Supreme Court: Whether an appellate court can dismiss an appeal solely on the basis of an unrebutted affidavit of the respondent without considering the entire material on record, including the trial court record?

Having heard the learned counsel for the parties and having

perused the documentary material on record, we are of the view

that the writ petition did not warrant dismissal solely on the

ground that the original plaintiffs failed to file any rejoinder to the defendants’ affidavit in reply dated 12th April 2023. In our view, all relevant material that was brought on record by both the parties ought to have been examined while deciding the writ petition. The affidavit in reply dated 12th April 2023 could have been considered as additional material in opposing the claim for eviction on theground of bonafide need. Dismissal of the writ petition solely on the ground of non-traverse has, in our view, vitiated the impugned judgment. {Para 6}.

18. In the case of Gaya Prasad v. Pradeep Srivastava [(2001)

2 SCC 604], this Court held that the landlord should not be

penalised for the slowness of the legal system and the crucial

date for deciding the facts of the requirement of the landlord is

the date of his application for eviction. It is also observed that

the process of litigation cannot be made the basis for denying

the landlord relief unless the litigation at least reaches the final

stages. However, it is further added that subsequent events

may, in some situations, be considered to have overshadowed

the genuineness of the landlords’ needs but only if they are of

such nature and dimension as to completely eclipse such need

and make it lose the significance altogether.”

In the light of above discussion, the High Court failed to consider whether the subsequent event as urged by the defendants had material bearing on the right claimed by the plaintiffs. It has to be borne in mind that the Trial Court had passed a decree for eviction on the basis of the evidence on record which was reversed by the Appellate Court. It was, therefore, necessary for the High Court to have taken into consideration the entire material available on record including the affidavit dated 12th April 2023. Thus, by failing to do so, the High Court failed to exercise jurisdiction vested in it while deciding the challenge to the reversal of the decree for eviction. We, therefore, find that the order passed by the High Court deserves interference.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2026

MARIA MARTINS  Vs NOEL ZUZARTE AND OTHERS 

Author: ATUL S. CHANDURKAR, J.

Citation: 2026 INSC 376

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Whether married daughters of landlord are his dependents for the purpose of claiming eviction of tenant?

 The court is of the view that the status of financial well-being of a landlord or his family members-wife and children, who were dependent upon him, is not the test of bonafide requirement. All that was to be seen was whether there was a suitable alternate accommodation available with the landlord, for him to use or for providing the same to his daughters. No such suitable alternate accommodation has been shown. The impugned judgment has misdirected itself in an inquiry about the landlord's, his wife's and of the business of the husband's of the dependent daughters' or their economic well-being or in concluding that simply because the daughters of the petitioner were married, "happy with their matrimonial life" and alternate accommodation was available with their respective husbands, therefore, there was no need for them to start their business or to ask their father to provide them an accommodation for business. {Para 20} 

Ordinarily, for a daughter, irrespective of her matrimonial status, her paternal/maternal home is always a psychological, physical and emotional sanctuary, a place to which she can relate and return to freely, irrespective of how far she is geographically located from her parents. The law provides for eviction of a tenant on the need of dependants. Married daughters are included among dependents of their parents, for commercial/residential space.5 The test in law is about the dependency of the children upon the landlord/landlady when the property of the parent is in question.

22. In the present case, the married daughters are dependent upon their father for space to start their business in Delhi. The dependency was not pleaded on the husbands. The petition is maintainable. The daughters' need continues, so does the need of the petitioner. 

IN THE HIGH COURT OF DELHI

RC. Rev. 367/2018, CM Appls. 13453/2023 and 22041/2023

Decided On: 07.07.2023

 Nisar Ahmed  Vs.  Agya Pal Singh

Hon'ble Judges/Coram:

Najmi Waziri, J.

Citation:  MANU/DE/4291/2023.

Read full Judgment here :Click here

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Should the court refuse an eviction decree to the landlord if the husbands of his married daughters have accommodation?

 The landlord wanted his property not only for his daughters but for himself also. Assuming that accommodation was available with the respective husbands of the two daughters, surely it was not expected of the father-in-law to take assistance of his daughters and request them to make available such space through their respective husbands, for him to start a business enterprise. And why should he? The law does not require him to do so. Would it not compromise his self-respect and affect delicate family relations? Furthermore, the nature of the proposed business could be discussed/re-assessed/altered at any stage when the accommodation was made available, the landlord was not required to indicate the nature of business he intended to initiate. {Para 16}

IN THE HIGH COURT OF DELHI

RC. Rev. 367/2018, CM Appls. 13453/2023 and 22041/2023

Decided On: 07.07.2023

 Nisar Ahmed  Vs.  Agya Pal Singh

Hon'ble Judges/Coram:

Najmi Waziri, J.

Citation:  MANU/DE/4291/2023.

Read full Judgment here :Click here

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Should a landlord have all information about the income and assets of his wife and disclose it before the court to seek eviction of a tenant?

 

 The impugned judgment then delves into the examination of nature of business being carried out by the landlord i.e. whether the hotel business was being run from 19 rooms to 13 rooms and how it was being run. It also doubted the credibility of the landlord on the ground that, since his family comprised only his wife and two daughters, he should have known the received income of his wife from her business of running a hotel. It further records that the hotel business was being run from the first and second floor of a building which was rented by the same Wakf-ul-aulad, to a partnership firm in which his brothers, sisters and sister-in-law were partners. The learned ARC inferred dishonesty and concealment on the part of the petitioner because he did not disclose these aspects and of his wife's business. {Para 11}

12. The court is of the view that the aforesaid inquiry was neither relevant nor necessary because for the purposes of a petition under section 141(1)(e) read with section 25B of the DRC Act, only the availability of suitable alternate accommodation is to be seen. It also presupposes that a husband has a right to know all details of his wife's business and financial affairs, as if the wife had no right to financial and business confidentiality or personal independence or privacy. There cannot be an assumption that the wife is subservient to her husband and is obliged to disclose to or share with her husband details of all her financials. In the present case, it was only to be seen: Whether a suitable alternate accommodation was available on the ground floor for the petitioner and/or his daughters for starting the business.

