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Judgment
The present Petition has been filed under Section 25-B(8) of the Delhi Rent Control Act, 19581 assailing the Judgment dated 06.05.20262 passed by the learned ARC-01, Central District, Tis Hazari Courts, New Delhi3, in Eviction Petition being RC ARC 78/20254, titled “M/s Roopam Sharma v. M/s P.L. Bhasin and Company”, whereby the Application seeking Leave to Defend filed by the Petitioner was dismissed and consequently, an eviction order was passed in favour of the Respondent.
2 Impugned Judgment
4 Ev iction Pet ition
Learned counsel appearing on behalf of the Petitioner would confine his submissions to the complete non-consideration of the alternate accommodation that had been enumerated by the Petitioner in his application seeking leave to defend. He would submit that details of various accommodations were specifically mentioned in the detailed Affidavit filed by the Petitioner along with the application seeking leave to defend; however, the learned ARC has not rendered any finding with respect to any of the properties not being suitable alternate accommodations. He would submit that on this ground alone, the Impugned Order is liable to be set aside.
Per Contra, learned counsel appearing on behalf of the Respondent would submit that learned ARC has dealt with the objection pertaining to suitable alternate accommodation in detail and the same is well reasoned.
This Court has heard learned counsel appearing on behalf of the parties and, with their able assistance, gone through the material available on record including the Impugned Judgment.
Before proceeding to examine the grounds of challenge urged on behalf of the Petitioner, it would be apposite to advert to the scope and ambit of the revisional jurisdiction vested in this Court under the proviso to Section 25B(8) of the DRC Act.
The contours of the aforesaid jurisdiction are well settled. The Hon‟ble Supreme Court, in Sarla Ahuja v. United India Insurance Co. Ltd.5, Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh6, and, more recently, in Abid-Ul-Islam v. Inder Sain Dua7, has consistently held that the jurisdiction exercised by the High Court under the proviso to Section 25B(8) of the DRC Act is supervisory and revisional in character and cannot be equated with the exercise of appellate jurisdiction.
The aforesaid principles have also been reiterated and relied upon by Coordinate Benches of this Court, inter alia, in Pankaj Pahwa v. Prem Wati & Ors.8, and Sanjeev Hiranandani v. Sunny Grover9.
In Abid-Ul-Islam (supra), the Hon‟ble Supreme Court, while elucidating the legislative intendment underlying Section 25(B) of the DRC Act, observed that the omission of an appellate remedy against an Order passed by the learned Rent Controller is conscious and deliberate. The jurisdiction conferred upon the High Court is, therefore, one of superintendence over the decision-making process, including the legality and propriety thereof, and does not permit the High Court to substitute its own view for that of the learned Rent Controller merely because another view on the material available on record may be possible. The relevant observations of the Hon‟ble Supreme Court read as under:
“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.”
In Pankaj Pahwa (supra), a Coordinate Bench of this Court, upon considering the principles enunciated in Abid-Ul-Islam (supra), reiterated that the jurisdiction exercised by this Court under the proviso to Section 25B(8) of the DRC Act is limited in scope and that this Court is not expected to substitute or supplant its view for that of the learned ARC. The revisional scrutiny is confined to examining the decision-making process and determining whether the Impugned Order suffers from an error apparent on the face of the record or an absence of adjudication warranting interference.
In view of the foregoing discussion, the position which emerges is that, while exercising jurisdiction under the proviso to Section 25B(8) of the DRC Act, this Court is neither required nor permitted to undertake a fresh appreciation of the material on record with a view to arrive at an independent conclusion on the merits of the dispute. Interference would be warranted only where the Impugned Judgment suffers from a jurisdictional error, manifest illegality, material irregularity or perversity, or where the conclusion arrived at by the learned ARC is wholly unreasonable or founded upon an erroneous premise of law. Equally, where a material plea has been left unconsidered, or the decision-making process otherwise discloses an error apparent on the face of the record, exercise of revisional jurisdiction may be warranted.
It is within the aforesaid limited parameters of revisional scrutiny that the grounds urged by the learned counsel on behalf of the Petitioner against the Impugned Order are required to be examined.
