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PETITIONER: PRECISION STEEL AND ENGINEERING WORKS AND ANOTEER

       Vs.

RESPONDENT: PREM DEVA NIRANJAN DEVA TAYAL

DATE OF JUDGMENT07/10/1982

BENCH: DESAI, D.A. BENCH: DESAI, D.A. SEN, A.P. (J) ISLAM, BAHARUL (J)

CITATION:  1982 AIR 1518            1983 SCR  (1) 498  1982 SCC  (3) 270        1982 SCALE  (1)849

ACT:      Delhi Rent  Control Act  1958-Sub-s. (5) of S. 25B read with Clause  (e) of  proviso  to  S.  14(1)-Jurisdiction  of Controller-Grant of  Leave to  tenant to contest landlord ’s application for eviction-Nature and scope of.      Delhi Rent  Control Act  1958-Sub-S. (1)  of S.  31-Not attracted at  the stage  of considering  affidavit of tenant seeking Leave to contest under sub-s. (SJ of S. 25B.      Code of  Civil Procedure  1908-o. XXXVIl, rule 3(5) and Delhi Rent  Control Act 1958-S. 25B(5)-Jurisdiction to grant leave-Comparison of.      Rent restriction legislation-Approach to interpretation of.      Laws of procedure-Approach to interpretation of.

HEADNOTE:      A landlord  can make  an application  for  recovery  of possession under  . Clause (e) of the proviso to s. 14(1) of the Delhi  Rent Control  Act, 1958,  on the  ground that the premises let  for residential  purposes are  required by him bona fide  for occupation  as a residence for himself or for any member of his family dependent upon him, provided he has no other reasonably suitable residential accommodation. Sub- s. (S) of s. 25B lays down that the Controller shall give to the  tenant   leave  to  contest  the  application,  if  the affidavit filed by the tenant "discloses such facts as would disentitle the landlord From obtaining on order for recovery possession"   of the premises on the ground specified in Cl. (e) of the proviso to s. 14(1).      The respondent, a Hindu Undivided Family (HUF), filed a petition under  Cl. (e)  of proviso  to s. 14(1) through the constituted attorney  of its karta for an order for recovery of possession  of the premises in question alleging that the premises had  initially been given to the appellant on leave and licence,  that the  landlord (the  karta of the HUF) who had gone out of the country had since settled down in Delhi, that the landlord had called upon the appellant in May, 1974 to  vacate   the  premises  as  he  had  no  other  suitable accommodation and that 499 the landlord  bonafide required  the same  for his  personal

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occupation.  The  appellant  sought  leave  to  contest  the petition and  filed an affidavit denying the allegation that it had  entered the  premises initially  as a  licensee  and contending that  according to  cl. 6  of the lease agreement the premises  were let for residential as well as commercial purpose, that  the landlord  had been residing in a house as spacious  as  the  demised  premises  and  equally  spacious accommodation in  an identical unit located at the back side of the demised premises was available to, him which had been let successively  to three tenants during the period 1970 to 1976, each  time raising  the rent,  and  further  that  the landlord owned  spacious accommodation  at another  place in Delhi. An  affidavit in  reply was  filed on  behalf of  the landlord stating  that the  landlord had  no interest in the building in  which he  was residing, that the identical unit located on  the back  side of  the demised premises had been let to a tenant upto 1981 and that the accommodation located at another  place in  Delhi and referred to by the appellant was only a garage block.      The Controller decided all questions of fact taking the affidavits as  unquestioned evidence  and refused  to  grant leave to the appellant to contest the petition and passed an order of  eviction in  favour of  the landlord. The revision petition filed  by  the  appellant  against  the  order  was rejected by the High Court.      The  question   before  the  court  was:  What  is  the jurisdiction of  the Controller  under Sub-s.  (S) of  s.25B while dealing  with an affidavit of the tenant seeking leave to contest  an application  for eviction filed by a landlord under cl. (e) of he proviso to s. 14(1) ?      Allowing the appeal. ^      HELD: (By the Full Court)      Leave to  contest the  petition for  eviction under cl. (e) of  proviso to  s.l4(1) must be granted to the appellant under sub s (S) of sub-s. 25B of the Delhi Rent Control Act, 1958. (per Desai and Baharul Islam JJ )      1. (a)  While examining  the question  whether leave to defend ought  or  ought  not  to  be  granted,  the  limited jurisdiction  which  the  Controller  enjoys  is  prescribed within well defined limits. The language of sub-s. (5) of s. 25B casts  a statutory  v duty  on the Controller to give to the tenant  leave to  contest the application, the only pre- condition  for  exercise  of  jurisdiction  being  that  the affidavit filed  by the tenant discloses such facts as would disentitle the  landlord from  obtaining an  order  for  the recovery  of  possession  of  the  premises  on  the  ground mentioned in  B. 14(1)(e).  The  legislature  has  used  the expression "the Controller shall give leave to the tenant to contest the  application." When the language of a statute is plain the  principle that legislature speaks its mind in the plainest  language   has  to   be  given  full  effect.  The legislature has  used the  plainest language  namely  "facts disclosed in  the affidavit  of the  tenant" and avoided the phraseology of the 500 analogous  provision   in  order   XXXVII,  C.P.C.,   namely "substantial defence" and "vexatious and frivolous defence". [513 F; 514 E; 513 G: 514 B-D]      (b) Undoubtedly,  the rules  of natural  justice, apart from the adversary system we follow must permit the landlord to contest  the affidavit  filed by the tenant and he can do so by  Sling an affidavit in reply. If the averments made in the  affidavit   of  the  tenant  are  controverted  by  the

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landlord, that  fact may  be borne  in mind but if the facts disclosed in  the affidavit  of the  tenant are contested by way of  proof or  disproof or producing evidence in the form of  other   affidavits  or   documents  that  would  not  be permissible. The  Controller has  to confine  himself to the affidavit filed by the tenant under sub-s. (4) of s. 25B and the reply,  if any  and on perusing these, he has to pose to himself the  only question: Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order  for the  recovery  of  possession  on  the  ground specified in s. 14(1)(e) ? on browsing through the affidavit of the  tenant, if there emerges averment of facts which, on a trial,  if believed  would non-suit  the  landlord,  leave ought to  be granted.  The Controller  is not  to  record  a finding on  disputed questions of facts or his preference of one set  of affidavits against other set of affidavits as it is clear  from the  language of sub-s. (S) of s. 25B that he has to  confine himself to the affidavit filed by the tenant disclosing such facts as would primafacie and not on contest disentitle the landlord from obtaining an order for recovery of possession. It is wholly impermissible for the Controller to proceed  to examine the rival contentions on the basis of affidavits  untested   by  cross-examination   and  unproved documents. The  regular trial required to be held by a Court of Small Causes as contemplated by sub-s. (6) read with sub- s. (7)  of s. 25B is not to be substituted by affidavits and counter-affidavits. The  scheme of s. 25B does not introduce a trial for arriving at the truth at the stage of proceeding contemplated by  sub-s. (4) of s. 25B. It is immaterial that facts alleged and disclosed are controverted by the landlord because the  stage of  proof is yet to come. Plausibility of the defence  raised and  proof of  the same  are  materially different from  each other  and  one  cannot  bring  in  the concept of  proof at  the stage  when plausibility has to be shown. [524 B; 523 H; 524 A; SIS G-H; 514 A; 516 A-C; 517 E- G; 518 B; 516-E]      Santosh Kumar  v. Bhai  Mool Singh  [1958] S.C.R. 1211, relied on.      S. Kanjibhai  & Ors.  v. Mohanraj Rajendra Kumar A.I.R. 1970, Gujarat  32 and  Kishan Singh  v. Mohd.  Shafi & Ors., A.I.R. 1964 J & K 39; approved.      (c) Section  14(1) starts  with a  non obstante  clause which  would   necessarily  imply  that  the  Controller  is precluded from  passing an  order for recovery of possession in favour  of the landlord unless the case is covered by any of the  clauses of  the proviso. Upon a true construction of cl. (e)  of the proviso to s. 14(1) it would appear that the burden is on the landlord to satisfy the Controller that the premises are let for residential purpose, that possession is required by  him bonafide  for occupation  as residence  for himself or  for any  member of his family and that he has no other reasonably  suitable residential  accommodation.  This burden, the  landlord is  required to  discharge before  the Controller gets  jurisdiction to make an order for eviction. On a combined reading of s. 14(1)(e) and sub-ss. (1) and (4) of s.  25B, the  legal position  that emerges  is that  on a proper application being made in the prescribed manner which is required to be 501 supported by  an affidavit,  unless the tenant obtains leave to defend  as contemplated by sub-ss. (4) and (S) of s. 25B, the tenant is deemed to have admitted all the averments made in the  petition filed  by the  landlord and  the Controller would act  on the  admission of  the tenant  presuming every averment in  the petition of the landlord as unchallengeable

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and truthful.  This  consequence  itself  is  sufficient  to liberally approach  the prayer  for  leave  to  contest  the petition.           [514 E-H; 515 D-E; 513 E]      (d)   The underlying  thrust of  all  rent  restriction legislation is  to check  profiteering by owners of property and to  protect weaker sections. Their provisions are not to be so  construed or interpreted as would make the protection conferred on the tenant illusory. [512 E-F: 510 E-F]      Bahadur Singh & Anr. v. Muni Sabrat Das & Anr., p[1969] 2 S.C.R.  432, Kaushalya  Devi &  Ors. v.  Shri R.L. Bansal, [1969] 2 S.C.R. 1048, Bega Begum & Ors. v. Abdul Ahad Rehman JUDGMENT: [1980] 1 S.C.R. 854 referred to.      (e)   A code  of procedure  is  something  designed  to facilitate  justice  and  further  its  ends.  Our  laws  of procedure are  grounded on  a principle  of natural  justice which requires that men should not be condemned unheard. Too technical construction   that  leaves no room for reasonable elasticity of  interpretation should be guarded against lest the very  means designed  for the  furtherance of justice be used to frustrate it. The procedure prescribed in Chap. IIIA is harsh  and weighted against the tenant. The Controller is the final  arbiter of facts. Once leave is refused no appeal is provided  against the order refusing leave. No one should be in doubt about the narrow constricted jurisdiction of the High Court  while interfering  with  findings  of  facts  in exercise of  revisional jurisdiction.  Wisdom, sagacity  and the consequence  of refusal  to  grant  leave  coupled  with limited scope  of inquiry  being confined to facts disclosed in the  affidavit of the tenant should guide the approach of the Controller.           [527 B-C; 513 D; 527 F-G-H; 528 A]      Sangram Singh v. Election Tribunal, Kotah & Anr., [1955 Z S.C.R.  I and  Maneka Gandhi  v. Union  of India, [1978] 2 S.C.R. 621, referred to.      In the  instant case,  the  Controller  had  overlooked disclosure of  important facts  which put  the bona fides of the landlord in issue and necessitated grant of leave to the appellant: The  leave and licence agreement had been renewed in 1972 and 1973 though the landlord had been in Delhi since 1972; the  landlord had  admitted that the identical unit at the back  of the demised premises which had fallen vacant in 1973 had  been let out to another tenant; no action had been taken till  1979 on  the notice  seeking eviction  served in 1974; every  time a fresh letting had been indulged into, it had been  done after  raising the rent; and the landlord who had sought  possession for  himself and  was  admittedly  in Delhi had  not stated  a  single  word  on  oath  about  his requirements and  as to  in what  right he was occupying the premises in which he was staying. [529 B-H; 530 A-E]      The High  Court had adopted an incorrect approach as to how the  matter had  to be examined at the stage of granting or refusing to grant leave under sub- 502 s. (S)  of 8. 25B. It had failed to ascertain as to when the licence had  been terminated and a contract of lease entered into and  what were the terms of the lease as alleged by the landlord and  whether  the  rules  of  the  local  authority permitted use  of the premises for non-residential purposes. The  High  Court  had  dismissed  the  contention  that  the landlord had  other suitable accommodation by an observation that the  Controller had rightly come to the conclusion that the premises in which the landlord was residing belonged not to the  landlord but  to  his  brother.  This  approach  was