21. A wife is neither an appendage of nor an adjunct to her husband. Her identity does not merge with or get subsumed in her husband's identity. In law, she retains her individual entity. She retains her natural right to pursue her dreams, aspirations and the desire and need to be financially independent or otherwise do some meaningful social work. Idle luxuriation may not be the life-goal of many a woman or to be simply known as a rich man's wife. There is a certain self-worth which a person acquires by running her or his own business/commercial enterprise, vocation and professional activity. This aspiration cannot be questioned in proceedings for eviction of a tenant on the ground of bonafide requirement of the tenanted premises.

IN THE HIGH COURT OF DELHI

RC. Rev. 367/2018, CM Appls. 13453/2023 and 22041/2023

Decided On: 07.07.2023

 Nisar Ahmed  Vs.  Agya Pal Singh

Hon'ble Judges/Coram:

Najmi Waziri, J.

Citation:  MANU/DE/4291/2023.

Read full Judgment here :Click here

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Should a landlord disclose his entire financial transactions and file details of his income tax returns to prove his bona fide need for eviction of a tenant?

 

 The court is of the view that disclosure of his entire financial affairs by a tenant is neither essential in an eviction petition nor is it mandatory for the landlord to disclose all properties owned by her/him. Receipt of rentals from leased properties is a legitimate exercise. A plea of bonafide requirement has to be pivoted on the fact that the landlord had no other suitable alternative accommodation and there was a need for the same, not a mere wish. The landlord was not required to file details of his income tax returns and not filing the same along with the eviction petition would neither whittle away nor cast a doubt on the bonafide need, which is otherwise made out in the eviction petition.1 The "sufficiency" of income of a landlord or that he was well-off cannot be an issue for examination in eviction proceedings under the Delhi Rent Control Act.2 For who can sit in judgment as to what is sufficient finance for a person or his/her family. There can be no check, hindrance or curtailment to aspirations of an individual.{Para 10}.

IN THE HIGH COURT OF DELHI

RC. Rev. 367/2018, CM Appls. 13453/2023 and 22041/2023

Decided On: 07.07.2023

 Nisar Ahmed  Vs.  Agya Pal Singh

Hon'ble Judges/Coram:

Najmi Waziri, J.

Citation:  MANU/DE/4291/2023.

Read full Judgment here :Click here

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Whether the rent control Court has jurisdiction to decide eviction of tenant proceeding instituted before amendment Act 2013 of S 83 of wakf Act?

 At the outset, the respondent has questioned the maintainability of the eviction petition before the learned ARC on the ground that under section 83 of the Wakf Act, 1995 only the Wakf Tribunal had jurisdiction to deal with matters relating to eviction of a tenant of a Wakf property, section 85 of the said Act bars jurisdiction of other courts in respect of the matters which the Wakf Tribunal is empowered to decide, therefore, the eviction petition could not have been decided or entertained by the learned ARC. Reliance is placed by the respondent upon the following judgments: Rashid Wali Beg vs Farid Pindari MANU/SC/1001/2021 : (2022) 4 SCC 414; Syed Amir Ali vs Anjuman-e-Maidan [CM(M) 521/2021 decided on 02.12.2021 by High Court of Delhi; and Mehnish Adil vs Delhi Wakf Board 2002 (286) DLT 654.

6. Refuting the aforesaid contentions, the learned counsel for the petitioner submits that in view of the decision of the Supreme Court in Ramesh Gobindram vs Sugra Humayun Mirza Wakf MANU/SC/0659/2010 : (2010) 8 SCC 726, which while dealing with an eviction petition prior to the amendment of section 83 of the Wakf Act in November, 2013 held that an eviction petition against a Wakf property would also be maintainable before a Civil Court. In Rashid Wali (supra) the Supreme Court held as under:

"....45. Interestingly, the basis of the decision in Ramesh Gobindram was removed through an amendment under Act 27 of 2013. As we have stated elsewhere, Ramesh Gobindram sought to address the question whether a Waqf Tribunal was competent to entertain and adjudicate upon disputes regarding eviction of persons in occupation of what are admittedly waqf properties. Since this Court answered the question in the negative, Section 83(1) was amended by Act 27 of 2013 to include the words, "eviction of tenant or determination of rights and obligations of the lessor and lessee of such property"."

7. However, the 2013 Amendment does not make section 83 of the Wakf Act applicable retrospectively. The eviction petition relates to 24.12.2009, i.e. more than over four years before the amendment came into effect. No notification was issued regarding transfer to the Wakf Tribunal of all cases relating to wakfs pending before the ARC under the DRC Act. Interestingly, this issue was never raised before by the tenant. On 11.02.2015, this court had remanded the matter to the learned ARC for decision on the issue of leave to defend. The said remand and direction received affirmation of the Supreme Court on 07.05.2015.

8. In view of the above, the eviction petition was maintainable before the learned ARC. The tenant's contentions to the contrary are untenable and are rejected. 

IN THE HIGH COURT OF DELHI

RC. Rev. 367/2018, CM Appls. 13453/2023 and 22041/2023

Decided On: 07.07.2023

 Nisar Ahmed  Vs.  Agya Pal Singh

Hon'ble Judges/Coram:

Najmi Waziri, J.

Citation:  MANU/DE/4291/2023

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Can the court refuse to grant an eviction decree to the landlord on the grounds of bonafide need if one landlord claims a rent increase?

 The learned counsel appearing for the appellants argued that the Rent Controller and the Appellate Authority have passed an order of eviction finding bonafide requirement of the landlord. The demand of increase of rent is wholly irrelevant to determine the bonafide requirement of the premises by the appellant.

We find that even if a notice is served upon by a landlord to increase the rent, that notice has nothing to do with the bonafide requirement as the landlord is statutorily prohibited from increasing the rent in respect of the tenanted premises in terms of Section 6 of the Act. The demand of rent beyond the agreed rent is not permissible in terms of Section 6 of the Act.

