MADAN LAL  Vs SUNIL KUMAR -Judgment by Delhi High Court

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* IN THE HIGH COURT OF DELHI AT NEW DELHI + RC.REV. 243/2016 MADAN LAL (SINCE DECEASED) THROUGH LRS ….. Petitioner
Through: Mr. D.K. Rustagi and Mr. Vipul Kr. Sharma, Advocates.
versus
SUNIL KUMAR ….. Respondent
Through: Mr. S.C. Singhal and Ms. Poonam Taneja, Advocates.
% Reserved on: 12th December, 2022 Date of Decision: 12th January, 2023
CORAM: HON’BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
MANMEET PRITAM SINGH ARORA, J:
1.
The present revision petition has been filed by Madan Lal (�Tenant�) i.e., the predecessor of the Petitioners, who was the tenant in one shop, private no.2, bearing Municipal No.1/1115, with one godown, private no.2, bearing municipal no.1/1108, including Kolki and open space behind the godown situated at Harsaran Niwas, Railway Road, Shahdara, Delhi (�tenanted premises�), assailing the order dated 27.04.2015 passed by the Rent Controller (�the Trial Court�) whereby the eviction order was passed in favour of the Respondent (�Landlord�) and the application seeking leave to defend filed by the Tenant has been dismissed.

2.
The execution of the eviction order was stayed during the pendency of the present revision petition vide order dated 05.05.2016 and the Tenant was directed to pay monthly user charges vide order dated 11.04.2017.

3.
During the pendency of this petition, the Tenant passed away on 10.08.2019 and his legal heirs were brought on record vide order dated 03.11.2020.

4.
The eviction petition was instituted by the Landlord, under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (�DRC Act�) before the Trial Court on the ground of his bona fide need for the tenanted premises. In the eviction petition, the Landlord made the following averments:

4.1. He stated that he is a practicing lawyer enrolled with the Bar Council of Delhi, and is also a member of the court annexed Bar Associations as well as empanelled with Government/Autonomous authorities. It was stated that he practices before the District Courts in Delhi including Tis Hazari and Karkardooma Court. It was stated that he has not been allotted any chamber or seat in any of the District Court Complexes and therefore, he requires the tenanted premises in connection with his legal profession for setting up his office, meeting his clients, establishing a computer set up and a library.
4.2. It was stated that since the tenanted premises are situated near the metro station, Shahdara, Delhi, the said premises are most reasonable and suitable to the Landlord for setting up a lawyer�s chamber.
4.3. It was stated that since he is already 65 years of age, he has developed a knee problem of arthritis due to which he has been advised by his doctors to avoid climbing stairs. In furtherance of this additional reason, he stated that the tenanted premises located on the ground floor are most suitable for setting up a lawyer�s chamber.
4.4. The Landlord further disclosed that the other premises owned by him are not suitable for setting up the lawyer�s chamber. The details of the alternative premises disclosed in the eviction petition were as follows:
a)
first floor portion of the Harsaran Niwas building is a residential flat and further it is in a dilapidated condition;

b)
a godown at Harsaran Niwas building existing on the back side on the ground floor is in a dilapidated condition and there is dampness due to moisture in the said godown;

c)
his personal residence is a flat on the first floor, in premises bearing Municipal No.235 at Farsh Bazar, Shahdara, Delhi. The said premises are since inception used only for his residence. Even otherwise the entrance of the said residence is through a narrow street.

d)
a shop admeasuring 10� x 10� in Farsh Bazar, Shahdara, Delhi. The said shop is very small and also in a dilapidated condition and without a roof.

5.
In the application seeking leave to defend, the Tenant has not disputed the landlord-tenant relationship between the parties. The said eviction petition was objected by the Tenant on the ground that the Landlord�s requirement of the tenanted premises was not bona fide. It was stated that since he is already 65 years of age, he does not require to set up an office and even otherwise, he had suitable alternate accommodation available to him for setting up the lawyer�s chamber. With reference to the alternate accommodation, he relied upon the properties disclosed by the Landlord in the eviction petition. The Tenant on the aforesaid pleas sought leave to defend and opposed the prayers made by the Landlord.

