Khalil Khan v. Amiruddin

INDERMEET KAUR, J. (Oral) v^.

¶1These three petitionshad been disposedof by a common order dated 14.01.2010. The applications filed by the three tenants i.e. Khalil Khan, Nasir Ali and Nabi Ahmed seeking leave to defend had been declined; the eviction petition filed by the landlord Amiruddin seeking relief of possession qua the suit premises had been decreed.

¶2Record shows that Amiruddin is the owner and the landlord of three portions of three premises which had been tenanted out to Khalil Khan, Nasir Ali and Nabi Ahmed. Nabi Ahmed had been tenanted out a portion of property bearing No. E-29, House No. 144/10, Khureji Kdias, Delhi -51; Nabi Ali was a tenant in a portion of property bearing No. E-30 and Khalil Khan was a tenant in a portion of property bearing No. E-31 of the aforenoted suit property. Each portion comprised of one room, kitchen, latrine and open space on the ground floor of the premises RCRNos. 145-147/2010 V e.- ,5-bearing Nos. .144/10, 144/13 and 144/15, Khureji Khas, Delhi-51. The rate of rent was Rs. 1,000/-, Rs. 1,200/- and Rs. 850/- respectively which was exclusive of water and electricity charges.

¶3There is no dispute to the fact that the premises of Khali1 Khan and Nabi Ahmed have since got vacated; the landlord has taken vacant and peaceful possession of the suit premises from Khalil Khan and Nabi Ahmed in the course of the execution proceedings. The learned counsel for the petitioners/tenants points out that an application under Section 144 of the Code of Civil Procedure (hereinafter referred to as 'the Code') has been filed seeking restitution of the aforenotedpremises. The portion let out to Nasir Ali is still in his possession.

¶4Before this court, alongwith the present petitions an application under Order 41 Rule 27 of the Code as also other applications under V-Section 151 of the Code has been filed; contention being that certain informations have now been obtained by the tenants under the Right to Information Act which information would be relevant in deciding the controversy in question; these documents are to the effect that in the ^ year 2008 the present petitioners/landlordhad executed irrevocable powers of attorney in favour of third parties for valuable consideration. RCR Nos.145-147/2010 r-. • Contention being that the bonafide need of the petitioners/landlords is in fact malafide; they have set up a false case; in October 2008, they have executed irrevocable powers of attorney selling their portion of land to other persons for money; this was during the course of the eviction petition which has been filed in February, 2007; attention has been drawn to the aforenoted irrevocable powers of attorney dated

08.10.2008, 20.10.2008 and 22.10.2008; contention being that these documents are authentic and cannot be challenged and would throw lightupon the controversyin question and as such may be permittedto be taken on record.

¶5Argumentshave been refutedonthis point. It is submittedthatin view of the judgment of Prithipal Sinsh vs. Stapal Sinsh reported in

(2010) 2 see 15, the provisions of the Code are inapplicable to the summaryprocedureas containedin Section25B ofthe DRCA and Rule 23 of the DRCA being inapplicable, the present applicationsfiled under the provisions of the Code cannot be permitted to be taken on record; further submission being that even otherwise these documents are not authentic and would in no manner throw light upon the controversy in question. Page4ofl5 r.

¶6The Apex Court in the judgment of Prithipal tS/wgAfsupra)has inter alia noted as follows "16. From a careful perusal of sub-section (4) ofSection 25B of the Rent Act, it would be clearly evident that the tenant shall not be permitted to contest the prayer for eviction unless hefiles an affidavitbefore the Controller stating the ground on which he seeks to contest the application for eviction and obtains leave from the Controller. This Section also clearly indicates that in default of his appearance in compliance with the summons or his obtaining such leave, the statement made by the " landlord in the evictionproceeding shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground mentioned in the evictionpetition..Atthis stage, we may also note that in sub-section (4) of Section 25B of the Rent Act read with Third Schedule, it has been made clear by the Legislaturethat ifthesummonsoftheproceedingis receivedbythe tenant, he has to appear and askfor leave to contestthe evictionproceedingwithin15 daysfrom the date ofservice of notice upon the tenant and if hefails to do so, automatically,an order of eviction infavour of the landlord on the gi'ound ofbona fide requirement shall be made.

