H.L. Anand, J.
(1) The petitioner, a tenant, assails an order of the second Additional Rent Controller, Delhi declining permission, to contest 'the application of the owner/respondents for eviction on the ground that the premises was bona fide required by the owners for their residence in view of the alleged insufficiency of accommodation available to them for the purpose.
(2) The property in dispute is jointly owned by the three respondents and consists of a unit on the ground floor and on the first floor. Two of the joint owners respondents Nos. 1 and 2, reside in the first floor of the property in dispute, while the petitioner has been in occupation of the ground floor. The other joint owner, respondent No. 3, allegedly stays in a rented accommodation in Punjabi Bagh. The late husband of the petitioner was the original tenant, who, on his death, was survived by the petitioner, his widow, and a son, who has not been imp leaded in the proceedings. Leave under sub-section (5) of Section 25B of the Delhi Rent Control Act, 1958 (for short, the Act) was sought by the petitioner on a number of grounds, all of which were dispelled by the Second Additional Rent Controller, who has consequently ordered the eviction of the petitioner giving her six months' time to vacate the premises. Of the various grounds on which leave was sought only two survive for consideration, namely, (a) the application for eviction was not maintainable without impleading the son of the original tenant, (b) the premises in dispute are not bona fide required by any of the owners, who have reasonably suitable accommodation for their requirement.
(3) On first of these two grounds the controversy between the parties before the Additional Controller has been as to whether the tenant died as a contractual or a statutory tenant. On the basis of the alleged notice of termination of tenancy and its reply on behalf of the tenant to counsel for the owners, which were produced on behalf of the owners, a finding was returned that the tenancy had been duly terminated before the death of the tenant and that the tenant on the date of his death was not a contractual tenant and had only statutory protection, which beinpersonal to him, died with him subject, of course, to the right of the widow, the petitioner, to statutory protection in terms of the provisions of Section 2(l)(iii) of the Act, as amended by the Delhi Rent Control (Amendment) Act. 1976 (for short, the Amending Act) It was consequently held that in view of the fact that the tenant was survived by the widow, the petitioner, it was the petitioner alone who became the tenant by virtue of the amended definition of the expression 'tenant' dispensing with the need to implead the son of the original tenant in the proceedings. It was, thereforee, held that the application for eviction was maintainable in the absence of the son.
(4) On the second of the aforesaid two grounds it was a common case of the parties that two of the joint owners, respondents I and 2, were staying in the first floor of the premises in dispute while the third of them, respondent No. 3, was staying in a tenanted premises in Punjabi Bagh. The plea that the premises in the occupation of the owners was sufficient for their requirement was, however, turned down on an assessment of the relevant circumstances of the two sets of owners, the insufficiency of the present accommodation available to them and the suitability of the accommodation in Punjabi Bagh in the context of the assertion that respondent No. 3 was working in the Reserve Bank of India at Parliament Street and was, thereforee, put to a considerable inconvenience in having to commute a long distance to attend to his official work. It was, thereforee, held that one of the joint owners, respondent No. 3, bona fide required the premises for his residence as the rented accommodation available to him in Punjabi Bagh could not be said to he reasonable suitable for his requirement. The examination of the further question whether the other two joint owners also required the premises for their residence and as to the sufficiency or otherwise of the accommodation available to them in the first floor of the property was considered unnecessary.
(5) At the hearing in this Court it was urged on behalf of the petitioner that the question raised by the petitioner as to the status of the original tenant at the time of his death involved a controversy of fact, which would have required evidence as to whether a valid notice terminating the tenancy had been served on the tenant before his death. It was further urged that even if it be assumed, as has been found by the Additional Rent Controller, that the tenancy had been duly terminated and the tenant was, thereforee, a statutory tenant on the date of his death, the application for eviction nevertheless suffered from a' fatal infirmity in the absence of the son of the original tenant because, according to the counsel, contrary to the view held earlier, the statutory tenancy was a heritable estate in view of the definition of the expression 'tenant' in Section 2 of the Act and, that being so, the right of tenancy was inherited on the death of the original tenant by both the heirs and such right of the son could not be extinguished with reference to the amended Section 2(l)(iii) of the Act. Leave to defend was further sought to be justified on the ground that the question whether one of the joint owners, respondent No. 3, bona fide required the premises and whether for any reason of insufficiency of accommodation or the distance between the place of residence and the office of the said respondent the present accommodation was not reasonably suitable for his requirement, raised a controversy of fact which could not be decided without evidence and that in deciding that question on the basis of controvertial facts and circumstances at the preliminary stage the Rent Controller had exceeded the limit of his limited jurisdiction to determine if the petitioner raised a question, whether of fact or of law, which would justify leave to contest the application.
