KAMAL KUMAR BAHARI vs MOTI LAL JAIN SINCE DECEASED THROUGH LRS

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 19.01.2024
  Judgment pronounced on: 01.02.2024
+ RC.REV. 290/2023
KAMAL KUMAR BAHARI ….. Petitioner
Through: Mr. Pankaj Vivek and Mr. Harshit Chopra, Advocates.

Versus

MOTI LAL JAIN SINCE DECEASED THROUGH LRS
….. Respondents
Through: Mr Anuj Jain, Advocate

CORAM:
HON’BLE MR. JUSTICE GIRISH KATHPALIA
GIRISH KATHPALIA, J.:

1. By way of this petition brought under the proviso to Section 25B(8) of the Delhi Rent Control Act, the petitioner/tenant has assailed order dated 09.06.2023 of the learned Additional Rent Controller whereby in the proceedings under Section 14(1)(e) of the Act, application of the petitioner/tenant for leave to contest was dismissed and consequently an eviction order pertaining to the hall at second floor of property bearing No. G-I/2, Lawrence Road Industrial Area, Opposite Hanuman Dharamkanta, Delhi (hereinafter referred to as “the subject premises”) was passed. On the basis of advance notice, respondents/landlords entered appearance through counsel. I heard learned counsel for both sides.

2. Briefly stated, the factual matrix, relevant for present purposes is as follows.

2.1 Shri Moti Lal Jain, the now deceased husband of the present respondent no. 1 and father of the remaining respondents filed eviction petition against the present petitioner on the grounds under Section 14(1)(e) of the Act pleading that the present petitioner was inducted as a tenant in the subject premises by its erstwhile owner Shri Om Prakash Sachdeva, who had acquired the larger premises No. G-I/2, Lawrence Road Industrial Area, Opposite Hanuman Dharamkanta, Delhi by way of Perpetual Lease Deed dated 28.10.1975 executed by the President of India through the Land & Housing Department of the Delhi Administration; that by way of Agreement to Sell dated 28.08.1991 and the attendant documents including a registered General Power of Attorney, after payment of the agreed sale consideration the said larger premises including the subject premises were purchased by Shri Moti Lal Jain from Shri Om Prakash Sachdeva; that the said larger premises are constructed upto second floor and situated in a commercial area and are occupied mainly by various tenants who are running their respective business from there; that the present petitioner is a tenant in respect of the subject premises shown in red colour in the site plan annexed with the petition; that subsequent to purchase of the subject premises by Shri Moti Lal Jain, the present petitioner/tenant attorned Shri Moti Lal Jain and started paying rent to him at a rate of Rs.3000/- per month; that the present petitioner is using the subject premises for the purpose of running his business of food grains and is a defaulter in payment of rent; that Shri Moti Lal Jain was running his business under the name and style of M/s Moti Lal & Sons in partnership with his sons Neeraj Jain and Deepak Jain from premises no. 2900A, Rui Mandi, Delhi and they need space for storage of grain stocks; that Shri Moti Lal Jain along with his son Neeraj and his brother-in-law was also running a partnership business under the name and style of Abhinandan Nath Trading Company from premises no. 2910, Rui Mandi, Delhi and they need large space for storage of grains; that sons of Shri Moti Lal Jain are also engaged in the business as contractor and builder under the name and style of M/s Anant Nath Builders Pvt. Ltd. for government contracts and for smooth running of this business, they also require 10-20 rooms to be used as godown; that Shri Moti Lal Jain and his sons are in bonafide need of the subject premises and they have no reasonably suitable alternate accommodation, so they seek eviction of the petitioner/tenant Kamal Kumar. As mentioned above, during pendency of eviction proceedings, Shri Moti Lal Jain passed away and was substituted with his wife and sons, who are respondents before this court.

2.2 Upon service of notice of the eviction petition, the present petitioner filed application for leave to contest, pleading that there is no relationship of landlord and tenant between the parties in respect of the subject premises; that he was occupying the subject premises as a tenant, running his business under the name and style M/s Nawal Electronics Industries since the year 1980 and on 17.07.1991 he purchased the entire second floor with roof rights from Shri Om Prakash Sachdeva by way of Agreement to Sell and attendant documents like General Power of Attorney etc all dated 17.07.1991; that the title documents pertaining to the subject premises, filed by the present respondents are forged and fabricated; that the present respondents had failed to disclose the complete accommodation available with them as they have acquired more than 50% on ground floor and more than 70% on first floor of the larger premises; and that there are triable issues involved, therefore, the present petitioner deserves to be granted leave to contest this petition.