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unjustified  because   the  question  was  not  whether  the landlord was  the owner  of the premises occupied by him but the substantial  question was in what right he was occupying it for a period extending over 7 years and how it had become imperative for him to vacate the same. [530 F-H; 531 A-H]      2. The  contention that the non obstante clause in sub- s. (7)  of s.  25B excludes the application of sub-s. (2) of s. 37  but not  of sub-s.(l)  of 8.  37 and therefore it was obligatory for  the Controller to not only hear the landlord but examine evidence at the stage of granting or refusing to grant leave  to contest cannot be accepted. Sub-s. (2) of s. 37 provides that subject to any rules that may be made under the Act,  the Controller  shall, while holding an inquiry in any proceedings  before him,  follow as  far as  may be, the practice and procedure of a Court of Small Causes. including the recording  of evidence. The very fact that sub-s. (7) of s.  25B   provides  that  while  holding  an  inquiry  in  a proceeding to  which Chap.  IIIA applies, the Controller has to follow  the practice  and procedure  of a  Court of Small Causes including  the recording  of evidence  indicates  the legislative intention  of treating Chap. IIIA and especially s. 25B  as a  self-contained code  and  this  conclusion  is buttressed by  the provision  in sub-s.  (1) of s. 25B which provides that  every application by landlord for recovery of possession of  any premises  on the  ground specified in cl. (e) of  the proviso  to s.  14(1) shall  be  dealt  with  in accordance with  the procedure  specified in s. 25B. That is why sub-s.  (7) of  s. 25B opens with a non obstante clause. Any other  section, including sub-s. (t) of s 37 prescribing procedure for  disposal of  an application covered by sub-s. (l) of  s. 25B  is therefore  excluded. The  exclusion of s. 37(1) also  necessarily follows from the provision contained in sub-s.  (10) of  s. 25B  which makes  it clear  that  the procedure prescribed for holding. an inquiry consequent upon the granting  of leave  to contest  shall  be  the  same  as required to  be followed  by the  Controller for disposal of applications. Sub-s.  (10) of  s. 25B  operates to bring ins 37(1) after leave to contest is granted. If sub-s. (1) of s. 37 were  to govern all proceedings including the application for leave  to contest  the proceedings,  both sub-s. (7) and sub-s. (10) of s. 25B would be rendered redundant.           [525 C; 524 E-F; 526 A-B; 525 A-B; 525 E-F-H]      3. Neither  the argument  that the  scope and  ambit of sub-s. (S)  of s.  25B of  The Act in its comparison with O. XXXVII, r.  3 sub-r.  (S) C.P.C.  is no  more res integra in view of  the decision  in Busching  Schmitz (P) Ltd. v. P.T. Menghani &  Anr. nor  the interpretation of the observations therein to  the effect  that the  scope for  granting  leave under sub-s. (S) of s. 25B is narrower than the one under o. XXXVII, r.  3 can  be accepted.  It is  not clear  from  the decision whether the Court took note of the whole of the re- structured r. 3 or it was keeping in view the unamended r. 3 of o. XXXVII. The provisoes to o. XXXVII, r. 3 make it clear that leave  to defend  shall not be refused unless the Court is satisfied  that the  facts disclosed  by the defendant do not indicate  that he  has a substantial defence to raise or that the defence intended to be put up by the defendant is 503 frivolous or  vexatious. On the other hand, sub-s. (S) of s. 25B makes  it   obligatory upon  the Controller,  by use  of mandatory language,  to give leave if the affidavit filed by the tenant  discloses such  facts as  would  disentitle  the landlord from obtaining an order for recovery of possession. Under o.  XXXVII, r. 3, defence has to be substantial before leave can  be obtained. Mere disclosure of facts is the sine

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qua non  under sub  s. (S) of s. 25B. Further, the Court can grant conditional  leave or leave limited lo the issue under O.  XXXVII,  r.  3;  no  such  power  is  conferred  on  the Controller under  sub-s. (S)  of s.  25B. Assuming  that  o. XXXVII, r. 3 (S) confers wider discretion on the Court that, by mere  comparison, cannot  cut down or narrow or limit the powercoupled with the duty conferred on the Controller under sub s. (S) of s. 25B.           [519 D-H; 520 A-G; 519 A-B; 521 F]      Busching Schmitz  (PJ Ltd.  v. P.T.  Menghani  &  Anr., [1977] 3 S.C.R. 312; B.N. Mutta & Ant. v. T.R. Nandi, [1979] 2 S.C.R.  409; Charan  Dass Duggal  v. Brahma Nand (C.A. No. 179/82 decided  on 11-1-1982)  and Om Prakash Saluja v. Smt. Saraswati  Devi  (C.A.  No.  527/82  decided  on  8-2-1982), referred to.      Sarwan Singh & Anr. v. Kasturilal, [1977] 2 S.C.R. 421, distinguished.      Mohanlal v  Tirath Ram Chopra & Anr. 22 (1982)Delhi Law Times 1, disapproved. (per Sen, 1., dissenting)      1.   (a) There  is a  definite  public  purpose  behind enactment of  Chap. IIIA  and sub-s.  (S) of  s. 25B must be construed in  a sense which would carry out that purpose. S. 14A was  enacted to  ensure that  all government servants to whom residential  accommodation had  been  allotted  by  the Government vacated  such accommodation if they had any house of their own in the Union Territory of Delhi and the section conferred  upon   them  the   right  to   recover  immediate possession of  their own  houses. Further, experience in the past  had   shown  that   landlords  who  were  in  bonafide requirement of  their accommodation  for residential purpose under cl.  (e) of  the proviso  to sub-s.  (1) of s. 14 were being put to great hardship due to the dilatory procedure of the suit. The object behind enactment of Chap. IIIA was that these two classes of landlords should not be at the mercy of law’s delays  but there  should be  a quick  and expeditious remedy available  to them  against their  own  tenants.  The provisions in  Chap.  IIIA  confer  a  real,  effective  and immediate right  to obtain possession by confining the trial only to  such cases  where the  tenant has such a defence as would disentitle  the landlord  from obtaining  an order for eviction under  s.l4(1)(e) or under s. 14A. Chap. IIIA seeks to strike  a  balance  between  the  competing  needs  of  a landlord and  a tenant  and has  therefore provided that the tenant shall have a right to apply for leave to contest. The words "if  the affidavit  filed by the tenant discloses such facts" used  in sub-s.  (S) of  s. 25B  must therefore  take their colour from the context in which they appear.           [533 A-D-E-F-H; 534 A; 536 D; 535 C-D; 535 A-B]      Sarwan Singh  v. Kasturi  Lal,  [1977]  2  S.C.R.  421, referred to.      (b)  The Controller obviously cannot come to a decision as to  whether or  not leave  to contest  should be  granted under sub-s. (S) of s. 25B without 504 affording  the   parties  an  opportunity  of  hearing.  The Controller must  conform to  the rules  of natural  justice. Once it  is conceded  that the  landlord has  a right  to be heard, the Controller is bound to give him an opportunity to refute the  facts alleged  by the  tenant in  his  affidavit filed under  sub-s. (4) of s. 25B. The Controller must apply his mind  not only  to the averments made by the landlord in his application  for eviction, but also to the facts alleged by the  tenant in his affidavit for leave to contest as well as the  facts disclosed  by the landlord in his affidavit in

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rejoinder, besides  the other  material on  record i.e., the documents  filed   by  the   parties  in  support  of  their respective claims,  in order to come to a conclusion whether the requirements  of sub-s.  (I) of s. 25B are fulfilled. To ask Controller  to confine  himself only  to  the  affidavit filed by the tenant is to ask him not to apply his mind in a judicial manner  even if  he feels  that tho  justice of the case so  demands. The  Controller must  endeavour to resolve the competing  claims of landlord and tenant to the grant or refusal of  leave by  finding a  solution which  is just and fair to  both the  parties. It  is not  that the proceedings initiated on  an application  by the landlord under s. 14(1) (e), or under s. 14A must undergo trial at two stages. Under sub-s. (S)  of s.  25B, the  Controller must  prima facie be satisfied that  the facts  alleged by the tenant are such as would disentitle  the landlord  from obtaining  an order for recovery of  possession. The  word ’disentitle’  is a strong word, and  the Controller  must be satisfied that the tenant has such a defence as would defeat the claim of the landlord under s.  14 (1)  (e) or under s. 14A. It cannot be that the Controller would  set down  the application for trial merely on perusal  of the  affidavit filed  by the  tenant  without applying his  mind to  the pleadings  of the parties and the material on  record. If he finds that the pleadings are such as would  entail a trial, then the Controller must grant the tenant leave  to contest  as the  words "shall  grant to the tenant leave  to contest"  in sub-s.  (S) of s. 25B make the grant of leave obligatory. [536 G; 537 B-H; 538 A-B]      2.  The scope of sub-s. (S) of s. 25B is restricted and the test  of "triable  issues" under  O. XXXVII.  r. 3  (5), C.P.C. is  not  applicable,  as  the  language  of  the  two provisions is  different. The use of the word ’such’ in sub- s. (5)  of 6.  25B implies that the Controller has the power to limit the grant of leave to a particular ground. A tenant may take  all kinds of pleas in defence. The whole object of sub-s. (5)  of s. 25B was to prevent the taking of frivolous pleas by  tenants to  protract the  trial. Where  the tenant seeks leave to contest the application for eviction under s. 14(1) (e),  or under s. 14A, he must file an affidavit under sub-s. (4)  of s.  25B raising  his defence  which  must  be clear, specific  and positive.  The  defence  must  also  be bonafide and  if true,  must  result  in  the  dismissal  of landlord s application. Defences of negative character which are intended  to put  the landlord to proof or are vague, or are raised  mala fide  only to  gain time  and protract  the proceedings, are  not of  the kind  which will  entitle  the tenant to the grant of leave. The Controller cannot set down the application for hearing without making an order in terms of sub-s. (5) of s. 25B. The trial  must be confined only to such grounds as would disentitle the landlord to any relief. [538 C-F] 505

&      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 209 of 1981.      Appeal by  special leave  from the  judgment and  order dated the  8th December,  1980 of  the Delhi  High Court  in Civil Revision No. 317 of 1980.      Dr. Y.S. Chitale, K.K. Manchanda and C.N. Murty for the Appellant.      D. V. Patel, U.R. Lalit, Pramod Dayal, Rajesh Mitra and S.K. Gupta for the Respondent.

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    The following Judgments were delivered      DESAI, J.  A  provision  conferring  power  enacted  to mollify slogans  chanting public  opinion of speedy justice, if not  wisely  interpreted  may  not  only  prove  counter- productive but  disastrous. And  that  is  the  only  raison d’etre for this judgment because in the course of hearing at the stage  of granting special leave Mr. D.V. Patel, learned counsel for the respondent straightway conceded that this is such a  case in  which leave to defend could never have been refused. Unfortunately,  however, not  a day  passes without the routine  refusal of leave, tackled as a run of mill case by the  High  Court  in  revision  with  one  word  judgment ’rejected’, has  much to  our discomfiture impelled us write to this short judgment.      First the  brief narration  of facts.  Respondent M/s.. Prem Deva  Niranjan  Deva  Tayal  (Hindu  Undivided  Family) through Prem  Deva Tayal,  constituted attorney  of Niranjan Deva  Tayal   (landlord)   moved   the   Controller   having jurisdiction by  a petition under section 14 (1) proviso (e) [for short  s. 14  (e)’] read  with section 25B of the Delhi Rent Control  Act, 1958  (’Act’ for short), for an order for recovery of  possession of the premises being, front portion of premises  bearing No.  B-44, Greater  Kailash Part I, New Delhi, on  the ground  that the  premises were  let out  for residential purpose  and are  now required  bona fide by the landlord for  occupation as  residence for  himself and  the members of his family dependent on him and that the landlord has no  other reasonably  suitable  accommodation.  To  this petition he  impleaded M/s.  Precision Steel  &  Engineering Works (tenant),  a firm  and Shri  B.K. Beriwala constituted attorney of the firm. Landlord alleged in his petition that 506 the premises  in question  were first  given  on  leave  and license and  subsequently relationship  of lessor and lessee was established  and that  the tenant is in possession since October 1,  1971.  Landlord  further  alleged  that  he  now requires the  premises for  himself and  the members  of his family consisting  of himself, his wife and two school going children. He  admitted that  he has  been employed  in India since 1965  but was posted at Bombay in 1970 and returned to Delhi in  1972. He went to Saudi Arabia and has now returned to India. It was alleged that on May 1, 1974, he called upon the tenant to vacate the premises but the request has fallen on deaf  ears. It  was  specifically  alleged  that  as  the landlord has  now taken  up a  job and  has settled  down in Delhi and  that he  has no other suitable accommodation, and accordingly he  bonafide requires  possession of the demised premises for  his personal  occupation. It  was alleged that M/s. Prem Deva Niranjan Deva Tayal (HUF) is the owner of the suit premises  and Shri  Niranjan Deva Tayal is the Karta of the HUF  and second  notice dated  June 22,  1979 was  given under instructions  by the  constituted attorney  Prem  Deva Tayal. Even though the landlord who sought possession of the premises for  his personal  requirement was  in Delhi at the relevant time,  i.e. in  1979, the  petition was  also filed through the constituted attorney and Niranjan Deva Tayal who seeks possession for his use being in Delhi and available is conspicuous by his absence throughout the proceedings      On the  petition being  lodged the  Controller directed summons ’ to be served in the prescribed form. On service of the summons  the tenant  being a firm M/s. Precision Steel & Engineering Works,  and its  constituted attorney  Shri B.K. Beriwala appeared  and filed  an affidavit  seeking leave to contest eviction petition. In the affidavit tenant contended that respondent  1, i.e.  M/s  Precision  Steel  Engineering

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Works is  the tenant  and respondent  2 does  not claim  any interest  in  the  premises  in  question  in  his  personal capacity  and   ought  not  to  have  been  impleaded  as  a respondent. While denying that there is any undivided family styled as  Prem Deva  Niranjan Deva  Tayal it  was contended that the petitioner is not entitled to file a petition under section 14  (1)(e) because  the purpose  of letting  was not residential alone  but  combined  purpose  of  residence-cum business. It was denied that the tenant entered the premises as a  licensee and  subsequently the  contract of  lease was entered into  and it  was submitted  that the tenant entered the premises as tenant 507 effective from  September 13,  1971, and  the lease  was for residential-cum-commercial purpose. A specific agreement was pleaded that  the tenant which is a partnership was entitled to use the premises for the residence of the director and/or partner as  also for the office purpose. Reliance was placed on clause  6 of  the License agreement, which was really and substantially according  to the  tenant a contract of lease. It was  also alleged that since the inception of the tenancy the premises  have been used both for residence and business purposes to  the knowledge of landlord and local authorities and no  objection has  been raised  in this  behalf. It  was emphatically denied  that the  premises were required by the landlord for  his personal use as well as for the use of the members of  his family  and it  was  also  denied  that  the landlord has  not  in  his  possession  reasonably  suitable accommodation in  Delhi.  It  was  positively  averred  that Niranjan Deva  Tayal who  claims to  be  the  owner  of  the premises and  for whose  personal requirement  the  eviction petition has  been filed has been residing at 32, Anand Lok, New Delhi and that is the address of the landlord set out in cause title of the petition filed by the attorney. Dimension of the  premises in possession of the landlord was given out as 2-1/2  storey building built on a plot of 1000 sq. yards. It was  averred that  the building  now in possession of the landlord is  divided into  four blocks  or units, each block consisting of four bed rooms, three bath rooms, one kitchen, one living  room and  one drawing-cum-dining room. It was in terms stated  that the  whole of  the house is in occupation and possession  of  petitioner  landlord  and  he  has  been residing all  along in the house much prior to the beginning of tenancy  and he  is in  possession of  the same.  It  was further averred  that the  petitioner has concealed the fact that petitioner  is the  owner of  another building  at  52, Anand Lok,  New Delhi,  which buildings  is equally big. One other averment  of which  notice may  be taken  is that  the petitioner has been managing both the buildings and whenever blocks fall  vacant he  lets them out at higher rent. It was specifically stated that front portion of the building at B- 44, Greater Kailash Part I was the same accommodation as the building  which  the  landlord  has  in  his  possession  at present. In  order to point out that the petitioner landlord when he comes into possession of premises vacated by tenants lets out  the same  at higher  rent thereby contravening law and obtains  unlawful enrichment,  it was  averred that  the premises of  identical size  and nature situated at the back of the demised premises were taken on rent by M/s. Kirloskar Company during the period 1970.73 and when 508 vacated  by  the  tenant  the  same  was  let  out  to  Food Corporation of  India from  1974-1975 and  after getting the same vacated  the same  was let  out in 1976 to Yash Mahajan and on  each such  opportunity rent  was  enhanced.  It  was

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accordingly alleged  that the  petition is  malafide and the claim of bona fide requirement is utterly untenable.      A counter-affidavit was filed on behalf of the landlord to the  affidavit seeking  leave to  defend reiterating what was averred  in the  main petition,  namely, that  Prem Deva Niranjan Deva  Tayal (HUF)  is the owner of the property and that Niranjan  Deva Tayal a is the Karta of the same. It was stated that the landlord bona fide required the premises for his own  use. With reference to the building situated at 32, Anand Lok, New Delhi, it was stated that Niranjan Deva Tayal has no  interest in  the property  and that  the  petitioner Niranjan  Deva  Tayal  has  no  other  suitable  residential accommodation in  Delhi. It was claimed that the property at 32, Anand  Lok, New  Delhi, belongs  to one  K.D. Tayal. The dimension of  the house was also disputed. With reference to the premises  at 52,  Anand Lok,  it  was  stated  that  the building is  not being  used as  residential premises but is only a  garage block.  It was  further averred that Niranjan Deva Tayal  was serving  in Saudi Arabia and, therefore, the premises were  given on  leave and  license but now that the petitioner has returned to India and has permanently settled down he  requires the  premises for  his own  use. A further averment was  made to  the effect that the block at the back of the  demised premises is at present in occupation of M/s. Coronation Spinning Co., Dadra, and the occupant is entitled to occupy the premises till 1981.      Frankly, in  appeal by  special leave under Article 136 it was  not necessary  to set.  Out the pleadings in detail. However, as  the question before this Court is whether leave to contest  the petition ought not to be granted and that is clearly relatable and wholly dependent upon the averments in the pleadings  and the  disputed questions  of facts arising therefrom and  that is the apology for detailed narration of rival contentions.      And now  to law. Section 14 (1) (e) of the Act reads as under: 509      "14 (1)   Notwithstanding  anything   to  the  contrary                contained A  in any other law or contract, no                order  or   decree  for   the   recovery   of                possession of  any premises  shall be made by                any court or Controller in favour of the land                lord against a. tenant;                   Provided that  the Controller  may, on  an                application made  to him  in  the  prescribed                manner, make  an order  for the  recovery  of                possession of  the premises on one or more of                the following grounds only, namely:-           (e)     that  the  premises  let  for  residential                purposes are  required bona  fide by  the 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                reasonably        suitable        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  the   consent  of   the           landlord,  used  incidentally  for  commercial  or           other purposes," Section 25B  which forms part of Chapter IIIA was introduced in the  Act by  Amending Act  18 of  1976 with  effect  from

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December 1,  1975. The  fasciculus  of  sections  is  headed ’Summary Trial  of Certain  Applications’. Section  25B (1), (4) and  (5) are material for the present purpose. They read as under: "25B (1)  Every application  by a  landlord for the recovery           of  possession  or  any  premises  on  the  ground           specified in clause (e) of the proviso to sub-sec.           (I) of  section 14  or under section 14A, shall be           dealt  with   in  accordance  with  the  procedure           specified in this section.      (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 510           he files an affidavit stating the grounds on which           he seeks  to contest  the application for eviction           and obtains  leave from  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.       (5)  The Controller  shall give to the tenant leave to           contest the  application if the affidavit filed by           the  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  (I) of  section 14,  or under sec.           14A."      The increased  tempo  of  industrialisation  since  the independence resulted  in mass  migration of population from rural to  urban areas. This urbanisation process resulted in phenomenal demand  for housing accommodation. Harsh economic law of  demand and  supply operated  with full vigour to the disadvantage of  the  under  privileged.  To  checkmate  the profiteering by  the owners  of property  and to protect the weaker sections,  most of  the States in our country enacted legislation  for  the  protection  of  tenants  of  premises situated in  urban and  semi-urban areas. These legislations have been enacted with the avowed object of putting a fetter on  the  unrestricted  right  of  re-entry  enjoyed  by  the landlords with  a view  to protecting  the tenants  assuring security of  tenure. This  avowed  object  and  purpose  for enacting  legislation  must  always  inform  and  guide  the interpretative process  of such socially oriented beneficial legislation. But the language of the. statute has to be kept in view  to determine  the width  and ambit  of  protection. Normally in  all  such  statutes  a  provision  is  inserted prescribing enabling  provision  under  which  landlord  can recover possession  and thereby  restricted  the  unfettered right of  re-entry. One  such provision normally to be found in all  such statutes is the one which enables a landlord to recover possession  if he  bonafide requires  the  same  for occupation by  himself or  for the use of the members of the family dependent  on him. If the landlord seeks possession - bonafide for his personal requirement, he 511 must commence the action by filing a petition and the tenant would be  entitled to  appear and  defend the  action. While defending the action in an adversary system the tenant would

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file his  written statement  raising  contentions  which  in terms would focus the attention of the court on questions of facts in  dispute on  the basis  of which  issues  on  which parties are  at variance  would be  framed. Both the parties would lead evidence and ultimately on evaluation of evidence the court/Controller  would  determine  the  issues  on  the principle of  preponderance of  probability and  answer  the issues one  way or  the other  determining the  fate of  the petition.      That  was   the  position   under  the   Act.  On   the introduction of  Chapter IllA  a notable  departure has been made in  the Act  with regard  to the procedure for trial of actions brought  under  section  14A  and  14(1)(e)  When  a petition is  brought before  the  Controller  under  section 14(1)(e) a  summons has  to be issued to the tenant and when the summons  is served the tenant cannot straightway proceed to contest the petition for eviction from the premises but D either he must surrender possession or seek leave to contest the petition.  While seeking leave he must file an affidavit setting out  the grounds  on which  he seeks  to contest the application for  eviction. This  is the  scheme  of  section 25B(I) and  (4). Then  comes section  25B(5) which  provides that the  Controller is  under  a  statutory  duty-note  the expression "shall  give leave  to the  tenant to contest the application"-to grant  leave if  the ’affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining  an order  for the recovery of possession’ of the premises  on the  ground mentioned  in section 14(1)(e), i.e. bona  fide requirement  for his personal use or the use of the members of his family.      Let us  recall the  procedure for obtaining a decree or order for  eviction against  a tenant entitled to protection of Rent  Act other than Delhi Rent Act. What would the court expect the  landlord to  prove before  he seeks  to  recover possession from  the tenant  on the  ground that he bonafide requires possession  for his  own use  or  the  use  of  the members of his family ? In a catena of decisions it has been decided that  in order  to succeed  the landlord should show that the  premises have  been let  out as a residence or for residential purposes;  that the landlord needs to occupy the premises, which  may imply  that either  he has got no other accommodation in  the city  or town in which the premises in question are situated or the one in 512 his possession does not provide him a suitable residence and he is  required to  shift to  the premises in question, that his need  is genuine  and that  it is  not merely a fanciful desire of an affluent landlord who for the fancy of changing the premises  would like  to shift to the one from which the tenant is  sought to be evicted; that he is acting bona fide in approaching  the court  for recovery  of possession;  and that his demand is reasonable. These facts have to be proved to the  satisfaction of  the Court  and once  the  trend  of judicial opinion as expressed by the court went so far as to say that  the court  cannot  pass  a  decree  on  compromise because the  statute has  cast  duty  on  the  court  to  be satisfied about  the  requirement  of  the  landlord  and  a compromise decree  was held  to be  a nullity  (See  Bahadur Singh &  another v. Muni Sabrat Dass & another.(l) Kaushalya Devi & others v. Shri K.L. Bansal.(2) Certain states have in their respective  legislations also  imposed  an  additional condition before  the landlord  can  obtain  possession  for personal requirement viz. before making a decree or order of eviction the  Court must  weigh the relative hardship of the landlord and the tenant and if greater hardship is likely to

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be caused  to tenant,  the court  is under  an obligation to refuse to  pass the  decree notwithstanding  the  fact  that landlord  has   proved  his  requirement.  Rent  Restriction legislation enacted  by States  may  differ  from  State  to State. Restrictions on the landlord’s unfettered right to re entry may  be stringent  or not  so stringent depending upon the local  situation. But  the underlying thrust of all rent restriction legislations  universally recognised must not be lost sight  of that  the enabling  provisions  of  the  rent restriction Act are not to be so construed or interpreted as would make  the protection  conferred on the tenant illusory by a liberal approach to the desire of the landlord to evict tenant under  the camouflage  of personal requirement. It is not for  a moment  suggested that  a landlord should not get possession if he genuinely requires the premises for his own use  and   occupation.  That   much  incidental  element  of ownership in  a country  governed by  mixed economy is still being recognised  though in the wake of agrarian reforms the tenants of  agricultural land  have  been  made  the  owners thereof in  almost the  whole country. But that is a subject with which  we are  not concerned.  We must  proceed on  the accepted principle  that the one element of ownership, viz., right to  personally occupy  and enjoy, stands legislatively recognised  when   an  enabling  provision  was  made  while restricting the unfettered right of 513 the landlord  to renter  demised premises  at his sweet will giving him A an opportunity to seek possession on the ground of personal  requirement.  But  care  has  to  be  taken  to visualise that  the lust  for increasing rent by getting the premises vacated  masquerading under  the garb  of  personal requirement does not over reach the Courts. This is the gist of observations  of this Court in Bega Begum & Ors. v. Abdul Ahad  Rehman  &  Ors.;  (1)  where  it  was  held  that  the expression ’reasonable  requirement’ in section 11(h) of the Jammu &  Kashmir Houses  and Shops  Rent Control  Act, 1966, undoubtedly postulates that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and  need should doubtless be kept in mind but not so as to make even the genuine need nothing but a desire as the High  Court  appeared  to  have  done  in  that  case.  This observation was  quoted with  approval  in  Rewal  Singh  v. Lajwanti.(2) In  Kewal  Singh’s  case  this  Court  repelled challenge to  the constitutional  validity of section 25B of the Act.      Undoubtedly the procedure prescribed in Chapter IIIA of t h  e Act  is materially different in that it is more harsh and weighted  against the tenant. But should this procedural conundrum change  the entire  landscape  of  law  ?  When  a landlord approaches  Controller under  section 14(1) proviso (e), is  the court to presume every averment in the petition as unchallengeable and truthful ? The consequence of refusal to grant leave must stare in the face of the Controller that the landlord  gets an  order of eviction without batting the eye lid.  This consequence itself is sufficient to liberally approach the prayer for leave to contest the petition. While examining the  question whether  leave to  defend  ought  or ought not  to be  granted the limited jurisdiction which the Controller enjoys  is prescribed  within  the  well  defined limits and  he  cannot  get  into  a  sort  of  a  trial  by affidavits  preferring   one  set  to  the  other  and  thus concluding the trial without holding the trial itself. Short circuiting the  proceedings need  not masquerade as a strict compliance  with   sub-section  (5)   of  section  25B.  The provision is  cast in  a mandatory  form. Statutory  duty is

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cast on the Controller to give leave as the legislature uses the expression  ’the Controller  shall give’  to the  tenant leave to  contest if  the  affidavit  filed  by  the  tenant discloses such  fact as would disentitle the landlord for an order for recovery of possession. The Controller has to look at the affidavit of the tenant seeking leave to 514 contest. Browsing  through the  affidavit if  there  emerges averment -  of facts  which on  a trial,  if believed, would non-suit the  landlord, leave ought to be granted. Let it be made clear  that the  statute is not cast in a negative form by enacting  that the Controller shall refuse to give to the tenant leave to contest the application unless the affidavit filed by the tenant discloses such facts as would disentitle the landlord  from obtaining  an order  etc. That is not the mould in  which the section is cast. The provision indicates a positive  approach and not a negative inhibition. When the language  of   a  statute   is  plain,  the  principle  that legislature speaks  its mind in the plainest language has to be given  full effect.  No canon  of construction permits in the  name   of  illusory   intendment  defeating  the  plain unambiguous language  expressed to  convey  the  legislative mind. And  the  legislature  had  before  it  order  37,  an analogous provision  where leave  to defend is to be granted and yet  avoiding the  phraseology  of  the  Code  of  Civil Procedure, namely,  ’substantial defence’ and ’vexatious and frivolous  defence’,   the  legislature  used  the  plainest language, ’facts disclosed in the affidavit of the tenant’.      The language  of sub-section  S of  section 25B casts a statutory duty on the Controller to give to the tenant leave to contest  the  application,  the  only  pre-condition  for exercise of  jurisdiction being  that the affidavit filed by the tenant  discloses such  facts as  would  disentitle  the landlord from  obtaining an  order for  the recovery  of 13; possession of  the  premises  on  the  ground  mentioned  in section 14(1)  (e). Section 14(1) starts with a non obstante clause which  would necessarily imply that the Controller is precluded from  passing an  order or  decree for recovery of possession of any premises in favour of the landlord against the tenant  unless the case is covered by any of the clauses of the  proviso.  The  proviso  sets  out  various  enabling provisions on  proof of one or the other, the landlord would be entitled  to recover possession from the tenant. One such enabling provision  is the  one  enacted  in  section  14(1) proviso (e).  Upon a  true construction  of proviso  (e)  to section 14(1)  it would  unmistakably appear that the burden is on  the landlord  to  satisfy  the  Controller  that  the premises of  which possession  is sought  is;  (i)  let  for residential purposes; and (ii) possession of the premises is required  bona  Fide  by  the  landlord  for  occupation  as residence for  himself or  for any member of his family etc. and (iii)  that the landlord or the person for whose benefit possession  is  sought  has  no  other  reasonably  suitable residential accommodation. This burden, landlord is required to discharge before the Controller gets jurisdiction to make 515 an order  for eviction. This necessarily transpires from the language of  section 14(1)  which precludes  the  Controller from making  any order  or decree for recovery of possession unless  the   landlord  proves   to  his   satisfaction  the conditions in  the enabling  provision  enacted  as  proviso under which  possession is sought. Initial burden is thus on the landlord.      The question  is whether  this burden  is  in  any  way diluted or stands discharged or wholly shifted to the tenant

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because of  a different procedure prescribed in Chapter IIIA of the  Act. Section  25(4) provides  that in default of the appearance of  the tenant 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 landlord shall be entitled to an order for eviction  on the ground set out in section 14(1)(e) on a combined reading  of section  14(1) proviso (e) with section 25B(1) and  (4) the legal position that emerges is that on a proper application being made in the prescribed manner which is required  to be  supported by  an affidavit,  unless  the tenant obtains  leave to  defend  as  contemplated  by  sub- sections (4) and (S) of section 25B, the tenant is deemed to have admitted  all the  averments made in the petition filed by the  landlord. The effect of these provisions is that the Controller would  act on  the admission  of the  tenant  and there is  no better  proof of  fact as admission, ordinarily because facts  which are  admitted need  not be  proved. But what happens  if the  tenant appears pursuant to the summons issued under  sub-sec. 2  of section 25B, files an affidavit stating the  grounds  on  which  he  seeks  to  contest  the application. As  a corollary  it would  transpire  that  the facts pleaded by the landlord are disputed and controverted. How is  the Controller  thereafter to proceed in the matter. It would  be open to the landlord to contest the application of the  tenant seeking leave to contest and for that purpose he can  file  an  affidavit  in  reply  but  production  and admission and  evaluation of  documents at that stage has no place.  The   Controller  has  to  confine  himself  to  the affidavit filed  by the  tenant under  sub-section 4 and the reply, if any. On persuing the affidavit filed by the tenant and the reply if any filed by landlord the Controller has to pose to  himself  the  only  question:  Does  the  affidavit disclose, not  prove, facts as would disentitle the landlord from obtaining  an order  for the  recovery of possession on the ground specified in Clause (e) of the proviso to 516 section 14(1).  The Controller is not to record a finding on disputed questions  of facts or his preference of one set of affidavits against  other set of affidavits. That is not the jurisdiction conferred  on  the  Controller  by  sub-sec.  S because the  Controller while examining the question whether there is  a proper  case for  granting leave  to contest the application has to confine himself to the affidavit filed by the tenant  disclosing such  facts as  would prima facie and not on  contest disentitle  the landlord  from obtaining  an order  for   recovery  of  possession.  At  the  stage  when affidavit is  filed under  sub-section (4) by the tenant and the same  is being  examined for the purposes of sub-section (5) the  Controller has  to  confine  himself  only  to  the averments in  the affidavit  and the  reply if  any and that becomes manifestly  clear from  the language  of sub-section (S) that  the Controller  shall give  to the tenant leave to contest the application if the affidavit filed by the tenant discloses such  facts as  would disentitle the landlord from recovering possession  etc. The  jurisdiction to grant leave to contest  or refuse  the same  is to  be exercised  on the basis of  the affidavit  filed by  the tenant. That alone at stage is  the relevant  document and one must confine to the averments  in   the  affidavit.  If  the  averments  in  the affidavit disclose such facts which, if ultimately proved to the satisfaction of the Court, would disentitle the landlord from  recovering   possession,  that   by  itself  makes  it obligatory  upon  the  Controller  to  grant  leave.  It  is immaterial that facts alleged and disclosed are controverted

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by the  landlord because  the stage of proof is yet to come. It is  distinctly possible  that a  tenant may  fail to make good the  defence raised by him. Plausibility of the defence raised and  proof of  the same are materially different from each other  and one  cannot bring in the concept of proof at the stage when plausibility has to be shown. This view taken in S. Kanjibhai & Ors. v. Mehanraj Rajendra Kumar,(l) Kishan Singh v. Mohd. Shafi & Ors.(2) appears to have been approved in Santosh  Kumar v.  Bhai Mool  Singh (3)  where at p. 1217 this,  Court   while  commenting   upon  an  order  granting conditional leave  under order  XXXVII, r.  3, passed by the trial judge  which was  to this  effect: ’In  the absence of these documents,  the defence  of the defendants seems to be vague consisting  of indefinite  assertions ’,  observed  as under:           "This is  a surprising conclusion. The facts given      in the  affidavit are  clear and  precise, the  defence      could hardly 517      have been  clearer. We  find it  difficult to see how a      defence that  on the face is clear becomes vague simply      because the evidence by which it is to be proved is not      brought on file at the time the defence is put in.           The learned judge has failed to see that the stage      of proof  can only  come after  the defendant  has been      allowed to enter an appearance and defend the suit, and      that the  nature of the defence has to be determined at      the time  when the  affidavit is  put in. At that stage      all that the Court has to determine is whether, ’if the      facts alleged  by the  defendant are  duly proved’ they      will afford  a good  or even  a plausible answer to the      plaintiffs claim.  Once the  Court is  satisfied  about      that, leave  cannot be  withheld and  no question about      imposing  conditions  can  arise,  and  once  leave  is      granted, the  normal procedure  of a  suit, so  far  as      evidence and proof go, obtains". The manifest  error committed  in the  procedure followed at present by  the Controller  under s. 25B may be pointed out. The tenant  has to  file an affidavit stating the grounds on which he  seeks to  contest the  application. The Controller may accept an affidavit in reply if landlord chooses to file one. So  far there  is  no  difficulty.  There  then  follow affidavit in  rejoinder and  sur-rejoinder and the documents are produced  and when  this procession  ends the Controller proceeds to  examine the  rival contentions  as if  evidence produced in  the form  of the  affidavits untested by cross- examination and  unproved documents  are before  him on  the appreciation  and   evaluation  of   which  he   records  an affirmative  finding   that  the   facts  disclosed  in  the affidavit of  tenant are  not proved  and therefore leave to contest should  be refused.  In our  opinion, this is wholly impermissible. The  regular trial  required to  be held by a Court of  Small Causes  as contemplated  by sub-sec.  6 read with sub-sec.  7 of  section 25B is not to be substituted by affidavits  and   counter-affidavits   at   the   stage   of considering tenant’s  affidavit filed for obtaining leave to contest the petition under sub-sec. 4. Sub-section 6 enjoins a duty  on the  Controller where  leave is  granted  to  the tenant to contest the application to commence the hearing of the petition  as early  as  practicable  and  sub-section  6 prescribes procedure  to be followed as if the Controller is a Court  of Small  Causes. The Court of Small Causes follows the 518 summary procedure  in the  adversary system  where witnesses

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are examined  and cross-examined  and truth  of averment  is decided on  the touchstones  of cross-examination.  A speedy trial not  conforming to  the well-recognised  principle  of arriving at  truth by  testing evidence on the touchstone of cross-examination,  should  not  be  easily  read  into  the provision at  a stage  not  contemplated  by  the  provision unless  the  statute  positively  by  a  specific  provision introduces the  same. The  scheme of  section 25B  does  not introduce a  trial for arriving at the truth at the stage of proceeding contemplated by subsection (4) of section 25B.      It is  at this  stage  advantageous  to  refer  to  the analogous provisions  in order  37  of  the  Code  of  Civil Procedure to  find out  whether  that  provision  is  bodily incorporated in  sub-sec. 5  of  section  25B  or  there  is material departure so that stare decisis may or may not shed light on the vexed question. Order 37 Rule 1 sets out courts and classes  of suits to which the order would apply. Rule 2 provides for  institution of summary suits and sub-rule 3 of rule 2 provides that the defendant shall-not defend the suit referred to  in subrule  (I) unless  he enters an appearance and in default of his entering an appearance the allegations in the  plaint shall  be  deemed  to  be  admitted  and  the plaintiff shall  be entitled to a decree for a sum etc. Sub- rule 3  provides the procedure where the defendant enters an appearance. On  such appearance  being entered the plaintiff has to  serve on  the defendant  summons for judgment in the prescribed form  which is  to be  supported by  an affidavit verifying the  cause of  action and  the amount  claimed and stating that in his belief there is no defence to the suit.      It may be recalled that the language of rule 3 of order XXXVII Code  of Civil  Procedure, prior  to the amendment of the Code  in 1976 was materially different and substantially the whole  of rule  3  has  been  replaced  making  detailed provision therein about the manner, method and circumstances in which  leave to defend may be granted or refused Leave to defend under  sub-rule (5)  of rule  3 may be granted if the defendant by  affidavit or otherwise discloses such facts to the Court  as may  be deemed  sufficient to  entitle him  to defend. The  first proviso  makes it  clear that  the  leave shall not  be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial  defence to raise or that the defence intended to be  put up  by the  defendant is  frivolous or vexatious. Recall the language sf sub-s. (5) of s 25B which 519 makes it obligatory upon the Controller to give leave by use of the’  mandatory language  that the  Controller shall give leave to  defend to the tenant to contest the application if the affidavit  filed by  the tenant  discloses such facts as would disentitle  the landlord  from obtaining  an order for the recovery  of possession,  etc.  For  proper  and  better appreciation it may be made clear that when the mandate - of the section  is that  leave shall be granted as it enjoins a positive duty while the proviso to sub-rule (S) of rule 3 of order XXXVII  provides that  leave to  defend shall  not  be refused  unless  the  Court  is  satisfied  that  the  facts disclosed by  the defendant  do not  indicate that  he has a substantial defence  to raise, etc. Undoubtedly, the test of triable issue  has been  largely followed by the Court while considering application  for leave  to  defend  under  order XXXVII, rule  3(S) but  what  constitutes  a  triable  issue always depends upon the facts and circumstances of each case and its  connotation would  change after  the  recasting  of whole of rule 3 of order XXXVII. It was, however, urged that the scope  and  ambit  of  sub-s.  (5)  of  s.  25B  in  its

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comparison with sub-rule (5) of rule 3 of order XXXVII is no more res  intera in  view of  the decision  of this Court in Busching Schmitz  (P) Ltd.  v. P.T. Menghani & Anr. (1) This Court observed as under :           "But we  make it  plain even at this stage that it      is fallacious to approximate (as was sought to be done)      s. 25B  (5) with  order 37,  r. 3  of the Code of Civil      Procedure.  The   social  setting   demanding   summary      proceeding, the nature of the subject-matter and, above      all,   the   legislative   diction   which   has   been      deliberately designed, differ in the two provisions The      legal ambit  and judicial  discretion are  wider in the      latter while,  in the  former with which we are concern      ed, the  scope for  opening  the  door  to  defence  is      narrowed  down   by  the   strict   words   used.   The      Controller’s power  to give leave to contest is cribbed      by the  condition that  the  ’affidavit  filed  by  the      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      cl. (e)  of the proviso to sub-s. (1) of s. 14 or under      s. 14A.  Disclosure of  facts which disentitle recovery      of possession is a sine qua non for grant of leave. Are      there facts disentitling the invocation of s. 14A ?" 520 It is  not clear  from the  decision whether this Court took note of whole of the re-structured rule 3 of order XXXVII or it was keeping in view the unamended rule 3 of order XXXVII. Neither is  quoted, none  is referred to and it is not clear whether a  note of  amendment of 1976 was taken. That apart, compare the  language of  both the provisions as hereinabove indicated. The  two provisos to sub-rule (5) of r. 3 make it clear that  the leave cannot be refused if the defendant has a substantial  defence to  make or that the defence intended to be  put up is neither frivolous or vexatious. Defence has to be  substantial before  leave can be obtained. Compare it with expression  ’affidavit discloses  such facts  as  would disentitle the  landlord, etc.’.  It  is  not  difficult  to ascertain where  obligatory duty is cast. Mere disclosure of facts, not  a substantial  defence  is  the  sine  qua  non. Further, the  Court can  grant conditional  leave  or  leave limited to  the issue  under order XXXVII, r. 3(5). There is no such  power conferred  on the Controller under sub-s. (S) of s.  25B. Coming to the social setting referred to by this Court, one  must  not  overlook  the  fact  that  a  summary procedure can as well be prescribed for all suits to satisfy the felt  needs of  time referable to highly congested Court dockets. There is no evangelical sanctity in speeding up the actions against  tenants alone.  The landlord  at one  stage lets  out  the  premises  with  the  knowledge  that  it  is difficult  to   evict  tenant  and  obtain  possession  and, therefore, would reasonably be expected to foresee that even if he  has some  future need he will not get back possession and  yet   after  letting  out  premises  in  a  short  time approaches the  Court on  the ground of personal requirement and the  tenant may not get even a chance to defend himself. Social setting  is, therefore, in favour of tenant. However, referring to  this decision  a Full  Bench of the Delhi High Court in Mohan Lal v. Tirath Ram Chopra & Anr., (1) observed that the scope for granting leave under sub-s. (5) of s. 25B is narrower than the one under order XXXVII, rule 3, Code of Civil Procedure.  We do not accept the interpretation of the observations of  this Court  in Busching  Schmitz’s case  as understood by the Delhi High Court.      At this  stage we  may also refer with advantage to the

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decision of  this Court  in B.N. Mutta & Anr. v. T.K. Nandi. (2) In  this case  a petition  under s.  14A(1) of the Delhi Rent Control Act was filed 521 for eviction  of the  tenant on the ground that the landlord has retired  from Government  service and he has been called upon  to   vacate  the  Government  premises  which  he  was occupying  by  virtue  of  his  office.  The  only  relevant observation to  which our attention was drawn reads as under :           "Leave to  contest an  application  under  section      14(1) cannot  be said to be analogous to the provisions      of grant  of leave  to defend as envisaged in the Civil      Procedure Code.  Order XXXVII,  rule 2, sub rule (3) of      the Code of Civil Procedure provides that the defendant      shall not  appear or  defend the suit unless he obtains      leave from a Judge as hereinafter provided so to appear      and defend. Sub-rule (1) of rule 3 of Order XXXVII lays      down  the   procedure  to   obtain  leave.   Under  the      provisions leave to appear and defend the suit is to be      given if  the affidavit  discloses such  facts as would      make incumbent  on the holder to prove consideration or      such other  facts as  the court  may deem sufficient to      support the  application. The  scope of section 25B (5)      is very  restricted for  leave to  contest can  only be      given if  the facts  are such  as would  disentitle the      landlord  from  obtaining  an  order  for  recovery  of      possession on the ground specified in section 14 A." With respect,  the fact  that an  obligatory duty is cast on the Controller  to grant leave on disclosure of facts in the affidavit  as   would  disentitle  the  landlord  to  obtain possession itself  specifies and defines the scope and ambit of jurisdiction  and power  of the Controller. Assuming that Order  XXXVII,   sub-rule  (5)   of  rule  3  confers  wider discretion on  the Court  that by mere comparison cannot cut down or  narrow or  limit the  power coupled  with the  duty conferred on  the Controller  under sub-sec.  (5) of s. 25B. Mere disclosure  of facts  which when  proved in  a  regular trial which  would disentitle the landlord to obtain relief, such disclosure  only impels  the Controller to grant leave. It is  not necessary  to record  as required by Order XXXVII Rule 5  whether the  defence is  substantial or frivolous as vexatious. We  find it  difficult to  subscribe to  the view that the jurisdiction under sec. 25B (5) is very limited.      We may  as well  now refer  to Sarwan  Singh &  Anr. v. Kasturi Lal (1) of course, the question substantially raised in that case was 522 about the  apparent conflict between Slum Areas (Improvement and Clearance)  Act, 1956  and ss.  14A, 25 and 25B of Delhi Rent Control  Act, 1958.  What is  the scope  and  ambit  of jurisdiction of  the Controller under sub-sec. (5) of s. 25B did not  come  up  for  consideration.  What  was,  however, pointed out  was that  s. 25B  provides for  a procedure  to effectuate the  purpose underlying  s. 14A  and s. 14(1) (e) which enables the landlords to recover, immediate possession of the  premises’. Expostulating  the philosophy  underlying this provision this Court observed as under :           "Whatever be  the merits  of that  philosophy, the      theory is  that an allottee from the Central Government      or a  legal authority  should not  be at  the mercy  of      law’s delays while being faced with instant eviction by      his landlord  save on  payment of  what in  practice is      penal rent.  Faced with  a Hobson’s choice, to quit the      official residence  or pay  the market rent for it, the

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    allottee had  in  turn  to  be  afforded  a  quick  and      expeditious remedy  against his  own tenant.  With that      end in  view it was provided that nothing, not even the      slum clearance  Act, shall  stand in  the  way  of  the      allottee from  evicting his  tenant by resorting to the      summary  procedure  prescribed  by  Chapter  IIIA.  The      tenant is  even deprived  of the  elementary right of a      defendant to  defend a  proceeding brought against him,      save on  obtaining leave of the Rent Controller. If the      leave is  refused, by  s. 25B (4) the statement made by      the landlord  in the  application for eviction shall be      deemed to be admitted by the tenant and the landlord is      entitled to  an order for eviction. No appeal or second      appeal lies  against that  order. Section 25B(8) denies      that right  and provides  instead for a revision to the      High Court whose jurisdiction is limited to finding out      whether the order complained of is according to law." This observation  is in the context of a proceeding under s. 14A where  a landlord on ceasing to be in Government service is likely  to be  on the road. It ill-compares with s. 14(1) (e). But  apart from  that, this  decision  is  not  helpful because the  question did  not arise  in that case about the scope and  ambit of  s. 25B(5).  Undoubtedly,  as  has  been stated in  the decision,  the  object  and  purpose  of  the legislation assumes greater relevance while interpreting the language of  the statute.  The provision  under construction finds its place in 523 the Delhi  Rent Control  Act, 1958. Its long title shows the object underlying  the legislation.  The long  title is: ’An Act to  provide for  control of rents and eviction and rates of hotels  lodging  houses  and  for  the  lease  of  vacant premises  to  Government  in  certain  areas  in  the  Union Territory of Delhi’. The underlying object is to provide for control of  eviction. This  must inform every interpretative process including  the provision  contained in s. 25B(5). By construction of s. 25B(5) let us not return to the days when under the  Transfer of  Property Act  except in  the case of fixed period of tenancy the tenant at will had no defence to offer and  could be thrown out at the mere whim and fancy of the landlord.  When leave to contest the petition is refused the uninvestigated  averments in  the petition are deemed to be of  such great evidentiary value as to result in eviction without the  examination of  those averments. The outcome of refusal to  grant leave  must  stare  into  the  face  while deciding the  scope of  the power  and jurisdiction under s. 25B(5).      In passing  we may refer to two decisions of this Court in CA. 179/82 (Charan Dass Duggal v. Brahma Nand, decided on January 11,  1982) and CA. 527/82 (Om Parkash Saluja v. Smt. Saraswati Devi,  decided on February 8, 1982). We would have avoided any  reference to  these two  decisions because  the decision in  each case was rendered on the facts of the case but the Full Bench of the Delhi High Court referred to these two decisions and observed that the ratio in each of it runs counter to  the large  Bench  decisions  of  this  Court  in Busching Schmitz  and B.N.  Mutto’s cases  and that  the two earlier decisions provided the law of the land under Article 141 of  the  Constitution.  We  fail  to  see  any  inherent conflict between  the aforementioned  two earlier  decisions and the  two later decisions. The earlier two decisions have been fully  discussed by us and we find nothing in the later two decisions which may even remotely be said to run counter to the ratio of the earlier decisions.      It is  indisputable that  while examining the affidavit

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of the  tenant filed  under s.  25B (4)  for the  purpose of granting or  refusing to grant leave to contest the petition the landlord  who has  initiated the action has to be heard. It would  follow as  a necessary corollary that the landlord may controvert  the averments  made in  the affidavit of the tenant but  the decision  to grant  or refuse  leave must be based on  the facts  disclosed in the affidavit. If they are controverted by  the landlord that fact may be borne in mind but if the facts dis- 524 closed in  the affidavit  of the tenant are contested by way of proof  or disproof  or producing  evidence in the form of other affidavits or documents that would not be permissible. It is not the stage of proof of facts, it is only a stage of disclosure of  facts.  Undoubtedly,  the  rules  of  natural justice apart  from the  adversary  system  we  follow  must permit the landlord to contest affidavit filed by the tenant and he  can do so by controverting the same by an affidavit. That  would  be  an  affidavit  in  reply  because  tenant’s affidavit  is   the  main  affidavit  being  treated  as  an application seeking  leave to contest the petition. But, the matter should  end there.  Any attempt  at investigating the facts whether  they appear  to be  proved  or  disproved  is beyond the  scope of  sub-s. (5) of s. 25B. Viewed from this angle the  decision in Mohan Lal’s case rendered by the Full Bench of  the Delhi  High Court  is far  in  excess  of  the requirement of  s. 25B  (5) and  the view taken therein does not commend to us.      It  was,  however,  urged  that  s.  37  (1)  makes  it obligatory for  the Controller to not only hear the landlord but examine evidence at the stage of granting or refusing to grant leave  to contest.  Section 37  (1) provides  that  no order which  prejudicially affects  any person shall be made by the  Controller  under  the  Act  without  giving  him  a reasonable opportunity  of showing  cause against  the order proposed to  be made  and until  his objections, if any, and evidence he  may produce  in support  of the  same have been considered by  the Controller.  Sub-section  (2)  of  s.  37 provides that  subject to  any rules  that may be made under the Act,  the Controller  shall, while holding an inquiry in any proceeding  before him,  follow as  far as  may  be  the practice and procedure of a Court of Small Causes, including the  recording   of  evidence.  Section  37  (1)  prescribes procedure to  be followed  by the Controller in a proceeding under the  Act and sub-s. (2) makes it clear that subject to the rules  that may  be made under the Act, the Court has to follow the  practice and  procedure of  the Court  of  Small Causes inclusive of the provision for recording of evidence. However, in this context it is advantageous to refer to sub- s. (7) of s. 25B. It reads as under :           "25B (7).  Notwithstanding anything  contained  in      sub-section (2)  of section  37, the  Controller shall,      while holding  an inquiry in a proceeding to which this      Chapter applies, follow the practice and procedure of a      Court of  Small  Causes,  including  the  recording  of      evidence." 525 Sub-section (7)  of s.  25B opens with a non-obstante clause and provides  that while  holding an inquiry in a proceeding to which  the Chapter  IIIA applies,  the Controller  has to follow the practice and procedure of a Court of Small Causes including the  recording of evidence. Section 25B (1) leaves no room  for doubt that it is a self contained code and that is why sub-s. (7) had to open with a non-obstante clause. It is crystal  clear  that  while  holding  the  inquiry  under

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Chapter IIIA  which incorporates  s. 25B,  the Court  has to follow the  practice and  procedure  of  a  Court  of  Small Causes. It  was, however,  submitted that  the  non-obstante clause excludes  the application  of sub-s. (2) of s. 37 and not sub-s.  (1) of  s. 37  and,  therefore,  when  leave  to contest is  sought by  the tenant  not only the landlord can contest the  same which  is indisputable  but the  Conroller will have  to follow  the procedure prescribed in s. 37 (1), namely, inviting  the objections, taking into consideration, the evidence  that may  be produced,  etc. If  s. 37  (1) is attracted and  the evidence  has  to  be  produced  and  the Controller   is   bound   to   take   that   evidence   into consideration, the  evidence can  as well  be oral  evidence which necessitates  the examination and cross-examination of witnesses.  If   that  is   contemplated  by   s.  37   (1), incorporating it  in s.  25B would be self-defeating. On the contrary even  the exclusion  of s.  37 (1) will necessarily follow from the provision contained in sub-s. (10) of s. 25B which reads as under :           "25 (10).  Save  as  otherwise  provided  in  this      Chapter,  the   procedure  for   the  disposal   of  an      application for  eviction on  the ground  specified  in      clause (e) of the proviso to sub-section (1) of section      14, or  under section  14A, shall  be the  same as  the      procedure  for   the  disposal   of   applications   by      Controllers." It would  appear at  a glance  that sub-s.  (10) operates to bring in  s. 37  (1) after  leave  to  contest  is  granted. However, if  there is  any provision  in s.  25B for dealing with an  application under  that section  that would prevail over other  provisions of  the  Act.  While  considering  an application amongst others under s.14 (1) proviso (e), if at the time  of considering  the application for granting leave the procedure  under s.37  (1) is  to be  followed it  would render sub-s.  (10) superfluous  and redundant. If s. 37 (1) were to govern all proceedings including the application for leave to contest the proceedings, sub-s. (7) and sub-s. (10) would both be rendered 526 redundant. On  the contrary  the very  fact that  sub-s. (7) provides that  while considering the affidavit of the tenant seeking permission  to contest  the proceedings the practice and procedure  of the  Small Causes  Court will  have to  be followed  itself  indicates  the  legislative  intention  of treating  Chapter   IIIA  and  especially  s.  25B  as  self contained code  and this  conclusion is  buttressed  by  the provision  of   sub-s.  (1)   which  provides   that   every application by  landlord for  recovery of  possession of any premises on  the ground  specified  in  clause  (e)  of  the proviso to  sub-s. (1)  of s.  14 shall  be  dealt  with  in accordance with the procedure specified in s. 25B. Any other section prescribing  procedure for  disposal of  application covered by  sub-s. 1  of s.  25B will  be excluded. And that will also  exclude s.  37 (1). The stage for considering the application for leave to contest the petition is anterior to the stage  of hearing  the substantive petition for eviction and the  procedure for  the disposal is prescribed in sub-s. (7). After  grant of  leave to contest sub-s. (10) of s. 25B comes into  operation and  it makes it abundantly clear that the procedure prescribed while holding an inquiry consequent upon the  granting of  leave to contest shall be the same as required to  be followed by Controller. This directly points in the direction of s. 37 (1). Therefore it is crystal clear that s.  37 (1) is not attracted at the stage of considering an application  for leave  to contest filed under sub-s. (4)

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and examined under rule Sub-s. (5) of s. 25B.      Before  concluding  on  this  point  conceding  that  a summary procedure  has been  devised so that the bane of law courts and legal procedure as at present in vogue manifestly showing regard for the truth being the last item on the list of  priorities   and,  therefore,   the  tenant  should  not necessarily be permitted to prolong the litigation and cause hardship to  the landlord  who is  seeking possession on the ground of  personal requirement  by  raising  untenable  and frivolous defence  where speedy decision is desirable in the interest of  society,  does  not  imply  that  ignoring  the mandate of  law, the Controller should hold trial at a stage not prescribed  by the  statute. Inability  to make  good  a defence does  not render  every defence  either frivolous or vexatious. In  a civil  proceeding the  courts decide on the preponderance of  probabilities and  it may  be  that  while evaluating the  evidence the  Court may  lean one way or the other but  the one  rejected  does  not  necessarily  become vexatious or  frivolous. The  last two are positive concepts and have  to be  specifically found  and it  is not  an  end product of  failure to  offer convincing  proof because some times a  party may  fail to prove the fact because the other side 527 can so doctor or articulate the facts that the proof may not be easily  available. Coupled with this is the fact that the justice delivery  system  in  this  country  worshipped  and ardently  eulogised   is  an   adversary  system  the  basic postulate of  which was  noticed by  this Court  in  Sangram Singh v. Election Tribunal, Kotah & Anr.(1) as under :           "Now a code of procedure must be regarded as such.      It  is  procedure,  something  designed  to  facilitate      justice and further its ends; not a penal enactment for      punishment and  penalties, not a thing designed to trip      people up.  Too technical  a construction  of  sections      that  leaves  no  room  for  reasonable  elasticity  of      interpretation  should  therefore  be  guarded  against      (provided always  that justice  is done  on both sides)      lest the  very means  designed for  the furtherance  of      justice be  used to  frustrate it.  Next, there must be      ever present  to the  mind the  fact that  our laws  of      procedure  are  grounded  on  a  principle  of  natural      justice which requires that men should not be condemned      unheard, that  decisions should  not be  reached behind      their backs,  that proceedings  that affect their lives      and property  should not  continue in their absence and      that they should not be precluded from participating in      them. Of  course, there  must be  exceptions and  where      they are  clearly defined they must be given effect to.      But taken  by and  large, and  subject to that proviso,      our laws  of procedure  should be  construed,  wherever      that is  reasonably possible,  in  the  light  of  that      principle." Add to  this the harshness of the procedure prescribed under section 25B.  The Controller  is the final arbiter of facts. Once leave  is refused,  no appeal  is provided  against the order refusing leave (see sub-section (8) of section 25B). A revision petition  may  be  filed  to  the  High  Court  but realistically no  one should  be in  doubt about  the narrow constricted jurisdiction of the High Court while interfering with  findings   of  facts   in   exercise   of   revisional jurisdiction. Compared to the normal procedure certainly the procedure is  a harsh  one and that considerably adds to the responsibility of the Controller at the time of deciding the application for  leave  to  contest  the  petition.  Wisdom,

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sagacity and the consequence of 528 refusal to grant leave coupled with limited scope of enquiry being confined to facts disclosed in affidavit of the tenant should guide the approach of the Controller.      Since Sangram  Singh the  ever widening horizon of fair procedure while rendering administrative decision as set out in Maneka  Gandhi should  guide the  approach of  the  Court while examining  the encroachment,  fetters and restrictions in the  procedure normally  followed in Courts. Speedy trial is the  demand of  the day but in the name of speedy trial a landlord whose  right of  re-entry was sought to be fettered by a  welfare legislation  with its  social  orientation  in favour of a class of people unable to have its own roof over the head-the tenant should not be exposed to the vagaries of augmenting that  right which  even when Rent Restriction Act was not in force had to be enforced through the machinery of law with normal trial and appeal.      What  then  follows.  The  Controller  has  to  confine himself  indisputably   to  the   condition  prescribed  for exercise of  jurisdiction in sub-section (5) of section 25B. In other  words, he  must confine  himself to  the affidavit filed by  the tenant. If the affidavit discloses such facts- no proof  is needed at the stage, which would disentitle the plaintiff from  seeking possession,  the mere  disclosure of such facts  must be  held sufficient to grant ’leave because the statute  says on disclosure of such facts the Controller shall grant  leave’. It  is difficult to be exhaustive as to what such  facts could  be but  ordinarily when an action is brought under  section 14(1)  proviso (e) of the Act whereby the landlord  seeks to  recover possession  on the ground of bona fide  personal requirement  if the  tenant alleges such facts as  that the  landlord has  other accommodation in his possession;  that   the  landlord   has  in  his  possession accommodation which  is sufficient for him; that the conduct of the  landlord discloses  avarice for  increasing rent  by threatening eviction; that the landlord has been letting out some other  premises at enhanced rent without any attempt at occupying the  same  or  using  it  for  himself;  that  the dependents of the landlord for whose benefit also possession is sought are not persons to whom in eye of law the landlord was bound to provide accommodation; that the past conduct of the landlord  is such  as would disentitle him to the relief of possession;  that the  landlord who claims possession for his personal requirement has not cared to approach the Court in 529 person  though   he  could   have  without   the   slightest inconvenience approached  in  person  and  with  a  view  to shielding   himself    from   cross-examination   prosecutes litigation through  an agent  called a constituted attorney. These and  several other  relevant but  inexhaustible  facts when disclosed  should ordinarily be deemed to be sufficient to grant leave. And now to the facts of this case. Really no elaborate discussion  is necessary but what is stated herein is with  a view to pointing out with respect how contrary to well established  principles and  the mandatory requirements of the  statute the  learned Controller  and the  High Court dealt with the matter. The learned Controller in para two of the judgment  set out  five different defences raised by the tenant  in  his  affidavit  seeking  leave  to  contest  the petition. The  learned Controller  then proceeded to note in para 3  of the  order that  the petitioner  filed a counter- affidavit and  also filed  the sale deed of the house at 32, Anand Lok  and further stated that the landlord has only one

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house of  his ownership and that is the demised premises. In summarising the  contentions raised  by the  tenant  in  his affidavit  the   learned  Controller   overlooked  two  most important contentions: (1) that though the landlord Niranjan Deva Tayal for whose benefit the petition was filed has been in Delhi  since 1972  yet the leave and license agreement in favour of  the tenant  was renewed  in 1972  and 1973  which would mean  that even  though Niranjan  Deva Tayal, the real landlord whose  proxy is  Prem Deva  Tayal, the  constituted attorney, did  not seek possession but renewed the so called leave and  license agreement  which would  necessarily imply that he was not in need of the premises and that he has some accommodation  in   his  occupation   which   he   considers sufficient and  could occupy it as of right. If that was not to be  he should  have so  stated in  the petition.  But the glaring lacuna  in summarising  the contentions  made by the learned  Controller   is  that  the  tenant  stated  in  his affidavit that  an identical unit at the back of the demised premises fell  vacant in  1973 when  M/s.  Kirloskar  &  Co. vacated the  same and  the same  was let  out  to  the  Food Corporation  of   India  at   enhanced  rent.   The  learned Controller did  not note  the fact  that  a  notice  seeking eviction was  served in 1974 and that too on the ground that Niranjan Deva  Tayal requires  the premises for his personal occupation because  he bona  fide needs  the same and yet no follow up  action was taken till 1979 when on June 22, 1979, a second  notice of  eviction was  served. If  in a  regular trial these  facts are  proved, is there any doubt about the outcome of the petition? There was the further 530 averment of  which proper summary is not made that even Food Corporation of India appears to have vacated the premises at the back  of  the  demised  premises  and  the  same  is  in occupation of  M/s. Coronation  Spinning (India)  and it  is admitted that  the same  were let out up to and inclusive of the year  1981. The  averment is  that every  time  a  fresh letting is  indulged into it is done after raising the rent. Could not  the bona  fide of  the landlord  on disclosure of these facts  be put  in issue? Surprisingly, contrary to the provision of  law the  learned Controller took the affidavit and counter-affidavit  and reply  affidavit as  unquestioned evidence and  proceeded to  decide all disputed questions of fact. Is  this at  all contemplated  by section 25B? If not, the whole  order would be without jurisdiction. But the more objectionable part  overlooked by  him is  that the landlord who seeks  possession for himself and is admittedly in Delhi has not  stated a single word on oath about his requirements as to in what right he is occupying the premises in which he is at  present staying,  why after  nearly seven years he is required to  vacate  the  same  and  what  necessitates  his seeking possession  of the front portion when identical unit at the  back fell  vacant thrice  during the  period he  was permanently  in   Delhi.  If  these  facts  without  further elaboration disclosed  in affidavit  of the  tenant are  not sufficient to grant leave, we would find it difficult to see a single  case in  which leave  could ever  be granted which would mean  that the landlord fortunately having premises in Delhi where rents are fantastically high can hold tenants at ransom on  the threat  of eviction on the ground of personal requirement and  on refusal  of leave  obtain possession. We say no more.      We  then  turn  to  the  judgment  of  the  High  Court rejecting the  revision petition  filed by  the tenant.  The learned Chief  Justice first examined the contention whether the demised  premises were  let for  residence-cum-business.

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While examining the contention, Clause 6 of the Licence Deed was referred  to which inter alia provides that the licensee will however  be free to use the said premises in part or in full also  for office  purposes provided  the rules  of  the local authorities  so  permit  and  in  such  an  event  the licencees shall  pay to  the owners  any increase  in  local taxes etc.  Occasioned by  such change  of use  of the  said premises from  residence to office. The contention raised in the petition of the tenant is that the premises were let for residence-cum-business. The landlord has camouflaged license for lease  but it  is admitted  on all  sides and  it is  so stated in the petition filed before the 531 Controller by  the constituted attorney of the landlord that the respondent  was accepted  as a tenant on monthly rent of Rs 2,000/-.  It is  nowhere examined by the High Court as to when the  license was  terminated as alleged by the landlord in the petition and a contract of lease was entered into and what were  the terms of the lease. The learned Chief Justice observed: ’a  plain reading  of the  clause, spells  out the sole  purpose   of  letting   being  residence’   and   this observation is  made in  the shape  of the positive finding. Since the  entry in  the premises  the tenant has been using part of  the premises  for  office  with  the  specific  and undisputed permission  of landlord  and this fact is gloated over. Whether the rules permit such a use; whether there was such rule  prohibiting such  use, is  a matter  left  to  be inferred by  a statement that no rule or bye-law was brought to the notice of the Court that such an use was permissible. If the  landlord entered into a contract of lease permitting non-residential use  and yet  if it is pleaded that such use can be  made if  the rules  of the local authority permitted it, ordinarily  one would  expect the  landlord to show that such use  was impermissible.  There is  no finding  to  that effect.      The Learned Chief Justice then proceeded to examine the second contention,  whether the  landlord Shri Niranjan Deva Tayal as  Manager of  the Hindu  Undivided Family  has other suitable accommodation  at 32,  Anand Lok.  The  High  Court disposed of the contention by an observation which be speaks of  non-examination   of  contention   assuming  that   such examination at  that stage  was permissible.  The High Court observed that  the learned  Controller rightly  came to  the conclusion that  the premises  belong not  to the respondent but to  his brother.  This approach  is  wholly  unjustified because the  question was  not whether  Shri  Niranjan  Deva Tayal for  whose benefit possession was sought was the owner of  the  premises  occupied  by  him  and  situated  at  32, Anandlok, but  the substantial question was in what right he was occupying  the premises  for a  period extending  over 7 years on  the  date  of  the  petition  before  the  learned Controller and  how it  has become  imperative  for  him  to vacate the  premises. No examination of the relevant aspects appeared to  have been  undertaken and the revision petition was dismissed.  With great  respect  to  the  learned  Chief Justice,  if   such  an   approach  is  to  be  upheld,  the legislative  purpose   in  enacting   the  Rent  Act  stands defeated.  Therefore  it  is  not  possible  to  accept  the conclusion recorded by the High Court, both 532 on account  of non-examination  of the  relevant contentions and also  on account of utterly incorrect approach as to how the matter  has to  be examined  at the stage of granting or refusing to grant leave under sub-section 5 of section 25B.      We accordingly  allow this  appeal, set-aside the order

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of the  learned Controller  as well as of the High Court and grant to  the tenant  leave  to  contest  the  petition  for eviction and  remit the  cases to the learned Controller for proceeding according to law.      As Mr.  D.V.  Patel.  learned  counsel  almost  at  the commencement of  the hearing  fairly conceded that this is a case in  which leave  to contest  the petition ought to have been  granted   and  therefore  even  though  we  allow  the petition, we  cannot saddle  the  landlord  with  costs.  We accordingly direct  the parties  to  bear  their  own  costs throughout the  proceedings.  Costs  of  future  proceedings shall abide the final outcome of the petition.      As we  are remitting the case to the learned Controller where facts  on trial are to be investigated any observation on the  merits of the contentions made for disposing of this appeal  have   to  be   wholly  ignored  in  the  subsequent proceedings as if they have never been made.      SEN, J.  I agree  that this pre-eminently is a fit case where leave  to contest  the application under s. 14 (1) (e) must be  granted to the tenant under sub-s. (5) of s. 25B of the Delhi  Rent Control  (Amendment) Act,  1958  (’Act’  for short), but  I  have  the  misfortune  to  differ  from  the construction placed  upon the provisions contained in sub-s. (5) of s. 25B of the Act.      Sub-s. (5) of s. 25B of the Act reads as follows:           "The Controller  shall give to the tenant leave to      contest the  application if  the affidavit filed by the      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." 533      There is a definite public purpose behind the enactment of  Chapter  IIIA  introduced  by  the  Delhi  Rent  Control (Amendment) Act,  1976. The words "if the affidavit filed by the 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 cl. (e) of  the proviso  to sub-s. (1) of s. 14 or under s. 14A" used in  sub-s. (5)  of s.  25B are  to be  interpreted in a manner which  is in  consonance with  the intention  of  the Legislature and  must be  construed in  a sense  which would carry  out   the  object   and  purpose   of  the  Act.  The construction  to   be  adopted   must  be   meaningful   and innovative. A  mechanical and  literal construction of these words detached  from the  context of the other provisions as also the  object and  purpose of  the enactment  will reduce this beneficial legislation to futility.      S. 14A  of the  Act was  enacted to confer the right to recover immediate  possession, upon  persons  who  being  in occupation of  any residential  premises allotted to them by the  Central   Government  or   any  local  authority,  were required, in  pursuance of any general or special order made by that  Government or  authority to vacate such residential accommodation, or  in default, to incur the liability to pay penal rent.  The whole  object in  s. 14A was to ensure that all Government  servants to  whom residential  accommodation had been  allotted by the Government or any local authority, should vacate  their Government  accommodation, if they have any house of their own in the Union Territory of Delhi.      Further, experience  in the  past showed that landlords who were in bona fide requirement of their accommodation for residential purposes  under cl. (e) of the proviso to sub-s. (1) of  s. 14  were being  put to  great hardship due to the

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dilatory procedure  of the  suit. It  was felt in the public interest  that   such  landlords   who  were  in  bona  fide requirement of  their residential  premises  for  their  own occupation or  for the  occupation of  any member  of  their family  dependent  on  them,  should  not  be  subjected  to protracted trial  of a civil suit with concomitant rights of appeals.      The underlying  object behind  the enactment of Chapter IIIA was that these classes of landlords i.e. a landlord who was in bona fide requirement of his residential premises for his own  occupation or  for the  occupation of any member of his family dependent on 534 him under  cl. (e) of the proviso to sub-s. (1) of s. 14, or a landlord seeking to enforce the right to recover immediate possession under  s. 14A  of the  Act, should  not be at the marcy  of  law’s  delays  but  there  should  be  quick  and expeditious remedy against his own tenant.      Apart from  conferring rights  under s.  14A to recover immediate possession,  a  summary  procedure  for  trial  of applications made  under s. 14 (1) (e), or under s. 14A, was provided for  by Chapter  IIIA. S.  25A  provides  that  the provisions of  Chapter IIIA  which contains ss. 25A, 25B and 25C  and   any  rule   made  thereunder  shall  have  effect "notwithstanding anything  inconsistent therewith  contained elsewhere in  the Act  or in  any law  for the time being in force." By  sub-s. (1)  of s.  25B, every  application by  a landlord for  recovery of  possession of any premises on the ground specified  in cl. (e) of the proviso to sub-s. (1) of s. 14,  or under  s. 14A, has to be dealt with in accordance with the  procedure specified in Chapter IIIA. The conferral of the right to recover immediate possession under s. 14A on a person  in occupation of any residential premises allotted by  the   Central  Government   or   any   local   authority necessitated a  consequential change  in  the  law.  Such  a person, before  the enactment of s. 14A, could not evict his own tenant  because so  long as  he was in occupation of the residential accommodation  allotted to  him,  he  could  not satisfy the  requirement of cl. (e) of the proviso to sub-s. (1) of  s. 14  that he  should not have any other reasonably suitable accommodation.  In order  that the object of s. 14A may  not   be  frustrated,  s.  25C  provides  that  nothing contained in  sub-s (6)  of s.  14 shall apply to a landlord who is  in occupation of any premises allotted to him by the Central Government  or any  local authority  is required  to vacate that  residential accommodation.  There  was  also  a similar change  brought about  with respect  to a claim by a landlord under  cl. (e)  of the  proviso to sub-s. (1) of s. 14. Sub-s.  (7) of  s. 14  provides that  where an order for recovery of  possession is  made on  the ground specified in cl. (e)  of the proviso to sub-s. (1) of s. 14, the landlord shall not be entitled to obtain immediate possession thereof before the  expiration of  a period  of six  months from the date of  the order.  Sub-s. (2) of s. 25C reduces the period of six months to two months.      One of  the dominant objects with which the legislation was introduced was to mitigate the hardship of landlords who were in  bona fide requirement of their residential premises and had made an 535 application for  eviction under  s. 14  (1) (e), or under s. 14A, and  to obtain  immediate possession  of such  premises without well-known  travails of  our  procedural  laws.  The whole object  was to  confine the  trial only  to such cases where the  tenant had such a defence as would disentitle the

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landlord from  obtaining an  order for  eviction under s. 14 (1) (e),  or under  s. 14A,  and to  provide for  a  summary procedure of  trial of trial of such applications. The words "if the  affidavit filed by the tenant discloses such facts" used in  sub-s. (5) of s. 25B of the Act must therefore take their colour from the context in which they appear.      It is to mitigate the rigour of the law that Parliament in its  wisdom introduced  Chapter IIIA and made the summary procedure applicable  to the  trial of applications under s. 14 (1)  (e), or  under s.  14A. It seeks to strike a balance between the competing needs of a landlord and tenant and has therefore provided  that the  tenant shall  have a  right to apply for  leave to  contest. Sub-s.  (4) of s. 25B provides that the  tenant shall  not contest  the prayer  of eviction from the  premises unless  he has filed an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller. Under sub-s. (5) of s. 25B, the Controller is enjoined to give the tenant leave to contest the application only if the affidavit filed by the  tenant discloses  such facts  as would  disentitle a landlord  from  obtaining  an  order  for  the  recovery  of possession of  the premises  on the  ground specified in cl. (e) of  the proviso  to sub-s. (1) of s. 14, or under s. 13, or under s. 14A.      In Sarwan  Singh & Anr. v. Kasturi Lal,(1) Chandrachud, J. (as  he then was) after stating that the object of s. 14A was to  confer on  a class of landlords the right to recover "immediate possession of the premises" observes :           "Whatever be  the merits  of that  philosophy, the      theory is  that an allottee from the Central Government      or a  local authority  should not  be at  the mercy  of      law’s delays while being faced with instant eviction by      his landlord  save on  payment of  what in  practice is      penal rent.  Faced with  a Hobson’s choice, to quit the      official residence  or pay  the market rent for it, the      allottee had  in  turn  to  be  afforded  a  quick  and      expeditious remedy against his own tenant. 536      With that end in view it was provided that nothing, not      even the  Slum Clearance Act, shall stand in the way of      the allottee  from evicting  his tenant by resorting to      the summary  procedure prescribed  by Chapter IIIA. The      tenant is  even deprived  of the  elementary right of a      defendant to  defend a  proceeding brought against him,      save on  obtaining leave of the Rent Controller. If the      leave is  refused, by  s. 25B (4) the statement made by      the landlord  in the  application for eviction shall be      deemed to be admitted by the tenant and the landlord is      entitled to  an order for eviction. No appeal or second      appeal lies  against that order. Section 25B (8) denies      that right  and provides  instead for a revision to the      High Court whose jurisdiction is limited to finding out      whether the order complained of is according to law." The provisions  of Chapter  IIIA have  been enacted with the object, in  the words of Chandrachud, J., "to confer a real, effective and  immediate right  on a  class of  landlords to obtain possession  of premises  let out  by  them  to  their tenants." The  same considerations  are  applicable  to  the disposal of  applications under  Cl. (e)  of the  proviso to sub-s.(1)  of   s.  14.   The  right  to  recover  immediate possession which  accrues under s. 14A of the Act is equated by Parliament  with the  landlord’s bona fide requirement of residential premises  for his  own  occupation  or  for  the occupation of  the members  of his family under s. 14(1)(e). Sub-s. (5)  of s.  25B governs  the  disposal  of  both  and

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therefore must  be interpreted  in a manner which will carry out the legislative mandate.      Under the  scheme of  the Act,  the grant or refusal of leave under  sub-s. (5)  of s.  25B of  the Act, is the most crucial stage of the proceedings initiated on an application for eviction  by the landlord under s. 14(1)(e), or under s. 14A, at which stage the Controller has to decide whether the application  should   proceed  to   trial.  The   Controller obviously cannot  come to  a decision  as to  whether or not leave to  contest should  be granted  under sub-s. (5) of s. 25B without  affording  the  parties  an  opportunity  of  a hearing. The  Controller is  not a  Court  but  he  has  the trappings of  a Court,  and he  must conform to the rules of natural justice.  It must  therefore follow  as a  necessary corollary that  the Controller  has the  duty  to  hear  the parties on the question whether leave to 537 contest should  or should not be granted under sub-s. (5) of s. 25B of the Act.      Once it is conceded that the landlord has a right to be heard on  the question  of grant  of leave  to contest under sub-s.  (5)   of  s.25B,  it  must  follow  as  a  necessary implication that  he has a right to refute the facts alleged by the  tenant in his affidavit filed under sub-s. (4) of s. 25B and to show that the affidavit filed under sub-s. (4) of s. 25B  by the  tenant does  not represent  true facts.  The Controller is  therefore  bound  to  give  the  landlord  an opportunity to  meet the allegations made by the tenant. The Controller must  apply his  mind not  only to  the averments made by  the landlord  in his  application for eviction, but also to the facts alleged by the tenant in his affidavit for leave to  contest as  well as  the facts  disclosed  by  the landlord in  his affidavit  in rejoinder,  besides the other material on  record i.e.  the documents filed by the parties in support  of their respective claims in order to come to a conclusion whether  the requirements of sub-s. (1) of s. 25B are fulfilled.  It is  difficult to  lay down  any  rule  of universal application  for each  case must depend on its own facts.  To  ask  the  Controller  to  confine  only  to  the affidavit filed by the tenant is to ask him not to apply his mind in  a judicial manner even if he feels that the justice of the  case so  demands. The  Controller must  endeavour to resolve the  competing claims  of landlord and tenant to the grant or  refusal of leave under sub-s. (5) of s. 25B of the Act, by  finding a  solution which  is just and fair to both the parties.      It is  not suggested  for a moment that the proceedings initiated  on  an  application  by  the  landlord  under  s. 14(1)(e), or under s. 14A, must undergo trial at two stages. Under sub-s.  (5) of s. 25B, the Controller must prima facie be satisfied  on a  perusal of the affidavits of the parties to the proceedings and the other material on record that the facts alleged by the tenant are such as would disentitle the landlord from  obtaining an order for recovery of possession of the  premises on  the ground  specified in Cl. (e) of the proviso to  sub-s. (1)  of s.  14, or under s. 14A. The word ’disentitle’ is  a strong  word, and  the Controller must be satisfied that the tenant has such a defence as would defeat the claim  of the  landlord under  Cl. (e) of the proviso of sub-s. (1)  of s. 14, or under s. 14A. It cannot be that the Controller would set down 538 the application for trial merely on perusal of the affidavit filed by  the  tenant  without  applying  his  mind  to  the pleadings of  the parties  and the material on record. If he

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finds that  the pleadings  are such as would entail a trial, then the  Controller must  grant the tenant leave to contest as the words "shall grant to the tenant leave to contest" in sub-s. (5) of s. 25B make the grant of leave obligatory.      It is  also necessary  to emphasize  that the  scope of sub-s. (5)  of s. 25B is restricted and the test of "triable issues" under  order XXXVII,  r. 3(5)  of the  Code of Civil Procedure, 1908  is not  applicable, as  the language of the two provisions  is different.  The use of the word ’such’ in sub-s. (5)  of s.  25B implies  that the  Controller has the power to  limit the grant of leave to a particular ground. A tenant may  take all  kinds of  pleas in  defence. The whole object of  sub-s. (5) of s. 25B was to prevent the taking of frivolous pleas  by tenants to protract the trial. Where the tenant seeks  leave to  contest the application for eviction under s.  14(1)(e),  or  under  s.  14A,  he  must  file  an affidavit under  sub-s. (4)  of s.  25B raising  his defence which must be clear, specific and positive. The defence must also be  bona fide and if true, must result in the dismissal of landlord’s  application. Defences  of negative  character which are  intended to  put the  landlord to  proof  or  are vague, or  are raised  mala  fide  only  to  gain  time  and protract the  proceedings, are  not of  the kind  which will entitle the tenant to the grant of the leave. The Controller cannot set  down the  application for hearing without making an order in terms of sub-s. (5) of s. 25B. The trial must be confined only  to  such  grounds  as  would  disentitle  the landlord to  any relief.  Such an  order for  the  grant  or refusal of leave to contest under sub-s. (5) of s. 25 of the Act cannot  be made  without affording  to  the  parties  an opportunity of  a hearing  which, as  we all  know, does not only mean  the right  to address  the  Controller  but  also consideration of  the material placed before him by both the parties.      I would  therefore, for my part, refrain from placing a literal and  mechanical construction of sub-s. (5) of s. 25B of the  Act as  it conflicts with the essential requirements of fair play and natural justice which the Legislature never intended to  throw overboard. In my view, the landlord has a right to be afforded an opportunity 539 to meet  the allegations made by the tenant in the affidavit for leave  to contest  and filed  under sub-s. (4) of s. 25B and there  is a corresponding duty imposed on the Controller to hear  the parties  on the  question  whether  such  leave should or should not be granted under sub-s. (5) thereof and apply his  mind to  the pleadings  of the  parties  and  the material on record. H.L.C.                                       Appeal allowed. 540