For the sake of completeness, this Court deems it appropriate to reproduce the properties enumerated in the affidavit filed along with application seeking leave to defend, which are set out at Paragraph Nos. 7 to 16 of the said affidavit. The said paragraphs read as under:
“7.I say that the intention of the Petitioner by filing the petitioner on Bonafide requirement is false and frivolous, as there is no bonafide requirement for the petitioner, rather the petitioner is seeking additional accommodation despite having various / numerous properties in Delhi, which are more suitable for her daughter to start her office. Thus the Respondents is seeking eviction from the Petitioner from the petitioner on false frivolous grounds.
8.I say that the petitioner is the owner of the property bearing No.846, Joshi Road, Karol Bagh, New Delhi-110005 and she is was also the owner of the property bearing No,.846A, Joshi Road, Karol Bagh, New Delhi-110005 but later on had transferred the property bearing No.846 in the name of her elder daughter i.e. Ms. Yuvika Sharma, as alleged by her. The said transfer has been done by the petitioner with an intention to show to the Hon‟ble Court that she did not own much properties as it will be beneficial for her to file an eviction petition against her tenants and to further show that her bonafide requirement is genuine.
9.I say that the said two properties bearing No.846, and 846A, as stated above consist of ground floor, first floor, second floor, third floor and fourth floor as clearly stated in the site plan at Page No.87 of the petition.
10.I say that the Property bearing No.846A and 846 consists of 22 rooms of a considerable size on the First Floor of the properties bearing No.846 and 846A and another 22 rooms of considerable size on the Second Floor of the property bearing No. 846A and 846. It is further submitted that on the first floor of the property bearing No.846A, there are 11 rooms on the first floor and 11 rooms of considerable size on the second floor of the said property and in the same way in the property bearing No.846, which though was in the name of the petitioner herself but which later on transferred by her in the name of her elder daughter had also 11rooms on the First Floor and 11 rooms on the Second Floor of the said property.
11.I say that in the property bearing No.846A, Joshi Road, Karol Bagh, New Delhi, there is also a very big Hall where there is a reception and at the back of it there is a emergency, and it is further submitted that on the Third Floor of the property in question there are two big room of size 19‟3‟‟ by 15‟6‟‟ size and another big room of 11‟8‟‟ by 15‟6‟‟ and apart from that big tin shed of 48'3'' by 15'5" on the Third Floor of the. property in question vacant. It is further submitted that on the Fourth Floor of the property in question, there is also a big hall 20'6" by 19' J", which is vacant and the reference of the rooms available on the third floor and fourth floor of the property in question has never been whispered by the petitioner in her eviction petition except it was shown in the site plan which are attached with the eviction petition at Page no.87 of the paper book thus the petitioner deliberately and with malafide intention chooses to the main silent vis-avis the Third Floor and Fourth Floor of the property in question though falls in the name of the petitioner herself.
12.I say that as per the contentions of the petitioner in her eviction petition in para no.18(a) of sub para no.xvii she had stated that she had leased out the First Floor and The Second Floor of the property bearing No.846A and 846, Joshi Road, Karol Bagh, New Delhi to one Medical Centre/Nursing homes by virtue of lease deed dated 04.09.2015 for a period of IO years and which is going to expire very soon and thus there would have been no genuine bonafide requirement to the petitioner after the same is over and the daughter of the petitioner will get and ample space where she can start her office in any one or two rooms from the said two property.
13.I say that the petitioner ·also owns a very big house measuring approximately 500 sq. yds in Defence Colony, New Delhi-110024 bearing Property No.D- 65, Defence Colony, New Delhi- I I 0024, which consists of the Ground Floor, First Floor and Second Floor. The Petitioner herself admitted that she is residing on the Second Floor of the said –property along with her younger daughter Yashasvika Shanna only. The Petitioner had further stated in her para no.18(a) sub para no.xx(d) that the ground Floor of the property bearing No.D-65, Defence Colony, New Delhi-110024 had let out to a tenant namely "M/s Zen Business Centre" for a period of 6 years by virtue of a Registered Lease Deed dated 10.02.2020. this clearly shows that her younger daughter Yashasvika Sharma, though had completed her law in 2015 and the petitioner can very well manage to give her space on the ground floor of the property bearing no. D-65 defense colony New Delhi to start her office and further that was the right place to start her law office, as there is no parking problems and the area is posh and the possibility of getting lucrative clients were very high but the petitioner chooses not to give to her daughter to open her office though she had stated that she was working in some law firm but she can maintain that office as well. Thus the intention of the petitioner is very clear that in the garb of the present eviction petition she is seeking to get the respondent evicted from the shop bearing no. 1 & 2, in property bearing no. 846A Joshi Road Karol Dagh New Delhi and then to give it on a rent at very high rates.