2.3 The present respondents filed reply to the application for leave to contest, which followed a rejoinder from the present petitioner, in both of which the previous pleadings were reiterated.

2.4 By way of order impugned in these proceedings, the learned Additional Rent Controller after detailed discussion rejected the application for leave to contest and consequently passed the impugned eviction order. In the impugned order, the learned Additional Rent Controller observed that the present petitioner/tenant had not filed any document in support of his plea of having purchased the subject premises from Shri Om Prakash Sachdeva whereas the present respondents had filed their title documents and the legal position is that in such proceedings, the landlord is not required to establish absolute title over the tenanted property. On the issue of availability of reasonably suitable alternate accommodation, learned Additional Rent Controller observed that the present petitioner had not placed any material on record in support of his plea that the present respondents had number of vacant portions to satisfy their need. As regards bonafide requirement, learned Additional Rent Controller observed that the present respondents had specifically disclosed requirement of the subject premises for storage of material and to accommodate labour so that their existing business could be expanded, whereas the present petitioner had only vaguely denied the said requirement.

2.5 Hence, the present revision petition.

3. During arguments, learned counsel for both sides took me through their respective pleadings as described above. Learned counsel for petitioner/tenant argued that since the petitioner/tenant had specifically pleaded in the application for leave to contest that the subject premises were purchased by him from Shri Om Prakash Sachdeva, there was a triable issue as to which of the parties is owner of the subject premises, therefore, the leave to contest ought to have been allowed. Further, learned counsel for petitioner/tenant argued that the title documents filed by the present respondent pertaining to the subject premises cannot be looked into as the same are not duly stamped. It was also argued by learned counsel for petitioner/tenant that General Power of Attorney filed by respondents/ landlords was executed by Smt. Anita Jain in favour of Shri Moti Lal Jain but the previous chain has not been filed, so the said document is not reliable. On the other hand, learned counsel for respondents/landlords supported the impugned order and contended that the documents namely Agreement to Sell and attendant documents filed on behalf of respondents/landlords are duly stamped and even otherwise, the objection in that regard having not been taken before the learned Additional Rent Controller, now in view of Section 36 of the Stamp Act, the said objection cannot be raised. It was further argued on behalf of respondents/landlords that the petitioner/tenant did not file any document in support of his claim of having purchased the entire second floor by way of Agreement to Sell and attendant documents and in the proceedings of the present nature, the landlord has to establish title only better than that of the tenant.

4. Thence, at the fulcrum of the present dispute is the challenge set up by the petitioner/tenant to the ownership of the respondents/landlords over the subject premises and consequently the relationship of landlord and tenant between the parties. Besides, the petitioner/tenant also alleges availability of reasonably suitable alternate accommodation with the respondents/ landlords in the form of 50% of ground floor and 70% of first floor of the larger premises.

5. At this stage, it would be apposite to briefly traverse through the legal position, which should be guiding light for the High Court while exercising jurisdiction under proviso to Section 25B(8) of the Act. As regards the legal position, there is no dispute between the parties to this case.

5.1 By way of an amendment in the year 1976, Chapter IIIA was inserted into the Delhi Rent Control Act with retrospective effect from 01.12.1975 in order to stipulate summary trials pertaining to the eviction claims largely dealing with the situations where the landlord was in bonafide need of the tenanted accommodation. One such situation was already on the statute book in the form of Section 14(1)(e) of the Act and one more such situation was added by amendment of the year 1976 in the form of Section 14A. Subsequently, the amendment in the year 1988 added more such situations in the form of Section 14B to Section 14D of the Act. The broad scheme of Chapter IIIA precludes a tenant from contesting the eviction proceedings of those specific situations as a matter of right, unless the tenant obtains leave to contest from the Controller; and if the leave is declined, an order of eviction would necessarily follow. The whole idea is that a landlord who bonafidely requires the tenanted premises should not suffer for long, awaiting eviction, but at the same time, the tenant also must not be subjected to eviction like any other civil consequence without being afforded an effective opportunity to defend himself in such civil proceedings. The court has to cautiously and judiciously strike a fine balance between the right of the landlord to eviction through summary proceedings and right of the tenant to continue tenancy.