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NO. 5539-5540 OF 2022 

 SURINDER SINGH DHILLON & ORS. Vs VIMAL JINDAL

Coram: HEMANT GUPTA; J., J.B. PARDIWALA; J. 

Dated: AUGUST 22, 2022

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Whether the court can refuse the eviction decree if the tenant takes a plea of alternative premises to the landlord's children without supporting documents?

As observed by the learned Rent Controller in the Impugned Order, barring making a bald statement that children are using the garage portion for running the Chit Fund Business, the petitioners have not filed any document to substantiate this defense. A mere vague denial or averment cannot be considered for granting leave to defend to the tenant. It is a settled law that the petitioners, as a tenant can also not dictate the landlord/respondents to use other premises, which may not be suitable for the business as alternate accommodation. [Reference may be made to Ragavendra Kumar Vs. Firm Prem Machinery AIR 2000 SCC 354; Rishi Kumar Govil vs. Maqsoodan and Ors. (2007) 4 SCC 465]. Mezzanine floor on the back of the building cannot be considered as a suitable alternate accommodation for a shop.

7. In any case, as held by Supreme Court in Dhannalal Vs. Kalawati and Ors. AIR 2002 SC 2572, mere availability of an alternate accommodation cannot be the determinative factor to judge the bona fide requirement, the tenant has to prove that the alternate accommodation is ‘suitable’ and convenient in all aspects as the Suit accommodation. In the present case, the alternate accommodation pleaded by the petitioners is mezzanine floor and/or garage on the back portion of the building, which cannot be said to be suitable for running the business as compared to the shop on the main road or on the ground floor.

8. As far as the need of the tenanted shop for settling the children is concerned, it is the case of the respondents that the children were assisting them in the family business and now whished to go independent. This cannot be said to be a fanciful requirement. The plea of the petitioners that the children were running a separate chit fund business was a mere bald assertion with not even prima facie material to substantiate such plea and therefore, was rightly not given any credence by the learned Rent Controller.

9. In view of the above, I find no merits in the present petition and the same is accordingly dismissed. 

 IN THE HIGH COURT OF DELHI AT NEW DELHI

RC.REV. 201/2020 & CM No.22328/2020 (Stay)

SHRI PAWAN KUMAR SETHI Vs SHRI ANIL KUMAR SINGHAL 

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA

Date of Decision : 05.11.2020

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Whether Tenant Can Dictate Adequacy Of Space Required By Landlord For Proposed Business Venture?

 We have considered the submission of the learned

counsel for the parties. The tenants do not challenge the

NRI status of the landlord but they contend that the

space available with the landlord would be adequate for

the proposed furniture business and there is no need to

seek eviction of the respondents, from their respective

shops.

11. On the above aspect, it is not for the tenant to

dictate how much space is adequate for the proposed

business venture or to suggest that the available space

with the landlord will be adequate. Insofar as the

earlier eviction proceeding, the concerned vacant shops

under possession of the landlords were duly disclosed,

but the case of the landlord is that the premises/space

under their possession is insufficient for the proposed

furniture business. On the age aspect, it is seen that

the respondents are also senior citizens but that has not

affected their desire to continue their business in the

tenanted premises. Therefore, age cannot be factored

against the landlords in their proposed business.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 231-232 OF 2021

BALWANT SINGH @ BANT SINGH & ANR.  Vs SUDARSHAN KUMAR & ANR.

Dated: JANUARY 27, 2021

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Whether eviction decree will be vitiated if the court takes into consideration comparative hardship if tenanted premises was vacant land?

 Here, in the case before us, the leased property is vacant land. But the Courts below have spoken about comparative hardship. So the Corporation and Firm maintain that the adjudication was under Section 13 (1) (g) rather than Section 13 (1) (i). According to them, as wrong standards have been applied, the decree stands vitiated. This plea was raised for the first time--in the revision. But, I reckon, it is a question of law. Let us consider it.

73. First, both Sections 13 (1) (g) and (i) are substantive provisions; they are not procedural provisions. Second, Sections 13 (2) and (3) have fixed the adjudicatory parameters: what aspects should be considered when the leased property is with structures or is vacant. The Appellate Court as well as the trial Court have considered the Owner's reasonable, bona fide need elaborately. They have concluded that the Owners needed the whole extent for their personal use--to cater to the increasing needs of their growing family. In addition, the Courts have also considered the relative hardship. Perhaps, that consideration of relative hardship may be extraneous or unnecessary. But it does not vitiate the outcome. It proves fatal if something essential has not been considered; it only proves redundant if something extraneous is considered, besides the essential having already been considered. As rightly contended by the Owners, the Courts put heavier onus on them; they were asked to meet an extra criterion--the comparative hardship--which is not required under Section 13 (1) (i). If at all anyone has been prejudiced, it must be the Owners not the Corporation.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 561 of 2018 and 562 of 2016 in Regular Civil Appeal No. 237 of 2005 in Regular Civil Suit No. 149 of 1998

Decided On: 27.04.2020

 K.B. Lahoti and Company and Ors. Vs. Champalal Vithuram Jajoo and Ors.

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Whether landlady can seek eviction of a tenant for the bonafide need of her married daughter?

While the ARC has clearly erred in holding that the requirement of a married daughter can never be considered while deciding the bona-fide requirement of a landlord under section 14(1)(e) since a married daughter does not remain a member of the family, another question arises in the present case, and that is: whether in assessing the availability of suitable, alternate accommodation for the use of a married daughter, it is necessary to first assess the availability of such accommodation in the hands of the husband; or is it permissible to assess the availability of such accommodation in the hands of the maternal family of the married daughter. In the opinion of this court, this question must be answered from the perspective of the eviction petitioner who seeks recovery of possession for the bona fide requirement of a dependent family member. Accordingly, the availability of suitable, alternate accommodation is to be seen in the hands of the person filing the eviction petition, in this case the mother/landlady; and it is not relevant whether other relatives of the dependant family member have any alternate accommodation available. In this case, it is therefore not relevant whether the petitioner's sons-in-law have alternate accommodation or not.

