Vs. Inder Mohan Singh Rana  Insc 524 (5 December 2002)
Shah Mohammed Quadri & Arijit Pasayat Arijit Pasayat, J.
Out of S.L.P. (C) No. 21346/2001)
in this appeal is to judgment of the Delhi High Court upholding decision of the
Additional Rent Controller, Delhi (in short 'the Rent Controller') declining
leave to the present appellant to contest in a proceeding under the Delhi Rent
Control Act, 1958 (hereinafter referred to as 'the Act').
reference to the factual aspects would suffice. The respondent-landlord filed a
petition for eviction on several grounds; primarily on the ground of personal
requirements. Before the Rent Controller an application was moved under Section
25-B of the Act by the appellant-tenant for grant of leave to defend said
eviction petition filed under Section 14(1), proviso (e) of the Act, by the
present respondent-landlord. On 10.9.1999 landlord had filed the eviction
petition alleging that he wanted the premises for his personal use, since the
accommodation available to him was not suitable and he does not own any other
property in Delhi.
resisted the eviction petition on many grounds. It was contended that there was
no relationship of landlord and tenant between the parties, and in any event
the premises were let out for residential/commercial purposes as mentioned in
the Lease Agreement executed between the parties on 1st September, 1971, and, therefore, he is entitled to grant of leave to
defend. Additionally, it was stated that the petition was mala fide and an
abuse of process of law, barred by res judicata as earlier petitions filed by
one Smt. Tejinder Kaur Rana on the ground of bona fide requirement, and another
petition filed by the mother of the landlord were dismissed. Reply to the
application for grant of leave to defend was filed by the landlord, where he
denied the allegations made, though he admitted that earlier petitions had been
filed. It was, however, contended that the principles of res judicata were not
applicable, and there was no bar on filing fresh petition for eviction on the
ground of bona fide requirement in the changed circumstances.
was filed by the tenant. The Rent Controller held that there was prima facie
material to show that the applicant was the landlord and the owner of the
premises. Coming to the plea taken that the premises were let out for
commercial purposes it was noticed that the paragraph 7 of the lease-deed on
which reliance was placed did not indicate that the premises were let out for
residential cum commercial purposes. On the contrary, what the said paragraph
indicated was availability of option to use the premises for commercial
purposes after requisite formalities were observed. It was held that before
leave to defend is granted, the respondent must show that some triable issues
which disentitled the applicant from getting the order of eviction against the
respondent and at the same time entitled the respondent to leave to defend
existed. The onus is prima facie on the respondent and if he fails, the
eviction follows. The respondent has failed to make out a case for grant of
leave to defend. Accordingly, eviction order was passed under Section 14(1)(e)
of the Act, but it was directed that the applicant will not be entitled to
execute eviction order before the expiry of six months in terms of Section
14(7) of the Act. The revision before the High Court of Delhi was also
dismissed. It was, inter alia, observed that the tenant had not filed any
document to support the plea in regard to the commercial use of the premises.
It was further held that no prima facie case was made out by the tenant.
support of the appeal Mr. Jaspal Singh, learned senior counsel submitted that a
bare reading of Section 7 of the Lease Agreement made the position clear that
the premises were let out for residential and commercial purposes, and,
therefore, the courts below were not justified in refusing leave to contest.
The jurisdiction to grant leave or refuse the same is to be exercised on the basis
of the affidavit filed by the tenant. Even if it is conceded for the sake of
argument that clause (7) did not make out a case for commercial user, yet the
fact that for more than two decades the tenant was carrying on commercial
activities in the tenanted premises clearly made out a case of consent.
response, counsel for the respondent-landlord submitted that the whole case
built up by the tenant centered round clause (7) and the plea of implied
consent has been raised for the first time before this court. Such plea was
even not raised before the High Court. In any event, according to him, the
matter has become infructuous because the possession has been taken pursuant to
execution of the order passed by the Rent Controller.
view of the admitted position that pursuant to the order passed by the Rent
Controller, possession has been taken on execution of the order permitting
eviction, and absence of specific stand regarding implied consent it is,
however, not necessary to go into the finer details and to examine the rival
stand in the background of legal position as it would amount to rendering
decision on a purely academic question. The appeal is, therefore, dismissed,
without any order as to costs.