H.L. Anand, J.
(1) This petition under proviso to sub-section (8) of Section 25B of t Delhi Rent Control Act, 1958 (for short, the Act) is directed against an order of the Third Additional Rent Controller refusing leave to the petitioner to contest the respondent's application under sub-section (5) of Section 25B of the Act for the eviction of the petitioner under Section 14(1)(e) of the Act.
(2) The petition was filed in the following circumstances. T. S. Bhatia, respondent is admittedly the owner of the property in dispute. He was in Government service and retired in the year 1967. The property was built in 1969 and let out to the petitioner for the residence of its officers in 1970. It currently carries a monthly rental of Rs. 1350. The respondent has been living in a rented accommodation on a monthly rental of Rs. 450. The landlord of the respondent filed an application for the eviction of the respondent in 1975. The respondent filed an application for the eviction of the petitioner in March 1976 under Section 14(1)(e) of the Act on the ground that the respondent bona fide required the premises for his residence and that of the members of his family dependent on him and that the rented accommodation available to the respondent was insufficient for their requirements. The petitioner sought leave under sub-section (5) of Section 25B of the Act to contest the application on a number of grounds. By the impugned order the Third Additional Rent Controller refused to grant leave to the petitioner and has directed its eviction from the premises in dispute. It appears that during the pendency of the proceeding', in this Court a consent order for the eviction of the respondent was made on September 15, 1976 in the proceedings filed against the said respondent by his landlord and in terms of the order the respondent is required to vacate the premises by February 28, 1977.
(3) Leave to contest the application for eviction was sought on the ground that the respondent was not the owner of the premises in dispute; that the tenanted premises in the occupation of the respondent was sufficient for the requirement of the respondent; that the premises in dispute were not bona fide required by the respondent; and that the notice of termination of the tenancy was invalid. It was further urged that the proceedings filed by the landlord of the respondent were collusive merely intended to bolster up the claim for eviction. The plea that the respondent was not the owner was dispelled on the basis of the original perpetual lease deed executed between the respondent and the Delhi Administration, which was produced at the hearing of the application, as well as on the ground that the petitioner had not pleaded as to how the respondent was not the owner of the property. It was further held that the bare denial of the petitioner of the respondent's ownership was insufficient to entitle the petitioner to leave. The plea of the petitioner that the tenanted premises in the .occupation of the respondent was sufficient for his requirement and that the respondent did not, thereforee, bona fide require the premises in dispute were dispelled on the ground that the respondent was a retired Deputy Secretary of the Government of India and his family comprised of 14 members out of whom 2 were married sons and 3 were grown up sons, who were employed, and were of marriagable age and that the two bed-room-tenanted premises was insufficient for title requirement of the respondent and the members of his family. It was further held on a perusal of the correspondence exchanged between the parties, copies of which were produced on behalf of the respondent that the respondent had been feeling the need to more accommodation since 1974 and has been making demands on the petitioner to vacate. A further finding was returned on the basis of copies of the afforesaid correspondence that the demand for eviction had nothing to do with the claim of the petitioner for repairs and could not, thereforee, be said to be mala fide. The contention that the respondent a retired Government servant, who was living in a tenanted premises carrying a rental of Rs. 450, could not possible affort to live in his own house which was fetching a substantial income of Rs. 1350 per month, was also dispelled with the observation that the mere fact that the respondent was paying less rent for the tenanted premises in his occupation was no ground to hold that the respondent's need was not bona fide. The further plea of the petitioner that the application for eviction had its penesis in the refusal of the petitioner to agree to the demand of the respondent for enhancement of rent was also negatived on the ground that the correspondence exchanged between the parties gave no indication of such a demand. The plea of the petitioner that the proceedings filed by the landlord of the respondent for his eviction from the tenanted premises were collusive was repelled with the observation that in any event the respondent had a right to live in his own house. The plea that the notice of termination of the tenancy was invalid was apparently given up at the hearing.
(4) The only question that requires consideration is as to the validity of the order of the Third Additional Rent Controller refusing leave to the petitioner to contest the application.
(5) On behalf of the petitioner leave to contest was sought to be justified on the ground that the challenge to the bona fide need of the respondent and the question as to the sufficiency of accommodation available to the respondent at present raised triable issues of fact and of law. The bona fides of the respondent were sought to be challenged on the ground that the respondent had built the house in 1969, after having retired from service in 1967, and let it out in 1970 and made no effort to evict the petitioner until the present petition was filed in 1976. Reliance was also sought to be placed in support of the mala fide nature of the action on the hurry with which the respondent suffered a consent eviction order in September 1976 in the proceedings filed by his landlord even while the present proceedings were pending in this Court. It was further urged that the allegation made by the petitioner that the sole purpose of the respondent in seeking eviction was to pressurise the petitioner to increase the rent required investigation and could not be thrown out of hand. On the question of sufficiency of accommodation available with the respondent it was contended that the question as to the extent of the family required consideration because the married sons and even the unmarried sons, who were employed, could not be said to be dependent on the respondent and that the need to examine this aspect of the question alone would have justified leave. It was further urged that the Additional Rent Controller had transgressed the limits of his function in deciding the questions that were posed rather than to determine if the petitioner raised grounds of defense which required consideration.
