ANIL BAJAJ Vs VINOD AHUJA
Bench: SUDHANSU JYOTI MUKHOPADHAYA,RANJAN GOGOI
Case number: C.A. No.-005513-005513 / 2014
Diary number: 38064 / 2012
Advocates: (MRS. ) VIPIN GUPTA Vs
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5513 OF 2014 (Arising out of Special Leave Petition (C) No. 35943 OF 2012)
Anil Bajaj & Anr. ... APPELLANT (S)
VERSUS
Vinod Ahuja ... RESPONDENT (S)
J U D G M E N T
RANJAN GOGOI, J.
1. Leave granted.
2. The appellants, who are the landlords, seek to
challenge the order dated 20.09.2012 passed by the High
Court of Delhi granting leave to the respondent-tenant to
contest the proceedings for his eviction under Section 14(1)
(e) of the Delhi Rent Control Act, 1958. The order of the
High Court is in reversal of the order dated 02.09.2011
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passed by the Additional Rent Controller who had refused to
grant leave to defend to the tenant.
3. The matter lies within a short compass notwithstanding
the elaborate application filed by the respondent-tenant
seeking leave duly supported by an affidavit and the detailed
manner in which the appellant-landlords had contested the
claim of the tenant.
Briefly stated, leave was sought by the tenant on the
ground that the landlords own several other properties in the
vicinity of the tenanted premises from where they are
carrying on business or have rented out the same. As such,
the tenanted premises i.e. No.38-UB, Jawahar Nagar, Kamla
Nagar, Delhi is not bonafide required for the use of the
landlords.
In response, the landlords contend that the first
appellant, Anil Bajaj is running a kiryana shop in premises
No. 25-UB, Jawahar Nagar, which is located in a lane 15 feet
in width. According to the appellants on account of the
location of the tenanted premises, the appellant No.1 is
unable to generate sufficient business causing acute 2
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hardship to his large family. Therefore, the appellants need
the tenanted premises which is situated on the main road.
According to the appellants they had offered the premises in
possession of the Appellant No.1 i.e. No.25-UB Jawahar
Nagar to the tenant in exchange for the tenanted premises
i.e. 38-UB, Jawahar Nagar which offer has been declined by
the tenant. The appellants have further averred that while
most of the other properties alleged to be in their ownership
are not presently owned by the appellants, some other items
of property mentioned by the tenant in the application
seeking leave to defend are owned and utilized by other
family members of the appellants and the first appellant has
no connection with such properties or business carried on by
the other members of the family.
4. On the aforesaid broad pleadings of the parties, the
learned Additional Rent Controller thought it fit to come to
the conclusion that the contentions made by the tenant are
mere assertions without any basis and that no triable issue is
disclosed warranting grant of leave to defend. In reversal,
the High Court held that the precise relationship between
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the two appellants and the holding/interest of the first
appellant in other items of property standing in the name of
other family members require a probe for which leave ought
to be granted. Hence the impugned order and the present
appeal arising therefrom.
5. The principles governing grant or refusal of leave to
defend under the Delhi Rent Control Act, 1958 had been
squarely dealt with in Charan Dass Duggal vs. Brahma
Nand1. The issue has been aptly summarized in the
following observations of the Court.
“5. What should be the approach when leave to defend is sought? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action (see Santosh Kumar v. Bhai Mool Singh2). At the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counter-assertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought on the ground of personal requirement, an absolute need is not to be
1 (1983) 1 SCC 301 2 1958 SCR 1211
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satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively. …… …… ……. ….
7. The genesis of our procedural laws is to be traced to principles of natural justice, the principal amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and prove his own case. Summary procedure does not clothe an authority with power to enjoy summary dismissal. Undoubtedly wholly frivolous defence may not entitle a person leave to defend. But equally a triable issue raised, enjoins a duty to grant leave. May be in the end the defence may fail. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party by cross-examination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refuse to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through cross-examination of witnesses who have filed their affidavits.”
6. In the present case it is clear that while the landlord
(appellant No. 1) is carrying on his business from a shop
premise located in a narrow lane, the tenant is in occupation
of the premises located on the main road which the landlord
considers to be more suitable for his own business. The 5
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materials on record, in fact, disclose that the landlord had
offered to the tenant the premises located in the narrow lane
in exchange for the tenanted premises which offer was
declined by the tenant. It is not the tenant’s case that the
landlord-appellant No. 1 does not propose to utilize the
tenanted premises from which eviction is sought for the
purposes of his business. It is also not the tenant’s case that
the landlord proposes to rent out/keep vacant the tenanted
premises after obtaining possession thereof or to use the
same is any way inconsistent with the need of the landlord.
What the tenant contends is that the landlord has several
other shop houses from which he is carrying on different
business and further that the landlord 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 landlord as to how the
property belonging to the landlord should be utilized by him
for the purpose of his business. Also, the fact that the
landlord is doing business from various other premises
cannot foreclose his right to seek eviction from the tenanted 6
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premises so long as he intends to use the said tenanted
premises for his own business. The grounds on which leave
to defend was sought by the tenant and has been granted by
the High Court runs counter to the fundamental principles
governing the right of a tenant to contest the claim of
bonafide requirement of the suit premises by the landlord
under the Delhi Rent Control Act, 1958. Even assuming the
assertions made by the tenant to be correct, the same do
not disclose any triable issue so as to entitle the tenant to
grant of leave to defend.
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6. We are, therefore, of the view that the impugned order
dated 20.09.2012 of the High Court of Delhi is not
legally sustainable. We, accordingly, set aside the
same and allow this appeal and restore the order dated
02.09.2011 passed by the learned Additional Rent
Controller, Delhi.
7. …………………...........………………………J.
[SUDHANSHU JYOTI MUKHOPADHAYA]
.…………………..........………………………J. [RANJAN GOGOI]
NEW DELHI, MAY 08, 2014.
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