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indo-american Electricals Ltd. Vs. M.L. Sharma - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 297 of 1980
Judge
Reported in21(1982)DLT102
ActsDelhi Rent Control Act, 1958 - Sections 25B and 25B/14(1); Code of Civil Procedure (CPC), 1908 - Order 17, Rule 6
Appellantindo-american Electricals Ltd.
RespondentM.L. Sharma
Advocates: B. Mohan,; B.K. Makhija and; Alakh Kumar, Advs
Cases ReferredJai Nath Gupta and Company v. Shri Mahabir Prashad
Excerpt:
.....the landlord had specifically mentioned the purpose of letting and this was not denied by the tenant - an amendment of the application for leave to defend was sought under order 6 rule 17 of the civil procedure code, 1908 - it was observed that the amendment if granted would have the effect of withdrawing admissions of fact, -further, the proceedings before the controller under section 25b of the act was not just an explanationn of the plea but was a fresh plea - thereforee, in view of the fact, it was ruled that the rent controller was justified in disallowing the amendment - - (22) before i deal with the question whether leave ought to have been granted on the basis of the original affidavit dated 6th october, 1978 i would like to deal with the correctness or otherwise of the..........been admitted by the petitioner-tenant. (15) in reply to this application for leave to defend, the landlord stated that it was wrong to allege that the chandigarh house belongs to him. it was stated by him that he was a tenant therein of one s. nasir singh. it was also stated that the respondent-landlord has set up business in delhi and wants to live in his own house along with his family members dependent upon him. the landlord's family is presently staying at chandigarh because the premises in question were not being vacated by the tenant. the landlord along with one of his sons was staying in rented 'barsati' of house no. 10/20 east patel nagar, new delhi 'till recently' and at present he is staying at 10/18 west patel nagar, new delhi. (16) it was also submitted by the landlord that.....
Judgment:

Yogeshwar Dayal, J.

(1) This revision petition under proviso to Sub. section (8) of Section 25B of the Delhi Rent Control Act, 1953 (hereinafler referred to as 'the Act') is directed against the order, dated 19th September 1979 passed by learned Rent Controller, Delhi, refusing to grant leave to the petitioner-tenant to defend the eviction-petition filed against it by the responbent-landlord and as a result passing an order for eviction against the petitioner-tenant.

(2) The case of the respondent-landlord. Col. M.L. Sharma as set up in the eviction petition was that the premises in dispute were let out to the petitioner-tenant. M/s. Indo-American Electricals Ltd. for purposes of residence of their manager or any other officer on 16-9-1966 and the same are now required for occupation as residence for himself and for other members of his family dependent upon him.

(3) It was also pleaded by the respondent-landlord that he is the owner of the premises and that he has since retired as colonel from military service and has now set up his business in Delhi with his office at Connaught Place.

(4) It was also stated in the eviction petition that the respondent- landlord is at present living in Delhi in rented house. He wants to live in his own house and that he has no other reasonably suitable accommodation.

(5) The respondent-landlord also pleaded that one of his sons is of marriageable age and in employed at Delhi. He also stated that this son of his is not being married only due to lack of accommodation. The other members of his family consisting of his wife, mother, daughter-in-law and two grand children are perforce staying in Chandigarh as there is no accommodation available to them in Delhi.

(6) In the eviction petition, the respondent-landlord gave his address as 10/20, East Patel Nagar, New Delhi-8.

(7) Along with the application for leave to defend, the petitioner- tenant had filed affidavit of Sh. R.K. Bajaj, one of the Managers of the petitioner-company, stating facts which the petitioner claimed entitled the company (tenant) to leave to defend the eviction petition.

(8) In his affidavit dated 6th October, 1978. Shri Bajaj, inter alia, stated that the landlord had earlier filed a petition for eviction against the petitioner-tenant on the ground of unauthorised construction raised by the tenant and misuse of premises from residential to non-residential. The said petition was fully tried and heard on merits and was ultimately dismissed by the learned Addl. Rent Controller by order dated 11-8-1978. It was contended that had the requirement of the respondent-landlord been bona fide he ought to have claimed of the tenant on this ground and, thereforee, he is now estopped from taking the ground of bona fide personal requirement.

(9) It was also stated that in the earlier proceedings the respondent- landlord had given his address as 3312, Sector 19-D, Chandigarh, which premises belong to the respondent-landlord and where, at all times, he has been residing along with his family.