19. If an eviction petitioner has multiple premises available with him and, as per settled law, the tenant cannot dictate to him which of the premises he may seek to get vacated, then the question of the tenant dictating that the landlord should first utilise premises owned by the landlord's relatives, in this case the petitioner's sons-in-law, simply does not arise. In the present case, if the petitioner/landlady, being the mother, asserts that she requires the subject premises for the bona fide requirement of her married daughters, then it is not for the tenant to say that such requirement must first be satisfied using the properties of their husbands, if any.

21. Moreover, bona fide requirement under the DRC Act does not imply a situation of 'dire' or 'distressed' necessity. Reference in this regard may made to the decision of the Supreme Court in Raghunath G. Panhale (Dead) by LRs. vs. Chaganlal Sundarji & Co. MANU/SC/0657/1999 : (1999) 8 SCC 1: paras 6, 11 Consider a scenario where a landlord's dependant is not in dire straits and may even be in a position to purchase or rent premises, whether for residential or commercial purposes, from her own resources. However, a landlord may have suitable premises available for residential or commercial purposes; and may wish to give that premises to the dependant, so as to obviate the need for the dependant to spend her resources to purchase or rent other premises. The landlord may not want the dependant to needlessly deploy her own resources to buy or rent premises from a third-party, while leaving the landlord's premises in the use of an incumbent tenant. In the opinion of this court, even this kind of requirement would fall within the concept of bona fide requirement of the landlord or a family member dependant on the landlord; and a tenant cannot contend that while the tenant should continue to enjoy the landlord's premises, the landlord's dependant should acquire her own premises through other resources. Any other view would mean that while deciding bona fide requirement of a landlord for a dependant, the independent resources of the dependant would also have to be considered in detail before accepting the plea of bona fide requirement.

22. What the law contemplates is a requirement and not some dire or absolute or compelling or distressed need. The law further contemplates that such requirement be an honest requirement and not a mere ruse or stratagem or falsehood to seek eviction. That is all, nothing more and nothing less.

23. In the present case, even if it is assumed that the married daughters are capable of acquiring, by purchase or tenancy, other premises for use for their proposed businesses through their own resources or the resources of their husbands, why should the premises available with their mother, which the mother is willing to make available for their bona fide commercial requirement, not be available first to them instead of being available with the tenant, even more so when the tenant has already been in use and occupation of the premises since 1975.

24. In the opinion of this court, the two grounds on which leave-to-defend has been granted to the respondents are untenable for the following reasons:

(i) The premise that a married daughter ceases to be a member of her maternal family-is flawed. Since 'family' has not been defined in the DRC Act, there is no warrant for reading into the DRC Act any absolute restrictions in relation to who all may be included in that word. As held by a Division Bench of this court in Gobind Dass (supra), an extended meaning is given to the word 'family'. In the opinion of this court, the change in the 'marital status' of a daughter does not change her 'birth status'. While marital status may change and re-change, birth status does not. Getting married does not make her any the less a daughter of the family into which she was born; and therefore, a married daughter most certainly remains a 'member' of her maternal family. Accordingly, under the DRC Act the test would be whether the married daughter, who remains a member of the family, is dependent on the landlord for the particular requirement cited in the eviction petition. We should be clear that it is not that the married daughter must be wholly and completely dependent on the landlord for her day-to-day existence. Dependence is to be assessed with respect to the particular requirement cited. Of course the bona fides of the requirement are also to be assessed;

IN THE HIGH COURT OF DELHI

RC. Rev. 349/2018 and CM Appl. No. 33344/2018

Decided On: 21.08.2020

Vidyawati Vs.  Gautam Mahajan and Ors.

Hon'ble Judges/Coram:

Anup Jairam Bhambhani, J.

Citation: MANU/DE/1583/2020 

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Whether the court should order the abatement of a suit if the plaintiff fails to implead some of the legal heirs of deceased defendants?

In Daya Ram v. Shyam Sundari MANU/SC/0298/1964 : AIR 1965 SC 1049, the appellant had impleaded the heirs of the deceased respondent so far as known to him but had omitted to bring on record some of the heirs. Their details were unavailable with him. The question was about the effect of the appellant's having omitted to include two of the legal heirs, a son and a daughter, who admittedly had an interest in the property. The omission was brought to the court's notice before the could be heard.

74. Noting the impact of Order 22, Rule 4 of CPC, Daya Ram has observed that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal. It has ruled that if the impleaded legal representatives sufficiently represent the estate of the deceased, a decision obtained with them on record will bind not merely those persons impleaded but the entire estate including those not brought on record. So if one of the legal heirs is on record, the appeal or suit would not abate.

75. Then, Daya Ram answered another question. It concerns the effect of omission to include all the known legal heirs, who, admittedly, had an interest in the property, despite the plaintiff's knowing about it. It has answered this query by holding that "there would be no abatement of the suit or appeal if the estate of the deceased is sufficiently represented. It has, however, gone ahead and held that "once it is brought to the notice of the Court hearing the appeal that some of the legal heirs of the deceased have not been brought on record, and the appellant is thus made aware of this default on his part, it would be his duty to bring others on record, so that the appeal could be properly constituted." In other words, if the appellant should succeed in the appeal, it would be necessary for him to bring on record those representatives whom he had omitted to implead originally.

76. In Parvez Rustom Nekoo, this Court has relied on Daya Ram and then held that once some of the legal heirs of the deceased are brought on record, the proceeding does not abate. "[B]ut once the petitioner is put on notice with respect to the omission on his part to implead other legal heirs, in that event, it is obligatory on his part to bring the left-out legal heirs on record." It has also observed that "[i]t is not open for any litigant who has the knowledge of other legal heirs to contend that one of the legal heirs is on record and therefore, proceeding does not abate. All known legal heirs must be brought on record."

77. If we trace back the roots of the case, the present tenants' common ancestor was the tenant, as was the present owners' common ancestor was the landlord. After their death, the families spread. What was leased out is a business structure: two rooms. In about six or seven decades, neither family remained constant. And the available tenants have been brought on record. They are tenants by operation of law; they have no independent right. So one represents another unless that another establishes there is a conflict of interest among them. Here a couple of children of one of the deceased co-tenants not being impleaded, I am afraid, cannot be fatal.

 IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 497 of 2016

Decided On: 06.09.2019

Rukminibai Motiram Kshirsagar  Vs.  Manoramabai Mallikarjun Bagale

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: 2020(2) MHLJ 756,MANU/MH/2504/2019

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Whether the tenant can deny that he was a tenant of the plaintiff after accepting his tenancy?

The main emphasis of learned counsel for the petitioner is upon the maintainability of the writ petition. To proceed with to decide this issue, it is necessary to record here that it is undisputed that the petitioner has accepted his tenancy before the prescribed authority as well as appellate authority. It is also undisputed that in capacity of tenant, he has also filed Misc. Case No. 672/70/2014 (Prakash Chandra Gupta Vs. Ritesh Bhargav) under Section 30 of the Act, 1972, which is still pending.

42. It is not the case that petitioner has raised a pure legal issue before the Court. In fact, he had taken a plea accepting the tenancy and contested the case, but after loosing the same before the Prescribed Authority and Appellate Authority taking U-turn, he has taken entirely different plea which was earlier never raised. Apart from that, undisputedly, he is enjoying privilege of tenant by filing Misc. Case No. 672/70/2014 (Prakash Chandra Gupta Vs. Ritesh Bhargav) under Section 30 of the Act, 1972, which is still pending. Therefore, in light of such facts, conduct of the petitioner cannot be appreciated and he can not be permitted to take benefit of his own wrong.

44. In the matter of S.U. Ashram (supra), the Court was also of the same view and held that the objection of the learned counsel for the petitioner is not acceptable only for the reason that he has admitted landlord-tenant relationship in his written statement. The Apex Court in the case of Heeralal (supra) has stated that amendment sought in the written statement was of such nature as to displace the plaintiff's case could not be allowed. In the matter of Nagindas Ramdas (supra), the Apex Court has again taken very same view and held that admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleading or judicial admissions, admissible under Section 58 of the Evidence Act, 1872 made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The Court again in the matter of Thimmappa Rai (supra) has taken the same view relying upon the Section 58 of the Evidence Act, 1872 and held that any admissions made by the party to the suit in earlier proceeding are also admissible against him.

46. After going through the facts of the case and law laid down by the Apex Court as well as this Court, it is very much clear that the petitioner tenant has never disputed tenancy and also filed Misc. Case No. 672/70/2014 (Prakash Chandra Gupta Vs. Ritesh Bhargav), under Section 30 of the Act, 1972 in the capacity of tenant, therefore, he cannot be permitted to take new plea in light of law discussed above and further no denial of tenancy is required by the landlord-respondent in light of Section 58 of the Evidence Act, 1872.

47. Considering the judgments of Apex Court as well as this Court, it is very much clear that petitioner has never raised this issue before the Prescribed Authority or Appellate Authority, where it could be proved by placing evidence whether he is tenant or not, therefore, he cannot be permitted to raise this issue before the High Court in the writ petition. The contention of the learned counsel for the petitioner is also not acceptable that he has raised the issue in the written statement that tenancy is continued from 1960, which was not denied by landlord-respondent in light of Section 58 of Evidence Act. Once the tenancy is accepted, there was no need to landlord to deny the same as the facts admitted need not be proved.

48. Alternative argument of learned counsel for the landlord-respondent is also having force where he has stated that in case petitioner is not the tenant, then he has no authority to maintain this writ petition as he is not the aggrieved person. There is no doubt that once the petitioner is accepting that he is not tenant and his father is tenant then, he has no right to file this writ petition, only his father could invoke this remedy or any other remedy available under the law. Therefore, in that case, this writ petition would not be maintainable in light of law laid down by the Apex Court as well as this Court and the Court cannot grant any relief in favour of petitioner.

IN THE HIGH COURT OF ALLAHABAD

Writ A. No. 20793 of 2019

Decided On: 20.08.2020

Prakash Chandra  Vs.  Ritesh Bhargawa

Hon'ble Judges/Coram:

Neeraj Tiwari, J.

Citation: MANU/UP/1404/2020

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Delhi HC: Tenant can not seek suspension of payment of rent owing to COVID-19

 In Raichurmatham Prabhakar and Ors. v. Rawatmal Dugar,

(2004) 4 SCC 766 the Supreme Court held that suspension of rent may be

claimed by the tenant if the lessee has been dispossessed. Thus, mere nonuse

may not always entitle the tenant for suspension of rent.

28. This view has been followed by a ld. Single Judge of this Court in

Aranya Hospitality Management Services Pvt. Ltd. v. K. M. Dhoundiyal

& Ors. [Arb. A. (Comm.) 6/2017, decided on 21st March, 2017], where the

Court considered the force majeure clause of the contract to hold that the

mere non-approval by the concerned authority for running a restaurant

would not entitle the tenant to seek suspension of rent. The Court held that

under circumstances wherein the tenant cannot use the property for the

purpose for which it was leased, the tenant would have no right to continue

enjoying the property and seek suspension of rent at the same time.

29. In relation to some contracts which are not classic tenancy or lease

agreements, where the premises is occupied and a monthly pre-determined

amount is paid purely as `Rent’ or `Lease amount’, the manner in which

pandemics, such as COVID-19, can play out would depend upon the nature

of the contract. In contracts where there is a profit-sharing arrangement or an

arrangement for monthly payment on the basis of sales turnover, the

tenant/lessee may be entitled to seek waiver/suspension, strictly in terms of

the clause. Such cases would purely be governed by the terms of the contract

itself, and the tenant’s claim could be that there were no sales and no profits

and thus the monthly payment is not liable to be made. Thus, the entitlement

of the client in such a situation is not governed by any overriding force

majeure event but by the consequence of the said event, being that there

were no sales or profits.