6.
It is pertinent to note that the Landlord had filed reply to the

application seeking leave to defend filed by the Tenant. However, the
Tenant had not filed a rejoinder to the said reply filed by the Landlord.
7. The Trial Court after taking note of the pleadings and contentions of
the Tenant held that the denial of the bona fide need of the Landlord to open
a lawyer�s chamber was a bald denial. The Trial Court returned its
satisfaction that the Landlord is a practicing lawyer and therefore, his
requirement to open a lawyer�s chamber in the tenanted premises is bona
fide. The relevant portion of the order dated 27.04.2015 reads as follows:
�10. The ground of objection under this head is rejected in as much as the bonafide need of the petitioner is considered from the date of its accrual and as per the averments, the need accrued on the date of filing of the present petition. The contention that a practicing lawyer cannot be in active practice for about 35 years without any office, is of no avail as a member of Bar who is empaneled with other Government organizations can very well be in active practice through the office given to him by those paneled Government organizations. Non-existence of separate office or chamber can neither be a bar for active practice nor it can be an impediment in allowing the present petition in as much as the relationship of landlord and tenant are admitted and the bonafide need for the tenanted premises for having an office or chamber for the petitioner is generally denied.�
7.1. With respect to the objections raised regarding the availability of
alternative accommodation, the Trial Court duly considered the pleas raised
by the Tenant, found the same to be untenable and recorded its satisfaction
with respect to the explanation offered by the Landlord for the alternative
premises. The relevant portion of the order dated 27.04.2015 reads as
follows:
�18. The ground that the present petition is filed as the petition having several other accommodation, is not tenable as no cogent material in support of the contention ever filed by the applicant. The petitioner has specifically denied of having reasonable suitable alternative accommodation. In absence of any cogent material, the averment remains a bald statement raising no triable issue for the purpose of proceeding with the trial in the present petition.�
7.2.
The Trial Court has thus, concluded that the bona fide need of the Landlord to open a lawyer�s chamber from the tenanted premises was found to be satisfactory. The Trial Court was satisfied that there was no other suitable alternative accommodation available with the Landlord to open a lawyer�s chamber. In light of the said facts, the Trial Court dismissed the leave to defend filed by the Tenant.

8.
During the course of arguments before this Court, the learned counsel for the Petitioner, Tenant has confined his challenge to the order of the Trial Court only on the plea of suitability of the alternative accommodation available with the Landlord. He states that the Landlord has not truly disclosed details of the alternate accommodation available with him and therefore, the leave to defend ought to have been allowed by the Trial Court. He relies upon Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta, (1999) 6 SCC 222 para 14; Vijay Kumar Jain v. Sudeep Kumar Jain & Ors., 2016(1) RLR 589 para 19 & 20 in support of his contention.

9.
This Court has heard the learned counsel for the parties and perused the paperbook. The pleas raised by the counsel for the Petitioner on the alternative accommodation available with the Landlord, the reply of the counsel for the Respondent and the findings of this Court on the same are as follows:

i. Shop carrying on business in the name and style of M/s Go Mobile
in the same building
9.1. Learned counsel for the Petitioner, Tenant states that the business in

the adjoining shop in the Harsaran Niwas building, in the name of M/s Go Mobile is actually being carried out by the Landlord in partnership with a
third party from the said shop and therefore, the Landlord can set up a lawyer�s chamber therein. On the contrary, learned counsel for the Respondent, Landlord states that the said premises are tenanted and he has no association in any manner with the said tenant or business carried out therein. He further states that the said averment of the Tenant is a bald plea and unsubstantiated with any documents on record.
9.2. This Court finds that the Tenant himself admits that the said adjoining shop is being used for carrying on a business under the name and style of M/s Go Mobile, and hence, admittedly, the said shop is not vacant and therefore, cannot be used by the Landlord for setting up a lawyer�s chamber.
ii. Sale of three shops on the ground floor in Harsaran Niwas Building
9.3. Learned counsel for the Petitioner, Tenant states that three other shops, adjoining to the tenanted premises in the same building were sold by the Landlord prior to filing the eviction petition and therefore, the Landlord does not have any bona fide requirement of the tenanted premises. In reply, the learned counsel for the Respondent, Landlord states that the said shops were sold long time ago to the tenants who were occupying the said shops and therefore, the three shops were never available to the Landlord for setting up a lawyer�s chamber.
9.4. The aforesaid plea with respect to sale of the said shops to the tenants in occupation was duly stated in the reply filed by the Landlord to the leave to defend by the Tenant. There was no rebuttal by the Tenant to the said plea. In view of the submission of the Landlord that the said three shops were already sold, and the non-rebuttal by the Tenant, this Court cannot accept the plea of the Tenant that the sale made to the tenants in occupation negates the bona fide requirement of the tenanted premises by the Landlord for setting up a lawyer�s chamber.