14.I say that, the whole First Floor of property bearing D-65 Defence Colony, New Delhi-I I 0024 is lying vacant and the total area of the said floor is approximately 500 Sq. Yards with multiplicity of Rooms, Halls and other facilities being available on the said First Floor, where the daughter of the petitioner can open her lavish office and the said area/place is more suitable for the daughter of the petitioner to open her office. It is further submitted that in her eviction petition, the petitioner chooses to remain silent vis-à-vis the First Floor of the property bearing No. D-65, Defenc1e Colony, New dekhi-1/024 and the conduct of the petitioner by not disclosing anything regarding the said First Floor of Defence Colony is nothing short of suppressing the material facts from this honourable court. Thus from the above it is abundantly clear, that the bonafide requirement of the petitioner is not genuine but with malafide intention and in the grab of Bonafide requirement, the Petitioner is rather seeking an additional accommodation by virtue of which she wants get the property bearing Shop No. I &2, 846, Joshi Road, Karol Bagh, New Delhi-I I 0005 vacated from me. Thus the petitioner is not entitled for any discretionary· relief as alleged by her in her prayer clause because she approach the court with malafide.
15.I say that the petitioner had recently sold two shops to Narang Medicals. Out of which Narang Medical is doing the business of Supplying Water through Bottles and One Shop has been given by them on rent to "The Dental Healthcare" The said shop is very well seen in the photographs in Page No.83 of the Eviction Petition. It is again reiterated that the real intention of the petitioner is to grab the property/shop by filing the frivolous eviction petition on frivolous grounds and thus the petitioner in order to get the shops evicted or the properties shuffles the properties with her elder daughters Yuvika, by either transferring her by way of relinquishment deed or Sale Deed or Gift Deed to make the court believe that not the petitioner but her daughter Yuvika is the owner of the property.
16.I say that, the Petitioner is also the owner-of the two shops i.e Harsh Associates, and "Juneja Milk Food" and the shop with the name of .. Harsh Associates" her nephew used to sit "the son of the elder brother of the deceased husband of the petitioner and "Juneja Milk Food" is given on rent, against whom the petitioner is also filing the eviction petition on bonafide requirement, as she has done with the shop named "Cute", which is a barber shop and is under the tenancy of Smt. Savitri Devi as alleged by her in her eviction petition at sub-para at Para No.18A(xx)(b).”
(emphasis supplied)
It is apposite to also reproduce the findings rendered by the learned ARC, while dealing with the aspect of alternate accommodation, which read as under:
“ALTERNATE ACCOMMODATION
22)With regard to the plea of alternative accommodation, it is contended by the respondent that the petitioner has concealed the various alternative accommodations which are available with the petitioner. However, it is a well settled proposition of law that it is not sufficient that any kind of the property should be available to the petitioner/landlord to rule out the benefit of 14(1)(e) of D.R.C. Act. The property available with the petitioner/landlord should also be reasonably suitable property. In M M Quasim vs/ Manohar Lal Sharma, (1981) 3 SCC 36, the Apex Court has that the landlord does not have an unfettered right to choose the premises but merely showing that the landlord has some other vacant premises in his possession may not be sufficient to negative the landlord‟s claim if the vacant premises were not suitable for the purpose for which he required the premises.
