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Gian Chand Vs. Roop Narain - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 222 of 1978
Judge
Reported inILR1979Delhi377; 1979RLR469
ActsDelhi Rent Control Act, 1958 - Sections 25B
AppellantGian Chand
RespondentRoop Narain
Advocates: R.N. Mathur and; J.R. Goel, Advs
Excerpt:
.....the tenant to say that for the grounds set out in the affidavit leave to appear and contest the eviction application may be given to him.; (2) the tenant in the affidavit made a specific reference to the grounds set out in the application. for the 'sake of brevity' he did not reproduce them in the affidavit. but is does not mean that the tenant's application should be rejected only for the reason that he did not reproduced the grounds in the affidavit over again.; (3) the correct procedure for the tenant was to make a fuller affidavit setting out all the grounds on which he sought to contest the application for eviction. the legislature wants him to swear to the grounds on which he seeks to contest the eviction application. on the ground so stated the controller forms his opinion..........be entitled to an order for eviction on the ground aforesaid. (5) the controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order turn the recovery of possession, of the 'premises on the ground specified in clause (e) of the proviso i.e sub-section (1) ol' section 14, or under section 14a.'(6) it is no doubt true that both sub-sections (4) and (5) show that the tenant has to file 'an affidavit staling the grounds on which he seeks to contest the application for eviction.' but the form of the summons set out in the third schedule, which is a statutory form, states tha-t leave can he obtained on an application to this controller supported by an affidavit. the.....
Judgment:

Avadh Behari Rohtagi, J.

(1) This is a revision petition against the order of the Additional Rent Controller dated 19th January, 1978.

(2) The respondent Roop Naraiin made an application for the eviction of his tenant, Gian Chand, petitioner in, this case, on the ground specified in clause (c) of the proviso to sub-section (1) of S. 14 of the Delhi Rent Control Act, 1958 (the Act). This application was to be tried in accordance with the provisions of S. 25B of the newly introduced' Chapter III-A of the Act. Following that procedure the Additional Controller issued summons to the tenant in the form set out in the Third Schedule to the Act. In the summons it was stated that the tenant could obtain leave to appear and contest the application 'on an application to the court supported by an affidavit as is referred to sub-section (5) of section 25B.'

(3) Within 15 days from the receipt of the summons the tenant made an application for Lave. The application stated the grounds on which he sought leave to contest the ejectment application. The application was supported by a short affidavit. In the affidavit the tenant slated that the accompanying application for leave to contest had been read over and explained to him and the facts stated therein were according to the best of his knowledge and information received and believed to be true. He further said 'that the facts stated in the said application dated 2nd January, 1978 have not been reproduced paradise in this affidavit for the sake of brevity.' It is not disputed that the application and the supporting affidavit were filed within the prescribed period of 15 days.

(4) When the matter came up for hearing before the Additional Controller Mrs. Kanwal Inder she took the view that according to S. 25B(4) of the Act it was in the affidavit that the tenant had to state the grounds on which he sought leave to contest the application. As The tenant's affidavit in this case did not state the grounds but merely referred to the application 'for the sake of brevity' she held that there was no compliance with the provisions of the Act. On this view of the matter she refused to consider the grounds stated in the application. She rejected the application for leave. She passed an order of eviction against the tenant. Aggrieved by the order of the Additional Controller the tenant has come in revision.

(5) The sole question for decision is: Has the tenant complied with the provisions of the Act Sub-sections (4) and (5) of S. 25B read as under :

'(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 staling the grounds on, which he seeks lo 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. (5) The Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order turn the recovery of possession, of the 'premises on the ground specified in clause (e) of the proviso i.e sub-section (1) ol' section 14, or under section 14A.'

(6) It is no doubt true that both sub-sections (4) and (5) show that the tenant has to file 'an affidavit staling the grounds on which he seeks to contest the application for eviction.' But the form of the summons set out in the Third Schedule, which is a statutory form, states tha-t leave can he obtained on an application to this Controller supported by an affidavit. The statutory form of summons has to be reconciled and harmonized with the provisions of sub-s. (5) of s. 25B to which it specifically refers. Reading the two together the proper procedure to adopt will be to make an application to the Controller seeking and praying for leave to appear and contest the application for eviction. This application by the tenant must be supported by an affidavit. In the affidavit the grounds on which the tenant seeks to contest lie application for eviction should be stated. In a word the application is for leave, the affidavit is for the grounds. In the application it is enough for the tenant to say that for the grounds set out in the affidavit leave to appear and contest the eviction application may he given, to him.

(7) In this case the tenant made an application as required by the summons. He made an affidavit in support to his application hut it was a short one. In UK' affidavit. lie made a specific reference to the grounds set out in the application. For the 'sake of brevity' he did not reproduce them in the affidavit. But it does not mean that the' tenant's application should be rejected only for the reason that he did not reproduce the grounds in the affidavit over again. The Additional Controller, I think, took too technical a view. This has resulted in denial of justice.

(8) Of course the correct procedure for the tenant was to make a fuller affidavit setting out all the grounds on which he sought to contest the' application for eviction,. The legislature wants him to swear to the grounds on which he seeks to contest the eviction application. On the grounds so stated the Controller forms his opinion whether to grant leave to the tenant or not. If he gives leave he allows the application. If he refuses he dismisses the application. Such an outline is the shortened procedure devised by the legislature for the expeditious disposal of ejectment cases on the grounds of personal bona fide requirement.

(9) For these reasons I set aside the order of the Additional Controller dated 19th January 1978 and remit the case to her for decision in accordance with law.

(10) The tenant, is directed to make a proper affidavit on 9th November, 1978 on which date' the parties arc directed to appear before the Additional Controller. The Additional Controller will on that date give an opportunity to the landlord to make a counter affidavit if he so likes.


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