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CASE NO.: Appeal (civil) 7385  of 2000         Special Leave Petition (civil)  554      of 2000

PETITIONER: INDERJEET KAUR

       Vs.

RESPONDENT: NIRPAL SINGH

DATE OF JUDGMENT:       15/12/2000

BENCH: D.P.Mohapatro, Shivaraj Patil

JUDGMENT:

Shivaraj V.  Patil, J. L.....I.........T.......T.......T.......T.......T.......T..J

     Leave granted.

     The  controversy  that  needs  to  be  addressed   and resolved  in  this appeal relates to grant of leave  to  the tenant  under Section 25B(5) of the Delhi Rent Control  Act, 1958  (for short the ‘Act) to contest the application filed for  eviction under clause (e) of the proviso to sub-section (1) of Section 14 of the Act.

     In  brief,  the  facts leading to the  filing  of  the present appeal are:

     The  respondent herein (the landlord) filed a petition under  clause (e) of the proviso to Section 14(1) of the Act seeking  eviction  of  the appellant (the tenant)  from  the premises  on the ground of his bona fide requirement for his occupation  as a residence for himself and other members  of the  family  dependent on him stating that he has come  back and  permanently settled in India;  his sons, daughters  and other relations who are settled in United Kingdom also visit him but he is unable to provide them accommodation;  his son Shri  Rajpal Singh has decided to return to India to  settle and was winding up his affairs at U.K.  etc.

     The  appellant  after  receiving   the  summons  under Section  25B(4) of the Act filed an application supported by an  affidavit  seeking leave to contest the application  for eviction,  narrating facts in details and raising grounds in support of his prayer for grant of leave to defend.  Besides other contentions, he raised the following:-

     (1)  The respondent, his son and daughter are  British citizens  possessing  British passports and are  permanently settled  in United Kingdom.  His son is a Computer  Engineer and  is well-settled there and the question of winding up of his affairs does not arise.  His daughter is already married in  U.K.   and living happily.  Even the respondent  has  no

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intention to settle in India as he is comfortably settled in U.K.   The eviction petition has been filed to increase  the rent  and / or to sell the premises.  (2) The premises  were taken  on  rent for residential-cum-commercial purpose  and, therefore,  the  ground under clause (e) of the  proviso  to Section 14(1) of the Act is not available.  (3) The eviction petition  filed is bad for non-joinder of necessary parties. (4)  The assertion made in the eviction petition is that the appellant is the tenant of two rooms and for other two rooms a  complaint is pending before the Magistrate for  trespass. Hence  the  Addl.   Rent  Controller was  wrong  in  passing eviction  order in respect of four rooms.  (5) A suit  filed by  the  appellant  against the respondent  to  protect  his possession  in the civil court is pending and in which order of  temporary  injunction granted against the respondent  is operative.

     The  Addl.   Rent Controller, Delhi, by  an  elaborate order  dated 5.3.1999 rejected the application filed by  the appellant  seeking  leave to defend and passed an  order  of eviction  against him in respect of the suit premises.   The appellant  took up the matter in civil revision in the  High Court  of  Delhi and the same was dismissed,  affirming  the order  of the Addl.  Rent Controller.  Hence this appeal  is brought before us by special leave.

     The  learned counsel for the appellant urged that  (1) the  facts  stated  and substantial grounds  raised  in  the affidavit  filed  under  Section 25B(4) of the  Act  seeking leave  to defend clearly disclosed that the respondent would be  disentitled from obtaining an order for the recovery  of possession  of  the  premises on the  grounds  specified  in clause  (e) of the proviso to Section 14(1) of the Act;  (2) the  approach of the Addl.  Rent Controller in dealing  with the  application  made for grant of leave to defend was  not proper having regard to the scope of Section 25B(4) & (5) of the  Act;   he  refused  to  grant  leave  to  defend  after discussing  the  contentions  and  documents as  if  he  was deciding  the  main  eviction  petition  after  trial;   (3) several  triable  issues did arise for consideration in  the light of the facts stated and rival contentions raised;  (4) the  disputed  facts  could not be decided at  the  time  of considering  the  application for grant of leave;   (5)  the High  Court was also not right in simply affirming the order of  the Addl.  Rent Controller when the said order  suffered with material irregularity and jurisdictional error.

     The   learned   counsel  for   the   respondent   made submissions supporting the impugned orders.

     The  relevant  and material provisions of the Act  for the  present  purpose,  in  order to  appreciate  the  rival contentions, are extracted below:-

     14(1)(e)    That  the premises let  for  residential purposes  are  required  bona  fide   by  the  landlord  for occupation  as a residence for himself or for any member  of his  family dependent on him, if he is the owner thereof, or for  any person for whose benefit the premises are held  and that  the  landlord or such person has no  other  reasonable residential accommodation;

     Explanation    For  the   purposes  of  this  clause, premises let for residential purposes include any premises which  having  been let for use as a residence are,  without

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the   consent  of  the   landlord,  used  incidentally   for commercial or other purposes;

     25B(1)  Every  application  by  a  landlord  for   the recovery  of  possession  of  any  premises  on  the  ground specified  in clause (e) of the proviso to sub- section  (1) of section 14, or under section 14A [or under section 14B or under section 14C or under section 14D], shall be dealt with in accordance with the procedure specified in this section.

     25B(2)

     25B(3)

     25B(4)  The tenant on whom the summons is duly  served (whether  in the ordinary way or by registered post) in  the form  specified in the Third Schedule shall not contest  the prayer  for  eviction from the premises unless he  files  an affidavit  stating the grounds on which he seeks to  contest the  application  for  eviction and obtains leave  from  the Controller  as hereinafter provided;  and in default of  his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for  eviction  shall be deemed to be admitted by the  tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid.

     25B(5)  The Controller shall give to the tenant  leave to  contest  the application if the affidavit filed  by  the@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ tenant 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 sub-section (1) of Section 14, or under  Section 14A.

     Chapter  IIIA  deals  with summary  trial  of  certain applications  expressly stating that every application by  a landlord  for recovery of possession on the ground specified in  clause (e) of the proviso to sub- section (1) of Section 14  of  the Act, or under Section 14A or 14B or 14C  or  14D shall  be  dealt  with  in   accordance  with  the   special provisions prescribed in Section 25B of the Act.  As per the broad  scheme  of  this Chapter a tenant is  precluded  from contesting  an application filed for eviction on the grounds mentioned in the aforementioned provisions unless he obtains leave  from the Controller to contest the eviction petition. In  default of obtaining leave to defend or leave is refused to him an order of eviction follows.  It appears recourse to summary  trial is adopted having due regard to nature of the grounds on which the eviction is sought with a view to avoid delay  so that the landlord should not be deprived or denied of  his  right to immediate possession of premises  for  his bona fide use.

     At  the  same  time, it is well settled  and  accepted position  in law that no one shall be subjected to suffer  a civil consequence like eviction from a premises resulting in hardship  to  him without providing adequate  and  effective opportunity  to disprove the case against him and  establish his case as pleaded.

     As  is  evident  from Section 25B(4)&(5) of  the  Act, burden  placed  on a tenant is light and limited in that  if

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the  affidavit  filed by him discloses such facts  as  would disentitle  the  landlord  from obtaining an order  for  the recovery  of  the 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, are good enough to grant leave to defend.

     A  landlord,  who bona fidely requires a premises  for his  residence  and  occupation should not suffer  for  long waiting  for  eviction  of a tenant.  At the  same  time,  a tenant  cannot be thrown out from a premises summarily  even though  prima facie he is able to say that the claim of  the landlord  is  not  bona fide or untenable and  as  such  not entitled to obtain an order of eviction.  Hence the approach has  to  be cautious and judicious in granting  or  refusing leave  to defend to a tenant to contest an eviction petition within  the  broad scheme of Chapter IIIA and in  particular having  regard  to the clear terms and language  of  Section 25B(5).

     We are of the considered view that at a stage when the tenant seeks leave to defend, it is enough if he prima facie makes  out  a  case  by   disclosing  such  facts  as  would disentitle the landlord from obtaining an order of eviction. It  would  not  be a right approach to say that  unless  the tenant  at  that stage itself establishes a strong  case  as would  non-suit the landlord, leave to defend should not  be granted when it is not the requirement of Section 25B(5).  A leave  to defend sought for cannot also be granted for  mere asking  or  in a routine manner which will defeat  the  very object  of the special provisions contained in Chapter  IIIA of  the  Act.   Leave to defend cannot be refused  where  an eviction  petition is filed on a mere design or desire of  a landlord to recover possession of the premises from a tenant under  clause  (e)  of  the proviso to  sub-section  (1)  of Section 14, when as a matter of fact the requirement may not be  bona fide.  Refusing to grant leave in such a case leads to  eviction  of  a  tenant  summarily  resulting  in  great hardship  to him and his family members, if any, although he could  establish  if only leave is granted that  a  landlord would be disentitled for an order of eviction.  At the stage of  granting  leave to defend parties rely on affidavits  in support  of  the rival contentions.  Assertions and  counter assertions  made  in  affidavits  may not  afford  safe  and acceptable  evidence  so  as  to arrive  at  an  affirmative conclusion one way or the other unless there is a strong and acceptable  evidence  available  to   show  that  the  facts disclosed  in  the application filed by the  tenant  seeking leave  to  defend were either frivolous, untenable  or  most unreasonable.   Take  a case when a possession is sought  on the  ground  of  personal  requirement, a  landlord  has  to establish  his  need  and not his mere desire.   The  ground under  clause  (e)  of  the proviso to  sub-section  (1)  of Section  14 enables a landlord to recover possession of  the tenanted   premises  on  the  ground   of  his   bona   fide requirement.   This being an enabling provision, essentially the  burden  is  on  the  landlord  to  establish  his  case affirmatively.   In short and substance wholly frivolous and totally  untenable defence may not entitle a tenant to leave to  defend  but  when a triable issue is raised  a  duty  is placed on the Rent Controller by the statute itself to grant leave.   At the stage of granting leave the real test should be  whether  facts disclosed in the affidavit filed  seeking leave  to defend prima facie show that the landlord would be disentitled  from  obtaining  an order of eviction  and  not

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whether at the end defence may fail.  It is well to remember that when a leave to defend is refused, serious consequences of  eviction  shall  follow and the party seeking  leave  is denied  an  opportunity to test the truth of  the  averments made  in the eviction petition by cross-examination.  It may also  be  noticed that even in cases where leave is  granted provisions  are  made in this very Chapter  for  expeditious disposal  of eviction petitions.  Section 25B(6) states that where  leave is granted to a tenant to contest the  eviction application,  the  Controller shall commence the hearing  of the  application  as early as practicable.   Section  25B(7) speaks  of  the  procedure  to be followed  in  such  cases. Section 25B(8) bars the appeals against an order of recovery of  possession  except a provision of revision to  the  High Court.   Thus  a combined effect of Section 25B(6), (7)  and (8) would lead to expeditious disposal of eviction petitions so  that a landlord need not wait and suffer for long  time. On  the other hand, when a tenant is denied leave to  defend although  he  had  fair chance to prove  his  defence,  will suffer  great hardship.  In this view a balanced view is  to be taken having regard to competing claims.

     This  Court  in  Charan Dass Duggal vs.   Brahma  Nand while  dealing  with the question in the matter of  granting leave  to  defend to contest the eviction petition filed  on the  ground  of personal requirement, in para 5  has  stated thus:-

     5.   What should be the approach when leave to defend is  sought?   There  appears to be a  mistaken  belief  that unless the tenant at that stage makes out such a strong case as  would  non-suit the landlord, leave to defend cannot  be granted.   This approach is wholly improper.  When leave  to defend  is  sought,  the tenant must make out such  a  prima facie  case  raising such pleas that a triable  issue  would emerge and that in our opinion should be sufficient to grant leave.   The test is the test of a triable issue and not the final success in the action (see Santosh Kumar v.  Bhai Mool Singh).   At the stage of granting the leave parties rely in support  of  their  rival   contentions  on  affidavits  and assertions  and  counter-assertions  on affidavits  may  not afford   such  incontrovertible  evidence  to  lead  to   an affirmative conclusion one way or the other.  Conceding that when  possession  is  sought  on   the  ground  of  personal requirement,  an absolute need is not to be satisfied but  a mere  desire  equally  is  not sufficient.   It  has  to  be something  more  than a mere desire.  And being an  enabling provision,  the  burden is on the landlord to establish  his case  affirmatively.   If  as it appears in this  case,  the landlord is staying at Pathankot, that a house is purchased, may  be in the name of his sons and daughters, but there may not be an apparent need to return to Delhi in his old age, a triable  issue  would  come  into  existence  and  that  was sufficient  in our opinion to grant leave to defend in  this case.

     In  the  same  judgment,  in  para  7  it  is  further observed:-

     7.   The  genesis  of our procedural laws  is  to  be traced  to  principles  of natural  justice,  the  principal amongst them being that no one shall suffer civil or evil or pecuniary  consequence  at  his back without giving  him  an adequate  and  effective  opportunity   to  participate   to

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disprove  the  case  against him and provide his  own  case. Summary procedure does not clothe an authority with power to enjoy  summary  dismissal.    Undoubtedly  wholly  frivolous defence  may  not  entitle a person leave  to  defend.   But equally  a  triable  issue raised, enjoins a duty  to  grant leave.   Maybe  in  the  end the defence may  fail.   It  is necessary  to  bear  in mind that when leave  to  defend  is refused  the party seeking leave is denied an opportunity to test  the  truth of the averments of the opposite  party  by cross-  examination  and  rival affidavits may  not  furnish reliable  evidence  for concluding the point one way or  the other.   It  is  not for a moment suggested  that  leave  to defend  must  be  granted on mere asking but it  is  equally improper  to refuse to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment   of   truth   through  cross-examination   of witnesses who have filed their affidavits.  Burden is on the landlord  to  prove  his requirements and his  assertion  is required to be tested more so when it is shown that for long he  is staying outside Delhi, that he has a building  albeit standing  in the names of his sons and daughters where he is staying   and  at  which  place   he  receives  his   normal correspondence.   If in such a situation one can say that  a triable  issue  is not raised, one is at a loss to find  out where,  when  and in what circumstances such an issue  would arise.   We are, therefore, satisfied that this is a case in which  triable issues were raised and both the learned  Rent Controller  and the High Court were in error in refusing  to grant the leave.

     This  decision  is also referred to,  reiterating  the same view, in a latter decision of this Court in the case of Precision  Steel & Engineering Works vs.  Prem Deva Niranjan Deva Tayal .

     With  this background, we now turn to the facts of the case  in hand.  It is clear from the reading of the order of the  Addl.  Rent Controller that he has taken pains to write an  elaborate  order as if he was writing an order  after  a full-dressed  trial of eviction petition;  he has considered merits  of  the  respective  contentions  at  the  stage  of granting  leave  to  defend  under  Section  25B(5)  without keeping  in  mind the scope of the provisions and  statutory duty  cast  on him.  He exceeded the jurisdiction vested  in him  in  refusing  leave  to defend to  the  appellant.   It appears  to  us that he did not focus his attention  to  the scope  and content of Section 25B(5).  Having regard to  the facts  stated  and grounds raised in the affidavit filed  by the  appellant seeking leave to defend which we have already narrated  above,  it is not possible to take a view that  no triable  issue arose for consideration.  The facts stated in the affidavit of the appellant in support of his application seeking  leave  to defend prima facie do disclose  that  the respondent  would be disentitled to obtain an order for  the recovery  of  possession of the premises from the  appellant particularly  when  other  cases  are  pending  between  the parties  and  defence  does not appear to  be  frivolous  or untenable on the face of it.  The Addl.  Rent Controller has acted  with  material irregularity and committed a  manifest error  in accepting the case of the respondent-landlord when the  facts  were seriously disputed and the  correctness  or otherwise of the documents required to be examined.  Whether the  suit  premises was used for  residential-cum-commercial purposes  from the inception and whether the respondent  and

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his  son and other members of the family are permanently and confortably  settled in U.K.  and whether the requirement of the  premises  by  the  respondent was bona  fide,  are  the matters  which could not be adjudicated as has been done  by the  Addl.  Rent Controller at the stage of dealing with the application  to grant leave to defend.  In this view of  the matter,  we have no hesitation to say that the order  passed by  the  Addl.  Rent Controller refusing leave to defend  to the  appellant cannot be sustained.  Unfortunately, the High Court also has affirmed it without taking into consideration the  correct legal position indicated above having regard to the  facts  of the case.  We are of the view that the  Addl. Rent  Controller  and the High Court both were in  error  in refusing  to  grant  leave to the appellant to  contest  the eviction petition.

     Hence we allow this appeal, set aside the order of the Addl.   Rent  Controller  as well as of the High  Court  and grant leave to defend to the appellant-tenant and remand the matter to the learned Rent Controller for disposal according to law.  No costs.