B.C. Misra, J.
(1) This bunch of cases has been placed for disposalThese are revisions filed under sub-section (8) of section 25B of theamended provisions inserted by the Delhi Rent Control (Amendment)Act 18 of 1976, which came into force with effect from 1/12/1975. The amendments have been made in the Delhi Rent ControlAct, 59 of 1958 (hereinafter referred to as 'the Act'). These revisionsraise common questions of law of general importance and are, thereforee,taken up for decision together.
(2) The amending Act has, besides expanding the definition oftenant in clause (1) of section 2 of the Act, inserted a new section 14A and also prescribed a summary procedure for trial of certain applications by addition of Chapter Iiia and insertion of sections 25A and 25B in it. Section 25A applies the provisions of Chapter Iiia notwithstanding anything inconsistent in the Act or elsewhere in any other lawfor the time being in force. The procedure is prescribed by section 25B and it governs only two kinds of petitions, viz. (1) petition for evictionby the landlord on the ground of bona fide personal necessity mentionedin clause (e) of the proviso to sub-section (1) of section 14 of theAct, and (2) the petition for eviction on the ground mentioned insection 14A. It shows that the other proceedings will continue to begoverned by the existing provisions under the Act prior to the amendmentviz. section 37 and the Rules under the Act. In case proceedings under section 14(l)(e) are already pending, they will continue to be governedby the provisions prior to the amendment, since by their very naturethe procedure prescribed by section 25B will govern only new peiltions,as summons are directed to be issued in a special form and the provisions of law have prescribed for grant or refusal of leave, which canappropriately not be applied to pending proceedings. The peridingproceedings must, thereforee, be continued under the existing Act orbe withdrawn with liberty to file another petition on the same causeof action, or it may be open to the landlord to file a new petition ona fresh cause of action, either under clause (e) or section 14A, ashe may be advised.
(3) The procedure prescribed by section 25B makes a special provision for service of summonses in the prescribed form on the tenant.Its sub-sections (4) and (5) read as follows :
'(4)The tenant on whom the summons is duly served (whetherin the ordinary way or by registered post) in the formspecified in the Third Schedule shall not contest the prayerfor eviction from the premises unless he files an affidavitstaling the grounds on which he seeks to contest the application for eviction and obtains leave from the Controlleras hereinafter provided; and in default of his appearance inpursuance of the summons or his obtaining such leave,the statement made by the landlord in the application foreviction shall be deemed to be admitted by the tenant andthe applicant shall be entitled to an order for eviction onthe ground aforesaid.
(5)The Controller shall give to the tenant leave to contestthe application if the affidavit filed by the tenant disclosessuch facts as would disentitle the landlord from obtainingan order for recovery of possession of the premises on theground specified in clause (e) of the proviso to sub-section(1) of section 14, or under section 14A.'
(4) The question for consideration is under what circumstances theleave should be granted. Reference in this connection has been madeto the provisions of Order 37 Rule 3 of the Code of Civil Procedureand the decision of the Supreme Court in Santosh Kumar v. Bhai MoolSingh. : 1SCR1211 , a it has been urged that once it isfound upon the affidavits that there was a triable issue, then the leaveshould be given unconditionally, but if the court doubts the bona fidesof the defendant and thinks that the defense is only to gain time, thenleave should be made conditional. It is contended that the dictum ofthe Supreme Court is :
'IT is always undesirable, and indeed impossible to lay downhard and fast rules in matters that affect discretion. Butit is necessary to understand the reason for a special procedure of this kind in order that the discretion may beproperly exercised.................. Taken by and large, theobject is to see that the defendant does not unnecessarilyprolong the litigation and prevent the plaintiff from obtaining an early decree by raising untenable and frivolous defenses in a class of cases where speedy decisions are desirable in the interest of trade and commerce. In general,therefore, the test is to see whether the defense raises areal issue and not a sham one, in the sense that, if thefacts alleged by the defendant are established, there wouldbe a good, or even a plausible, defense on those facts.'
(5) The decision of the Supreme Court referred to above, in myopinion, has a persuasive value, but it does not apply to the provisions of law under our consideration. Under Rule 3 of Order 37, the requirement is seeking leave upon affidavits which disclose such facts as wouldmake it incumbent on the holder to prove consideration, or such otherfacts as the Court may deem sufficient to support the application. Againthe leave may, in the discretion of the Court, be given unconditionallyor be subject to such terms as to payment into court, giving security,etc. Consequently, in very many cases, the provision about imposingconditions and terms in cases under Order 37 meets the ends of justice,but no such provision is available in the procedure prescribed bysection 25B. Moreover, the language of the two provisions is notidentical. The requirement of sub-section (4) of section 25B is thatthe affidavit filed by the tenant must disclose facts as would disentitlethe landlord from obtaining an order for recovery of possession. THE language of the provision under consideration is, more stringent and isto be strictly construed and applied.
(6) I am, thereforee, of the view that wheres tenant, seeks-leave tocontest the petition for eviction he must file an affidavit raising his defense, which must be clear, specific and positive. The defense must alsobe bona fide and if true must result in the dismissal of the petitionof the landlord. In the view I am taking, the defenses of a negativecharacter which are intended to put the landlord to proof or are vague,or are raised inala fide only to gain time, are not of the kind which willentitle the tenant to the grant of leave. For example, in a petition foreviction under section 14(l)(e) if the tenant urges that the petitioneris not the landlord, then he must state the name and address of theperson whom he alleges to be his landlord or the owner. Again if thedefense raised is that the landlord has other reasonably suitable accommodation, then he must state what and where the other accommodation is. Should the tenant deny the alleged number of membersof the family dependent on the landlord, then he must state whoaccording to him are the members of the family dependent on thelandlord. In case the tenant raises a defense that the notice for eviction is bad, then he must point out specifically what the invalidity is. If thetenant alleges lack of permission of the Competent Authority (SlumAreas) then he must assert that the property is situated in slum areaand give reference to the appropriate notification.
