Dalip K. Kapoor, J.
(1) In the case, an eviction petition under Section 14(1)(e) of the Delhi Rent Control Act, 1959, was filed under the amended procedure introduced in 1976. The tenant made an application for leave to defend taking several grounds. Shri K. P. Verma, Ii Additional Rent Controller who decided this case refused leave to defend and passed an eviction order under Section 14(1)(e) of the Act. The tenant has now come in revision under Section 25B(8),
(2) It is necessary to point out that the Rent Controller decided this case on the merits taking into consideration the application for leave to defend, the counter affidavit filed by the landlord and certain documents on record. The procedure adopted by the Rent Controller seems to be contrary to law. What has to be taken into consideration in these cases is to find out if a triable issue arise in the case as held by the Supreme Court in Santosh Kumar v. Bhai Mool Singh, : 1SCR1211 , and Milk trqm (India) Private Limited and others v. Chamanlai Bros. A.I.R. 1966 S.C. 1698. It is well-established that what has to be considered is the pleadings and not the evidence. The stage of evidence only arises after leave to defend has been granted.
(3) The way in which the Ii Additional Rent Controller has acted is demonstrated from the manner in which he has dealt with various points raised in the defense. On the question of ownership of the property, the tenant denied the ownership, but the landlord produced certain documents showing that the petitioner were owners. As this is a point connected with title, there can be no objection to this procedure. It is well-settled that in order to raise a triable issue, it is not enough to merely deny facts but some other facts have to be shown which would demonstrate the incorrentness of the landlord's stand. It would have to be shown by the tenant that the petitioning landlords were not owners either because they held the property in some other capacity or because some other persons were the owners. So, there is nothing procedurally wrong with the decision on the point.
(4) On the question whether the tenancy was validly terminated, the original documents along with the postal receipt and the reply were examined. On the question, the Controller held that the notice was properly served and correctly terminated the tenancy. This procedure is not wrong on this point, though I will not say anything regarding the correctness of the conclusion.
(5) The next point discussed in the judgment was whether the petitioners had been letting out various portions of the building to different persons on comparatively higher rents and whether the eviction petition had not been brought for an ulterior purpose. On this point, the Rent Controller held that the last letting out of the vacant portion took place in August 1974, and there was quite a gap between August, 1974 and January, 1976. It was accordingly held : 'So the need of the petitioners cannot be regarded to be mala fide simply because that in August, 74 and before that they have let out various portions of the disputed building to different tenants. The petitioners assert that it has been in January, 76 that one of their sons was married and so their bonafide necessity arose of the demised premises' It is note-worthy that the marriage of the son or the necessity for more accomodation on this ground is not even mentioned in the eviction petition nor is this point mentioned in the notice of 1st January, 1976. I fail to understand how this point could have been considered by the Rent Controller when it is not even in the pleadings, or in the notice sent by the landlords to the tenant. This was definitely a point which required evidence because, the Controller had to be satisfied that the eviction petition had been moved on the basis of a bona fide requirement. It is obvious that if a landlord keeps on letting out vacant premises to different tenants, he will always be short of accommodation. In such a case, the necessity will be self-induced and requires judicial examination. It was, thereforee, incumbent on the landlord to establish that there had been a change of circumstances after the last letting out which had led to a change in the requirement.
(6) The next point dealt with was the alleged demand of the landlord to increase the rent from Rs. 95 to Rs. 150 per month. It has been admitted that the rent has been increased from Rs. 95 to Rs. 150 by the landlord, but this is said to be on account of some additional construction. In actual fact, the pleading of the tenant was that the landlord wanted to get the property vacated and let out at an increased rent. This point has not been dealt with in the order. This was a question of fact that required evidence. thereforee, leave had to be granted. The most important point of the case was the question whether the landlord actually had no other suitable accommodation. In this respect, it is claimed by the learned counsel for the landlords that there are 27 members in the family. It clearly appears from the pleadings that they do have a large family. On the other hand, they appear to have the entire ground floor of the house and one room on the first floor. It is claimed that there are seven rooms, two kitchens, two bath-rooms, one latrine, two galleries with attached verandah and court-yard It is also claimed that the accommodation is sufficient in the light of the status of the petitioners. In the circumstances, I would have thought that ordinarily it would have to be established why this property was not sufficient for the landlords. There may be cases in which the landlord has no other accommodation, or the available accommodation is patently short, When the landlord has no place, then no question of disputed facts will arise. However, when the landlords have a number of rooms and have been letting out portions of the house in the past, it may well be alleged that the existing accommodation is sufficient. This question requires evidence, and should not be decided merely by reading the pleadings. It is well-settled that at the stage of deciding whether leave to defend is to be given, it is the pleadings which have to be examined and no conjectures are to be made on the facts. At the same time, I may say, that if the landlord's family is very large, it may well be held in the end, that the accommodation is required bona fide.
(7) thereforee, on these disputed facts, two questions arose for trial (a) whether the property already with the landlords was insufficient for them considering the present state of the family, and (b) whether the claim was bona fide keeping in view the past conduct of the landlords in letting out vacant property to new tenants. In fact a third point also arose, namely, whether the tenancy had been properly terminated. In view of these points the Rent Controller should have given leave to defend and should not have decided the case on merits by following an erroneous procedure not permitted by law.