¶20Thescope of Chapter ILIA of the RentAct has been elaborately discussedin the case ofRavi Putt Sharma v. Ratan Lai Bhareava, (AIR 1984 SC 967), in which this Court duly discussed the object ofthe RentAct and also the insertion ofChapter ILIA ofthe same in thefollowing manner :- "7 The dominant object of the act is to provide a speedy, expeditiousand effectiveremedyfor a class oflandlords contemplated by Sections 14(I)(e) and 14A and for avoiding unusual dilatory process provided otherwise by the Rent Act. It is common experience that suitsfor eviction under the Act take a long time commencing with the Rent Controller and ending up with the Supreme Court. In many V cases experience has indicated that by the time the eviction decree becamefinal several years elapsed and either the landlord died or the necessity which provided the cause of action disappeared and if there was further delay in securing eviction and the family of the landlord had by then expanded, in the absence of accommodation the members of the family were virtually thrown on the road. It was this mischief, which the Legislature intended to avoid by incorporating the new procedure in Chapter IIl-A. TheLegislature in its wisdom thought that in cases where the landlords required their ownpremises for bonafide and personal necessity they should be treated as a separate class along with the landlords covered by Section 14(A) and should be allowed to reap thefruits of decreesfor evictionwithin the quickest possible time. It cannot, therefore, be said that the classificationof such landlords would be an unreasonable one because such a classificationhas got a clear nexus with the objectsof the Amending Act and the purposes, which it seeks to subserve. Tenants cannot complain of any discriminationbecause the Rent Act merely gave certain protection to them in public interest and if the protection or part ofit affordedby the RentActwas withdrawnand the commonlaw right of the tenant under the Transfer of property Act was still preserved, nogenuinegrievancecouldbe made." ll.Beforewe take up the questionposedbeforeus indetail,we may also referto one provisionofthe Rules, namely.Rule 23 ofthe saidRuleswhichruns as under "Code of CivilProcedure to be generallyfollowed - In deciding any question, relating to procedure not specificallyprovided by the Act and these rides the Controller and the Rent Control Tribunal shall, as far as possible, be guided by the provisions contained in the Code of Civil Procedure, 1908.

¶22A challengewas thrown to Section25B of the RentAct in KewalSingh Vs. Smt. Lajwanti[1980 (1) SCC 290], questioningthe classificationheld to be not in consonance with the objective sought to be achieved and the aforesaid provision •V" r must be held to be unconstitutionalwherein this Court held that the special provision namely, Section 25B of the Rent Actproviding summaryprocedurefor eviction while the landlord pleading bona fide personal requirement, separate classificationofsuchlandlordswere heldto bejustifiedas suchclassificationmust be held to be in consonancewith the objectivesoughtto be achievedandprovision not unconstitutional. Accordingly, in the aforesaid decision, this Court held that Section 25B does not sufferfrom excessivedelegation. Keeping in view the aforesaid observations of this Court in this case and considering the special provisions made in Section 25B ofthe Act, we conclude that Section 25B ofthe Act is a complete code by which the entire procedure to be adopted for eviction ofa tenant on the ground of bona fide requirement filed by the landlord in respect of a premises, shall be followed.

¶23As noted herein earlier. Section 25B(1) clearly says that any application filed by a landlordfor recoveryofpossessionof any premises, inter alia, on the groundof Section14(l)(e) of the Rent Act, shall be dealt M'ith in accordancewith theprocedurespecifiedinSection25B ofthe RentAct. Therefore,sub-section(1) of Section2SB makes it clear that ifany applicationfor evictionof a tenant isfiled by the landlord,the specialprocedureindicatedinSection25B has to befollowedand Section 25B(1) clearly stipulates that the applicationfor evictionshall be strictly dealt with in accordance with the procedure specified in this Section. Apartfrom that, as we have noted herein earlier. Section 25B itself is a special code and therefore.RentController,while dealingwith an applicationfor evictionofa tenant on the groundof bonafide requirement,has tofollow strictlyin compliancewith Section 25B of the Act. Therefore, after insertionof Section 25B of the Act. any applicationfor grantingevictionfor a specialkindof landlord,shall be dealt with strictlyin compliancewith Section25B and questionof relyingon Rule 23 of the Code, which also does not givefull right to apply theprovisions of the Code, could be applied.

¶24Thatapart. Rule 23 does notspecificallyconferanypower on the Controller tofollow theprovisionsof the Code in special classes of landlords.It is a general rule, by which the Controller in deciding any question relating to procedure not r V-V 2-0 specifically provided by the Act and these rules shall, as far as possible, be guided by theprovisions contained in the Code.

¶25In view of our discussions made hereinabove that Section 25B has been inserted by the Legislature for eviction ofa tenant of a certain classes oflandlords, in which the entire procedure has been given, it is difficultfor us to hold that Rule 23 of the Rules can be applied in the present case in view of the specific provisions provided in Section 25B of the Rent Act. Accordingly, we are of the view that Rule 23 has no manner ofapplication.