23)In the present matter, however, no particulars of any purported alternative accommodation have been pleaded by the respondent. It is trite to state that the burden is upon the tenant to show that other alternative suitable accommodation is available with landlord and how the said premises were suitable for the pleaded requirement. Reference is made to the judgment of the Hon‟ble High Court of Delhi in the case of Lalta Prasad Gupta Vs. Sita Ram, 2017 SCC Online Del 13026, wherein it was held as under:-
“18.Thus, if the tenant seeks leave to defend controverting the requirement pleaded by landlord on the ground of the landlord, though at the time of requirement having alternate premises, having not used the same and instead having commercially exploited the same, the tenant must plead (a) the particulars of such premises; (b) the right/title of the landlord to the same; (c) that the said premises were vacant and available for use at the time of pleaded requirement of landlord; (d) how the said premises were suitable for the pleaded requirement; and (e) how the landlord has deprived himself thereof i.e. by sale or letting and support the said pleas with material on the basis whereof such pleas will be proved.”
24)Furthermore, it is also pertinent to note that the Hon‟ble Supreme Court in Abid- ul-Islam Vs. Inder Sain Dua, (2022) 6 SCC 30 has held for availing leave to defend a mere assertion by the tenant is insufficient. Section 14 (1) (e) of the Act creates a presumption in favour of the landlord regarding bona fide need, which is rebuttable only with substantive material capable of raising a triable issue. It was further held that the burden of proof is on the tenant to demonstrate, with cogent evidence, that the landlord‟s requirement is not genuine. The Court also reiterated the settled principle of law that leave to defend should not be granted on mere asking but when the pleas and contentions raise triable issues.
25)Further, in the case titled as Ragavendra Kumar Vs. Firm Prem Machinery 2000 SC 534, it was observed as under: -
"It is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter, (See: Prativa Devi (Smt.) v. T.K Krishnan, [1996] 5 SCC 353. In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted."
26)It is also contended that petitioner has alternative accommodation in the subject premises itself in the form of vacant shops at first floor and second floor. However, it is pertinent to note that nothing has been brought on record to even prima facie show that the said premises/shops are lying vacant. Therefore, it is not the case whereby the said shops are lying vacant and available as alterative accommodations. Besides, it is a well settled law that the shop on the ground floor is much more suitable than a shop on the upper floors from the perspective of both the buyer and seller. In this regard it is pertinent to note the judgement of the Hon‟ble Apex Court in Uday Shankar Upadhyay v. Naveen Maheshwari (2010) 1 SCC 503, is to be noted where it was held that it is not for the Courts to say that the landlord should shift to the first floor or any higher floor as it is well known that shops and businesses are usually conducted on the ground floor, because the customers can reach there easily. It was reiterated that the Court cannot dictate to the landlord which floor he should use for his business and that is for the landlord himself to decide. Thus, a ground floor premises is more suitable for commercial purpose than the premises on upper floor as it has more footfall of the customers. Therefore, the shop on the upper floors cannot be considered as a suitable alternative accommodation. Reliance in this regard is placed upon the decision of Hon‟ble High Court of Delhi in case of Dilip Singh Kapoor & Ors Vs. Neeraj Khanna & Anr, RC.REV. 66/2017, decided on 31.08.2022. Furthermore, the landlord being the best judge of his own requirement is the best person to decide as to which premises, he has to choose for conducting his business and a tenant cannot force the landlord to conduct his business from the basement or upper floor. It has been held by the Hon‟ble Supreme Court in the case of Rahabhar Productions Pvt. Ltd. Vs. Rajendera Kumar Tandon 72 (1998) DLT 629 that the landlord is not disentitled from seeking recovery of the possession of a ground floor merely on the plea that he is also in possession of first floor and second floor so long as the court is satisfied with respect to the bonafide requirement of the landlord for the tenanted premises. Similarly, in the present matter, the tenant cannot dictate the landlord to run his business from the first floor when it is settled law that the premises on the ground floor are much more suitable for commercial needs.
