other hand, had contended that the
judgment in Rajinder Kumar Sharma case was passed on different facts,
and thus, there was no conflict with the judgment as laid down by the
Supreme Court in Inderjeet Kaur case and Liaq Ahmed case.
11.2 It was further contended by the Respondent/landlord that the final
decree as passed by the High Court in the partition suit between the
Respondent/landlord and his brothers was examined and taken into account
by the learned Trial Court, prior to passing the Impugned Order. The learned
Trial Court found that the Petitioner/Tenant had admitted the partition
decree passed by this Court and the ownership of the three shops, and that
the shops were not lying vacant, thus, the bona fide need of the
Respondent/landlord cannot be challenged, and that the Petitioner/tenant
cannot claim that the Respondent/landlord had available alternate suitable
3
155 (2008) DLT 383
4
(2000) Supp 5 SCR 707
5
AIR 2000 SC 2470
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accommodations.
11.3 By an order dated 07.12.2015 [hereinafter referred to as the “Review
Order”], the application for review of the Impugned Order was dismissed by
the learned Trial Court and it was held that no ground for review had been
made out and the Petitioner/tenant had to establish a prima facie case to
prove availability of additional accommodation with the Respondent/
landlord.
12. The Impugned Order as well as the Review Order were thereafter
challenged by the Petitioner/tenant before this Court by way of the present
Petition.
12.1 A Coordinate Bench of this Court on 24.02.2016 granted interim
protection to the Petitioner/tenant which has continued till the present day.
12.2 By the order dated 25.09.2019, the application filed by the
Petitioner/tenant for taking on record subsequent events that the brother of
the Respondent/landlord filed a suit for declaration seeking to impugn the
partition deed. The said application was allowed by a Coordinate Bench of
this Court directing that the relevancy of the documents sought to be placed
on record shall be examined at the time of the final hearing. Thereafter,
interim user and occupation charges were affixed by a Coordinate Bench of
this Court by an order dated 12.10.2023.
13. Learned Counsel for the Petitioner/tenant has raised three contentions
before this Court. It is submitted that there was no bona fide need for the
subject premises. It was contended by the learned Counsel for the
Petitioner/tenant that “need and greed” are two different things, and that
this is a case where the need is not relevant. In addition, it was contended,
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relying on paragraph 11 of the Leave to Defend/Contest Application, that
the Respondent/landlord had available with him three properties bearing
Nos. 32, 2480 and 4182, all situated at Main Bazar, Paharganj. Lastly, it was
contended by the learned Counsel for the Petitioner/tenant that four separate
eviction petitions were filed by the Respondent/landlord for the recovery of
possession of three shops and one godown and out of these, an order was
passed by this Court in RC.REV. 1/2016 dated 12.10.2023 captioned as
Bhag Chand v. Sudershan Kumar Jain, whereby the Respondent/landlord
procured the possession of a godown. Thus, it is contended that on account
of the subsequent event, the need in the present Petition does not subsist.
13.1 In addition, learned Counsel for the Petitioner/tenant has placed
reliance on the judgments of the Supreme Court in Inderjeet Kaur case and
Liaq Ahmed case to submit that triable issues were raised, thus, the Leave to
Defend/Contest Application ought to have been granted.
14. Learned Counsel for the Respondent/landlord, on the other hand, has
reiterated that the need as set out by the Respondent/landlord was for
different uses. One shop and godown were required for himself, while two
shops were required for his son and daughter-in-law respectively. It was
contended that the need of the Respondent/landlord, for which the shop was
vacated in RC.REV. 1/2016, is different from the need of the
Respondent/landlord for the subject premises in the present Revision
Petition, which is for the requirement of the Respondent himself. Thus, the
need has not been satisfied despite the passing of the order dated 12.10.2023
in RC.REV. 1/2016.
14.1 Learned Counsel for the Respondent further relies on paragraph 8 and
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11 of the Leave to Defend/Contest Application as well as its Reply, to state
that the Respondent/landlord in his Reply to Leave to Defend/Contest
Application had clearly stated that the three properties referred to therein
(set out in paragraph 13 above), were not available with him.
