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Shiv Nath Singh Vs. Piyare Lal Sharma - Court Judgment

LegalCrystal Citation
SubjectTenancy;Criminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscelleneous (M) Appeal No. 161 of 1978 and Civil Revision Appeal No. 815 of 1977
Judge
Reported in15(1979)DLT46
ActsDelhi Rent Control Act, 1958 - Sections 25B
AppellantShiv Nath Singh
RespondentPiyare Lal Sharma
Advocates: S.N. Marwah and; S.L. Bhatia, Advs
Cases ReferredSmt. Bejoli Roy Chowdhry v. Amur Kumar and
Excerpt:
.....owner thereof and fourthly the landlord has no other reasonably suitable residential accomodation. thereforee, if the facts stated in the affidavit of the tenant are taken as established in the light of the landlord's affidavit, then the petition for eviction of the landlord will fail as the letting purposes is not residential......of the delhi rent control act, 1958 is directed against the order of shri j.d. kapoor, 6th addl. rent controller, delhi dated 14th october, 1977 by which leave was refused to the petitioner-tenant to contest the application of the respondent-landlord on the ground of personal bona flde necessity. the landlord brought on 21st may, 1977 an application under section 14(1)(e) of the delhi rent control act' 1958 (thereinafter referred as the 'act') for eviction of dr. shiv nath singh, tenant from premises comprising two rooms and one verandah at 3886, imli basti, gali barna, sadar bazar, delhi. the tenant filed an application for leave to appear and contest the petition and filed a detailed affidavit disclosing the facts on the basis of which leave contest was sought. affidavit was filed by.....
Judgment:

S.S. Chadha, J.

(1) This revision petition under Sec. 25-B(8) of the Delhi Rent Control Act, 1958 is directed against the order of Shri J.D. Kapoor, 6th Addl. Rent Controller, Delhi dated 14th October, 1977 by which leave was refused to the petitioner-tenant to contest the application of the respondent-landlord on the ground of personal bona flde necessity. The landlord brought on 21st May, 1977 an application under Section 14(1)(e) of the Delhi Rent Control Act' 1958 (thereinafter referred as the 'Act') for eviction of Dr. Shiv Nath Singh, tenant from premises comprising two rooms and one verandah at 3886, Imli Basti, Gali Barna, Sadar Bazar, Delhi. The tenant filed an application for leave to appear and contest the petition and filed a detailed affidavit disclosing the facts on the basis of which leave contest was sought. Affidavit was filed by the landlord in opposition to the application of the tenant for leave to appear and defend. The Additional Rent Controller. Delhi notices in the impugned judgment that the learned counsel for the tenant contended that there are sufficient grounds, and facts disclosed by the tenant accompanied by an affidavit that would disentitle the landlord from recovering the possession of the premises in question. The objections raised were then formulated as under :- '1. that the petitioner is not the owner of the premises in question:

(2) That the purpose of letting was for medical clinic and not for residence; and

(3) That the requirement of the premises in question is not bona fide us the petitioner has possession of two other vacant premises.

(2) The Additional Rent Controller then plunges straight away into the merits of the pleas on the basis of the affidavits of the parties and the documents on the record. It rejects the first objection that the landlord is not the owner. As regards the purpose of letting, the two agreement-deeds filed on record along with affidavit of the parties are considered. The Addl. Rent Controller comes to the conclusion that the premises were let out to the tenant only for residence and not for starting medical practice. Then the Addl. Rent Controller proceeds to consider whether the landlord has sufficient accommodation in his possession or not and whether his requirement of the premises in question in bonafide or not. On the basis of the material disclosed in the affidavits, the Addl. Rent Controller comes to a conclusion that the third objection of the tenant is of no substance. Te leave to contest is refused. The eviction petition is granted and the tenant is directed to deliver the possession of the premises in dispute within six months from the date of the order. Section 25-B(5) of the Act provides that the Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such fact as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause (e) of the proviso to sub-section (1) of section 14, or under Section 14A. Four conditions have to be satisfied before a landlord can obtain an order for the recovery of possession of the premises under Section 14(1)(e); firstly that the premises were let for residential purposes, secondly they are required bone fide by the landlord for occupation as a residence for himself or for any member of his family dependant on him, thirdly that he is the owner thereof and fourthly the landlord has no other reasonably suitable residential accomodation. If the finding on any of these four conditions is against the landlord then the eviction order cannot passed. If facts are disclosed by the tenant in the affidavit relating to any of these four conditions, which established, it would non-suit the landlord. In Busching Schmit Private Ltd. v. P.T. Menghani and another. : [1977]3SCR312 , the Supreme Court while considering the scope of Section 25B(5) expressed that the Controller's power to give leave to contest is subject the condition that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the grounds specified in clause (e) of the proviso to sub-section 1 of Section 14A or Sec. 14A. Disclosure of facts which disentitle the recovery of possession is a sine qua non for grant of leave.