(10) It was further stated by the Manager of the tenant, in his affidavit, that the respondent-landlord has no intention to occupy the premises nor the same are required by him for residence for himself or for his family members as the respondent-landlord has never expressed any such intention or requirement except by way of present petition for eviction of the tenant.

(112) It was also denied that the landlord has set up any business in Delhi or that he was living in a rented house in Delhi.

(12) That the sons of the respondent-landlord being dependent upon him was also denied.

(13) Again, it was stated in the affidavit that the eviction petition had been filed with the ulterior motive of evicting the tenant and thereafter letting the premises on higher rent.

(14) It will be noticed that in this application for leave to defend, neither ownership nor the purpose of letting was disputed and thus it will be deemed to have been admitted by the petitioner-tenant.

(15) In reply to this application for leave to defend, the landlord stated that it was wrong to allege that the Chandigarh house belongs to him. It was stated by him that he was a tenant therein of one S. Nasir Singh. It was also stated that the respondent-landlord has set up business in Delhi and wants to live in his own house along with his family members dependent upon him. The landlord's family is presently staying at Chandigarh because the premises in question were not being vacated by the tenant. The landlord along with one of his sons was staying in rented 'barsati' of house No. 10/20 East Patel Nagar, New Delhi 'till recently' and at present he is staying at 10/18 West Patel Nagar, New Delhi.

(16) It was also submitted by the landlord that it was wrong to allege that he is debarred from claiming relief in his prevent petition. It was further stated that the son of the landlord, namely, Survir Sharma is presently working with M/s. Metropolitan Trading Company, 2-E/S, Jhandewalan Extension, New Delhi and has been in employment with the said concern for 1' years. It is also stated that earlier he was employed with M/s. Lee and Muirhead, 'H' Block, Connaught Circus, New Delhi. The need to occupy the house in question arose when the landlord started his business of clearance of exported/imported goods in Delhi in the year 1977. It was stated that the plea of bona fide requiremnt was not made in the earlier petition as at that time he did not require the premises.

(17) The notices as alleged by the tenant in his application for leave to defend were denied by the landlord in repely. It was pleaded that the allegations of the tenant are vague.

(18) It was also stated in reply that the landlord has opened his office from 22nd December, 1977 at G-2/43-A, Middle Circle, Connaught Circus, New Delhi and that the landlord is having Customs House Agents license bearing No. 6/77 which was granted to him by the office of Collector of Customs and Central Excise vide their letter No : Viii (HOM)/113/23/77 dated 29-11-1977.

(19) It was thus averred that the landlord had felt requirement of the house when he started business in Delhi in the year 1977.

(20) When the matter was ripe for arguments on the application for leave, after about nine months of the filing of the application for leave, the petitioner-tenant desired to file an application for amendment of his application for leave to defend the eviction petition on 9-7-1979, inter alia, trying to plead that the premises were not let for residential purposes only but were let out to him for residential-cum-commercial purpose. This application was opposed on behalf of the landlord.

(21) The learned trial court, as stated earlier, dismissed the application for leave and also dismissed the application for amendment on the ground that the tenant-petitioner cannot be allowed to detract from his admissions.

(22) Before I deal with the question whether leave ought to have been granted on the basis of the original affidavit dated 6th October, 1978 I would like to deal with the correctness or otherwise of the order of the learned Rent Controller declining leave to amend.

(23) A matter came up before me in Mrs. Meera Grover and another v. Mr. Narinder Jaggi, C.M.(M) 230 of 1981, decided on20-10-1981 and I took the view that is there was implied admission about the purpose of letting which was especifically mentioned by the landlord and not denied by the tenant, no emendment could be allowed which will have the effect of withdrawing the admission of facts in the circumstances of that case. To my mind, the circumstances in the present case are also similar.

(24) It will be noticed that one of the essential ingredients for claiming ejectment by a landlord under proviso (e) to Sub-sec. (1) of Section 14 of the Act is that the premises from which eviction is sought must be let out for residential purposes only. The essential ingredient was specifically pleaded by the landlord. Though several objections were taken denying the other essential requisitions of the said provision which were alleged by the landlord, yet there was no dential of this essential ingredient. The proceedings before the Controller under Section 25-B of the Act are summary in nature and it was not merely an Explanationn of the plea already taken but it was a fresh plea which was sought to be taken by way of withdrawing the earlier admission and was thus rightly not allowed by the Rent Controller. I am thus in agreement with the learned Rent Controller that no amendment of the application for leave to defend could be allowed in the circumstances at the case.