(6) In Civil Revision No. 241 of 1976 decided on December 6, 1976, I had occasion to consider the question as to the circumstances in which leave should be granted to a tenant under sub-section (5) of Section 25B of the Act and laid down, what appeared to me, to be, the true legal position thus : 'The tenant would, thereforee, be entitled to leave if his affidavit discloses grounds, whether of fact or of law, which if substantiated at the trial, would disentitle the landlord from obtaining an order of eviction. The enquiry before the Controller when leave is sought is, thereforee, of a' limited nature and is intended to determine a very narrow question if the grounds on which leave is sought, whether based on an assertion of fact or of law, would non-suit the landlord if they could ultimately prevail. While a bare denial would, thereforee, be insufficient it is not possible to lay down any rule of universal application as to the particulars that the tenant must disclose so as to entitle him to leave. It would depend on the facts of each case. It would, however, be reasonable to expect that the tenant would disclose all such facts and particulars as may be within his knowledge and which he could, with due care and caution, find out. The function of the Controller, thereforee, when called upon to consider if leave should or should not be granted is to determine if the grounds disclosed averments of fact and of law which could eventually disentitle the landlord to relief. But it is not open to the Controller for the purpose of determining that question to require the tenant to produce material in support of the averments, to subject the material that may be available to scrutiny or to assess the material or to determine as to how the Controller would look at the question or the material eventually at the trial. In the same way if a plea of law is raised, which, if substantiated would non-suit the landlord, the only function of the Controller is to find out if such a plea is a possible plea to take of the law and on such a plea prevailing with the Controller the landlord could be non-suited. .In such a situation also it would not be open to the Controller to refuse leave to contest because, even though the plea raises a triable question of law, the Controller choses to look at the plea at that preliminary stage in a manner which may be unfavorable to the tenant. To do so, in either of the cases, would be a transgression of the limited function of the Controller'.
(7) After hearing learned counsel for the parties and on an examination of the two contentions raised on behalf of the petitioner, in the context of the principles laid down for a consideration of a tenant's plea for leave 'to contest an application for eviction, it appears to me that leave should have been granted to the petitioner.
(8) In the case of J. C. Chatterjee (1) it had been held by the Supreme Court while dealing with the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, relying on an earlier judgment of the Supreme Court in the case of Anand Nivas(2), that after the termination of contractual tenancy a statutory tenant enjoys only a personal right to continue in possession and on his death his heirs do not inherit any estate or interest in the tenancy. By the Amending Act, Section 2(1) of the Act was suitably amended, inter alia, to confer on certain heirs in the order of succession the right of tenancy after the death of the statutory tenant with the result that even if the statutory tenant held no estate in law. which could be inherited, by the extended definition of the expression 'tenant' introduced by the Amending Act, the spouse of the tenant and failing her or him the son or daughter and failing them the parents and so on, as provided in Section 2(l)(iii) of the Act, entered the foot steps of the tenant and were recognised as tenants. However, in the later decision of the Supreme Court in the case of Damadilal(3), while dealing with the M. P. Accommodation Control Act, 1961, it was held that the concept of a statutory tenant having no estate or property in the premises, which he occupied, had been derived from the provisions of the English Rent Acts and the true legal position of the heritability of the right or estate of a statutory tenant would depend on the provisions of the relevant statute in India. It was, thereforee, held that whether or not the statutory tenancy represented an estate, which was heritable, would depend on the relevant provisions of the Rent Act concerned. On an examination of the relevant provision of- the Madhya Pradesh Act it was held that the concept of a statutory tenant under the English Rent Acts and under the Indian Statutes rested on different foundations and that the statutory tenant in the case before the Supreme Court left an heritable estate.
(9) While it would not be proper for this Court to consider and decide finally the question if the statutory tenancy, being heritable, fell to both the heirs of the deceased tenant in accordance with law of succession or only the petitioner in terms of the extension of the definition of the expression 'tenant' by the Amending Act, it is difficult to resist the conclusion that the contention of the petitioner raises a substantial question of law that requires consideration and if the question could be legitimately answered in favor of the petitioner, it would obviously impinge on the maintainability of the application for eviction. The contention would, thereforee, justify leave being granted to the petitioner.
(10) Even on the other ground the question whether the premises in the occupation of respondent No. 3 could be said to be reasonably suitable for his requirement, having regard to the distance between the place of residence and the place of his work, and the further question as to whether a landlord is entitled to an unrestricted choice to live in his own house rather than be compelled to live in a tenanted premises all his life, raised both questions of fact and law, which, if decided in favor of the petitioner, would certainly non-suit the joint owners. A further fact brought on the record by the petitioner in this Court that respondent No. 3 was in fact not residing in the Punjabi Bagh house but in a premises in Sarojini Nagar, which is much nearer to the place of his work, adds perhaps a further dimension to the question of the bona fides of the need and as to the suitability of the tenanted premises. This ground would have also justified leave to the petitioner to contest the application. In turning down this ground the Additional Rent Controller virtually embarked on a premature investigation into the rival claims and returned a finding, as if on a' trial, in favor of the owners on a virtual assessment of the facts and circumstances, some of which were disputed. Such a course was obviously not open to the Additional Rent Controller and was a clear transgression of his limited function at the preliminary stage of the proceedings to determine if the petitioner raised questions either of law or fact, which would justify leave rather than to try the questions, sought to be raised in support of the plea for leave.
(11) In the result the petition succeeds. The impugned order of the Second Additional Rent Controller is set-aside. Leave is granted to the petitioner to contest the application on the aforesaid two grounds. The petitioner may file her written statement within four weeks with liberty to the respondents to file their replication within two weeks thereafter. The application would be listed for further directions with regard to the course of trial before the Second Additional Rent Controller on 28th April, 1977, on which date the 9 HCD/77-8 A parties are directed to appear in that Court. The original records would be transmitted to that Court forthwith. The Additional Rent Controller would expedite the disposal of the proceedings and would, as far as possible, decide the matter within six months of the afore- said date.
(12) In the peculiar circumstances there would be no costs.