(3) In the present case, the affidavit of the tenant so far as the Jetting purpose is concerned is to the following effect :-

'THATthe premises were taken to run medical clinic in it. The petitioner with his family was living in the part of Ground floor, first floor and he made more additions in the first floor and also constructed rooms on the second floor, in his occupation. All the alterations and construction work was carried in the premises by respondent during the period 1967-68 to make the premises fit to be used for medical clinic when the petitioner with his family was residing in the rest of the building. Since, 21.8.1968 the premises have been used up to this date as medical clinic. The rerpondent has been having flourishing medical practice in the premises in suit. The petitioner is estopped from claiming that the premises are residential or the premises were let for residential purpose. The municipal water and electric connections were taken in the premises in suit for medical purpose with consent in writing of petitioner. During the service the respondent was having residence in the quarter allotted by Delhi Municipal Corporation and after leaving the service, the respondent has been having residence in his owned buildin

(4) The affidavit thus discloses that the premises were not let for residence but were taken by the tenant to run a medical cnic in it. The user of the premises, in dispute as a clinic is alleged from 21.8.68. It is further alleged that the municipal water and electric connections were taken in the premises in dispute for medical purposes with consent in writing of the landlord. In the reply-affidavit the landlord says that the clinic was started some time in middle of 1969. The letting purposes is alleged as residential. It is further alleged that the alleged consent in writing for taking water end electric connection in the premises for commercial purpose was not given and the tenant has forged the signatures of the landlord. thereforee, if the facts stated in the affidavit of the tenant are taken as established in the light of the landlord's affidavit, then the petition for eviction of the landlord will fail as the letting purposes is not residential. The Additional Rent Controller could not embark on investigation on merits of the rival contentions of the parties raised in the affidavits, but he had to confine whether the affidavit disclosed facts which if established would non-suit the landlord. In Ram Chander v. Gokal Chand & Ors. 2nd 1977 Delhi 311, Anand J. held :-

'THEtenant would, thereforee, be entitled to leave if his affidavit discloses grounds, whether of fact or of law, which if substantiated at the trial, would disentitle the landlord from obtaining an order of eviction. The enquiry before the Controller when leave is sought is, thereforee, of a limited nature and is intended to determine a very narrow question if the grounds on which leave is sought, whether based on an assertion of fact or of law, would non-suit the landlord, if they could ultimately prevail. While a bare denial would, thereforee, be insufficient it is not possible to lay down any rule of universal application as to the particulars that the tenant must disclose so as to entitle him to leave. It would depend on the the facts of each case. It would, however, be resonable to expect that the tenant would disclose all such facts and particulars as may be within his knowledge and which he could, with due care and caution find out. The function of the Controller, thereforee, when called upon to consider if leave should or should not be granted, is to determine if the grounds disclosed averments of fact and of law which could eventually disentitle the landlord to relief. But it is not open to the Controller for the purpose of determining that question to require the tenant to produce material in support of the averments, to subject the material that may be available to scrutiny or to assess the material or to determine as to how the Controller would took at the question or the material eventually at all trial. In the same way if a plea of law is raised, which, if substantiated would non-suit the landlord, the only function of the Controller is to find out if such a plea is a possible plea to take the law and on such a plea prevailing with the Controller the landlord could be non-suited. In such a situation also it would not be open to the Controller to refuse leave to contest because, even though the plea raises a triable question of law, the Controller choses to look at the preliminary stage in a manner which may be unfavorable to the tenant. To do so, in either of the cases, would be a transgression of the limited function of the Controller.'