(7) So far as the defense under section 14A is concerned, as will bepresently shown, the defenses available in clause (e) of section 14(1) are not available and the defense will be confined to the ingredients ofsection 14A, but in any event they must be clear, specific and positiveand it shall be raised bona fide, e.g. if it is contended that the landlordowns or has obtained possession of more than one dwelling housethan the exact particulars of the said accommodation must be specified.
(8) The Controller, where leave to contest the petition is sought,will consider whether the affidavits for leave are clear, specific andpositive and the defense raised is bona fide and prima fade not unten-able and untrue. But the Controller in granting or refusing the leavecannot determine any disputed questions of fact, and if any such dispute arises bona fide where the defense taken is clear, specific and positive, then the petition must be set down for trial on evidence and thefacts should be investigated as quickly as possible, as is required by subsections (6) and (7) of section 25B. On the other hand should theController find that the defense raised is not clear, specific and positiveor is not bona fide, but has been made only to gain time, he would bejustified in refusing the leave to contest the petition. In case leave tocontest has been granted, the petition for eviction would be set downfor trial in accordance with the procedure prescribed by law and the landlord would then be required to lead evidence to prove the ingredientsof the grounds on which he seeks eviction and the burden will lie onthe landlord to prove his claim except in so far as any part of the claimbe admitted by the tenant.
(9) This takes us to the consideration of the defenses available IN a petition for eviction on the ground of bona fide personal necessitymentioned in section 14(1)(e) of the Act as well as section 14A ofthe amended Act, and I shall take up clause (e) first.
(10) The ingredients of clause (e) of the proviso to sub-section (1)of section 14 remain 'the same, as they existed prior to the amendmentand no change has been made in the substantive law, although a moresummary procedure for decision of such applications has been provided.The landlord has, .therefore, to establish the ingredient of clause (e),namely, (1) relationship of landlord and tenant exists between theparties, (2) the petitioner is the owner of the premises in dispute, (3)the premises have been let out for residential purposes, (4) the premises are required bona fide by the landlord for residence of himselfor any member of the family dependent on him, and (5) the landlordhas no other reasonably suitable residential accommodation.
(11) The tenant is entitled to contend that any of the ingredients ofthe ground of eviction is lacking, and if on an affidavit properly filedfor the purpose, as indicated above, the tenant has obtained leave and,contests the petition then the landlord has to establish all theingredients according to law, and if he fails the petition for evictionis likely to be dismissed. In additon, it is also open to the tenant toraise the question that the contractual tenancy had not been terminatedby a valid notice of eviction or that the Competent Authority (SlumAreas) had not granted or had refused permission to institute the petition for eviction in view of section 54 of the Act. In other words, allthe defenses, which were available to the tenant under the existingAct prior to amendment are still available; the only difference made bythe Parliament is in procedure and the tenant is now to raise a clear,specific and positive defense and in a bona fide manner, otherwise theallegations of the landlord would be deemed to have been admitted andit has already been indicated as to how the tenant must proceed toseek the leave and then contest the petition.
(12) So far as section 14A is concerned, the defenses which wereavailable to the tenant in a petition for eviction under section 14(l)(e) are not available. Section 14A is a new provision of law inserted by theamending Act and it confers a new statutory right on the landlord inthe special circumstances. The exercise of this right is, thereforee, circumscribed only by the conditions imposed by the amendment andnot by any other provisions of law or contract to the contrary. Atthis stage, it would be convenient to reproduce the relevant provisions of section 14A of the Act:
'14A.(1) Where a landlord who being a person in occupationof any residential premises allotted to him by the CentralGovernment or any local authority is required by, or inpursuance of, any general or special order made by thatGovernment or authority, to vacate such residential accommodation, or in default, to incur certain obligations,on the ground that he owns, in the Union Territory, of Delhi,a residential accommodation either in his own name or inthe name of his wife or dependent child, there shall accrue,on and from the date of such order, to such landlord, notwithstanding anything contained elsewhere in this Act orin any other law for the time being in force or in anycontract (whether express or implied), custom or usageto the contrary, a right to recover immediately possessionof any premises let out by him ;Provided that nothing in this section shall be construed asconferring a right on a landlord owning, in the Unionterritory of Delhi, two or more dwelling houses, whetherin his own name or in the name of his wife or dependentchild, to recover the possession of more than one dwellinghouse and it shall be lawful for such landlord to indicatethe dwelling house, possession of which he intends torecover.
The object of section 14A is that persons owning residential accommodation in Delhi and occupying public premises allotted by the CentralGovernment or any other local authority must vacate such public premises, so that they can be allotted 'to more deserving cases 'and IN a default they must incur certain special obligation in respect of Government accommodation. Such a person, who has been required to vacateor incur obligations in respect of public premises must be enabled toshift to residential accommodation owned by him. thereforee, the lawconfers a new right upon such a person to recover possession ofthe residential premises untremmelled by any restrictions or conditionsimposed by any provision of principle of law or terms ofcontract of tenancy. Such a landlord must be enable toobtain the possession immediately and with this end in viewChapter Iiia has been inserted. The ingredients of section 14A require existence of relationship of landlord and tenant and the landlord or his wife or dependent child being owner of the premises.The landlord must have been ordered to vacate or in default incurcertain obligations in respect of the public premises allotted or occupiedby him. Again the premises in respect of which eviction is soughtmust be residential. In case the londlord satisfies the conditions mentioned in section 14A, a special right to obtain eviction accrues tohim. The statutory provision lays down that there shall accrue onand from the date of such order to such landlord a right to recoverimmediately possession of any premises let out by him. This righthas been conferred and has been made effective notwithstanding anything contained elsewhere in any other law for the time being in forceor in any contract, custom or usage to the contrary, whether expressor implied, to the contrary.
