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CASE NO.: Appeal (civil) 2866  of  2001

PETITIONER: MANOJ KUMAR

       Vs.

RESPONDENT: BIHARI LAL (DEAD) BY LRS.

DATE OF JUDGMENT:       18/04/2001

BENCH: D.P. Mohapatra & Shivaraj V. Patil

JUDGMENT:

D.P. MOHAPATRA, J

Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  core question that arises for determination in this case  is  whether the Additional Rent Controller, Delhi,  in the  facts  and  circumstances  of the case,  was  right  in refusing  leave  to  contest the prayer of eviction  to  the appellant.   The  parties  are related to each  other.   The appellant  is  the  nephew of the respondent.   The  dispute relates  to  the  property No.5A/11004, Gali No.7,  WEA  Sat Nagar,  Karol Bagh, Delhi, which is a residential  premises. The  proceedings before the Rent Controller was initiated on the  application  filed  by  the  respondent  under  Section 14(1)(e)  of  the Delhi Rent Control Act, 1958 (  for  short the  Act) seeking eviction of the appellant on the  ground of  bona fide requirement of the landlord for occupation  by himself and his family members.  In the said proceeding, the appellant  filed  an application under Section 25(B) of  the Act  seeking leave to contest the prayer for eviction.   The application  filed by the appellant under Section 25(B)  was rejected  and  the  petition  filed by  the  respondent  for eviction  of the appellant was allowed vide the order  dated 20th  March, 1998 of the Additional Rent Controller,  Delhi. The operative portion of the order reads thus:

   In  view  of the above discussion and for  the  reasons given  therein,  I  am  of  the  considered  view  that  the respondent  has  failed to put forth any fact/triable  issue which require recording of evidence.  Therefore, application under section 25B(5) of DRC Act for grant of leave to defend is  dismissed.   Accordingly,  eviction order is  passed  in favour  of the petitioner and against the respondent qua the suit  premises  No.  5A/11004(Quarter No.167) Ground  Floor, Gali  No.7  WEA  Sat  Nagar,  Karol  Bagh,  New  Delhi  more specifically  shown in red colour in the site plan which  is now  Ex.C1.   However,  this order shall not  be  executable before  expiry of the period of six months from today.  File be consigned to RR.

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   The Revision Petition filed by the appellant against the said  order  was  dismissed by the High Court by  the  order dated  Ist  September, 1998.  The operative portion  of  the order is extracted hereinbelow:

   The pleas which have been raised by learned counsel for the petitioner are already being examined by Civil Court for which  the  petitioner  will  be  at  liberty  to  move  for appropriate  orders  of  stay or directions  in  respect  of alleged  dispute between the parties.  The respondent  shall be  at liberty to resist the same by taking out  proceedings in  accordance  with law.  The present petition, in view  of the above, is dismissed with the liberty as aforesaid.

Hence, this appeal.

   The case of the respondent as appears from the averments in  the eviction petition is that he is the landlord of  the premises  in  question and the appellant is his tenant.   An agreement  was entered between the parties on 1.11.1985  for sale  of the property by the respondent to the appellant for consideration  of  Rs.49,000/-,  out  of   which  a  sum  of Rs.45,000/-  was  paid by the latter to the former  as  part payment  of  consideration  and  the appellant  was  put  in possession  of  the property.  Subsequently,  it  transpired that  due  to  some difficulty the sale deed  could  not  be executed.   The  sum  received   towards  consideration  was returned  by  the respondent to the appellant.   Thereafter, the  appellant continued to occupy the premises as a  tenant w.e.f.   1.11.1993.   It  was  the   further  case  of   the respondent  that he required the premises for occupation  by himself  and members of his family and, therefore, an  order for eviction of the tenant may be passed.

   On receiving notice, the appellant filed the application under  Section 25(B) of the Act accompanied by an  affidavit in  which it was stated inter alia that on the face of  even admitted facts the case pertains to a dispute over ownership and  not  a  dispute  as regards landlord  and  tenant.   In paragraph  4  of the petition, it was  specifically  averred that  the  petitioner  (respondent herein) has not  put  the respondent  in possession as tenant but vide an agreement to sell after receiving full and final payment.  It was alleged in paragraph 5 of the petition that the alleged tenancy is a figment and fiction of the mind of the petitioner which does not  exist  at all;  that nothing whatsoever has been  prima facie  shown  that the ownership was overnight  turned  into tenancy.   It  was  also averred in the  petition  that  the petitioner  was  trying  to  take  fraudulent  advantage  of issuing two cheques to the respondent ( appellant herein) by saying  that  it  was a refund of  the  sale  consideration. According  to  the appellant, there was no question  of  any refund  of  consideration.   It was also  alleged  that  the petition  was false and fraudulent and there is no cause  of action in favour of the petitioner.