14.2 It is further contended that so far as concerns the property No.32,
Main Bazar, Paharganj, the same is now the property of his brother while
property Nos.2480 and 4182, Main Bazar, Paharganj are neither owned nor
in the possession of the Respondent/landlord.
14.3 It is thus contended by the learned Counsel for the
Respondent/landlord that the Impugned Order does not suffer from any
infirmity.
15. Learned Counsel for the Respondent/landlord relies upon the Review
Order to submit that the grounds as taken before this Court were also taken
before the learned Trial Court both in the Reply to Leave to Defend/Contest
Application and in the Eviction Petition and that the learned Trial Court has
examined these grounds and found them to be devoid of any merit.
16. The landlord-tenant relationship was not disputed by the
Petitioner/tenant before the Trial Court and no contention has been raised
before this Court challenging the same. However, on the aspect of
ownership of the Respondent/landlord over the subject premises, one
contention which has been raised before this Court that is that brother of the
Respondent/landlord has filed a suit for declaration seeking to impugn the
partition deed by way of which the subject premises fell in the share of the
Respondent/landlord.
16.1 This Court while discussing the issue of ownership in a Petition filed
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under Section 25-B(8) of the Act in a case titled R.S. Chadha v. Thakur
Dass6 has held that what a landlord has to prove is a better title than the
tenant to seek his eviction for the tenanted premises. The Court relied on the
judgment of the Supreme Court in the case of Shanti Sharma vs. Ved
Prabha7 to hold that the term owner has to be understood in the context of
the background of the law. The relevant extract reads as follows:
“10.1 It is settled law that what a landlord has to prove is a better title
than the tenant to seek his eviction from a tenanted premises under
Section 14(1)(e) of the Act. The Supreme Court in the case of Shanti
Sharma v. Ved Prabha has held as follows:
“14. The word “owner” has not been defined in this Act
and the word ‘owner’ has also not been defined in the
Transfer of Property Act. The contention of the learned
Counsel for the appellant appears to be that ownership
means absolute ownership in the land as well as of the
structure standing thereupon. Ordinarily, the concept of
ownership may be what is contended by the counsel for the
appellant but in the modern context where it is more or less
admitted that all lands belong to the State, the persons who
hold properties will only be lessees or the persons holding
the land on some term from the government or the authorities
constituted by the State and in this view of the matter it
could not be thought of that the legislature when it used the
term “owner” in the provision of Section 14(1)(e) it thought
of ownership as absolute ownership. It must be presumed
that the concept of ownership only will be as it is understood
at present. It could not be doubted that the term “owner”
has to be understood in the context of the background of
the law and what is contemplated in the scheme of the Act.
This Act has been enacted for protection of the tenants. But
at the same time it has provided that the landlord under
certain circumstances will be entitled to eviction and bona
fide requirement is one of such grounds on the basis of which
landlords have been permitted to have eviction of a tenant.
In this context, the phrase “owner” thereof has to be
understood, and it is clear that what is contemplated is that
6
2024 SCC OnLine Del47
7
(1987) 4 SCC 193
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where the person builds up his property and lets out to the
tenant and subsequently needs it for his own use, he should
be entitled to an order or decree for eviction the only thing
necessary for him to prove is bona fide requirement and
that he is the owner thereof. In this context, what appears
to be the meaning of the term “owner” is vis-a-vis the
tenant i.e. the owner should be something more than the
tenant. Admittedly in these cases where the plot of land is
taken on lease the structure is built by the landlord and
admittedly he is the owner of the structure….”
[Emphasis supplied]
16.2 Irrespective of the pending disputes between the Respondent/landlord
and his brothers, what is required to be proved before this Court is that the
Respondent/landlord has a better title than the Petitioner/tenant.