(13) SUB-SECTION (2) of section 14A makes it clear that even If there be a contract of tenancy, which is subsisting, then also the abovementioned category of landlords is entitled to immediate possessionand no compensation shall be payable by him to the tenant. Assuch neither the plea of want or validity of the notice to terminatethe tenancy lack of permission of the Competent Authority (SlumAreas), nor any stipulation in the contract of tenancy to the contrarywould prevent the landlord from obtaining immediately possession ofthe premises. thereforee, his right under section 14A to obtain possession is to be exercised by the landlord untrammelled by any. otherrestriction or conditions notwithstanding anything contained in anyother law or contract to the contrary except of course subject tothe conditions and restrictions contained in section 14A itself.
(14) It has been urged that section 54 of the Act also states thatnothing in this Act shall affect the provisions of the Slum Areas(Improvement & Clearance) Act and so the protection granted by thesaid Act is still available, as section 14A also becomes a part of theAct. The argument is attractive, but suffers from a fallacy. Section 14A has been added by the amendment Act mentioned above. It,therefore, expresses the later will of the Parliament and when thisprovision lays down that the right conferred by this section shallaccrue notwithstanding anything contained elsewhere in the Act orin any other law for the time being in force, then it is the later willof the Parliament which will prevail and not the other provisionsto the contrary existing earlier which will yield place [see Shri RamNarain v. The Simla Banking & Industrial Co. Ltd., : 1SCR603 , and Crais on Statutory Law, pages 337 and 338].
(15) The right conferred by section 14A is a special right and it isnot dependent upon the need or bona fides of the landlord, but itaccrues on and from the date of the order of the Government or localauthority requiring the landlord to vacate the premises or to Incurcertain obligations on the specified ground and so this furnishes anew and special cause of action and the landlord on fulfilling the requisite conditions of Section 14A acquires the right to obtain immediatepossession of the premises. The same view has been taken by V. S.Deshpande, J. in 0m Parkash Gupta vs. Ram Nath Gupta, CivilRevision 280 of 1976, decided on 3/08/1976 (3) and Irespectfully agree with it.
(16) An argument had been advanced in one of the revisions filedbefore me that the premises in dispute must have been let out bythe landlord himself and if the premises had been let out by thepredecessor-in-interest or by the agent of the landlord, then he isnot entitled to obtain eviction. There is no force in this contention.The expression 'possession of any premises let out by him' onlymeans the premises in respect of which the petitioner is the landlordand ordinarily the rights and obligations of an owner of the propertyon succession or transfer are transmitted to the successor in-interestand can be enforced by him as if in law/ he had let out the premises.The expression is, thereforee, not confined to the petitioner landlordas having personally let out the premises. The successor landlordis entitled to obtain eviction of the tenants and all persons occupyingthe premises under the tenant, if he satisfies the other conditions andhappens to be the landlord of the premises owned by him or by' hiswife or any dependent child. This is further supported by section 25C which has excluded the restrictions imposed on transferee landlordsby section 14(6) of the Act.
(17) Another question that has been raised in the revisions is thatthe right to obtain eviction conferred by section 14A is confined toresidential accommodation and if the premises in dispute bad been letout for residential-cum-conunercial purpose or were in fact used bythe tenant for such purposes then the landlord cannot avail of theright. The Explanationn to clause (e) of the proviso to sub-section (1)of section 14 of the Act says that the premises let for residential purpose include any premises which having been let out for use as residence, are without the consent of the landord, used incidentallyfor commercial or other purposes. This Explanationn governs the expression 'premises let for residential purpose which occur in clause(e). In clause (e), thereforee, the letting purpose of the premises isan important factor. The said considerations do not apply to the petition under section 14A. In my opinion, the object of letting out ofthe premises or the purposes for which the tenant is using the premiseswith or without the consent of the landlord are not a relevant consideration. What is material is that the landlord petitioner himselfor his wife or dependent child owns an accommodation in the UnionTerritory of Delhi, which is residential in nature. The premises wouldbe residential in nature if they are structurally residential or are inlaw residential, e.g. a residential accommodation used for a shop orfactory will still be residential within the meaning of section 14A. On the other hand, if a garage (apart from appartenant to the residential accommodation) is let out separately even for residence, itwill not constitute residential accommodation within the meaning ofsection 14A, nor will a shop or premises or recognised by law as ashop constitute residential accommodation, although the tenant maybe using it for purposes of residing or sleeping there. This is a distinction which is apparent from the difference in the use of the languagein section 14A and section 14(1)(e) of the Act. The intentionbehind section 14A is that a landlord who owns a residential accommodation in Delhi, has been allotted residential premises by theGovernment and is asked to vacate the Government premises on thataccount, must be enabled to save his eviction and the sufference ofthe penal obligations and to occupy his own residential accommodation.Obviously, if the premises in dispute were not residential accommodation, the Government could not pass an order for eviction on theground of his owning such a residential accommodation, but if suchan order has been passed, then it is certain that the premises in dispute are residential accommodation and the landlord is entitled toobtain their possession if they are structurally and legally residential,notwithstanding the letting purpose or the actual use by the tenant.