Conclusions:

30. In light of the above legal position, the Tenants’ prayer for suspension

of rent in the present case is to be considered. There is no rent agreement or

lease deed between the parties and hence Section 32 of the ICA has no

applicability. The case is governed by the provisions of the Delhi Rent

Control Act, 1958. Section 56 of the ICA does not apply to tenancies. The

Tenants also do not urge that the tenancy is void under Section 180 (B)(e) of

the TPA. The tenants are also not `Lessees’ as an eviction decree has already

been passed against them.

31. The Tenants’ plea is for extension of the doctrine of suspension of

rent to cases which are covered by lockdown due to COVID-19. Insofar as

this prayer is concerned, this Court considers the following factors as

necessary for determining the question as to whether the Tenants herein are

entitled to any relief of suspension of rent:

i. Nature of the property: The tenanted premises are located in the

prime commercial area of Khan Market for running of a shop. It is

well-known that the commercial area of Khan Market is a sought-after

location for business purposes.

ii. Financial and social status of the parties: The Landlord is a dentist

who wishes to use the tenanted premises and has sought eviction on

the ground of bonafide use under Section 14(1)(e) of the DRC Act.

The Tenants, on the other hand, run a footwear shop on the tenanted

premises, which they have been in possession of since 1975 at a

monthly rental of merely Rs.300/-.

iii. Amount of rent: The monthly payment of Rs.3.5 lakhs has been

fixed by this Court, as a condition for grant of stay for continued use

and occupation, after the decree of eviction was passed. The Tenants

do not wish to vacate the property due to the lockdown but wish to

continue to occupy the property. The amount being paid, when

compared to the prevalent market rent in the area, is on the lower side.

This is clear from a perusal of the lease deed of a neighbouring

property placed on record by the Landlord. Even if the said lease deed

is to be ignored and not taken on record, judicial notice can be taken

of the fact that the prevalent rent in Khan Market is amongst the

highest in the whole of Asia. The amount being paid by the Tenants,

though substantial, is on the lower side as compared to other

properties in Khan Market.

iv. Other factors: The Tenants are `unauthorised occupants’ of the

tenanted premises as a decree of eviction has already been passed.

The monthly payment of rent being made has been fixed by this Court

vide the interim order dated 25th September, 2017 in view of the

judgment of the Supreme Court in Atma Ram Properties (P) Ltd. v.

Federal Motors (P) Ltd., (2005) 1 SCC 705. The use and occupation

charges have to be determined in a manner so as to fully compensate

the Landlord as if the Landlord had let out the property to a third

party. The Tenants are continuing to occupy the premises and do not

intend to vacate the same. In any case, the compensation ought to be

reasonable and should make up for the loss caused to the Landlord

due to delay in execution of the eviction decree. These factors

completely tilt the balance in favour of the Landlord.

v. Any contractual condition(s): There is no contractual condition that

permits non-payment or suspension of rent.

vi. Protection under any executive order(s): There are cases where the

central and state governments may have, from time to time, given

protection to some classes of tenants such as migrants, labourers,

students, etc. These include Order No. 40-3/2020-DM-I (A) dated 29th

March, 2020 issued by the Ministry of Home Affairs (MHA),

Government of India and Order No. F/02/07/2020/S.1/PT. File/81

dated 22nd April, 2020 and Order No. 122-A F/02/07/2020/S.I/9 dated

29th March, 2020 both issued by the Delhi Disaster Management

Authority (DDMA), Government of NCT of Delhi. Without going

into the legality and validity of such Executive orders, suffice it to say

that the present case is not covered by any of these executive orders.

32. The Tenants’ application for suspension of rent is thus liable to be

rejected inasmuch as while invoking the doctrine of suspension of rent on

the basis of a force majeure event, it is clear from the submissions made that

the Tenants do not intend to surrender the tenanted premises. While holding

that suspension of rent is not permissible in these facts, some postponement

or relaxation in the schedule of payment can be granted owing to the

lockdown. 

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 21st May, 2020

 RC. REV. 447/2017 

RAMANAND Vs   DR. GIRISH SONI 

CORAM:

JUSTICE PRATHIBA M. SINGH

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Whether a landlord can seek eviction of a tenant from tenanted premises used for commercial purpose for his residential use?

 It is settled proposition of law that even if the premises has been let out for commercial purposes and are being used as commercial, a petition under section 14(1)(e) of the Act for bonafide need for use as residential is maintainable.

12. It is an admitted position that the property is situated in a residential area though there are several commercial establishments in and around the property. However, the use premises, as specified in the Master Plan for the subject property, is residential.

13. Even though the building may have been put to commercial use for over 40 years, there is no prohibition in law in reconverting the property and putting the same for residential use.

Delhi High Court

Mohd Yusuf vs Mohd Rehan Siddiqui & Ors on 14 January, 2020

 RC.REV. 207/2018
       

CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA

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Whether the court should take into consideration the hardship of subtenant while deciding bonafide need of landlord in eviction suit?

Accordingly, the issue of comparative hardship is required to be decided in favour of the landlord. The tenant Thakkar has already unlawfully sublet the suit premises. The provisions contained in section 13(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 do not oblige the Court to take into consideration the issue of hardship, if any, that may occasion to unlawful sub tenants or any other persons who may be carrying on business from the suit premises. Thakkar, from the material on record appears to be content with some fixed amount or in any case 10% profits from out of the business being carried out from the suit premises. In such circumstances, it can never be the case of Thakkar that the issue of comparative hardship be decided in his favour and against the landlords.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1940 of 1996

Decided On: 24.07.2015

Taralakshmi Maneklal Thanawalla  Vs. Shantilal Makanji Dave

Hon'ble Judges/Coram:

M.S. Sonak, J.

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Whether the court can decree eviction suit even if the landlord has failed to disclose the nature of the business which he wants to start on the premises?