SIMILARview was expressed in Smt. Bejoli Roy V. Amar Kumar etc. 1977 Rlr 464. Mr. S.L. Bhatia, the learned counsel landlord invited my attention to the document dated 15.10.1967 relied upon by the tenant in his affidavit to urge that the document does not state that the premises in dispute were let for commercial purposes. He also relied on the rent-deed dated 4.11.67 alleged to have been executed by the tenant where the letting purpose is specifically mentioned and that is for residential purposes. Whether the document dated 15.10.1967 was executed by the parties or not or whether the document dated 4.II.1967 was executed by the parties or not is aquestion to be determined on merits. The tenant says that no rent note or any other document dated 4.11.1967 was signed or executed by him. The landlord says that no document dated 15.10.1967 was executed by him. The Additional Rent Controller could not determine the genuineness of one rent-note or the other without investigating on merits after the grant of leave to the tenant. Such nature of plea could not be determined in sumary manner.

(6) Mr. Bhatia then invited my attention to the nature of the premises which was residential. The tenant admits that the landlord with hie family is living in the ground floor, first floor of the premises in disputes and the building may be residential but the tenancy being of two rooms and a verandah, without any bath-room, latrine or kitchen, supported the plea of the tenant for further investigation as to the letting purpose. Apart from it the actual user of the premises according to the tenant from 21.8.68 and according to the landlord from sometime in the middle of 1969 is a cogent circumstantial evidence of letting purpose and had to bs investigated. Mr. Marwah relied upon Dr. Gopal Dass Verma v. Dr. S.K. Bhardwaj and another, : [1962]2SCR678 and Shri Amar Dass Juneja v. Shri Tej Bhan Dev. 1978 (2) Rcr 263, and argued that even if the premises are residential and were let for residential purpose, but the user with the consent of the of landlord for running a clinic would take out the case out of the provisions Sec. 14(1)(e). A substantial queation of law and fact has, thereforee, arisen about the change of the letting purpose by open use for commercial purposes which if decided in favor of the tenant, would defent the claim for eviction. thereforee, the facts dislosed in the affidavit of the tenant about the letting purpose alone entitles the tenant for grant of leave to contest.

(7) Another averment made in the affidavit is that the landlord does not bona fide require the premises in dispute for residence and for the risidence of the members of his family and that the landlord has other suitable residential accommodation. The application for eviction is averred as not bona fide but is mala fide The allegation made in the eviction petition that the wife of the landlord is a patient of Dys Functioned Uterine Bleeding is denied and it is stated that the wife of the landlord is quite healthy and is not suffering from any disease as alleged. In the reply-affidavit the landlord says that his wife is not only heart patient but she is also suffering from Dys Functioned Uterine Bleeding. The landlord filed a medical certificate from a doctor in support of the affidavit. These averments could only be established after affording opportunity to the parties to establish them and could not be decided summarily on the basis of the affidavit of the landlord. Bona fide necessity if challenged raises substantial question to be determined after leaving is granted. In Delhi Cloth and General Mills Co. Ltd. v. Shri T.S. Bhatia, C.R. No. 559 of 1976, Anand J. held :-

'THATthe only question that the Additional Rent Controller was required to detemine at the preliminary stage of the proceeding was if the affidavit filed by the petitioner disclosed a case which, if accepted, would non-suit the respondent. For consideration of such a question it was not open to the Controller to consider the documents filed on the record by the respondent or to decide the question of fact in controversy between the parties as the Additional Rent Controller appears to have done. Both the question raised by the petitioner as to the bona fide of the respondent and the sufficiency of the accommodation available to the respondent including the subsidiary questions whi:h were raised at the hearing in this Court as to whether the sons could be treated as members of the family dependant on the respondent and if the respondent was entitled to live in his own house, whether or not the present accommodation was sufficient for his requirement, involved controversies of fact and of law which would require careful consideration and even involve evidence. None of these question could be said to raise sham issues or be described as frivolous pleas, which may justify their rejection out hand.'

