Holding

Because possession had already been taken under the eviction order and no specific contention on implied consent was raised, the appeal was dismissed without examining the issue.

Summary

The landlord filed an eviction petition under the Delhi Rent Control Act, 1958 on the ground of personal requirement. The tenant applied for leave to defend, arguing that the lease permitted both residential and commercial use and that decades of commercial occupation implied consent. The Rent Controller denied leave and ordered eviction; the High Court upheld this order. On appeal, the tenant contended that the lease and long‑standing commercial use warranted leave to defend, while the landlord argued that the issue of implied consent was raised for the first time and that possession had already been taken, rendering the matter infructuous. The Supreme Court observed that possession had been taken pursuant to the eviction order and, in the absence of a specific stand on implied consent, declined to examine the issue, dismissing the appeal. The appeal was dismissed without costs.

Issues considered

Whether the tenant is entitled to leave to defend the eviction petition on the basis of a lease allowing residential and commercial use and implied consent from long‑term commercial occupation.
Whether the matter is infructuous because possession has already been taken following the eviction order.
Whether the Supreme Court should entertain the question of implied consent in the absence of a specific stand.

Legislation cited

Delhi Rent Control Act, 1958s. 14(1) proviso (e), s. 14(7), s. 25-B

Subjects

evictionDelhi Rent Control Actleave to defendpersonal requirementimplied consentpossessioninfructuouslease agreementcommercial use

Judgment

N.C. DAGA A
v.
lNDER MOHAN SINGH RANA

DECEMBER 5, 2002

[SYED SHAH MOHAMMED QUADRl AND B
ARlJIT PASAYAT, JJ.]

Delhi Rent Control Act, 1958-Sections 14(1) proviso (e), 25-B-Eviction
petition on ground of bonafide requirement-Leave to defend-Rent Controller C
declining leave to defend and passing eviction order-High Court upholding
the same-Appeal-Plea of tenant raised for the first time that for more than
two decades tenant carrying on commercial activities, thus implied consent-
Held: since possession has been taken on execution of the eviction order and
absence of specific stand regarding implied consent, it is not necessary t'o go
into the details. D
Respondent-landlord filed eviction petition on the ground of bonajide
requirement. Appellant-tenant filed application for grant of leave to
defend. It was contended tha.t there was no relationship of landlord and
tenant between the parties, and in any event the premises were let out for
residential/commercial purposes. Rent Controller held that there was E
primafacie material to show that applicant was the landlord and the owner
of the premises; that the lease-deed did not indicate that the premises were
let out for residential cum commercial purposes, on the contrary it
indicated availability of option to use the premises for commercial
purposes after requisite formalities were observed; and that the tenant F
failed to make out a case for grant of leave to defend. Rent Controller
passed eviction order. Aggrieved tenant filed Revision Petition. High Court
held that the tenant had not filed any document to support the plea in
regard to the commercial use of the premises and also that no primafacie
case was made out by the tenant and dismissed the revision.
G
Appellant contended that a bare reading of lease agreement made
it clear that the premises were let out for residential and commercial
' purposes and that the jurisdiction to grant leave or refuse the same is to
be exercised on the basis of the affidavit filed by tenant; and that even if
it is conceded for the sake of argument that lease agreement did not make
619
H
620 SUPREME COURT REPORTS (2002) SUPP. 4 S.CR.

A out a case for commercial user, yet the fact that for more than two decades
the tenant was carrying on commercial activities in the tenanted premises
clearly made out a case of consent.

Respondent-landlord contended that the whole case built up by
tenant centered round the lease deed and plea of implied consent was
B raised for the first time before this Court. It was further contended that
in any event, matter has become infructuous because. the possession was
taken pursuant to execution of the order passed by Rent Controller.

Dismissing the appeal, the Court

C HELD: In view of the admitted position that pursuant to the order
passed by the Rent Controller, possession has been taken on execution of
the order permitting eviction, and absence of specific stand regarding
implied consent it is, however, not necessary to go into the finer- details
and to examine the' rival stand in the background of legal position as it
D would amount to rendering decision on a purely academic question.
[622-D-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8131 of
2002.

From the Judgment and Order dated 7.9.2001 of the Delhi High Court
E
in C.R. No. 12 of 2001.

Jaspal Singh, K.C. Diwan and Ms. C.K. Sucharita, for the Appellant.