¶26.That being the position, if Rule 23 cannot be applied in the present case because of applicability of Section 25B, which is a special code and specific procedure for eviction of a tenant by a landlord on the ground of bona fide requirement,we cannotagree with the courts below that in view of Rule 23 of the Rules, theprovisionsof the Code can be appliedin thepresent case and, therefore, we are of the view that the High Court had acted illegally and with material irregularityin the exerciseof itsjurisdictionin settingaside the order of eviction and in allowingthe affidavitfiled by the tenantfor the purpose of defendingthe proceedings for eviction."

¶7From the above noted observations, it is clear that the Apex Court has reiterated that Section 25-B which relates to a special class of landlords (as is so in the present case) have to be treated as a class apart; provisions of Rule 23 of the DRCA is inapplicable;the applications filedby the petitioners/tenantseven otherwisedo not disclosethe details as to when this infonnation was obtained by the them; the authenticity of the aforenoted documents is also under challenge; if such like applicationsare permitted,the very purpose and import of the summary Page 8 of .15 r ^1 procedure would be defeated; the summary procedure specifically envisages that the application seeking leave to defend has be filed within 15 days of service of summons upon the tenant; triable issues have to emanate from the pleadings made by the tenant in his application for leave to defend which does not contain the averments now sought to be incorporated which averments are seriously disputed by the learnedcounselfor the respondent/landlord.If the submissionof the learned counsel for the petitioners/tenants is accepted and the applicationsare allowed the whole summaryprocedureof 25B of the DRCA would be given a go by which was not the intent of the legislature.These applicationsare clearly devoid of merits; they are dismissed.

¶8Record shows that an eviction petition had been filed by the landlord on the ground of bona fide requirement; there were three petitioners before the court; they are the legal heirs of Sirajuddin namely, Amiruddin,Mohd. Parvej and Mohd. Chand. The petitioners claimed to be the owners of the aforenoted suit property; contention beingthat the premiseshad been let out to the respondents/tenantsfor a for a residential purpose; the family of the petitioners/landlordshas RCR Nos.145-147/2010 r: r 20^ enlarged over a period of time and the accommodation presently available with them is insufficient; they require at least 16 rooms for the residence for themselves and for their family members and the present accommodation available with them comprises only four rooms, one kitchen and one latrine and one bathroom is not sufficient to accommodate the need of their families; the details of the members of the family of the three petitioners have been disclosed; Amiruddin's family comprises of himself, his wife, one son and two daughters of whom two children are school going; contention being that his family requirefour bedrooms alongwith one studyroom, one diningroom and one drawing room i.e. seven rooms in total.

¶9The family of Mohd. Parvez comprises of himself, his wife and one daughter; they require two bed room, one drawing room and one ^ dinning room i.e. four rooms in total. The family of Mohd. Chand comprises of himself and his wife; they require one bed room, one drawing room and one dinning room i.e. three rooms accommodation. The need of the three petitioners is of 14 rooms in total; the present accommodation available with them comprises of only four rooms which is inconvenient and causes harassment to themselves and their r r 2-5 families; present eviction petition was accordingly filed on the ground of bonafide requirement.

¶10Applications seeking leave to defend were filed by the tenants; the foremost contention raised was that all the owners have not joined as landlords; otherwise there was no dispute to the factum that the present petitioners are the co-owners/landlords of the premises.

¶11At this juncture, learned counsel for the petitioners herein states that he is not contestingthis petition on this ground and no objectionhas been raised by him qua the proposition that only some of the co-owners have filed the evictionpetition andnot all of them. In fact, this objection deserves no merit. The Apex Court in AIR 2004 SC 1321 M/s India Umbrella Manufacturins Co. & Ors. V5. Bhambandei Asarwalla {dead) by L.Rs. & Ors. has even othervise held that one of the co-owners can file a suit for eviction of a tenant in the property owned by eo-owners; this principle is based on the doctrineof agency; one eo-ownerfiling a suit for eviction against the tenant does so on his own behalf in his own right and on behalf of the other co-owner.

¶12The only ground of challenge which has been laid by the petitioners/tenants by the impugned order is that the bonafide ^ . 2Ji r requirementof the landlordhas not been disclosed. Attentionhas been drawnto the avermentmade inpara3(i) ofthe applicationseekingleave to defend wherein it has been contended that the landlord has 33 rooms which have been let out by him to different persons and his accommodation also comprises of five rooms on the ground floor and two rooms on the first floor which have not been disclosed by him; this is the onlytriable issuewhichhas been raised by the tenants.