16.3 In any event, once the Petitioner has admitted to being a tenant, he is
estopped from challenging the title of the Respondent/landlord. The
provisions of Section 116 of the Evidence Act, 1872/Section 122 of The
Bharatiya Sakshya Adhiniyam, 2023 provides for an estoppel on a tenant to
challenge the ownership of a landlord. Section 116 of the Evidence Act,
1872 is reproduced below:
“116. Estoppel of tenants and of licensee of person in possession. — No
tenant of immovable property, or person claiming through such tenant,
shall, during the continuance of the tenancy, be permitted to deny that the
landlord of such tenant had, at the beginning of the tenancy, a title to such
immovable property; and no person who came upon any immovable
property by the licence of the person in possession there of shall be
permitted to deny that such person had a title to such possession at the time
when such licence was given.”
16.4 The Supreme Court in the case of Bansraj Laltaprasad Mishra v.
Stanley Parker Jones,8 has held that where a person has been brought
into possession as a tenant by the landlord and if such tenant is permitted
8
(2006) 3 SCC 91
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to question the title of the landlord, it will give rise to extreme confusion
in the matter of relationship of the landlord and tenant and hence the
equitable principle of estoppel has been incorporated by the legislature.
The relevant extract of the Bansraj Laltaprasad Mishra case is
reproduced below:
“13. The underlying policy of Section 116 is that where a person has been
brought into possession as a tenant by the landlord and if that tenant is
permitted to question the title of the landlord at the time of the settlement,
then that will give rise to extreme confusion in the matter of relationship
of the landlord and tenant and so the equitable principle of estoppel has
been incorporated by the legislature in the said section.
14. The principle of estoppel arising from the contract of tenancy is based
upon a healthy and salutary principle of law and justice that a tenant who
could not have got possession but for his contract of tenancy admitting the
right of the landlord should not be allowed to launch his landlord in some
inequitable situation taking undue advantage of the possession that he got
and any probable defect in the title of his landlord. It is on account of such
a contract of tenancy and as a result of the tenant’s entry into possession on
the admission of the landlord’s title that the principle of estoppel is
attracted.
15. Section 116 enumerates the principle of estoppel which is merely an
extension of the principle that no person is allowed to approbate and
reprobate at the same time.”
[Emphasis Supplied]
16.5 Thus, the contention of the Petitioner/tenant disputing the ownership
of the Respondent/landlord over the subject premises is without any merit.
17. On the aspect of bona fide need of the Respondent/landlord, it is the
contention of the Petitioner/tenant that the since the Respondent/landlord has
gained possession of one godown which was subject matter of Bhag Chand
case, the need as set out by the Respondent/landlord stands fulfilled. It was
further contended that the “need and greed” are two different things, and
that this is a case where the need is not relevant. This contention of the
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Respondent/landlord is misconceived.
17.1 Respondent/landlord has clarified that the need as set out by the
Respondent/landlord is for multiple uses. One shop and godown were
required for himself and while two shops were required for his son and
daughter-in-law. It was contended that the need of the Respondent/landlord,
for which the shop was vacated in another revision petition, is different from
the need of the Respondent/landlord for the subject premises in the present
Revision Petition, which is for the requirement of the Respondent himself.
Clearly, thus, it cannot be said that the bona fide need of the
Respondent/landlord has been satisfied in view of the passing of the order
dated 12.10.2023 in Bhag Chand case.
17.2 The law on this aspect is settled. Neither the Court nor a tenant can
dictate to the landlord as to how to use his premises. This Court in the case
of Swaranjit Singh v. Saroj Kapoor9, while relying on the judgement of the
Supreme Court in the case of Sait Nagjee Purushotham & Co. Ltd. v.
Vimalabai Prabhulal10 and in Anil Bajaj v. Vinod Ahuja11, has held that the
tenant cannot dictate to the landlord as to which premises is more suitable
for the landlord to run the business and in what manner the property is to be
used. The relevant extract of the Swaranjit Singh case is reproduced below:
“46. The law is well settled that a tenant cannot dictate to the
Respondent/Landlady as to which premises is more suitable to satisfy the bona
fide requirement under the DRC Act. Reference in this regard may be made to
the decision of the Supreme Court in Sait Nagjee Purushotham & Co.