Salman Khurshid, Vivek Singh and Devendra Singh, for the Respondent.
F The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. L.eave granted.

Challenge in this appeal is to judgment of the Delhi High Court
G upholding decision of the Additional Rent Controller, Delhi (in short 'the
Rent Controller') declining leave to the present appellant to contest in a
proceeding under the Delhi Rent Control Act, 1958 (hereinafter referred to
as 'the Act').

Brief reference to the factual aspects would suffice. The respondent-
H landlord filed a petition for eviction on several grounds; primarily on the
N.C. DAGA v. l.M.S. RANA [ARIJIT PASAYAT, J.] 621

ground of personal requirements. Before the Rent Controller an application A
was moved under Section 25-B 9f the Act by the appellant-tenant for grant
of leave to defend said eviction petition filed under Section 14(1), proviso (e)
of the Act, by the present respondent-landlord. On I 0.9. I 999 landlord had
filed the eviction petition alleging that he wanted the premises for his personal
use, since the accommodation available to him was not suitable and he does B
not own any other property in Delhi. Tenant resisted the eviction petition on
many grounds. It was contended that ·there was no relationship of landlord
and tenant between the parties, and in any event the premises were let out for
res.idential/commercial purposes as mentioned in the Lease Agreement
executed between the parties on !st September, 1971, and, therefore, he is
entitled to grant of leave to defend. Additionally, it was stated that the petition C
was ma/a fide and an abuse of process oflaw, barred by res judicata as earlier
petiti9ns filed by one Smt. Tejinder Kaur Rana on the ground of bona fide
requirement, and another petition filed by the mother of the landlord were
dismissed. Reply to the application for grant of leave to defend was filed by
the landlord, where he denied the allegations made, though he admitted !\lat
earlier petitions had been filed. It was, however, contended that the principles D
of res judicata were not applicable, and there was no bar on filing fresh
petition for eviction on the ground of bona fide requirement in the changed
circumstances. Rejoinder was filed by the tenant. The Rent Controller held
that there was prima facie material to show that the applicant was the landlord
and the owner of the premises. Coming lo the plea taken that the premises E
were let out for commercial purposes it was noticed that the paragraph 7 of
the lease-deed on which reliance was placed did not indicate that the premises
were let out for residential cum commercial purposes. On the contrary, what
the said paragraph indicated was availability of option to use the premises for
commercial purposes after requisite formalities were observed. It was held
that before leave to defend is granted, the respondent must show that some F
t·iable issues which disentitled the applicant from getting the order of eviction
"
against the respondent and at t.lie same time entitled the respondent to leave
to defend existed. The onus is prima facie on the respondent and if he fails,
the eviction follows. The respondent has failed to make out a case for grant
of leave to defend. Accordingly, eviction order was passed under Section G
14(I)(e) of the Act, but it was directed that the applicant will not be entitled
to execute eviction order before the expiry of six months in terms of Section
14(7) of the Act. The revision before the High Court of Delhi was also
dismissed. It was, inter alia, observed that the tenant had not filed any document
to support the plea in regard to the commercial use of the premises. It was
H
622 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A further held that no prima facie case was made out by the tenant.

In support of the appeal Mr. Jaspal Singh. learned senior counsel
submitted that a bare reading of Clause 7 of the Lease Agreement made the
position clear that the premises were let out for residential and commercial
purposes, and, therefore, the courts below were not justified in refusing leave
B to contest. The jurisdiction to grant leave or refuse the same is to .be exercised
on the basis of the affidavit filed by the tenant. Even if it is conceded for the
sake of argument that clause (7) did not make out a case for commercial user,
yet the fact that for more than two decades the tenant was carrying on
commercial activities in the tenanted premises clearly made out a case of
C consent.

In response, counsel for the respondent-landlord submitted that the
whole case built up by the tenant centered round clause (7) and the plea of
implied consent has been raised for the first time before this court. Such plea
was even not raised before the High Court. In any event, according to him,
D the matter has become infructuous because the possession has been taken
pursuant to execution of the order passed by the Rent Controller.

In view of the admitted position that pursuant to the order passed by
the Rent Controller, possession has been taken on execution of the order
permitting eviction, and absence of specific stand regarding implied consent
E it is, however, not necessary to go into the finer details and to examine the
rival stand in the background of legal position as it would amount to rendering
decision on a purely academic question. The appeal is, therefore, dismissed,
without any order as to costs.

NJ. Appeal dismissed.

',_