(18) Another defense open to the tenant is to show that thelandlord is not the allottee of the residential premises or he was notin occupation of the said premises. But, more often than not, sucha defense may turn out to be not bona fide since the landlord wouldscarcely ever file a petition under section 14A, unless he has an orderof the Government on the subject directing him to vacate or incurobligations on that account. But, if in an appropriate case, it isestablished clearly, specifically and bona fide that the landlord is notan allottee, nor has he been in occupation of the public premises,then it follows that the landlord will not be entitled to proceed under section 14A of the Act, but he would have to confine his claim foreviction on other grounds mentioned in the Act.
(19) In respect of exercise of right under section 14A of the Act,an important proviso has been inserted. It is to the effect that theright to obtain eviction under section 14A (unrestricted and untrammelled by any other statutory or contractual conditions) is confinedonly to one dwelling house and the landlord is not enabled to recoverpossession of more than one dwelling house in exercise of the rightunder section 14A. In case the landlord owns two or more dwellinghouses, then it is incumbent on him to specify in the petition foreviction all his dwelling-houses and clearly indicate one dwelling-house,the possession of which he claims to recover. In my view, the specfication of this fact in the petition for eviction is necessary for thereason that the landlord should not be enabled to institute a numberof petitions separately in respect of each dwelling-house without disclosing the fact of his owning other houses and if a tenant should notbe aware of the landlord being owner of more than two dwelling houses,then the landlord may be able to illegally obtain possession of two ormore dwelling houses under section 14A. So, in my opinion, it isnecessary that the landlord must specify in his petition the number ofdwelling houses owned by him or by his wife or dependent child andthen indicate which one he wants to recover possession of.
(20) What is the meaning of two or more dwelling-houses? In section 14A three expressions have been used, viz. (i) premises, (ii) residental accommodation, and (iii) dwelling-house. The word 'premises'is defined in clause (i) of section 2 of the Act as follows :
'PREMISES'means any building or part of a building which is,or is intended to be let separately for use as residence orfor commercial use or for any other purpose, antiincludes-
(I)the garden, grounds and outhouses, if any, appertainingto such building .or part .of the building;
(II)any furniture supplied by the landlord for use in suchbuilding or part of the building;
BUTdoes not include a room in a hotel or lodging house.'
No change has been made in this definition by the amendment. InEnglish law, dwelling-house is used more or less in the same senseas is premises in our statute. In Stroud's Judicial Dictionary, Vol. 2,page 858, dwelling house is defined as follows:
'A'dwelling-house' is obviously a house with the super-addedrequirement that it is dwelt in or in the dwellers in whichare absent only temporarily, having animus revertendi andthe legal ability to return (Ford v. Barnes 55 LJQB 34, see further Outer DOOR). 'House' and dwelling-house' are used in their respective meanings in theActs formerly conferring the parliamentary franchise'house' in s. 27 of the Representation of the People Act,1832 (c. 41) and 'dwelling-house' in s. 3(2) of the Representation of the People Act, 1967 (c. 102). The latterAct gave the franchise to one who for the prescribed timehas been an 'inhabitant occupier, as owner or tenant, orany dwelling-house'. The word 'inhabitant' here wouldseem to bring out more fully the meaning of the word'dwelling-house' '.
It was further observed in the said dictionary that dwelling house shallinclude, any part of a house where the part is separately occupied asdwelling (Ellis v. Burch, Thompson v. Ward, L.R. 6 C.P. 327.The premises used as a corn-store and kiln but in which the occupieroccasionally slept and where he always kept a bed; held to be a 'dwelling-house' within s. 25 of the Towns Improvement (Ireland Act,1854 (C. 103)), although the occupier's usual residence was just outside the boundary of the town Laws-on v. Fraser, 8 L.R. 55.
(21) In Butterworth's Words & Phrases, Vol. Ii, page 127, the word 'dwelling-house' has been defined this:
'1.(a) a rating unit used wholly or mainly for the purpose ofa private dwelling ; or(b) any such separately occupied part of a rating unit as isused wholly or mainly for the purposes of a privatedwelling; or .(c) such part of rating unit which is used partly, but notwholly or mainly, for the purposes of a private dwellingas is used for these purposes (Coal Mining (Subsidence)Act), 1957, s. 17(1).
2.'Dwelling' means a building or part of a building occupiedor intended to be occupied as a separate dwelling (HousingAct, 1964, s. 44).
3.'Dwelling' means a building or part of a building occupiedor intended to be occupied as a separate dwelling, togetherwith any yard, garden, outhouses and appurtenances belongs to or usually enjoyed with that building or part ; so,however, that a building or part which, in the opinion ofthe Minister, is designed for permanent use as a singledwelling shall be treated as a single dwelling. . .. notwithstanding that it is temporarily divided into two or moreparts which are occupied or intended to be occupied asseparate dwellings (Housing (Financial Provision) Act,1958, s. 29(i) Housing (Subsidies) Act, 1967, s. 21).
4.'Dwelling-house' includes any building or part thereof whichis occupied as a dwelling, and any yard, garden, garageor outhouse belonging to the dwelling-house and occupiedtherewith (Matrimonial Homes Act, 1967, s. 1).
5.A 'dwelling-house' need not ......be a separate building,it may be bounded by a horizontal plane just as well asby a vertical plane. Re. Hecquard Ex. P. Hecquard(1890) 24 Q.B.D. 71, C.A. per Lindley, L.J. at p. 75.
6.By a dwelling house I understand a house in which peoplelive or which is physically capable of being used for humanhabitation (Lewin v. End, (1906) A.C. 299, perLord Atkinson, at P. 304).
7.The expression 'dwelling-house' may include a whole tenement even although that tenement comprises four dwelling-houses. The whole question is one simply of identification. (Kirkpatrick v. Maxwellton Town Council, (1912) S.C. 228, per Lord President, at p. 297).'
In Murgatroyd v. Tresarden, (1946) 2 All E.R. 723, it was heldthat for purposes of the Rent Restrictions Acts the two self-containedflats were to be treated as separate dwelling-houses, and, as the defendant had never resided in the upper flat and there was no evidence thathe intended to reside in it, the principle of Skinner v. Geary appliedand the defendant was not entitled to the protection of the Acts in respect of that flat (also see Skinner v. Geary, (1931 All E.R. 302.
(22) Very useful observation occur in Grant v. Langston, 1900 AC 383 :-
'Ahundred years ago there was not much difficulty in sayingwhat was a 'house', but builders and architects have soaltered the construction of houses, and the habits of peoplehave so altered in relation to them, that the word 'house'has acquired an artificial meaning, and the word'is no longer the expression of a simple idea; but toascertain its meaning one must understand the subjectmatter with respect to which it is used in order to arriveat the sense in which it is employed in a statute.'
'ITestablishes undoubtedly that the word 'house' is an ambiguous word; it shows that you must search otherwise thanthe word itself what is the meaning in which the Legislaturehas used it, since the natural and ordinary meaning ofan ambiguous word cannot be ascertained without thecontext.'
'ACCORDINGLY,the word 'house' has no common or ordinarymeaning so fixed and definite that by the mere use of The word you can determine in what sense the Legislaturehas used it.'
'Ithink the original idea of an inhabited house was that ofa building inhabited by one person (with his family)responsible for the tax, who was himself the inhabitantof the whole of the house. But very soon questionsbegan to be raised as to what constituted the unity of ahouse; one side of a whole street is in one sense structurally one building, but the separate unity of each of thestructures with all its arrangements for occupation by onefamily and its head was of course recognised as a houseseparately liable to the tax. Even semi-detached houseswere always recognised as two houses, although they werestructurally one and protected by one roof.'
'INmodern times a practice has grown up of putting separatehouses one above the other; they are built in separateflats or houses, but for all legal and ordinary purposesthey are separate houses.'
(23) The word 'dwelling-house' in the Indian Statutes occurs in thePartition Act (s. 4), Provincial Insolvency Act (s. 6) and 'residentialhouse' in the Code of Civil Procedure (s. 60). In Khirode ChandChoshal and another v. Saroda Prosad Mitra, 7 Indian Cases 436at 441(10), after quoting a number of authorities, in particularGrant v. Langeston the Division Bench of the High Court of Calcutta,observed as follows:
'THErule deducible from these cases, is that the term 'house'embraces, not merely the structure or building, but includesalso adjacent buildings, curtilage, garden, courtyard,orchard and all that is necessary for the convenient occupation of the house, but not that which is only for thepersonal use and convenience of the occupier. As wasobserved by Turner, L. J. in Steel v. Midland RailwayCompany, (1866) L.R. 1 Ch. A 275, the testto be applied, is what is necessary for the convenient useand occupation of the house, whoever may chance tooccupy it, and not, what will be necessary for the personalconvenience and enjoyment of a gentleman of furtune if betakes the house, or a gentleman without fortune if hechooses to become the tenant.'
The same rule of law has been reiterated in Pran Krishna Bhandariv. Surath Chandra Ray, 14 Cal 873, Nil Kamal Bhattachariyav. Kamakshya Charan Bhattacharya : AIR1928Cal539 and Gour Chand Basak v. Khirode Nath Basak, : AIR1948Cal73 . It is also reiterated in Babulal Tiwari v. Hulla Mallah, : AIR1938Pat13 , where it was observed that the word 'dwellinghouse' in connection with a conveyance of a partition generally meansnot only the house itself, but also the land and appurtenances whichare ordinarily and reasonably necessary for its enjoyment. In Mt.Sumitra v. Dhannu Bhiwji, Air 1952 Nag 193, it was observedthat the term 'house' embraces, not merely the structure or the building, but includes also adjacent buildings, curtilage, garden, courtyard,orchard and all that is necessary for the convenient occupation of thehouse, but not that which is only for the personal use and convenienceof the occupier.
(24) In Agha Jafar Ali Khan v. Radha Kishen, Air 1951 P&H; 433, the High Court of Punjab observed that where the wholebuilding is being used for the purposes of residence, the mere factthat there is a shop on the ground floor will not convert the buildinginto something different from a residential house. Considering'residential accommodation' in Firm Ganga Ram Kishore Chand v.Firm Jai Ram Bhagat Ram, , theHigh Court of Punjab observed as follows :
'The word 'residential' and other cognate expressions, such as,'reside', 'residing', 'resident', 'residence' and 'occupy'occurring in several statutes have variously shaded butelastic meaning. A person is ordinarily said to 'reside'where he lives with his family. The word 'residence'connotes two elements, (1) actual or physical habitationand (2) the intention to remain there permanently thatis, for an unlimited time. In its ordinary sense the word'reside' carries with it the idea of permanence, that isfor any length of time, as well as continuity. The word'residence' denotes a dwelling house where a person livesin a settled abode.'
'INother sense, residential house is a dwelling-house as distinct from a house of business, warehouse, office shop,etc. Residential house is a building, used as a place ofabode, in which, people reside or dwell in contradistinction to one which is used for commercial or businesspurposes.'
In Krushna Kar v. Kanhu Charan Kar, : AIR1962Ori85 ,the High Court of Orissa observed as follows :
'THEwell settled position of law is that the term 'house' embraces not merely the structure or building but inclindesalso adjacent buildings, curtilage, 'garden, courtyardorchard and that is necessary for the convenient occupation of the house, but not that which is only for thepersonal use and convenience of the occupier; it includesthe land on which the structure of the dwelling housestands; that the applicant under section 4 of the PartitionAct is entitled to purchase from the stranger purchasernot merely the structure of the dwelling house but alsothe land on which it stands and further every appurtenantand accessory which may be deemed necessary to a fulland complete enjoyment of the things sold.'
The Supreme Court in Ghanshiam Dass v. Debi Prasad, : 3SCR875 , observed as follows :
'The word building has not been defined in the Act and is,therefore, to be construed in its ordinary grammaticalsense unless there is something in the context or object ofthe statute to show that it is used in a special sensedifferent from its ordinary grammatical sense. So construedaccording to the dictionary meaning, the existence of aroof is not always necessary for a structure to be regardedas a building. Residential buildings ordinarily have roofsbut there can be a non-residential building for which aroof is not necessary. A large stadium or an open airswimming pool constructed at a considerable expensewould be a building as it is a permanent stnicture anddesigned for useful purpose. The question as to what is abuilding under s. 9 of the Act must always be a question ofdegree-a question depending on the facts and circumstances of each case.'
(25) The rule of law deducible from the aforesaid decisions isthat the word 'dwelling-house' is synonymous with residential accommodation as distinct from a house of business, warehouse, office,shop, commercial or business premises. The word 'house' means abuilding. It would include the out-houses, courtyard, orchard, garden,etc., which are part of the same house, but it cannot include a distinctseparate house.
(26) The other view that has been contended finds support fromGanga Dutt Murarka v. Smt. Bibhabati Devi, : AIR1957Cal65 , and it is submitted that the fact that there are differentmunicipal numbers and entrances in different streets, does not showthat it is not one building. Reliance has also been placed on a decisionof the Income-tax Appellate Tribunal, Hyderabad Bench 'B', inWealth-tax Officer, A Ward Chittoor v. Sri C. A. Natesa MudaliarChiKor, W.T.A. No. 282/Hyd. 1973-74, decided on 30/06/1975and reported in (1976) Tax 42, for January, 1976.The members of the Tribunal, after quoting C. Grant v. Langstan,1900 A.C. 390, and Yorkshire Insurance v. Clayton, (1881) 8 QBD 421, observed:
'FORthe purpose of Wealth-tax Act, it is clear that the expression has to be one which could be utilised for humanresidential purposes. The fact that the expression usedis a 'House' and no building would indicate that all conveniences which go with proper human living also have tobe considered. If, thereforee, it is not one building buttwo or three buildings, all in the neighborhood, which aretogether utilised by a person for his residence-one beingused as a kitchen, another as living rooms and the otheras cattle shed or store-house, etc. all these together canbe treated as a 'house'. On the contrary, if a single housewith half a dozen rooms, where normally a single familycan live, is sub-divided so that each room is let out toa different person, the fact that the entire unit constitutesa house cannot also be ignored. The only distinctionsought to be drawn by the learned Departmental counsel isthat even in the case of a single building constructed inthe present case, the assessed has taken care to make theunits self-contained by providing them with kitchen, bathrooms, etc., so that each person can stay separately there.This is our opinion by itself does not solve any problemand cannot either restrict or expand the meaning of theexpression 'house'.'
The Tribunal further observed as follows :
'from these, it would be clear that the word 'house' for thepurpose of exemption under sec. 5(l)(iv) should be givena meaning which is appropriate to the statute where itoccurs.'
(27) It is, thereforee, clear to me that the use of the word 'dwelling-house' in section 14A is not synonymous with the word 'premises' asdefined in the Act. The reason is that the allottees of Governmentresidential accommodation are not only Class Iv and Class Iii officers(who may be occupying one or two room tenements in Governmentpremises), but they include Secretaries and Joint Secretaries fallingin Class I, who are accustomed to live in complete bungalows, consisting of three or more bed-rooms in addition to other appurtenancesand conveniences. If the intention of the amendment is to requirethem to quit Government accommodation and live in their own house,it is reasonable to infer that they are required to live in their wholehouse and not only in one premises in part of the building with tenantsresiding in other premises in the same building. In other words, theirneed for vacant possession is not confined to only one of the premisesin a dwelling house which may have been let out to several tenants.That is the reason why the word 'premises' has not been repeated inthe proviso and a wider expression 'dwelling-house' has been inserted.The word 'dwelling-house' must, thereforee, be given a more extensivemeaning than premises, but another whole house must be excludedfrom its connotation.
(28) The expression 'premises' in section 2(i) of the Act meansand includes a whole or part of the building, which is or intended tobe let separately for use as a residence, etc. In the context of theAct, to arrive at the meaning of the word 'dwelling-house', the expression'let separately' is to be excluded from the consideration, and the building, in order to constitute a dwelling-house, must howsoever let besuch as is intended to be used separately as a residence. Where the premises consists of a whole building, the question obviously does notarise, since in such cases the premises and dwelling-house would referto the same accommodation. The problem arises, if what has beenlet out as a premises exist in a part of the building. In such cases, IN my opinion, the landlord would, in a case falling under section 14A,beentitled to obtain possession of the whole building consisting ofseveral premises, provided the whole building constitutes one dwelling-house.
(29) In order to determine whether two parts of the buildingconsist of one or two dwelling-houses, the test to be applied is this:(1) consider the building and see whether it constitutes a whole houseor part of the house ; (2) if one part is reasonably needed for convenientand comfortable occupation and enjoyment of the other part of thebuilding, then both the parts of the building constitution are dwelling-house within 'the meaning of the proviso to section 14A. To arriveat this finding, the relevant factors to be taken into consideration are :(a) the situation ; (b) the entrance ; (c) the municipal numbers ; (d)nature of the construction; (e) inter-communications between the twoparts ; (f) completeness and independence of each unit ; (g) other relevant and material circumstances. None of these taken singly isdecisive, but their cumulative effect must be considered.
(30) To take an illustration of the application of the rule, if therebe a flat on the ground floor and another flat on the upper floor ofthe same building, then both would constitute one dwelling-house. Onthe other hand, if there are several tenements and many apartmentsin a large building complex, then each would constitute a separatedwelling-house, since there will be no inter-communication and noneed of one for occupation, enjoyment and use of the other. Hencethe landlord cannot obtain possession of the whole complex.
(31) As a result, my conclusion is that the question in each casewill be determined on its own facts and circumstances and the materialplaced on record and the word 'dwelling-house' occurring in theproviso to section 14A shall be construed as not confined to a partof the building containing a premises, but it means a whole buildingconsisting, if necessary, of one or more premises, as defined by theAct, but the whole building must be such as is reasonably intendedto be used separately as one residential house.
(32) The scope of the revision in the High Court is provided by sub-section (8) of section 25B, which reads as follows :
'NOappeal or second appeal shall lie against an order forrecovery of possession of any premises made by the Controller in accordance with the procedure specified in thissection;'
'PROVIDED that the High Court may, for the purpose of satisfying itself that an order made by the Controller underthis section is according to law, call for the records ofthe case and pass such order in respect thereto as itthinks fit.'
This provision of law is analogous of section 25 of the Provincial SmallCause Courts Act and section 35 of the Delhi & Ajmer Rerit ControlAct, 1952. This has been interpreted by the Supreme Court in HariShankar v. Rao Girdhari Lal Choudhry, Air 1963 Sc 698. Therule of law laid down is that the High Court can satisfy itself that thedecision as a whole is according to law and it refers to the overalldecision, which it would not be if there be a miscarriage of justice dueto mistake of law, but it cannot be equated to errors of law or of factsimpliciter. Instances in which the High Court will be justified in interfering are where the court had no jurisdiction or in which the courthad passed a decision on evidence which should not have been admittedor had not been given a proper opportunity of being heard or theburden of proof has been placed on the wrong shoulders. But theHigh Court will not be justified in interfering with a plain findingof fact.
(33) The result is that the High Court in exercise of powers undersub-section (8) of section 25B of the Act is not entitled to interferewith a plain finding of fact, if it be satisfied that the order of theController taken as a whole is according to law and no error of lawhas been committed resulting in miscarriage of justice.I shall now Summarise my conclusions thus :
1.The object of section 14A is to enable allottees of Government accommodation, who in their name or in the nameof their wife or dependent child owned residential accommodation in Delhi must vacate the public premises so that they can be allotted to more deserving cases and in defaultallottees must incur certain obligations. Such landlordowners, whose allotment of public premises has been cancelled, have been made entitled to recover possession ofthe residential accommodation owned by them immediately untrammelled by any conditions or restrictionsimposed by any law or any term of the contract of tenancy.Such landlords could obtain this relief expeditiously and aspecial procedure has been prescribed by Chapter Iiia, has also been made applicable to other landlordsseeking eviction on the ground of bona fide personal necessityunder clause (e) of the proviso to sub-section (1) ofsection 14.
2.The procedure prescribed by section 25B of the amendedAct governs new petitions for eviction and does not applyto the petitions already pending.
3.The leave to contest the petition will be granted if thedefense taken is clear, specific and positive and is raisedbona fide not intended merely to gain time and the affidavits and documents accompanying the same disclose factswhich if true, disentitle the landlord to obtain an orderfor recovery of possession. After leave has been granted,the petition would be tried on merits according to law.
4.The defenses open to a petition for eviction filed on theground mentioned in clause (e) of the proviso to sub-s. (1)of S. 14 of the Act are the same as available underthe Act prior to its amendment.
5.Such defenses are not available against the merits of THE petition filed under s. 14 of the Act which has createda new cause of action and conferred a new statutory righton the landlord to obtain eviction. The defenses onmerits in such cases must be confined only to fulfillmentor otherwise of the conditions and restrictions mentionedin s. 14A alone, apart from any defense of a proceduralnature, which be available according to law.
6.In section 14A the last expression in the purview 'possessionof any premises let out by him' includes the landlord filingthe petition who has succeeded the landlord who initiallylet out the premises.
7.The londlord owning two or more dwelling-houses and seeking recovery of possession of one of them must specify allthe houses owned by him or his wife or dependent childand indicate the one of which he seeks recovery ofpossession.
8.The meaning of dwelling-house is not confined to a part ofthe building containing a premises, but it means the wholebuilding consisting, if necessary, of one or more premises,as defined by the Act, but the whole building must be.such as is reasonably intended to be used separately asone residential house.
9.The scope of revision under sub-section (8) of section 25B of the Act is as laid down by the Supreme Court in HariShankar v. Rao Girdhari Lal, Air 1963 Sc 698.
In view of the observations made above, the particular revisionsare now disposed of.C.R. 369 of 1976
(34) This is a revision by the tenant against the order of the Controller dated 29/05/1976 by which he has refused leave to contestand ordered eviction of the petitioner in a petition for eviction under section 14A of the Act. In this case, the defense raised is that thelandlord had more than one dwelling-house and he is already inpossession of house No. 5/61 and has obtained an order for evictionin respect of house No. 5/62 as well as 5/64. The premises in disputeare 5/63. The question for determination is whether premises 5/63and 5/64 constitute one dwelling-house along with premises 5/61 and5/62 or they are two houses. These are four flats on two differentfloors. The Controller has not taken into consideration the fact thatthese houses were separately owned by the previous owner and hadbeen separately sold out and as such it is difficult to hold that bothof them constitute one building intended to be used separately forresidence. This matter requires evidence and, thereforee, trial of thecase. The revision is accordingly allowed and the order of the Controller is set aside to the extent is affects the rights of the petitioaer beforeme, namely, V. L. Kashyap. The Controller will now grant leave tothe petitioner before me to contest the petition and proceed according.to law. The costs of this revision will abide by the result of theproceedings. The parties are directed to appear before the Controlleron 18/10/1976.C.R. 474 of 1976
(35) This revision has been filed by the tenant against the orderof the Additional Controller, dated 1/03/1976. The petition foreviction has been filed on the ground mentioned in clause (e) of theproviso to sub-section (1) of section 14 of the Act. The defenseraised was challenging the ownership of the respondents and lack oftermination of tenancy by a valid notice and the respondents were inpossession of sufficient accommodation. All these are defenses whichare available to be raised in a petition filed under clause (e) of therelevant proviso. These contentions could not be disposed of by theController merely on the affidavits. The revision is, thereforee, allowed.The order of the Additional Controller is set aside. The AdditionalController is directed to consider the matter afresh and if he finds thatthe defense raised by the petitioner is clear, specific and positive, andbona fide, then he will grant leave to the petitioner to contest THE petition. Should he be not satisfied, then it would be in his discretionA and power 'to refuse leave. Costs of this revision will abide by The result of the proceedings. The parties are directed to appear beforethe Additional Controller on 18/10/1976.C.R. 322 of 1976
(36) This revision has been filed by the tenant against the orderof the Controller dated 17/04/1976 refusing leave to the petitionerto contest and ordering his eviction. The defense raised was that theprevious petition filed under clause (e) of the proviso to sub-section (1)of Section 14 of the Act had been withdrawn and the present petitionis not maintainable. This objection has been repelled by the Controller,in my opinion, rightly. The other contention raised is the letting purposeof the premises and the ownership of the respondent. So far as theletting purpose is concerned, the Controller has found that the rentreceipts show that the premises had been let out for residential purposesand not commercial and that the nature of the premises was residential.I am of the view that this observation of the Controller is correct.So far as the denial of the title of the respondent is concerned, the respondent has based his title on a registered will. Had it been a recentwill, I would have accepted the submission of the counsel for the petitioner and ordered the setting down of the case for trial on evidenceand proof of the will, since mere production of the will does notprove it. But the will is old and the petitioner tenant has acknowledgedthe respondent to be his landlord and paid rent to him and obtained rentreceipts from 1969 onwards. Thus the tenant had never disputed therelationship of landlord and tenant or the ownership of the property.The defense taken by the petitioner is, in my opinion, not bona fideand has been taken only to delay the trial of the petition. As such Ihold that the Controller was justified in refusing leave to contest THE petition. The revision is dismissed and the order of the Controller isaffirmed. There will be no order as to costs.C.R. 326 of 1976
(37) In this case, the landlord sought eviction on the ground mentioned in section 14A of the Act and the Controller by order dated 26/04/1976 refused leave to contest and ordered eviction. Thedefense raised by the tenant is that the respondent is not the ownerof the property and that the premises were let out to the tenant forresidence-cum-commercial purposes. It has further been contended that* no valid notice under section 106 of the Transfer of property Act hasbeen served. The Controller observed that the landlord produced thesale deed of the property and that it had not been disputed that the premises were residential in nature and that the tenant had not placedany material to show that the premises were used for business purposes.The Controller held that the question of termination of tenancy did notarise in the case. In my opinion, the order of the Controller is correct.The tenant had admitted the relationship of landlord and tenant andthe landlord had produced the sale deed of 1959. It is true that themere production of the sale deed does not prove itself, but a tenantwho admits the existence of the relationship of landlord and tenantmust, if he disputes the ownership, as pointed out by me above, allegewho the owner of the property is. Had this allegation been made specifically and bona fide, it would have been necessary to set down THE petition for trial on oral evidence, but in the instant case the petitionerhad been paying rent to the respondent landlord, who possessed thesale deed. As such the defense raised by the petitioner is not bona fideand has been rightly rejected by the Controller. So far as the questionof termination of contract of tenancy and the letting purpose of the premises is concerned, I agree with the Controller below that thesedefenses are not open to be raised in a petition under section 14A of theAct. The revision has, thereforee, no merit and is dismissed and the order of the Controller is affirmed. The parties are left to bear theirrespective costs.C.R. 349 of 1976
(38) In this case, the tenant has filed the revision against the orderof the Controller dated 25/04/1976 refusing leave to contest THE petition and ordering eviction. The petition has been filed for evictionon the ground mentioned in section 14A of the Act. The defense raisedis that the notice of termination of tenancy is not valid and the premiseshave been let out for residential-cum-commercial purposes and no permission has been obtained from the Competent Authority (Slum Areas)to institute the petition. The Controller has observed that no materialhas been placed on record to suggest that the premises were let out forresidential-cum-commercial purposes and that the defense about thevalidity of the notice of termination of tenancy and lack of permissionfrom the Competent Authority (Slum Areas) were not available tothe tenant in a petition under section 14A of the Act. In the view I have taken, the order of the Controller is correct. It was not open tothe petitioner tenant to raise the objections about the letting purposeor lack of permission of the Competent Authority or the service of avalid notice of termination of tenancy. The revision has no merit andis dismissed and the order of the Controller is affirmed. There wilbeno order as to costs.