H.L. Anand, J.
(1) These petitions, inter alia, raise a common question as to the circumstances in which leave should be granted to a tenant under sub-section (5) of Section 25B of the Delhi Rent Control Act, 1958 (for short, the Act) Certain subsidiary questions also arise in individual petitions, which are common to some of them.
(2) As is well-known the Act is a part of the rent control legislation enacted in Delhi, as indeed in the rest of I he country, to deal with an extraordinary situation that arose soon after the outbreak of the Second World War because of increasing pressure on urban immovable property. The situation was further aggravated in the years that followed on account of increasing population explosion and the influx of large number of displaced persons from the territories, now forming part of Pakistan, in the wake of the partition of India and the consequent pressure on land in urban areas. The rent control legislation, throughout the country was intended to strike a reasonable balance between the requirements of the tenants for adequate protection against the aggressive design of greedy landlords to evict the tenants or to increase the rates of rent to an exorbitant limit and the need to assure to the landlords, whose normal legal rights were sought to be restricted, the minimum right to receive the agreed rent, lawful increase of it and to evict the tenants who may be guilty of misconduct and for other grounds within certain circumscribed limits. These measures were continued after the promulgation of the Constitution of India with an even greater bias in favor of the tenants, who, by and large, represented the weaker segment of society as compared to the urban propertied class, as part of large scale social legislation having its genesis in the need to bring about social and economic justice through legislative action, inter alia, by the redistribution of wealth on an equitable basis, elimination of exploitation in all forms and establishment of a truly egalitarian social order.
(3) Among the grounds which could justify the eviction of a tenant was clause (e) of proviso to sub-section (1) of Section 14 of the Act, according to which the tenant may be evicted from the premises 'let for residential purposes' if such premises were 'bona fide' required by the landlord for occupation as a residence for himself or for any member of his family dependent on him provided the landlord 'has no other reasonably suitable residential accommodation'. Explanationn to clause (e) defines the expression 'premises let for residential purposes' as including 'any premises which having been let for use as a residence or, without the consent of the landlord, used incidentally for commercial or other purposes'. By the Delhi Rent Control (Amendment) Ordinance (No. 24 of 1975), 1975 (for short, the Ordinance) the Act was amended with a three-fold object : one was the much needed protection to the heirs of a statutory tenant after the death of such a tenant. The other was a sequal to Government decision to deprive an allottee of Government accommodation if he owned a residential accommodation either in his own name or in the name of his wife or dependent child. The third was to introduce a summary procedure for trial of applications in which eviction was sought either on the ground of requisition to vacate Government accommodation on account of ownership of residential accommodation or on the ground that the owner landlord bona fide required the premises in terms of clause (e). To achieve the last two objects Section 14A and Sections 25A, 25B and 25C were added to the Act. Section 14A conferred on a landlord the right to evit a tenant, if, being a person in occupation of any residential premises allotted to him by the Central Government or such other authorities, he was required to vacate such residential accommodation on the ground of his ownership of residential accommodation in the Union territory of Delhi. Section 25B provided that applications for eviction based on the ground set out in clause (e) of proviso to subsection ( 1) of Section 14 shall be summarily tried in accordance with the new procedure. The Ordinance was issued on December 1, 1975 and came into force on that date itself. The Ordinance was eventually replaced by the Delhi Rent Control (Amendment) (No. 18 of 1976), 1976 (for short, the Amending Act). The Amending Act continued the provisions of the Ordinance with the difference that the summary procedure introduced by the Ordinance was also extended to applications for eviction on the ground set out in Section 14A of the Act, a procedure which had been confined under the Ordinance to applications for eviction on the ground set out in clause (e) of the proviso to sub-section (1) of Section 14. The Amending Act came into force on February 9, 1976, but by virtue of sub-section (2) of Section I it 'shall be deemed to have come into force on the 1st day of December, 1975', i.e. the date of the enforcement of the Ordinance.
(4) The various applications for eviction, out of which the aforesaid petitions arose, were filed either after the Ordinance came into force but before the Amending Act was passed or after the Amending Act came into effect. The several tenants whose eviction was claimed sought leave of the Controller to contest the applications on different grounds. Leave to contest was, however, tun-red down in all the cases by fairly reasoned orders which not only considered the question, if there was a case for leave being granted but also decided the questions the trial of which was stated as justifying the leave. Consequently the eviction of all the tenants was ordered simultaneously with the refusal to grant leave to contest. That is how the tenants have come to this Court invoking the power of this Court under proviso to sub-section (8) of Section 25B of the Act, The petitioner in C.R. 248/76 had earlier challenged the order of eviction by a petition under Articles 226/227 of the Constitution of India.