27)Counsel for the respondent has also relied upon various judgments to contend that „in cases where additional accommodation is asked for, normally leave to defend should not be refused'. However, the said judgments do not lay down any principle of law much less salutary principle of law to be applied irrespective of the facts of the case. Hence, it is not a propos ition calling for universal application per se so that even if, facts prima facie incredible in nature are pleaded; they should like a password result in leave to contest being granted. Reliance in this regard is placed upon decision of Hon'ble High Court of Delhi in A. M. Shah vs Pushpa Sood, 92 (2010) DLT 694 and Chand Daga vs Inder Mohan Singh Rana, 2002 (610) DRJ 410. Further, only by looking into facts and circumstances of the case, it can be determined whether grounds for granting leave are made out or not. It is always the prerogative of the landlord that if he requires the premises in question for his bonafide use for expansion of his business, then, it is not for the respondent/tenant to dictate the terms and advice as to what and what not should the landlord do when he has other premises available.
28)Even otherwise, it is the prerogative of the landlord to determine which premises best suits his requirements. It is trite to state that an alternative accommodation, to entail denial of claim of landlord, must be reasonably suitable, obviously in comparison with tenanted premises, wherefrom the landlord is seeking eviction. The Hon‟ble Supreme Court and the Delhi High Court have repeatedly held that the Courts are not to sit in the armchair of the landlord and dictate as to how the available property of the landlord is to be best utilized by him. The landlord is the absolute owner of his property and is the best person to decide which property is to be utilized in what way. The respondent cannot dictate as to how the landlord is to utilize his property. The landlord possesses the prerogative to determine their specific requirements, exercising full autonomy in this regard. It is not within the purview of the courts to impose directives on the landlord regarding the nature or quality of their chosen usage of the tenanted premises. Therefore, the courts refrain from prescribing any standard or guidelines for the landlord's choices (residential or commercial). Reliance is placed upon the decision of the Ho n‟ble Delhi High Court in case of Praveen & Anr. Vs. Mulak Raj & Ors. RC Rev. 417/2016 in this regard. Therefore, the said contention is a bald averment and without any particulars of any purported alternative accommodation, does not amount to any triable issue.
29)Hence, I find that the respondent has failed to raise any triable issue on the aspect of alternative accommodation as well.”
As is apparent from the foregoing, the learned ARC, while noticing the general objection raised by the Petitioner with respect to the availability of alternate accommodation, has not undertaken any examination of the specific properties which were expressly enumerated by the Petitioner in Paragraph Nos. 7 to 16 of the Affidavit filed along with the Application seeking Leave to Defend. The Petitioner had not merely raised a bald or omnibus plea regarding the existence of alternate accommodation. On the contrary, specific properties were identified, their locations were stated, the nature and extent of the accommodation available therein were set out, and particular assertions were made with respect to the portions which, according to the Petitioner, were lying vacant or were otherwise capable of being utilised for the requirement pleaded by the Respondent.
In particular, the Petitioner had referred to the properties bearing Nos. 846 and 846A, Joshi Road, Karol Bagh, including the alleged availability of accommodation on the third and fourth floors; the property bearing No. D-65, Defence Colony, including the alleged availability of the entire first floor measuring approximately 500 square yards; and the two shops stated to have been recently sold to Narang Medicals. The Petitioner had also set out specific assertions regarding the nature, size and alleged availability of the accommodation in the aforesaid properties. Whether or not these assertions were ultimately capable of being established, and whether the properties were in fact reasonably suitable for the requirement pleaded by the Respondent, were matters which necessarily required consideration in determining whether the defence raised a triable issue.
The learned ARC, however, has not examined these specific assertions on their own merits. Rather, in paragraph 23 of the Impugned Judgment, the learned ARC proceeded on the premise that “no particulars of any purported alternative accommodation have been pleaded by the respondent”. This finding is demonstrably at variance with the record. The Affidavit accompanying the Application seeking Leave to Defend contains specific particulars of the properties relied upon by the Petitioner, as noticed hereinabove. Thus, the question was not whether the Petitioner had furnished particulars of alternate accommodation, but whether the specific properties so identified were, prima facie, available to the Respondent and were reasonably suitable for the requirement pleaded in the eviction petition.
The distinction is material. The law undoubtedly requires the tenant to disclose particulars of the alternate accommodation and to demonstrate how such accommodation is reasonably suitable for the requirement pleaded by the landlord. However, once specific properties have been identified and specific factual assertions have been made regarding their availability, nature, extent and suitability, the same cannot be rejected by characterising the plea as a “bald averment” without examining the properties individually or collectively. The question of suitability is necessarily fact-dependent and cannot be answered in the abstract.