(25) Coming to the pleas raised by the tenant in his original affidavit, the learned trial court took the view that no such facts were disclosed which would disentitle the landlord from clamining the relief prayed for.

(26) On the question whether the claim is mala fide on the ground that the landlord wants to let out the premises in question on higher rent, the learned Rent Controller held that this plea is vague and general and cannot be accepted. It was also found that the tenant had not taken the plea that the landlord had ever asked him for increase in rent and thus the assertion simplicities that the landlord wants to rent out the premises at higher rent was to vague a plea to be taken into account.

(27) It will again be noticed that though the landlord had mentioned his residential address, yet the tenant apart from denying the fact that the landlord had rented any house in Delhi, there was no averment in his affidavit aworn by the manager of the tenant that they made any enquiries whatsoever regarding the premises which was mentioned by the landlord where he was earlier residing.

(28) Again when the landlord was forced to change that residence, and he mentioned the changed residence, no attempt was made to file a further affidavit that the landlord was not living in the changed address.

(29) Further, no averment was made that the younger son of the landlord was not employed in Delhi.

(30) It will be noticed that the landlord is a retired military personnel and there is nothing abnormal in his trying to shift to Delhi where one of his sons is employed and who also needs accommodation. It goes without saying that such a son who does not have independent accommodation of his own is dependent upon his father for accommodation and hence requirement for a house.

(31) It was stated in the eviction petition that the landlord is living with his wife, mother, daughter-in-law and two grand children. Apart from merely denying it, the tenant had no guts to mention where else they were staying. They were thus living with the landlord, as his family, at Chandigarh and from a retired personnel like the landlord to expect to mainiain two establishments is asking for the impossible.

(32) Mr. S. Mohan, learned counsel for the petitioner-tenant, submitted that the landlord had not given full particulars of the place where he had set up his business in Delhi. For one thing, the type of business which the landlord is doing is not such for which he must have a separate business house. In any case, the same was disclosed by the landlord on affidavit in reply to the application filed by the tenant and that again was not disputed before the Controller. Once that fact is clear that he is residing in Delhi, it is not necessary for the landlord to specify the particulars of his business.

(33) It will be noticed that the premises were let out to the petitioner- tenant as far back as practically 15 years and it is common case that during this time no attempt was ever made for eviction of the tenant on the ground on which the eviction is being sought now. Nor was ever an attempt made by the landlord for increase of rent. This shows bona fides of the landlord.

(34) There is, of course, no merit in objection of the tenant that the ground of bona fide personal requirement should have been taken in the petition filed for eviction earlier. That petition, as stated earlier in the affidavit on behalf of the tenant, was on the ground of misuse and unauthorised construction. 'Misuser' was alleged on the ground of converion of residential use to non-residential use of the premises and the petition on this ground was filed as far back as 1973. At that time, it is nobody's case that the son of landlord was employed in Delhi or that at that time the landlord had set up any business in Delhi. It was only when the younger marriageable son of the landlord got employment in Delhi that the landlord thought of establishing himself in Delhi.

(35) I am thus satisfied that, as held by B.C. Misra,J. in Smt. V.L. Kashyap v. R P. Puri Vol. : 12(1976)DLT369 , the defense taken does not raise any clear specific and positive defense which requires facts to be investigated and which may entitle the tenant to the grant of leave to defend.

(36) Mr. Mohan referred to the decision of Sachar, J. in M/s Jai Nath Gupta and Company v. Shri Mahabir Prashad 1979 (1) R.C.R. 422. In that case, the landlord had come with a positive case that he was carrying on business at Kaithal and now, after having closed business there he has shifted to Delhi and living in a rented house which fact was disputed by the tenant. This tenant's case was that the landlord was still carrying on business in Kaithal and the so-called shifting to Delhi was merely a camouflage for seeking eviction. There, the admitted position of the landlord was that right from the days of his ancestors, he had been carrying on business at Kaithal but had to discontinue it. It is in this context that Sachar, J. felt that the . facts as alleged required investigation and, thereforee, leave was granted to the tenant on that limited point. But here, it is nobody's case that the landlord is carrying on business at Chandigarh. He is in fact living in a rented house in Delhi as a retired military personnel and there is nothing which required investigation in the present case particularly when one of the sons of the landlord is working at Delhi and no enquiries are made by the tenant to enable him to deny this fact.

(37) There is thus no merit in the revision-petition and the same is dismissed with costs. The tenant is, however, allowed six months time to vacate the premises.


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