Raghbir Chand Dhawan vs Vijay Kumar and Others

Shiv Narayan Dhingra, J.—By this petition, the petitioner has assailed the order dated 22.4.2008 passed by the learned ARC whereby an application u/s 25-B of the DRC Act seeking leave to defend was dismissed and eviction order was passed.

The eviction petition was instituted by Mr. Krishan Kumar Singh, owner of the suit premises. The premises was under the tenancy of the respondent for residential purpose at the monthly rent of Rs. 300/-. Mr. Krishan Kumar Singh was living in UK and he filed a petition on the ground of bona fide requirement stating that he used to visit Delhi every year to meet his elder son Vijay Singh and other relatives & family members. His son Vijay Singh had no accommodation of his own in Delhi and was living in an accommodation provided to his wife by Hindu College, Delhi University where she was teaching. Vijay Singh''s wife was to retire in January, 2006 and thereafter Vijay Singh and his wife would have no accommodation to live in. The family of the Vijay Singh consisted of his wife and an unmarried grown-up daughter. He therefore required the suit premises bona fidely, since on his visit to India he would have no premises to stay at and the premises was also required bona fidely for the requirement of his son with whom he used to stay whenever he came from UK to India. A leave to defend was filed challenging the bona fide requirement of Mr. Krishan Kumar Singh taking the stand that Mr. Krishan Kumar Singh being a citizen of UK had no intention to come to India and whenever he visited India, he used to live with other family members. It was also stated that the requirement of Vijay Singh cannot be considered as a bona fide requirement, since he was not dependant on Mr. Krishan Kumar Singh.

During pendency of the petition, Mr. Krishan Kr. Singh expired and his legal heirs (LRs) viz. Vijay Singh (son), Arun Singh (son) and daughter Nalini were brought on record. The petition became a petition for bona fide requirement of his son Vijay Singh, who was residing along with his wife and daughter in the accommodation, which was provided to his wife by her college. She also got an extension of three years and is now due to retire in January, 2009.

The petitioner argued that the requirement of Vijay Singh cannot be considered as a bona fide requirement, since his wife has to retire in January, 2009, the premises would be needed only in 2009 and not now. I consider that this argument must fail. We are already in August, 2008. The petitioner has been given time to vacate the premises by 22.10.2008 and after the petitioner vacates the premise, the premises will have to be white washed, painted furnished and make livable according to likings of the landlord, and this exercise normally requires 3-4 months time.

The petitioner has been living in this accommodation for the last about 50 years. There is no dispute that Vijay Singh''s wife would attain the age of 65 years in January, 2009 and there can be no extension beyond 65 years of age. Thus, the requirement of Vijay Singh, who is now the co-owner of the premises is bona fide and there is no mala fide in it.

The petitioner also took a ground that there was no proof regarding ownership of Vijay Singh on record. It is undisputed fact that there was landlord-tenant relationship between Mr. Krishan Kumar Singh and the petitioner. The petitioner had written a letter to Mr. Krishan Kumar Singh to inform him about the account number in which the rent should be deposited and at the behest of Mr. Krishan Kumar Singh, the petitioner had been paying rent of the premises to his brother''s wife living at the ground floor of the suit premises. In view of Section 116 of the Evidence Act, an estoppels works against the petitioner in challenging the ownership of Mr. Krishan Kumar Singh. Since Vijay Singh is son of Mr. Krishan Kumar Singh and after the death of Mr. Krishan Kumar Singh the property has gone to his LRs, the ownership of LRs cannot be disputed. The challenge to the ownership of Vijay Singh was therefore, a mala fide challenge and no issue on this ground could be entertained by the trial Court.

The petitioner argued that Vijay Singh was having other accommodation also. This argument cannot be entertained because no document of ownership of any other property by Vijay Singh was placed on record before the trial Court.

It is settled law that revisional jurisdiction of this Court u/s 25-B(8) cannot be exercised as an appellate jurisdiction and the Court cannot re-appreciate the facts and re-write the judgment. The Court can only look into the facts and the evidence to ensure that the trial Court has acted in accordance with law and has not ignored the material facts placed by the parties on record or has not passed the judgment on the basis of no material. The High Court has to ensure that the trial Court has acted within the jurisdiction and the order of the trial Court does not suffer from any material irregularity. The learned Counsel for the petitioner has failed to point out if there was any jurisdictional error in the judgment or the order of the trial Court was suffering from any material irregularity.

The petitioner has failed to raise any triable issue in his application u/s 25-B. He raised objections only for the sake of raising objections. It is obligatory on the Rent Controller to consider the affidavit of parties and material placed on record and decide if the issues raised by the tenant were actually triable issues or answer to all issues were there in the undisputed facts placed before it by the landlord. Only those issues can be considered as triable issues where the material placed on record and the affidavit of parties are not sufficient to decide and ARC considers that recording of evidence would be necessary.

I find no infirmity in the order. The petition is meritless and is hereby dismissed.