Ltd. v. Vimalabai Prabhulal[(2005) 8 SCC 252] and in Anil Bajaj v. Vinod
Ahuja[(2014) 15 SCC 610], wherein the Supreme Court has reiterated this
principle in the following words:
9
2023 SCC OnLine Del 7396
10
(2005) 8 SCC 252
11
(2014) 15 SCC 610Signature Not Verified
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“6. ……What the tenant contends is that the Landlady has several other
shop houses from which he is carrying on different businesses and further
that the Landlady 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 Landlady as to how the property belonging to the
Landlady should be utilized by him for the purpose of his business. ….”
[Emphasis Supplied]
17.3 The Petitioner/tenant has failed to prove that the need as set out by the
Respondent/landlord is not bona fide.
18. On the aspect of availability of alternate suitable accommodation, it is
the contention of the Petitioner/tenant that the Respondent/landlord had
available with him three properties bearing Nos. 32, 2480 and 4182, all
situated at Main Bazar, Paharganj. However, Respondent/landlord has in its
Reply to the leave to defend Application has specified that subsequent to the
partition of properties between the Respondent and his brothers property
No.32, Main Bazar, Paharganj, is now the property of his brother while
property Nos.2480 and 4182, Main Bazar, Paharganj are neither owned nor
in the possession of the Respondent/landlord. No document has been shown
by the Petitioner/tenant to show otherwise either before the learned Trial
Court or before this Court.
19. The provisions of Section 14(1)(e) of the DRC Act have been
provided with care by the legislature, not only is the accommodation to be
‘alternate’, but it is also required to be suitable. The Supreme Court in the
Shiv Sarup Gupta v. Mahesh Chand Gupta12 has held that for an Eviction
Petition to fail on the ground of availability of alternate suitable
accommodation, the availability of another accommodation must be suitable
12
(1999) 6 SCC 222
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and convenient in all respects as the tenanted accommodation from which
the landlord seeks eviction of the tenant. It was held that:
“14. The availability of an alternative accommodation with the landlord
i.e. an accommodation other than the one in occupation of the tenant
wherefrom he is sought to be evicted has a dual relevancy. Firstly, the
availability of another accommodation, suitable and convenient in all
respects as the suit accommodation, may have an adverse bearing on the
finding as to the bona fides of the landlord if he unreasonably refuses to
occupy the available premises to satisfy his alleged need. Availability of
such circumstance would enable the court drawing an inference that the
need of the landlord was not a felt need or the state of mind of the landlord
was not honest, sincere, and natural. Secondly, another principal
ingredient of clause (e) of sub-section (1) of Section 14, which speaks of
non-availability of any other reasonably suitable residential
accommodation to the landlord, would not be satisfied. Wherever
another residential accommodation is shown to exist as available then
the court has to ask the landlord why he is not occupying such other
available accommodation to satisfy his need. The landlord may convince
the court that the alternative residential accommodation though
available is still of no consequence as the same is not reasonably suitable
to satisfy the felt need which the landlord has succeeded in
demonstrating objectively to exist. Needless to say that an alternative
accommodation, to entail denial of the claim of the landlord, must be
reasonably suitable, obviously in comparison with the suit
accommodation wherefrom the landlord is seeking eviction. Convenience
and safety of the landlord and his family members would be relevant
factors. While considering the totality of the circumstances, the court may
keep in view the profession or vocation of the landlord and his family
members, their style of living, their habits and the background wherefrom
they come.”
[Emphasis Supplied]
20. The accommodation stated to be available with the Respondent/
landlord is neither available nor suitable. Thus, this Court finds no infirmity
with the findings of the learned Trial Court on this aspect.
21. The Supreme Court in the Abid-Ul-Islam v. Inder Sain Dua13 has
held that for availing leave to defend, a mere assertion by the tenant is
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(2022) 6 SCC 30
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insufficient. Section 14(1)(e) of the DRC Act creates a presumption in
favour of the landlord regarding bona fide need, which is rebuttable only
with substantive material capable of raising a triable issue. It was further
held that the burden of proof is on the tenant to demonstrate, with cogent
evidence, that the landlord’s requirement is not genuine. The Court also
reiterated the settled principle of law that leave to defend should not be
granted on mere asking but when the pleas and contentions raise triable
issues. The relevant extract of the Abid-Ul-islam case is extracted below:
“18. For availing the leave to defend as envisaged under Section 25-B(5),
a mere assertion per se would not suffice as Section 14(1)(e) creates a
presumption subject to the satisfaction of the learned Rent Controller qua
bona fide need in favour of the landlord which is obviously rebuttable
with some material of substance to the extent of raising a triable issue.