iii. First floor residential flat in Harsaran Niwas Building
9.5. Learned counsel for the Petitioner, Tenant states that first floor of the Harsaran Niwas Building is available to the Landlord. He states that the plea of the Landlord that the said premises are in a dilapidated condition is a bald assertion and unsubstantiated from records of the court. In reply, learned counsel for the Respondent, Landlord states that the first floor is a residential flat and it cannot be put to use for commercial purposes or for non-residential purposes. He further states that the Landlord has sought the eviction of the tenant from the tenanted premises since the ground floor of the building is meant for commercial activities.
9.6. This Court finds that there is no rebuttal by the Tenant to the contention of the Landlord that the permissible use of the first-floor premises situated in the same building i.e., Harsaran Niwas Building is residential in nature. In view of this fact, the Tenant�s plea that the first floor of the Harsaran Niwas Building is available to the Landlord for setting up his lawyer�s chamber is not tenable.

iv. Shop measuring 10� X 10� in Farsh Bazar, Shahdara, Delhi
9.7. Learned counsel for the Petitioner, Tenant relies upon the admitted availability of a shop admeasuring 10� X 10� at Farsh Bazar, Shahdara, Delhi by the Landlord. In reply, learned counsel for the Respondent, Landlord states that the unsuitability of the said premises for setting up the lawyer�s chamber had been duly disclosed during the proceedings before the Trial Court. He states that the said property is in a dilapidated condition and also does not have any roof. In the application seeking leave to defend, the Tenant has not disputed the same and has instead pleaded that the Landlord should carry out the necessary repairs and occupy the said premises for setting up the lawyer�s chamber.
9.8. This Court has considered the pleas of the parties with respect to the availability of the shop admeasuring 10� X 10� at Farsh Bazar, Shahdara, Delhi. Admittedly, the area available in this shop is smaller than the area of the tenanted premises. Further, the Tenant has not disputed the contention of the Landlord that said shop at Farsh Bazar is in a state of disrepair. The Trial Court has, therefore, rightly concluded that the said small shop at Farsh Bazar is not an alternative accommodation suitable available to the Landlord.

v. Accommodation available to the Respondent at Flat No.235, Farsh Bazar, Shahdara, Delhi.
9.9. Learned counsel for the Petitioner, Tenant states that the Landlord admittedly occupies an entire residential flat constructed on a plot of 400 sq. yds. He states that the Landlord can set up a lawyer�s chamber in the said residential flat. In reply, learned counsel for the Respondent, Landlord states that the said flat has always been used exclusively for the purpose of residence of the Landlord and he does not desire to set up an office in the said residence.
9.10. This Court finds that the Landlord has duly disclosed the aforesaid facts in his eviction petition and this Court is satisfied that a professional cannot be compelled to open his lawyer�s chamber from his residential flat. If the Landlord is desirous that he meets his clients in a premises separate from his residence, it is a reasonable explanation. A lawyer�s chamber entails movement of clients, colleagues and staff members and maintaining the privacy of the residence is the prerogative of the Landlord. Hence, the contention raised by the Tenant with respect to the availability accommodation at Flat No. 235, Farsh Bazar, Shahdara, Delhi, is rejected.
10.
It is pertinent to mention that the Tenant in his application seeking leave to defend filed before the Trial Court has not enlisted details of any other alternate accommodation available with the Landlord. In fact, the Landlord has duly disclosed in the eviction petition the details of the alternate accommodation available with him and further explained as to why the said accommodation were unsuitable for setting up a lawyer�s chamber. Therefore, the reliance placed by the Tenant in Shiv Sarup Gupta (supra) and Vijay Kumar Jain (supra) is also not made out in the facts and circumstances of the present case. It is also noted that the Tenant elected not to file any rejoinder to the reply filed by the Landlord to the leave to defend. In these circumstances, the explanation offered by the Landlord and facts stated in this regard with respect to the unsuitability of the alternate accommodation owned by him has to be appreciated as being unrebutted.