In the present case, the learned ARC has proceeded to consider the issue principally on the basis of general propositions of law, including that the landlord is the best judge of his requirement, that the tenant cannot dictate to the landlord as to which premises ought to be utilised, and that a ground-floor premises may ordinarily be more suitable for commercial purposes than an upper-floor premises. There can be no quarrel with the aforesaid propositions. However, those principles do not dispense with the requirement of examining a specific plea of alternate accommodation raised by the tenant, particularly where the tenant has identified particular properties and furnished specific particulars regarding the alleged availability thereof.
The proposition that the landlord is the best judge of his requirement does not mean that every assertion of the landlord is insulated from scrutiny at the stage of an Application seeking Leave to Defend. Equally, the principle that the Court ought not to sit in the proverbial armchair of the landlord cannot be invoked to avoid examining whether the material placed by the tenant raises a genuine and bona fide dispute requiring adjudication. The relevant inquiry at this stage is whether the material placed on record, if proved, would have a bearing upon the landlord's pleaded requirement or upon the availability of reasonably suitable alternate accommodation.
Significantly, the Impugned Judgment itself records the legal requirement that an alternate accommodation must be “reasonably suitable” for the purpose for which the premises in question are sought. Having so correctly identified the governing test, the learned ARC was required to apply that test to the specific properties pleaded by the Petitioner. Instead, the learned ARC has rejected the objection without undertaking any such examination. The finding that the Petitioner had failed to disclose particulars, therefore, does not address the actual case set up by the Petitioner and consequently leaves a material aspect of the defence unadjudicated.
This omission assumes significance in the context of the limited revisional jurisdiction exercised by this Court under the proviso to Section 25-B(8) of the DRC Act. As noticed hereinabove, this Court is not exercising appellate jurisdiction and is not called upon to substitute its own assessment of the suitability of the properties for that of the learned ARC. The interference in the present case is warranted for a different reason, namely, that the decision-making process itself is vitiated by non-consideration of a material plea and by proceeding on a factual premise which is contrary to the record.
The error, therefore, is not merely one of appreciation of evidence or of choosing between two possible views. The learned ARC was required to consider whether the specific properties relied upon by the Petitioner, if available and if the assertions in respect thereof were substantiated, could constitute reasonably suitable alternate accommodation for the requirement pleaded by the Respondent. That exercise has not been undertaken. The Court cannot, in exercise of its revisional jurisdiction, undertake that exercise for the first time, as doing so would effectively amount to assuming the role of the Rent Controller and converting the present proceedings into an appellate examination of the factual controversy.
In these circumstances, the absence of consideration of the specific properties enumerated by the Petitioner constitutes an omission to adjudicate a material aspect of the defence. The same goes to the root of the decision-making process and constitutes an error apparent on the face of the record within the limited parameters governing the exercise of jurisdiction under the proviso to Section 25-B(8) of the DRC Act.
Consequently, this Court is of the view that the Impugned Judgment cannot be sustained in its present form. The Impugned Judgement fails to consider the specific plea of alternate accommodation in the context of the properties expressly identified by the Petitioner and to determine, in accordance with law, whether the material placed on record raised a triable issue regarding the availability and reasonable suitability of such accommodation. Since no such consideration has been accorded to the properties specifically enumerated by the Petitioner, the Impugned Judgment suffers from an infirmity warranting interference in revisional jurisdiction.
Accordingly, the present Petition is allowed. The Impugned Judgment is set aside.
The matter is remanded to the learned ARC for fresh consideration on the pleadings already on record before the learned ARC.
It is clarified that this Court has expressed no opinion on whether the properties so enumerated do, in fact, constitute reasonably suitable alternate accommodation. That determination shall be undertaken by the learned ARC upon an independent consideration of the material available on record and in accordance with the law.
List before the learned ARC on 17.10.2026.
In view thereof, the present Petition, along with pending Application(s), if any, stands disposed of in the above terms.