The satisfaction of the Rent Controller in deciding on an application seeking
leave to defend is obviously subjective. The degree of probability is one of
preponderance forming the subjective satisfaction of the Rent Controller.
Thus, the quality of adjudication is between a mere moonshine and
adequate material and evidence meant for the rejection of a normal
application for eviction.
xxx xxx xxx xxx xxx
20. Dealing with a pari materia provision, this Court in Baldev Singh Bajwa
v. Monish Saini [Baldev Singh Bajwa v. Monish Saini, (2005) 12 SCC 778] ,
was pleased to clarify the aforesaid position holding the procedure as
summary. In such a case, the tenant is expected to put in adequate and
reasonable materials in support of the facts pleaded in the form of a
declaration sufficient to raise a triable issue. One cannot lose sight of the
object behind Section 25-B in facilitating not only the expeditious but
effective remedy for a class of landlords, sans the normal procedural
route. In this regard, we wish to quote the decision of this Court in Baldev
Singh [Baldev Singh Bajwa v. Monish Saini, (2005) 12 SCC 778] : (SCC pp.
790-93, paras 14-17 & 19)“14. The phrase “bona fide requirement” or “bona fide need” or
“required reasonably in good faith” or “required”, occurs in almost
all Rent Control Acts with the underlying legislative intent which has
been considered and demonstrated innumerable times by various High
Courts as also by this Court, some of which we would like to refer to.
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In Ram Dass v. Ishwar Chander [Ram Dass v. Ishwar Chander,
(1988) 3 SCC 131] it is said that the bona fide need should be
genuine and honest, conceived in good faith. It was also indicated
that the landlord’s desire for possession, however honest it might
otherwise be, has inevitably a subjective element in it, and that
desire, to become a “requirement” in law must have the objective
element of a “need”, which can be decided only by taking all the
relevant circumstances into consideration so that the protection
afforded to a tenant is not rendered illusory or whittled down.
xxx xxx xxx xxx xxx
17. In Shiv Sarup Gupta v. Mahesh Chand Gupta [Shiv Sarup
Gupta v. Mahesh Chand Gupta, (1999) 6 SCC 222] this Court while
dealing with the aspect of bona fide requirement has said that the
sense of felt need which is an outcome of a sincere, honest desire, in
contradistinction with a mere pretence or pretext to evict a tenant,
refers to a state of mind prevailing with the landlord. The only way
of peeping into the mind of the landlord is an exercise undertaken
by the Judge of facts by placing himself in the armchair of the
landlord and then posing a question to himself — whether in the
given facts, substantiated by the landlord, the need to occupy the
premises can be said to be natural, real, sincere and honest.
[Emphasis Supplied]
22. The jurisdiction of this Court is only revisionary in nature and
limited in scope. The Supreme Court in Abid-Ul-Islam case while
interpreting the intendment of the legislature in removing two stages of
Appeal that were earlier provided in the DRC Act has held that this is a
conscious omission. It was held that the High Court is not expected to
substitute and supplant its view with that of the learned Trial Court, its
only role is to satisfy itself on the process adopted. Thus, the scope of
revisionary jurisdiction of this Court has been limited to examine if there
is an error apparent on the face of the record or absence of any
adjudication by the learned Trial Court, and it is only then should the
High Court interfere.
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23. The learned Trial Court has examined the contentions as raised by the
Petitioner/tenant and has found that no triable issue has been raised. The
examination by this Court does not show anything to the contrary. As stated
above, the revisionary jurisdiction of this Court is limited and circumspect.
The examination by this Court shows that no ground for interference has
been made out by the Petitioner/tenant.
24. For the reasons stated above, the present Petition is dismissed. All
pending Application(s) stand closed.
25. The parties shall act based on the digitally signed copy of the order.
TARA VITASTA GANJU, J
FEBRUARY 13, 2025/ ha/r
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