11.
In proceedings filed under Section 25B of the DRC Act, at the stage of seeking leave to defend, the tenant is required to divulge issues which at its behest give rise to triable issues which would warrant a consideration on merits. The defence cannot be one, which has been described to mere moonshine. At that stage, the tenant must at least, prima facie, establish that the facts as disclosed in the application seeking leave to defend, would disentitle the landlord from being granted an order of eviction.

12.
Learned counsel for the Petitioner, Tenant also sought to dispute the bona fide need of the Landlord by alleging that there was no proof on record

that he is a practicing lawyer and therefore, disputed his requirement for setting up a lawyer�s chamber. This Court has considered the said plea, however, it is seen from the record that the Tenant has not disputed the same before the Trial Court. The enrolment with the State Bar Council raises a presumption in favour of the Landlord that he is a practicing lawyer. The Tenant has not placed on record any document to rebut the said presumption. In this view of the facts, the aforesaid plea of the Tenant is rejected.

13.
The plea of the Landlord that he does not have any chamber allotted to him in any District Court Complexes is also not disputed by the Tenant. The requirement of a chamber for a lawyer is a requirement arising in the ordinary course of the practice of legal profession. The Landlord filed the eviction petition in 2014 and eight years have already gone by in the present proceedings but this lapse of time cannot negate the bona fide requirement for the premises for opening his lawyer�s chamber. This Court is therefore, of the view that the Landlord�s requirement for a lawyer�s chamber is bona fide.

14.
In the revision petition, the Tenant sought to set up new pleas with respect to other additional accommodation, which may be available to the Landlord. These are new pleas which were not raised in the application seeking the leave to defend and therefore, the Landlord did not have the opportunity to respond to the said averments before the Trial Court. It is trite law that the tenant cannot raise new pleas which were available to him at the time of filing the petition for the first time. Be that as it may, during the course of arguments, no such plea was pressed before this Court.

15.
The Hon�ble Supreme Court in the case of Abid-Ul-Islam v. Inder

Sain Dua, (2022) 6 SCC 30 has reiterated that this Court exercises jurisdiction which is essentially revisional in character as opposed to the powers wielded by a Court while exercising appellate powers, in the following terms:
�23. The proviso to Section 25-B(8) gives the High Court exclusive power of revision against an order of the learned Rent Controller, being in the nature of superintendence over an inferior court on the decision-making process, inclusive of procedural compliance. Thus, the High Court is not expected to substitute and supplant its views with that of the trial court by exercising the appellate jurisdiction. Its role is to satisfy itself on the process adopted. The scope of interference by the High Court is very restrictive and except in cases where there is an error apparent on the face of the record, which would only mean that in the absence of any adjudication per se, the High Court should not venture to disturb such a decision. There is no need for holding a roving inquiry in such matters which would otherwise amount to converting the power of superintendence into that of a regular first appeal, an act, totally forbidden by the legislature.�
16.
The tenanted premises are located on a ground floor and considering that the said premises comprises of a shop and a godown on the back side along with a Kolki shows that it is a large space sufficient for an individual lawyer for carrying on his practice. It is also admitted that the tenanted premises are close to the metro station and therefore are easily accessible to the clients of the Landlord. The suitability of the tenanted premises for setting up a lawyer�s chamber by the Landlord is reasonable.

17.
In this view of the fact that since the relationship of landlord-tenant is admitted and the bona fide need of the Landlord to set up a lawyer�s chamber is proved; this Court is satisfied that the alternate accommodation available with the Landlord was duly disclosed in the eviction petition and the explanation offered by the Landlord with respect to the unsuitability of the existing accommodation deserves acceptance. The Tenant has failed to rebut the said explanation so as to raise any triable issue, which merits grant

of a leave to defend by the Trial Court.

18.
Thus, in the overall conspectus of the facts of this matter, this Court is of the considered opinion that the challenge laid by the Tenant with respect to the availability of alternative accommodation to the Landlord is without any merit. Accordingly, present revision petition and all pending applications stand dismissed and the interim order dated 05.05.2016 stands

vacated.