   From  the order passed by the Additional Rent Controller it  appears  that  he proceeded on the assumption  that  the appellant  had  admitted  the relationship of  landlord  and tenant  between the parties.  He observed in paragraph 4  of the order that the respondent in his application as well as in  the  accompanying affidavit has stated that the  present case  pertains  to  dispute  of ownership and  there  is  no dispute  as regard to landlord and tenant.  In paragraph  10 of  the order while recording his findings on the essential

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ingredients  of Section 14(1)(e) of the Act, the Additional Rent  Controller  observed he has specifically stated  that there  is  no dispute as regard to landlord and tenant.  On such  consideration, the Additional Rent Controller declined to  grant  leave to the appellant to contest the prayer  for eviction  and  allowed  the eviction petition filed  by  the respondent.   From  the order of the High Court  it  appears that the Court has not adverted to the questions which arise for  determination  in the case.  The court disposed of  the Revision   Petition   filed  by   the  appellant  with   the observation  that since he has filed two suits for  specific performance of the agreement of sale between the parties, he could approach the Civil Court for appropriate order of stay or direction.     By  the order dated 19.7.1999, this Court issued  notice to  the  respondent  to  show cause why  the  special  leave petition  should  not be disposed of at notice stage  itself for  showing cause as to why till the petitioners suit  for specific  performance and title suit which are pending,  are decided,  the decree for possession should not be  executed. But  at the hearing of the appeal, learned counsel appearing for  both  the  parties  have addressed  the  court  on  the question  of validity and sustainability of the order passed by  the Additional Rent Controller rejecting the application filed  by  the  appellant under Section 25(B)  of  the  Act. Therefore,  we  will  take  up the  question  as  formulated earlier.

   In Section 25(B), the special procedure for the disposal of  applications  for  eviction on the ground of  bona  fide requirement is laid down.  Sub-Sections 1, 4, 6, 8 and 10 of the  said section which are relevant for the purpose of  the present case are quoted hereunder:

   Section  25(B)-  Special procedure for the disposal  of applications  for  eviction  on  the  ground  of  bona  fide requirement-

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

X                   x                 x                x

X                   x                 x                x

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

X                   x                  x                   x

   (6)  Where leave is granted to the tenant to contest the

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application,  the  Controller shall commence the hearing  of the application as early as practicable.

X                  x                   x                   x

   (8)No appeal or second appeal shall lie against an order for  the recovery of possession of any premises made by  the Controller  in  accordance with the procedure  specified  in this section:

   Provided  that  the High Court may, for the  purpose  of satisfying itself that an order made by the Controller under this  Section  is according to law, call for the records  of the  case  and pass such order in respect thereto as  thinks fit.

    X                x                x              x

   (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 Controller.

   On a plain reading of the provision in Section 25(B), it is  clear that the Statute prescribes a special procedure to be  followed in the proceedings for the eviction of a tenant in  certain  class  of  cases.    From  the  provisions   of sub-section  4 of Section 25 it is manifest that in case the tenants  prayer  for  leave to contest is  refused  by  the Controller then he shall be deemed to have admitted the case of  bona fide requirement pleaded by the landlord and on the basis  of the deemed admission an order of eviction will  be passed  by  the Controller.  The provision prescribed  is  a drastic  measure for eviction of tenants particularly, in  a statute  intended  to provide protection to tenants  against arbitrary and whimsical action of unscrupulous landlords for their  eviction.   Therefore, strict interpretation  of  the provisions  is  necessary.  On a reasonable  and  purposeful interpretation  of  the  statute, it is clear that  if  from perusal  of  the  petition  for leave  to  contest  and  the affidavit  filed  with  it, the Controller  finds  that  the tenant  has pleaded a triable case then he shall not  refuse leave to contest the case, otherwise the provision is liable to  be  mis-utilised by unscrupulous landlords to get  their tenants evicted easily.

   Coming  to  the  order  passed by  the  Additional  Rent Controller, as noted earlier, he proceeded on the assumption that  the  appellant  had  not denied  the  relationship  of landlord  and  tenant  and  in fact  had  admitted  all  the ingredients  for establishing a case under Section  14(1)(e) of  the Act.  The impression was totally erroneous, based on a mis-reading and mis- construction of the petition filed by the  appellant seeking leave to contest.  On perusal of  the petition,  it  is  clear to us that what the  appellant  had pleaded  was that there was no relationship of landlord  and tenant  between  the parties inasmuch as he had been put  in possession  of the premises on the basis of the agreement to sell   the   property   to  him   and  not  as   a   tenant. Unfortunately, the Additional Rent Controller failed to read the  petition and the affidavit correctly which resulted  in the  mis-conceived  idea  about the case of  the  appellant. This  mis-conception  vitiated  the  entire  order.   It  is

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unfortunate  that  the  High  Court failed  to  notice  this manifest  error  in  the  order   of  the  Additional   Rent Controller  and disposed of the Revision Petition by  merely granting  leave to the appellant to approach the Civil Court for appropriate interim order in the suits filed by him.  We are  constrained  to observe that the manner of disposal  of the  case  by  the High Court was rather  superficial.   The order  of the Additional Rent Controller which is manifestly erroneous  should  not  have  been  allowed  to  stand.   On consideration of the entire matter, we have no hesitation to hold that the order passed by the Additional Rent Controller as  confirmed by the High Court is unsustainable and has  to be  vacated.  Accordingly, the appeal is allowed.  The order passed  by the High Court of Delhi dated Ist September, 1998 in  Civil Revision No.380/98 confirming the order passed  by the Additional Rent Controller dated 20th March, 1998 is set aside.   It is made clear that the appellant shall clear the arrears/dues  for  use and occupation of the  premises  from 1.12.93 to June 2000, if the same has not been already done, within  three months from today.  There shall be no order as to costs.