¶13The reply to the correspondingpara of the applicationseeking leave to defend has also been perused. This submission of the tenants has been vehementlydenied; it has been denied that the landlordis in possessionofmore than four rooms;the avermentsmade in the eviction petition have been reiterated submitting that the accommodation availablewith the three petitioners/landlordsis only four room and one common kitchen, latrine and bathroom. There is no dispute about the family members of the three petitioners. The details of their family's requirementhave in fact been noted supra; all the threepetitionershave independentunits; the family of Amiruddincomprises of himself, his wife and three children of whom two are school going children; the need of Mohd. Parvez as rightly noted is of four rooms i.e. two bed rooms \ i.e. one for himself and other for his daughter; one drawing and one dinning room which is also an additional requirement; the requirement of Mohd. Chand is of three rooms. The families of three petitioners are independent units; they want to live independently which need can be met only if they have not only bed rooms for sleeping but also a dinning and a drawing room and a kitchen area; their need for 16 rooms has been fairly substantiated.

¶14The submission of the tenants that there are 33 rooms available with the landlord is neither here nor there. Apart from the fact that this submission has been vehemently denied by the landlord, no further details of this 33 room accommodation has been given by the tenants; no counter site plan has been filed by them; that apart no details of the aforenoted accommodation have also been given as to where these accommodations are located.

¶15The landlord is the bestjudge of his requirement. It is not for the tenant or even for the court to dictate to the landlord the manner in which he should set up his residenceto satisfythe need of his family. The family members of the three petitioners/landlordsnot being in disputeas also the fact thatthe accommodationpresentlyavailablewith Pagel3ofl5 r -f the three petitionersis only eomprisedoffour rooms, theirneed for an additional aecommodationto set up their separate housing units has been well founded and established. The bald submission of the tenants that there other accommodation is available with the landlord is neither here nor there; tenants have not been able to substantiate their bald submission.

¶16The Supreme in PrativaDevi CSmt.) Vs. T.V. Krishnan (1996) 5SCC 353 had held in this context inter alia noted as:- "The landlord is the bestjudge of his residential requirement.He has a completefreedom in the matter. It is no concernofthecourts to dictate to the landlord how, and in what manner, he should live or toprescribefor him a residentialstandard oftheirown. "

¶17No triable issue has arisen. The procedure contemplated under Section 25 B of the Delhi Rent Control Act (DRCA) which has to be readwith Section14(l)(e) of the DRCA is a summaryprocedurewhich had been engraftedby the legislatureto provide a summary trial for evictionof tenants; unless and until a triable issue arises, leaveto defend cannot be granted in a routine or in a mechanicalmanner; no triable issue has arisen in this ease. RCR Nos.145-147/2010 r

¶18Impugned order suffers from no infirmity. No triable issue having been raised by the tenants, the applications seeking leave to defend were rightly declined; the averments made in the eviction petition had made out a clear case of bonafide requirement of the landlords; their bonafide need stood substantiated. No other argument has been urged; the impugned judgment calls for no interference.

¶19Petitions are without any merit; dismissed. INDERMEET KAUR, J APRIL 16, 2012 rb RCR Nos.145-147/2010

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date ofJudgment:16.04.2012 + RC.REV. 145/2010and CMNo. 11650/2010, 11651/2010, 11653/2010,. 11654/2010, 12112/2010 & 18303/2010 KHALIL KHAN Petitioner Through Mr. Rajat Aneja and Mr. Vaibhav Jairaj, Adv. versus AMIRUDDIN Respondent Through Mr. K.S. Singh, Mr. Rahul Singh and Ms. Madhu Sharma, Adv. + RC.REV. 146/2010 and CMNos. 11656-57/2010, 11659- 60/2010 NASIR ATI Petitioner Through Mr. Rajat Aneja and Mr. Vaibhav Jairaj, Adv. versus AMIRUDDIN Respondent ^ Through Mr. K.S. Singh,Mr. Rahul Singh and Ms. Madhu Shanna, Adv. + RC.REV. 147/2010 and CMNos. 1211.3/2010, 11663- 11664/2010, 11666-67/2010 & 18257/2010 NABIAPIMED Petitioner Through Mr. Rajat Aneja and Mr. Vaibhav Jairaj, Adv. versus RCR Nos.145-147/2010 Page 1 ofl5 e . I AMIRUDDIN Respondent Through Mr. K.S. Singh, Mr. Rahul Singh and Ms. Madhu Sharma, Adv. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR