Application for leave to defend under Section 25B of the Delhi Rent Control Act with supporting affidavit
0 of 25 blanks filled
IN THE COURT OF Name of presiding judge, LD. SCJ-CUM-RC, TIS HAZARI COURTS, DELHI
E. PETITION NO. Eviction petition number/Year of eviction petition
IN THE MATTER OF:
Petitioner's name: PETITIONER
VERSUS
Respondent's name: RESPONDENT
APPLICATION UNDER SECTION 25B OF THE DELHI RENT CONTROL ACT FOR LEAVE TO DEFEND AND CONTEST THE EVICTION PETITION ON BEHALF OF THE RESPONDENT
MOST RESPECTFULLY SHOWETH:
PRELIMINARY OBJECTIONS / SUBMISSIONS:
1.That the present application for leave to defend is being filed within the statutory period of 15 days from the date of service, as the Respondent was served with the summons of the captioned petition on Date of service of summons by registered post.
2.That the petition under reply is an abuse of the process of law, which is evident from a perusal of the petition itself, and is therefore liable to be dismissed.
3.That the petition under reply has been filed with mala fide intent and an oblique motive, solely to harass and humiliate the Respondent.
4.That the Respondent submits that the petition under Section 14(1)(e) of the Delhi Rent Control Act is not maintainable, as the Petitioner does not bona fide require the premises for his own use, nor does he require the same for his family members for any residential purpose as alleged. The present petition is therefore liable to be dismissed.
5.That it is submitted that the petition is not maintainable, as the Petitioner has sufficient and individual vacant accommodation available with him, and the premises in dispute are not required by him. The present petition is therefore liable to be dismissed. However, this averment is made without prejudice to the contention that the Petitioner does not intend to reside in the subject premises, which are under the tenancy of the deponent.
6.That from a perusal of the petition, it is the case of the Petitioner that possession is being sought on the ground of personal requirement for residential purposes, whereas the Petitioner admittedly resides in his own ancestral house along with his family, including his son and daughter, and has sufficient as well as alternative premises which can be used for the said purpose. In view of the settled law that a mere desire is not sufficient and that something more than a mere desire is required, and since Section 14(1)(e) is an enabling provision, the burden lies upon the landlord to establish his case affirmatively. Admittedly, in the present case, the Petitioner is in possession of other properties, and this aspect directly bears upon the Petitioner's claim of bona fide requirement, as also upon the assessment of suitability or otherwise of the premises. The case of the Petitioner is thus one of seeking additional accommodation, not one of bona fide requirement.
7.That the captioned petition is mala fide and the Petitioner does not require the premises for bona fide purposes as claimed by him, which is evident from the following facts:
A.That the Petitioner has claimed that the monthly rent of the premises is Rs. Monthly rent amount (₹)/-, which amount the Respondent admits, and there is no dispute regarding the rent.
B.Admittedly, the Petitioner is working in the government sector, and as such, is entitled to government accommodation. There is no document on record to show that the Petitioner made any efforts to obtain government accommodation prior to the filing of this petition, which establishes that the Petitioner's need is not genuine.
C.That the property bearing number House number of landlord's property/_, Street of landlord's property, New Delhi-110008, comprises two blocks — a front portion, which is a four-storey building, and a rear portion. The Petitioner has his full share in the subject property, the same being an ancestral building. This is corroborated by the fact that the Petitioner has been residing, along with his brother and mother, on the second floor of the subject property for the last ten years. This would mean that the rent note produced by the Petitioner qua his own tenancy with respect to the second floor of the front portion is a camouflage document. This is further evident from the fact that the electricity meter of the ground floor of the front portion stands in the name of the Petitioner himself, whereas the ground floor of the rear portion is in the possession of the Respondent and has a separate electricity meter installed in the name of Mr. Name of respondent's late father, the late father of the Petitioner.
D.Besides the above, the Petitioner owns another ancestral property bearing Details of landlord's other ancestral property, consisting of four floors. This would establish that the Petitioner has sufficient alternative premises, and that the present petition has been filed solely for the purpose of evicting the Respondent by misusing the provisions of the Delhi Rent Control Act, as the Petitioner does not bona fide require the property.
E.In addition to the above, the Petitioner is occupying other properties as well, located at Location of landlord's other properties, which came to his share through inheritance. Needless to state, the Respondent is making sincere efforts to ascertain the khasra numbers of those properties.
F.As stated above, the Petitioner owns several other properties which are presently not known to the deponent, and the Respondent is making efforts to ascertain the complete details of the same. The Petitioner has made absolutely false statements, knowing the same to be false, to the effect that he wishes to shift to the subject premises along with his mother.
G.That the present petition has been filed by the Petitioner mala fide, which is evident from the fact that the Petitioner has been trying to evict the Respondent from the subject premises for the last several years by resorting to different methods — firstly, by lodging frivolous complaints with the MCD as well as the Department of Industries, with a view to obtaining a sealing order; thereafter, by exerting pressure through local persons; and thereafter, by filing a suit for possession on other grounds. This conduct itself shows that the requirement of the Petitioner is not bona fide but is, in fact, a mere desire to secure the eviction of the Respondent.
8.That the Petitioner, through the present petition, is seeking to evict his tenant by way of arbitrary or whimsical action. The statutory mandate is that there must first exist a requirement of the landlord, which means that it cannot be a mere whim or fanciful desire; further, such requirement must be bona fide, which is intended to exclude a mere whim or desire. A 'bona fide requirement' must subsist in the present and must be manifested in actual need, which would satisfy the Court that it is not a mere fanciful or whimsical desire.
9.That it is submitted that the Petitioner has filed the present petition and made false averments, knowing the same to be false, with the malicious intention of somehow securing an order of eviction against the deponent.
10.That the Respondent reiterates that the Petitioner has more than sufficient accommodation available with him, and that in the event he intends to shift to the subject property for residential purposes, there is sufficient space available in the same premises which can be used by the Petitioner. This averment is made without prejudice to the contention that the Petitioner does not intend to use the premises for residential purposes.
11.That the Petitioner has more than sufficient accommodation available with him and also possesses various alternative premises.
12.That the Respondent would be ruined in the event of eviction from the said premises. The comparative hardship would fall only upon the Respondent, since the Petitioner claims that he has been residing in the subject premises for many years.
13.That the plea that the property in question is required for the Petitioner himself and his family members is a frivolous and bogus attempt to secure the eviction of the Respondent, and a sheer misuse of Section 14(1)(e) of the Act. Without prejudice, it is submitted that the Petitioner has more than sufficient accommodation in his separate possession and is not facing any hardship.
14.That it is pertinent to mention that the Petitioner, from the very outset, has been attempting to obtain a decree by hook or by crook. The Respondent shall be able to establish that the Petitioner is guilty of concealment of material facts, misrepresentation, and of playing fraud upon the Court. The Petitioner has not approached this Hon'ble Court with clean hands in the facts and circumstances described hereinabove, and is therefore not entitled to any relief by way of the present petition. The petition is liable to be thrown out in view of various precedents of various Courts. The present petition is based on a misconception of law, is devoid of merit, and is a bundle of lies, misrepresentation and concealment, tainted with fraud.
15.That the petitioner has more than sufficient accommodation available with him, and also possesses various alternative premises.
16.That the respondent would be ruined in the event of eviction from the said premises.
17.That the site plan filed is not correct, as the measurements of the said premises have not been set out therein.
18.That the petition is liable to be rejected for want of a cause of action.
19.That it is submitted that the petitioner neither sent any notice to the respondent nor verbally communicated anything to him prior to the filing of the present petition, except in the earlier suit, wherein no plea was raised regarding the requirement of the property in question for any bona fide purpose. This confirms that the petitioner, as an afterthought, has made allegations of alleged requirement merely to harass the respondent.
20.That the respondent submits that all the grounds stated above, taken cumulatively, raise various triable issues which entitle the respondent to defend the said eviction petition and give rise to several triable issues before this Hon'ble Court. The respondent further states that a trial on the said issues will clearly demonstrate that the petitioner has filed a false and frivolous petition against the respondent before this Hon'ble Court.
21.That the petition is liable to be rejected under Order 7 Rule 11 read with Section 151 of the C.P.C., as it does not disclose any cause of action.
22.That the petitioner has not approached this Hon'ble Court with clean hands and honest intentions, having concealed material facts and misinterpreted the sequence of events to suit his ulterior designs, and has thereby sought to mislead and misguide this Hon'ble Court into deciding the petition on wrong facts and circumstances. On this ground alone, the petition deserves to be dismissed with exemplary costs.
23.That the petitioner has sufficient accommodation in his possession; in any event, the petitioner has more than sufficient accommodation available with him. The petitioner has made only bald and ambiguous allegations, namely, that his mother is dependent upon him. That the petitioner has not disclosed whether the suit premises would be suitable to his residential requirements.
24.That from the above facts it is evident that the petitioner does not have any requirement for the property in question, and the petition is liable to be dismissed. The respondent is entitled to leave to defend the petition in view of the above facts, and also for the reason that the alleged requirement is in the nature of an extension of the existing accommodation; the tenant ought, therefore, to be granted leave to defend and to contest the proceedings on merits.
25.That, as is evident from Section 25(4) and (5) of the Act, the burden placed upon a tenant is light and limited, in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in Clause (e) of the proviso to Section 14(1) of the Act — with which we are concerned in this case — the same are sufficient to grant leave to defend. That where the respondent has established a strong case which would non-suit the landlord, leave to defend ought not to be refused, since that is not the requirement of Section 25(B)(5) of the Act. As held by our own Hon'ble High Court, at the stage of granting leave, the real test is whether the facts disclosed in the affidavit filed in support of the application for leave to defend prima facie show that the landlord would be disentitled from obtaining an order of eviction, and not whether the defence may ultimately fail at trial. That, on the facts of the present case, the landlord is not entitled to an order for recovery of possession, and this Hon'ble Court may graciously be pleased to grant leave to defend to the deponent. That the respondent has disclosed triable issues as to whether the landlord has alternative accommodation available to him, and whether the landlord actually intends to reside in the subject premises.
26.That from the above facts it is evident that the petitioner does not have any requirement for the property in question, and the petition is liable to be dismissed. The respondent is entitled to leave to defend the petition in view of the above facts, and also for the reason that the alleged requirement is in the nature of an extension of the existing accommodation; the tenant ought, therefore, to be granted leave to defend and to contest the proceedings on merits.
P R A Y E R :-
It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to grant leave to the respondent to defend and contest the eviction petition.
DELHIRESPONDENT
THROUGH
DATED
(Name of advocate)
ADVOCATES
Address of respondent's counsel,
Address of respondent's counsel
IN THE COURT OF Name of presiding judge, LD. SCJ-CUM-RC, Name of court complex and city.
E. PETITION NO. Eviction petition number (affidavit)/Year of eviction petition (affidavit).
IN THE MATTER OF:
Petitioner's name (affidavit): PETITIONER
VERSUS
Respondent's name (affidavit): RESPONDENT
AFFIDAVIT
Affidavit of Sh. Deponent's name, S/o Sh. Deponent's father's name, R/o Deponent's address line 1, Deponent's address line 2, do hereby solemnly affirm and declare as under:-
1.That I am the respondent in the above-noted matter, am well conversant with the facts and circumstances of the case, and am competent to swear the present affidavit.
2.That the contents of the paragraphs of the accompanying application under Section 25B of the DRC Act have been drafted by my counsel as per my instructions; the contents thereof have been duly read and understood by me, and, having fully understood the same, I hereby state that the facts stated therein are true and correct to my knowledge.
3.That the contents of the accompanying application be read as part and parcel of this affidavit, as the same are not repeated herein for the sake of brevity.
DEPONENT
VERIFICATION :-
Verified at Place of verification on this Date of verification. That the contents of the above paragraphs of my above affidavit are true and correct; no part of it is false, and nothing material has been concealed therefrom.
DEPONENT