(6) On behalf of the respondent the impugned order of the Additional Rent Controller declining leave to the petitioner to contest the application was sought to be justified on the ground that there was no substance in the allegations that the respondent did not bona fide need the premises or in the contention that the tenanted premises available to the respondent could be said to be sufficient for the requirement of the respondent and the other members of his family. The conclusion of the Additional Rem Controller on the two questions was sought to be justified with reference to the material placed on the record by the respondent. It was denied that there was any collusion between the respondent and his landlord and it was urged that, independently of the sufficiency or otherwise of the accommodation available to the respondent the claim of the respondent for eviction was unexceptionable because, in any view of the matter, the respondent being the owner of the premises in dispute, was entitled to a preference to reside with his family in the property owned by him and that the landlord could not be compelled to continue to live all his life in a tenanted premises. A further contention was urged that the married sons of the respondent as indeed the unmarried sons, who were otherwise settled, would still be treated as members of the family 'dependent' on the respondent as all of them were dependent on the respondent for the purpose of a residence and the unmarried sons were also dependent on the respondent for their marriages. It was not disputed that one of the sons had already been allotted government accommodation but it was claimed that this circumstance would not adversely affect the respondent's claim for eviction.
(7) In the case of Shri Ram Chander v. Shri Gokal Chand & Ors. (C.R. 241 of 1976, decided on 6th December 1976) the question as to the circumstances in which leave to contest an application for eviction should be granted was examined by this Court and the test to determine if the tenant was entitled to leave to contest was laid down thus:
'THEtenant 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 obtainng 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, event though the plea raises a triable question of law, the Controller chose 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'.
(8) After hearing learned, counsel for the parties in the light of the aforesaid principle it appears to me that the petitioner was entitled lo leave to contest the application for eviction and that in declining to grant such leave on the basis of a virtual findings on questions of facts which were sought to be raised by the petitioner at the trial, the Additional Rent Controller transgressed the limits of his function while considering the question if leave ought or ought not to be granted to the petitioner. As has been pointed out above the only question that the Additional Rent Controller was required to determine at the preliminary stage of the proceeding was if the affidavit filed by the petitioner disclosed a case which, if accepted would non-suit the respondent. For consideration of such a question it was not open to the Controller to consider the documents filed on the record by the respondent or to decide the question of fact in controversy between the parties as the Additional Rent Controller appears to have done. Both the question raised by the petitioner as to the bona fides of the respondent and the sufficiency of the accommodation available to the respondent including the subsidiary questions which were raised at the hearing in this Court as to whether the sons could be treated as members of the family dependent on the respondent and if the respondent was entitled to live in his own house, whether or not the present accommodation was sufficient for his requirement, involved controversies of fact and of law which would require careful consideration and even involve evidence. None of these questions could be said to raise sham issues or be described as frivolous pleas, which may justify their rejection out of hand. The historical background in which the eviction of the petitioner was sought and the hurried manner in which the respondent suffered the consent order of ejectment constituted material which, if accepted, could perhaps justified a conclusion that the respondent had an ulterior motive in seeking eviction of the petitioner. It is open to the respondent to explain these circumstances and the respondent may perhaps be able to successfully explain them at the hearing. But the allegations could not be ignored at this stage. The further questions raised by the parlies , to whether the respondent is entitled to live in his own house irrespective of the sufficiency of tenanted accommodation available to him and the further question if the married and the unmarried sons, who were otherwise settled down, would be within the expression 'dependent' envisaged by Section 14(1)(e) of the Act are fair questions on which there has been some controversy in the past and which, thereforee, require consideration. The further question if the plea for eviction has its genesis in any desire to increase the rent could not be decided at the preliminary stage with reference to the materials placed on the record by the respondent.
(9) Having regard to all these circumstances I would, thereforee, set aside the impugned order and grant leave to the petitioner to contest the application. It is, however, necessary to ensure expeditious disposal of the proceedings. The petitioner would file its reply to the application for eviction within two weeks, with liberty to the respondent to file a rejoinder to it, if any, within a week thereafter. The application for eviction would be listed before the Additional Rent Controller for directions with regard to trial on March 11, 1977. The parties are directed to appear before the Additional Rent Controller on the aforesaid date. The proceedings would, as far as possible, be finally decided within a period of six months thereafter.
(10) In the peculiar circumstances, however, there would be no costs.