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Bhagwati Pershad Vs. Om Perkash - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil R. Appeal No. 304 of 1978
Judge
Reported in1979RLR26
ActsDelhi Rent Control Act, 1958 - Sections 25B
AppellantBhagwati Pershad
RespondentOm Perkash
Advocates: Sultan Singh and; Harnam Das, Advs
Cases ReferredDevi Singh v. Chaman Lal Itorora.
Excerpt:
- - (8) in the third place counsel submitted that the tenant had alleged in the affidavit that the eviction petition was bad on the ground that the landlords had sued the tenant for the recovery of a part of the premises and had not included the whole of the premises given to the tenant on rent. he said that one room and roof on the top floor were also included in the tenancy of the tenant and these premises bad not been mentioned in the application for eviction......in principle between that case and this case. in my opinion the tenant cannot be allowed to come in revision when leave has been granted to him, albeit limited in nature. revision lies against an order refusing the tenant leave to contest the eviction application and passing an order for recovery of possession against biro as a consequence thereof.
Judgment:

Avadh Behari, J.

(1) This is a petition for revision under the proviso to S. 25B(8) of the Delhi Rent Control Act (the Act).

(2) Om Prakash and Mohinder Kumar Bansal claiming to be the owners and landlords brought a petition for eviction of their tenant Bhagwati Pershad from the ground floor of premises No. 1627 Madrassa Road Kashmere Gate, Delhi. The eviction of the tenant was sought on the ground of bona fide requirement of the premises for themselves and the members of the family dependant on them u/s 14(1)(e) of the Act.

(3) The tenant made an affidavit for leave to contest the eviction petition under s. 25B(4) of the Act He raised a number of defenses, The Additional Rent Controller by his order dated 6th January, 1978 gave leave to the tenant to contest the eviction petition only on the ground of bona fide requirement and about the sufficiency of the accommodation with the landlords. On other points raised by the tenant he declined him leave. The tenant has filed this revision. His counsel contends that leave ought to have - been granted to the tenant on all points raised by him.

(4) Counsel for the tenant has submitted that in the affidavit the tenant has raised three more points which disclose that the landlords were disentitled from obtaining an order for the recovery of possession of premises against him. The first point which was set out in the affidavit is with regard to the validity of the notice. The tenant stated that the notice given by the landlords was invalid inasmuch as the tenancy started on the 19th of May, 1970 under a written rent note and the month of tenancy was from 19th of every month to the 18th of the succeeding month. In the notice issued by the landlords they alleged that the month of tenancy started from the 1st of each month and ended on the last day of the same month. The tenant sent a reply in which he said :-

'It is however not denied that the tenancy of my client commences on the 1st day of the month and ends on the last day of the month'.

This being the tenant's own case I do not think it is open to the tenant to say that the notice is invalid. As there was no point of difference between the parties the Additional Rent Controller was right in refusing leave to the tenant on the point of invalidity of notice.

(5) Counsel for the tenant has referred me to Punjalal v. Bhagwat prashad : [1963]3SCR312 , Carrara M. & T. Co, v. Charu Chandra, : AIR1957Cal357 and Rameshwar Chand v. Sadhan Chandra, 1971 Rcr 357 in support of his submisssion that though it is true that the month of tenancy was according to the English calendar month beginning on the 1 st day and ending on the last day the original arrangement which commenced on the 19th May 1970 when the lease started subsisted between the parties and the notice dated 19th of April 1976 should have given to the tenant 15 days ending with the 18th of May, 1976 I do not agree. The tenant admitted that the tenancy commences on the 1st day of the month and ends on the last day of the month and on that ground it cannot now be said that the notice is invalid.

(6) Counsel then contended that it is not open to the Controller to look at the notice and the reply thereto and that he should have decided the question of leave only on the affidavit of the tenant. I cannot agree. The Controller is entitled to look at the notice & reply thereto and see whether invalidity has been pleaded or whether the parties were at idem on a certain point. If the plea is frivolous the Additional Rent Controller is certainly right in refusing leave.

(7) The second point raised by the tenant in the affidavit is regarding the user of the premises. Counsel for the tenant did not dispute that in the rent note dated 19th of May, 1970, the purpose of letting is expressly stated to be residential. He however, states that it was open to the tenant to show that later on the purpose was changed from residential to residential cum commercial with the consent of the landlords. In the face of the rent note in writing the Controller in my opinion was right in refusing leave on this point also. This question that the user of the premises has been changed was not even raised in the reply to the notice. When the landlord has given the premises for residential purposes and that purpose is recorded in writting the tenant cannot be permitted to allege in the summary trial that the premises were being used for a different purpose.

(8) In the third place counsel submitted that the tenant had alleged in the affidavit that the eviction petition was bad on the ground that the landlords had sued the tenant for the recovery of a part of the premises and had not included the whole of the premises given to the tenant on rent. He said that one room and roof on the top floor were also included in the tenancy of the tenant and these premises bad not been mentioned in the application for eviction. On this point in the notice dated 19th of April 1976 there is a specific avernment that Bhagwati Persad was a tenant 'In a portion of the ground floor of house No. 1627 stuated at Madarsa Road, Kashmere Gate, Delhi at the rent of Rs. 285 per month exclusive of water and electricity charges'. To this averment the tenant in his reply said : 'My client is a tenant in a portion of the ground floor of house No. 1627 Madarsa Road, Delhi at a rental of Rs. 250 per month including house tax and excluding water and electricity charge'

(9) Both the landlord and tenant, it appears to me, were agreed that the tenanted premises consisted of a portion of the ground floor and nothing else. On this point also the Additional Rent Controller was right in refusing permission. On the substantial issue between the parties namely whether the premises were required bona fide by the landlords and whether the accommodation with them was insufficient the Additional Rent Controller granted permission. That is the only substantial point in dispute between the parties and on this he allowed the tenant to contest.

(10) 'THEREFORE, considering the three pleas now raised I do not think the Controller was wrong in granting permission in the manner he did.

(11) There is one other point. In my view this revision petition itself is not maintainable Paradoxically it may seem that the tenant has come in revision against the order granting him leave. Rajinder Sachar, J. in Devi Singh v. Chaman Lal Itorora. 1977. Rajdhani Lr 567 took the view that an order granting leave cannot be challenged in revision. I respectfully agree with this view. In that case the landlord had come in revision to this court against the order granting leave. In this case tenant has come in revision saying that the leave ought to have been granted to him on all the points urged by him in his affidavit. Sachar J. held that the landlord could not challenge in revision the order granting leave to the tenant. I do not see any difference in principle between that case and this case. In my opinion the tenant cannot be allowed to come in revision when leave has been granted to him, albeit limited in nature. Revision lies against an order refusing the tenant leave to contest the eviction application and passing an order for recovery of possession against biro as a consequence thereof.


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