It is clear from the averments made in the above quoted paragraphs that the plain tiffs asserted that there was no other means of livelihood with them and as such they wanted to set up their own business in the premises in dispute. The High Court, however, came to the conclusion that apart from above quoted pleadings it was necessary to plead the nature of the business which the appellants-plaintiffs wanted to start in the premises. We are of the view that the High Court fell into patent error. It was not necessary for the appellants- landlords to indicate the precise nature of the business which they intended to start in the premises. Even if the nature of business would have been indicated nobody could bind the landlords to start the same business in the premises after it was vacated.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. Nil of 1994 

Decided On: 07.10.1994

Raj Kumar Khaitan  Vs.  Bibi Zubaida Khatun

Hon'ble Judges/Coram:

Kuldip Singh and B.L. Hansaria, JJ.

Citation: (1977) 2 SCC 411

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Whether court can grant eviction decree to one co-owner if other other co-owner has sold his share in rented premises to tenant?

 There is no dispute that the plaintiff had filed the suit against the defendant nos. 1(b) to 1(e) and defendant nos. 2(a) and 2(b). The plaintiff in the said suit had prayed for eviction only against the defendant nos. 1(b) to 1(e) and not against the defendant nos. 2(a) and 2(b). Defendant nos. 2(a) and 2(b) were joined as formal parties in view of they being co-owners of the suit property.

35. In so far as the submission of Mr. Godbole, learned Counsel for the defendant nos. 1(b) to 1(e) that the defendant nos. 2(a) was admittedly one of the co-owner of the suit premises with the plaintiff and had not only filed written statement opposing the suit filed by the plaintiff but has also filed a counter-claim is concerned, there is no dispute that the defendant no. 2(a) had filed counter-claim against the plaintiff for eviction of the suit premises on the ground of bonafide requirement. There is no dispute that the defendant no. 2(a) though had filed the written statement and counter claim did not enter the witness box to prove his plea of bonafide requirement. He also did not file any appeal against the judgment and decree of the Trial Court. The Trial Court as well as the District Court has considered this issue at length in the Judgment and decree passed by those Courts.

37. The District Court in paragraph 24 of the impugned Judgment and Degree has held that admittedly there was no partition between the plaintiff and defendant no. 2(a) in respect of suit property. It is held that if the property is jointly owned, one co-owner can sue for possession under Section 16 of the Act. The District Court referred to Section 44 of the Transfer of Property Act, 1882 in paragraph 25 of the Judgment and Decree. In paragraph 26 of the Judgment and Decree, it is held that a plain reading of Section 44 of Transfer of Property Act, 1882 makes it crystal clear that the said provisions does not give transferee of a dwelling house belonging to undivided family a right to joint possession and confer a corresponding right on the other members of the family to deny the right to joint possession to a stranger transferee. It is held that Section 4 of the Partition Act gives a right to a member of the family who has not transferred his share to purchase the transferee's share on a value to be fixed in accordance with the law. When transferee filed a suit for partition. In paragraph no. 28, it is held that in absence of partition sought under Section 4 of the Partition Act, source of title of defendant no. 1 could be no avail, especially in endevouring to retain the possession against desire of the plaintiff landlord.

39. Insofar as judgment of Supreme Court in case of Sk. Sattar Sk. Mohd. Choudhari (supra) relied upon by Mr. Godbole, learned counsel for the defendant nos. 1(b) to 1(e) is concerned, it is held that the partition, if any, amongst the brothers would not affect the lease which would still remain indivisible and consequently, eviction proceedings at the instance of only one of the co-landlords would not be maintainable. The plaintiff in this case had not applied for partition or any eviction decree in respect of his 1/3rd share but had filed a suit for eviction of the suit premises in which the plaintiff had 1/3rd share whereas the defendant nos. 2(a) and 2(b) were having other 1/3rd share each. In my view, the said suit of eviction filed by one of the co-owner was maintainable. Though the defendant no. 2(a) had filed a counter claim in the suit and had prayed for possession of the said property alleging his bonafide requirement, the fact remains that the defendant no. 2(a) neither entered the witness box nor proved his case of bonafide requirement.

40. Be that as it may, insofar as defendant nos. 1(b) to 1(e) are concerned, the fact remains that the plaintiff as well as the defendant no. 2(a) had prayed for eviction of the defendant nos. 1(a) to 1(e) in respect of the suit premises. In my view, insofar as the decree for eviction against the defendant nos. 1(a) to 1(e) is concerned, both the co-owners have prayed for decree of eviction against the defendant nos. 1(b) to 1(e). In the said judgment of the Supreme Court and more particularly in paragraph (14), it is held that it is open to the owners to apportion the rent inter se, but if no such apportionment is made, the obligation of the tenant remains single and in that situation, the lessor will not be allowed to split the tenancy by recovering the rent of a part only; nor can a purchaser of a part of the property insist on payment of his part of the rent to him. It is not the case of the defendant nos. 1(b) to 1(e) that the plaintiff had applied for split of the tenancy. The judgment of the Supreme Court in case of Sk. Sattar Sk. Mohd. Choudhari (supra) thus would not assist the case of the defendant nos. 1(b) to 1(e) even remotedly.

41. Insofar as the judgment of Supreme Court in case of Sri Ram Pasricha (supra) relied upon by Mr. Godbole, learned counsel for the defendant nos. 1(b) to 1(e) is concerned, in the said judgment it is clearly held that it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. In my view, the plaintiff was entitled to file a suit for eviction against the defendant nos. 1(b) to 1(e) by impleading the other co-owners as defendants. The judgment of Supreme Court in case of Sri Ram Pasricha (supra) would advance the case of the plaintiff and not the defendants.

42. Insofar as the judgment of Supreme Court in case of Navin Chander Anand (supra) relied upon by the learned counsel for the defendant nos. 1(b) to 1(e) is concerned, the said judgment is clearly distinguishable on the ground that in this case the plaintiff as well as defendant no. 2(a) had separately applied for eviction against the defendant nos. 1(b) to 1(e) on the ground of bonafide requirement. The defendant no. 2(a) in his counter claim has not opposed the termination of the tenancy by the plaintiff in respect of the suit property.

