Dev Raj vs Rajinder Jain

M.L. Mehta, J.—The present revision petition has been preferred u/s 25B(8) of the Delhi Rent Control Act (DRCA) assailing the order dated 03.04.2012 passed by the learned ARC whereby eviction order was passed against the present petitioner. The eviction petition No. E-13/2010 was filed by the respondent/landlord in respect of one room, tenanted out to the petitioner/tenant in property bearing No. 1663-A, Chawla Bus Stand, Najafgarh, New Delhi, on the ground of bona fide requirement. It was stated by the landlord that the property under the tenancy of the tenant was very old, constructed by mud, with roof made of stone slabs and requires immediate reconstruction. It was submitted by the respondent that he has no permanent employment and was earning his livelihood by engaging in different works at different places. It was submitted by the respondent that when his business of supply of spare parts did not work at Delhi, then he moved to Bangalore in search of employment, which also resulted in utter failure and he was constrained to sell off his house in order to satisfy the creditors. It was submitted that in view of such compelling circumstances and absence of any other accommodation, the respondent required the entire premises for meeting the residential requirement of himself and his family members and also to start a business of auto parts. It was further averred that his elder daughter had recently completed a course of interior designing and wanted to pursue it professionally and hence also required a separate shop in the suit premises.

The learned ARC was in agreement with the plea of bona fide requirement of the entire property by the respondent and observed that in absence of any noticeable triable issue being raised by the petitioner, the respondent was entitled to an eviction decree and hence passed the impugned order.

The eviction order has been challenged by way of present proceedings by the learned counsel for the petitioner on the ground that the learned ARC committed grave illegality in not appreciating the fact that the respondent is not the owner of the suit property as the family settlement deed placed on record was not registered and hence inadmissible in evidence. It has been further contended that the requirement of the respondent was not bona fide as projected and the eviction petition has been filed with a view of gaining possession of the tenanted premises, only to resell it at a higher price. In furtherance of this contention, the learned counsel for the petitioner has placed reliance on an Agreement to Sell dated 15.05.2009 executed by the respondent through his attorney, i.e., his brother, Rakesh Jain with respect to a portion of the suit property. It has been further averred that the learned ARC has overlooked the fact that the respondent had sold his house at Delhi and had moved permanently to Bangalore and it is highly improbable that he would return to Delhi and reside in the suit premises, much less to start up a business.

It is settled legal principal that leave to defend is granted to the tenant in case of any triable issue raised before the trial Court which can be adjudicated by consideration of additional evidence. In Precision Steel and Engineering Works and Another Vs. Prem Deva Niranjan Deva Tayal, , the Apex Court has held that the p4rayer for leave to contest should be granted to the tenant only where a prima facie case has been disclosed by him. In the absence of the tenant having disclosed a prima facie case i.e. such facts as to what disentitles the landlord from obtaining an order of eviction, the Court should not mechanically and in routine manner grant leave to defend.

Adverting to the issue of ownership of the respondent over the suit premises, it would suffice to say that this contention raised by the learned counsel for the petitioner, is misplaced as the present proceedings are not meant for declaration of title to a property. Moreover, it does not lie in the mouth of the petitioner to challenge the ownership of the respondent over the suit property, having regard to the fact that the petitioner has been paying rent to the respondent for a long period of time and the principle of estoppel debars the petitioner from challenging the title of the respondent over the suit property. The fact of non-registration of the family settlement deed is inconsequential to the present proceedings. In Prahlad Singh Rekhi Vs. Smt. Bhawani Devi and Another, , a bench of this Court while dealing with a similar objection and on the concept of ownership in proceedings u/s 14(1)(e) of the DRCA had noted as follows :-

The proceedings under the said Act cannot be converted and utilized by a tenant to prevent eviction merely on the ground that he seeks to cast doubt on the title of the property which has been inherited when there is really no one else claiming right to the property.

Much reliance has been placed on the Agreement to Sell executed by the brother of the respondent in the year 2009 with regard to 35 sq.yds. out of the total 77 sq.yds. of the suit property. It would be pertinent to note the contents of the legal notices sent on behalf of the brother of the respondent to the buyer of the said portion of the suit property on 04.02.2010 and 05.03.2010. The bare perusal of the said legal notices shows that the agreement could not materialize between the respondent and the buyer due to some differences and consequently the said 35 sq.yds. are very much a part of the suit property. The said agreement was executed in the year 2009 and the eviction petition was filed in the year 2010. No adverse conclusion can be drawn from the fact that the respondent previously intended to sell a portion of the suit property. An owner of the property has every right to dispose any part or the property itself in order to meet his or her requirements. Admittedly, the respondent has tried his luck in many business ventures and even relocated to Bangalore, but the eventual failures led him to file the present petition. There is no bar on seeking the possession of a suit property, which its owner thereof, intended to sell at some point of time, but could not do so.

The respondent had submitted that he intended to construct the entire plot of land afresh and use it for residential as well as for commercial purposes. Undisputedly, one of his daughters is also interested in setting up a business of interior designing in one of the shops that would thus be erected in the suit premises. All these requirements as projected by the respondent are quite reasonable, given the number of members in the respondent''s family and the financial hardships faced by the respondent. I cannot find any mala fide in the requirement stated by the respondent in the eviction petition. The landlord is the best judge of his requirement and cannot be deprived of this right. In R.C. Tamrakar and Another Vs. Nidi Lekha, , the Hon''ble Supreme Court while considering the reasonable and bona fide requirement of landlord held that the question to be asked by a judge of facts, by placing himself in the place of the landlord, is, whether in the given facts proved by the material on record, the need to occupy the premises can be said to be natural, real, sincere and honest. If the answer be in the positive, the need is bona fide. In view of above discussion, I do not find any substantial triable issues that could merit the leave to defend the eviction petition and do not find any infirmity or illegality in the order passed by the learned ARC decreeing the eviction. The petition being without any merit is hereby dismissed in limine.