5.2 Notably, the provision under sub-section (8) of Section 25B of the Act places complete embargo on any appellate scrutiny of an order for recovery of possession of the tenanted premises passed by the Rent Controller in accordance with the summary procedure laid down under Section 25B. The underlying principle was to ensure expeditious remedy to the landlord who is in bonafide need of the tenanted premises. It is also significant to note that the proviso, enacted in Section 25B(8) of the Act to lift the blanket of scrutiny in a limited manner has to be understood and used in such a manner that it does not frustrate the legislative intendment of expeditious remedy in certain specific kind of cases. At the stage of seeking leave to contest, it is sufficient if the tenant makes out a case by disclosing such facts as would disentitle the landlord from obtaining an eviction order. At the stage of seeking leave to contest, the tenant is not required to establish such a strong case that would non-suit the landlord. At the stage of seeking leave to contest, the test to be applied is as to whether the facts disclosed in the affidavit of the tenant prima facie show that the landlord would be disentitled from obtaining the eviction order and not that the defence may fail in the end.

5.3 At the same time, the court also has to be conscious that a leave to contest cannot be granted for mere asking or in a routine manner, as that would defeat the object behind Chapter IIIA of the Act. It is only when the pleas and contentions raised by the tenant in the application seeking leave to contest make out a triable issue and the dispute on facts demands that the matter be properly adjudicated after ascertaining the truth through cross-examination of witnesses that leave to contest must be granted. Each case has to be decided on its merits and not on the basis of any generalized suppositions. The court also cannot ignore a situation where the case set up by the tenant has been so set up with the sole object of protracting the proceedings so as to lead to the landlord giving up in frustration, which would in turn frustrate the process of law. Where the tenant seeks leave to contest, pleading anything and everything, pulled out of thin air and claims to have raised a prima facie case, the court is under a duty to read between the lines so as to ensure justice to the process established by law.

5.4 A careful examination of the proviso to Section 25B(8) of the Act would show that it does not specifically use the term “revision”. But the provision read in its entirety shows that the power conferred under the said proviso is a revisional power, completely distinct from appellate power in the sense that the appellate power is wide enough to afford the appellate court to scrutinize the entire case and arrive at fresh conclusion whereas the revisional power is quite restricted to superintendence and supervision aimed at ensuring that the subordinate courts and tribunals operate within the bounds of law. Unlike Section 115 of the Code of Civil Procedure dealing with the scope of revision in civil cases, the proviso to Section 25B of the Act does not expect the High Court to look for satisfaction as regards regularity of the proceedings under scrutiny or correctness, legality or propriety of any decision or order for recovery of possession passed in the summary proceedings under Section 25B of the Act. The proviso to Section 25B(8) of the Act confines the satisfaction of the High Court to the extent that the order impugned before it was passed by the Controller under Section 25B “in accordance to law”.

5.5 It is trite that the power of revision conferred upon the High Court by the proviso to Section 25B(8) of the Act being in the nature of superintendence over the court of first adjudication on the decision making process, including compliance with the procedure laid down by law, the High Court cannot substitute and supplant its view over that of the court of the first adjudication by exercising parameters of appellate scrutiny. The High Court has a superintendence role only to the extent of satisfying itself on the process adopted. Thus, scope of interference by the High Court in the proceedings of the present nature is quite restrictive and the High Court should not venture into disturbing the decision of the court of first adjudication unless it finds some error apparent on the face of record, which would only mean the absence of adjudication per se. While examining the records of the Rent Controller in order to satisfy itself that the impugned order was passed according to law, the High Court should be cautious not to venture into a roving enquiry which would convert the power of superintendence into that of a regular first appeal, which in turn is completely forbidden by the legislature. It is not permissible for the High Court in such proceedings to arrive at a finding of fact different from the one recorded by the Rent Controller, unless the findings of fact recorded by the Rent Controller were so unreasonable that no Rent Controller would have recorded the same on the material available.

6. Falling back to the present case, so far as the alleged availability of reasonably suitable alternate accommodation is concerned, the petitioner/tenant failed to disclose specific details of any property other than the subject premises available to the respondents/landlords. Mere vague assertions of the petitioner in the application for leave to contest without any specific particulars and supporting documentary material that respondents/landlords have acquired 50% on ground floor and 70% on first floor of the larger premises cannot entitle the petitioner a leave to contest the summary proceedings under Section 25B of the Act. As mentioned above, the respondents/landlords have specifically disclosed the premises apart from the subject premises which are in their possession and being used by them; the respondents/landlords have also specifically pleaded that they want to expand their business, for which purpose the existing premises being used by them are not sufficient, so they need the subject premises. Therefore, plea of the petitioner/tenant that respondents/landlords have reasonably suitable alternate accommodation must fail.