Similar is the view expressed in Smt. Bejoli Roy Chowdhry v. Amur Kumar and others, C.R. No. 521/76.

(8) The landlord had stated in paragraph 18-A of the petition that the landlord, his wife, two sons and two married daughters who are residing in Delhi and the need of all the members of the family under Section 14(1)(e) was to be considered. The affidavit of the tenant is that the landlord lives with his family in the premises in dispute before the commencement of the tenancy. The affidavit of the landlord is that he has been residing in a rented house from the year 1966 to 5th February 1963 at Mandoli, and after 5-2-1968 at quarter No. F-4 at P.S. Shahdra and from 1974 in the premises in dispute. Two daughters are married out and are living separately.

WHETHERthe need of the married daughters could bs considered as the need of dependant members of the family when disputed, is a matter requiring determination after leave to contest the petition is granted. Whether the existing accommodation with the landlord was re sonably suitable residential accomodation. or not, thereforee, requires adjudication and if decided infavor of the tenant, would non-suit the landlord. The tenant was thus entitled to the grant of leave also on this ground.

(9) The last ground is whether the landlord is the owner thereof. The tenant had himself filed on record the rent-note dated 15-13-1967 Along with his affidavit. The rent-note states that 'the landlord is the owner in possession of the premises in dispute. The estoppel in law against the tenant was made the basis of rejecting the plea of the tenant. I do not find any infirmity in this regard.

(10) Another argument raised by the learned counsel for the tenant is based on the averment in the affidavit that no valid notice termination the tenancy was served on the tenant. The copy of the notice dated 15-3-1967 as as filed by the landlord was referred to. In law it is not disputed that before a petition for eviction can be filed under proviso (1) to Sec. 14 of the Act, the tenancy of a tenant has to be terminated in accordance with law. The tenant alleged in the affidavit that the possession of the premises was delivered on 1-11-1967. It is again deposed that the premises were let on 1-11-1967 in pursuance of the terms of the agreement dated 15th October, 1967. The rent receipt dated 4-11-1967 was issued to the tenant by the landlord and the original receipt is filed on the record. The receipt gives the payment of the rent for the month of November 1967. According to the requirement of Sec. 106 of the Transfer of Property Act, 1882 the notice of termination of tenancy had to be at least fifteen days expiring with the end of a month of the tenancy. The notice terminates the tenancy with effect from mid night of 1-5-1977 or such other date thereafter as the tenant may consider. The eviction petition was filed on 23-5-1977. If the tenancy corresponds with the English calendar month then the tenancy has to be terminated on the expiry of 30-4-1977 or between the mid night of 30-4-1977 and 1.5.1977. If under the provisions of Sec. 110 of the Transfer Property Act, 1882, the date on which the tenancy commenced had to be excluded, when the notice terminating the tenancy with effect from the midnight of may be valid 1-5-77 but this questions again had to be investigated and determined at the trial after the leave to contest had been granted to the tenant. Unfortunately, the Additional Rent Controller does not deal with this objection of the tenant. No doubt, the details of invalidity notice have not been given in the affidavit or the ground of invalidity, but it is a question of law on the record read with the original notice. For all the above reasons, the procedure adopted by the Additional Rent Controller while dealing with the application of the tenant for leave to defend, is not warranted by law. The impugned order dated 14th October, 1977 is set aside. The application of the tenant for leave to defend the eviction petition is granted. The parties are directed to appear before the Additional Rent Controller on 19th of December, 1978 when the eviction petition willproceed in accordance with law. I make no order as to costs. Crl. Misc. 151 of 1978

(11) After hearing counsel for the parties, I am of the opinion that it is neither expedient nor in the interest of justice to go any further in the present petition dismissed.


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