43. Insofar as judgment of Supreme Court in case of India Umbrella Manufacturing Co. and others (supra) relied upon by Mr. Godbole, learned counsel for the defendant nos. 1(b) to 1(e) is concerned, in the said judgment it is clearly held that one of the co-owner can file suit for eviction of tenants in property generally owned by co-owners. It is held that the consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. In my view, this judgment would also assist the case of the plaintiff and not the case of the defendant nos. 2(a) to 2(e). In this case, the defendant no. 2(a) had filed a counter claim and also applied for eviction of the defendant nos. 1(b) to 1(e) and had prayed for possession for himself. In my view, insofar as the eviction of the defendant nos. 1(b) to 1(e) is concerned, the prayer for eviction of the defendant nos. 1(b) to 1(e) in the suit filed by the plaintiff and in the counter claim filed by the defendant no. 2(a) was common directly or indirectly. The judgment of Supreme Court in case of India Umbrella Manufacturing Co. and others (supra) thus would not advance the case of the defendant nos. 2(a) to 2(e) and is clearly distinguishable with the facts of this case.

44. Insofar as judgment of Supreme Court in case of Thomson Press (India) Limited (supra) relied upon by Mr. Godbole, learned counsel for the defendant nos. 1(b) to 1(e) is concerned, there is no dispute about the proposition of law laid down by the Supreme Court in the said judgment. The trial court has not passed a decree against the defendant nos. 1(c) and (d) on the ground that those defendants had purchased 1/3rd undivided share of defendant no. 2(a) in the suit property.

45. Insofar as the judgments relied upon by Mr. Pethe, learned counsel appearing for the plaintiff in case of T. Lakshmipathi and others (supra) and in case of Pramod Kumar Jaiswal and others (supra) are concerned, it is held by the Supreme Court that where the party had acquired only partial ownership interest, the interests of the lessee and lessor in the whole of the property is not vested in such party at the same time and in the same right and there was no merger of such right in view of section 111(d) of the Transfer of Property Act, 1882. It is held that the merger takes place and the lease gets determined only if entire reversion or entire rights of landlord are assigned to or purchased by the tenant. On tenant taking assignment from only some of co-owner landlords, interests of lessee and lessor in whole of property do not become vested in one person.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 30 of 2019

Decided On: 12.07.2019

 Kalawati Ashok Kumar Parmar  Vs.  Sharad Dattatraya Tapray

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

Citation: 2020(1) MHLJ 518

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Whether landlord can seek eviction decree on ground of bonafide need if he is doing business in property of joint family?

 However it is seen that door Nos. 75 and 76, Big Bazar Street, Kumbakonam is a property belonging to the joint family of which the petitioner is one of the coparceners, In that building, the joint family business in jewellery is being carried on. The Premises bearing door Nos. 75 and 76 Big Bazar Street, Kumbakonam cannot their therefore taken as the petitioner's building. Therefore the petitioner cannot be said to be carrying, on business in a building of his own. Unless the petitioner is carrying on a business in a building of -his own, he is entitled to seek eviction " on the ground in ' question that he requires the 'premises for the purpose of carrying on, his own, business. The fact that he has been carrying on the said business in the premises be" longing to the joint family does not disentitle him from getting his own building for the purpose of the business which he is, admittedly carrying on in cosmetics.

8. This position is clear form the decision of a Division Bench of this Court in Cr. P. No. 2343 of 1971in V. R. Jayaraman. N. S. Ramalingam., 1973 TLNJ 393. In that case, the landlord was carrying on a separate and independent business of his own in the premises belonging to a Hindu joint family of which he was a coparcener. When he applied for eviction in respect of the building belonging to him for the purpose of, locating his business it was resisted by the tenant on the ground that the land lord had been already in possession of a building of his own for his business' Admittedly the landlord had a share in the joint family property in which he was carrying on the business. This contention was rejected by the Division Bench holding that if, the property occupied for the business as a business of the landlord is a Hindu joint family property and not exclusively owned, by the petitioner-land lord, it can be taken that the petitioner was not occupying a building of his own and therefore he would be entitled to apply for eviction under S. 10(3)(a)(iii) for the two conditions set out therein, namely. (i) that the landlord is carrying on a business of his own, and (ii) that he is not occupying a non-residential building of his own are satisfied. 

IN THE HIGH COURT OF MADRAS

C.R.P. No. 1497 of 1982

Decided On: 05.01.1984

 Gopalakrishna Chettair Vs. W.K.A. Yakub Hussain

Hon'ble Judges/Coram:

G. Ramanujam, J.

Citation: AIR 1984 Mad 253

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Whether eviction suit on ground of bonafide need can be dismissed if landlord has not taken steps for starting business in tenanted premises?

The Courts below while discussing bona fide of the petitioner for requirement of the demised premises have commented that he failed to plead or prove the business intended to be started by him in the demised premises, as such, it cannot be said that his need is bona fide one. Learned Rent Controller has gone to the extent of observing that the landlord has failed to prove any steps taken by him in order to start his own business in the shop in question.

17. The above facts to my mind are wholly irrelevant while deciding the bona fide need of the landlord for the tenanted premises. A person does not require any experience or ready finances and his preparation to be disclosed at the time of filing petition seeking ejectment of the tenant. In present day scenario the finances are available through banks and other financial institutions as and when a person has to start business. A landlord cannot visualize at the time of filing petition as to what type of business he could start in the shop after its vacation. Suppose it takes 4/5 years before he is put in possession of the shop (this petition is pending for the last 22 years) he will have to study market condition and similar other factors while deciding as to what business he could start. It is quite possible that if he had thought of starting a particular business at the time of filing of the ejectment petition, the same may not be feasible or remunerative by the time he gets possession of the shop because of many competitors in that field of business who have come in the market by that time. A person does not require any experience to start a new business as we have a number of instances where a person having no experience had been very successful while a person with all expertise has failed in a particular business.

IN THE HIGH COURT OF PUNJAB AND HARYANA

CR No. 2058 of 2004 (O&M)

Decided On: 27.02.2019

 Ashwani Kumar  Vs.  Madan Lal

Hon'ble Judges/Coram:

Surinder Gupta, J.

Citation: 2019(1) RCR(Rent) 449

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