7. Then comes the main argument related to ownership of the respondents/landlords and the jural relationship of tenancy between the parties. In that regard, the legal position not in dispute is that in the proceedings of the present nature, the landlord is not required to prove absolute title over the tenanted premises. It is sufficient if the landlord is able to establish a title, though not perfect, but better than title set up by the tenant, the issue of ownership would stand resolved in favour of the landlord. It is also not in dispute that at the stage of seeking leave to contest, mere bald claims of ownership over the tenanted premises set up by the tenant are not sufficient and the tenant has to place on record some reliable documentary material. This view stands fortified by plethora of judgments including in the cases titled Zahid Hussain thr LRs vs Aenul Haq Qureshi thr LRs, (2005) 1 RCR 323; Rajender Kumar Sharma vs Smt Leelawati, (2008) 155 DLT 383; and Tahira Begum vs Sumitar Kaur, (2010) 166 DLT 443.

8. As mentioned above, in the present case, the petitioner/tenant did not dispute that originally in the year 1980, he had been inducted as a tenant in the subject premises by the erstwhile owner Shri Om Prakash Sachdeva. However, according to the petitioner/tenant, he subsequently purchased the entire second floor with roof rights of the larger premises on 17.07.1991 by way of Agreement to Sell and attendant documents executed with Shri Om Prakash Sachdeva. But in support of his plea of having acquired ownership of the subject premises, the petitioner/tenant did not place on record even a shred of document. On the other hand, the respondents/ landlords placed on record the Agreement to Sell and attendant documents in support of their claim of ownership over the subject premises, having purchased the same from the erstwhile owner Shri Om Prakash Sachdeva.

9. Pertaining to the ownership of the subject premises, the respondents/landlords placed on record copy of the registered Perpetual Lease Deed; Agreement to Sell dated 28.08.1991 executed between Shri Om Prakash Sachdeva and Shri Moti Lal Jain; Will dated 28.08.1991 of Shri Om Prakash Sachdeva in favour of Shri Moti Lal Jain; General Power of Attorney executed by Smt. Anita Jain as attorney of Shri Om Prakash Sachdeva in favour of Shri Moti Lal Jain; receipts of instalments of sale consideration executed by Shri Om Prakash Sachdeva in favour of Shri Moti Lal Jain; and an affidavit dated 20.10.1992 of Shri Om Prakash Sachdeva testifying the receipt various instalments of sale consideration. The Agreement to Sell dated 28.08.1991 coupled with the remaining documents enlisted above clearly establish that for present purposes, Shri Moti Lal Jain, predecessor of the present respondents was owner of the subject premises or atleast had a title better than that claimed by the petitioner/tenant who has not filed even a shred of document to show that the subject premises were purchased by him from Shri Om Prakash Sachdeva under whom he was admittedly a tenant only.

10. Argument of the learned counsel for petitioner/tenant that the title documents filed by the respondents/landlords cannot be read as the same are not duly stamped has to be rejected in view of Section 36 of the Stamp Act because admittedly no such objection was raised before the learned Additional Rent Controller when the said documents were filed and taken into consideration. Moreover, as recently held by the Supreme Court after elaborate discussion in the case titled In re:- Interplay between Arbitration Agreements under the Arbitration & Conciliation Act, 1996 and the Indian Stamp Act, 1899 reported as 2023 SCC OnLine SC 1666, non-stamping or inadequate stamping of documents is a curable defect and such documents are not rendered void or void ab-initio or non-enforceable.

11. In view of the aforesaid, coupled with the admitted position that the petitioner was a tenant under the erstwhile landlord Shri Om Prakash Sachdeva, from whom Shri Moti Lal Jain, the predecessor of the present respondents/landlords purchased the subject premises and the petitioner even started paying rent to Shri Moti Lal Jain, jural relationship of tenancy between the parties to the present proceedings clearly stands established.

12. In such a case, if leave to contest is granted, pushing the parties to undergo churning and rigmaroles of full dress trial, which can go on for years, would be a travesty of justice and would militate against the basic principles underlying Chapter III of the Delhi Rent Control Act for summary proceedings.

13. In view of the above discussion, I am unable to find any infirmity in the impugned order, so the same is upheld and consequently, the revision petition is dismissed.

GIRISH KATHPALIA
(JUDGE)
FEBRUARY 01, 2024/as

RC.REV. 290/2023 Page 1 of 14 pages