(5) For a proper understanding of the various questions that arise in these petitions it would be necessary :o examine the provisions of clause (e) of proviso to sub-section (1) of Section 14 as well as the newly added provisions of Sections 14A. and 25A and 25B of the Act.
(6) This is how clause (e) of proviso to sub-iec:ion (1) cf Section 14 of the Act reads : 14. (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:- (a) to (d) e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation; Explanationn.-For the purposes of this clause, 'premises let for residential purposes' include any premises which having been let for use as a residence are, without the 16 HCD/76-5 consent of the landlord, used incidentally for commercial or other purposes ; Where a plea of the landlord for eviction on the aforesaid ground succeeds sub-section (7) of Section 14 provides that in such an event
'THElandlord shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of the order'.
Before the Act was amended by the Ordinance and the Amending Act, in terms of Section 37(2) of the Act, subject to any rules that may be made under the Act, the Controller was bound, while holding an enquiry in any proceeding before him, to
'FOLLOWas far as may be the practice and procedure of a court of small causes, including the recording of evidence'.
(7) SUB-SECTION (1) of Section 14A runs thus : 14A. (1) Where a landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required, by, or in pursuance of, any general or special order made by that Government 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 in the 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 or in any other law for the time being in fores or in any contract (whether express or implied), custom or usage to the contrary, a right to recover immediately possession of any premises 1st out by him: Provided that nothing in this section shall be construed as conferring a right on a landlord owning, in the Union territory of Delhi, two or more dwelling houses, whether in his only name or in the name of his wife or dependent child, to recover the possession of more than one dwelling house and it shall be lawful for such landlord to indicate the dwelling house, possession of which he intends to recover.'
(8) Section 25 of the Act provides that the provisions of Section 25B and Section 25C shall have effect notwithstanding anything inconsistent therewith contained elsewhere in this Act or in any other law for the time being in force. The relevant portion of Section 25B which lays down the procedure for the trial of applications by which eviction is sought either on the ground specified in clause (e) of the proviso to sub-section (1) of Section 14 or in Section 14A reads thus : 25B. (1) Every application by a landlord for the recovery of possession of any premises on the ground specified in clause (e) or the proviso to sub-section (1) of Section 14 or under Section 14A, shall be dealt with in accordance with the procedure specified in this section. (3) (a) (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 to 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 for the recovery of possession of the premises on the ground specified in clause (e) of the proviso to sub-section (1) of section 14, or under section 14A. (8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section: Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit. (9) (10) Sub-section (2) of Section 25C substitutes for words 'six months' occurring in sub-section (7) of Section 14 of the Act the words 'two months' with the result that if the plea for eviction succeeds the tenant would be entitled only to two months period to vacate as against six months assured to him under the Act before its amendment.
(9) According to the tenants the provisions of sub-sections (4) and 5) of Section 25B of the Act, by and large, follow the pattern which is provided in Order 37 of the Code of Civil Procedure for leave to defend a suit as interpreted by the Supreme Court in the famous case of Santosh Kumar v. Bhai Mool Singh ( : 1SCR1211 and a tenant, thereforee, would be entitled to leave being granted to him to contest the application for eviction if by his affidavit he sets up a defense which raises a real issue, whether of fact or of law, and in case of an issue of fact, if the facts alleged by the tenant were established there would be a good or even a plausible defense to the plea of eviction. On the other hand it is the assertion of the landlords that the provisions contained in sub-sections (4) and (5) of Section 25B represent a deliberate departure from the pattern incorporated in Order 37 and the conditions envisaged by sub-section (5) are more stringent in that the tenant is entitled to leave to contest only if the affidavit filed by the tenant discloses facts as would definitely disentitle the landlord from obtaining an order of -eviction and that, thereforee, before leave could be granted to a tenant to contest it must be established that the material disclosed by the tenant would be a complete answer to the claim or in other words would non-suit the landlord. It is, thereforee, urged that disclosing facts or making allegations or raising pleas which may merely constitute triable issues of fact or law and may perhaps be a good or a substantial defense to the action alone would be insufficient to entitle the tenant to the grant of leave.
(10) What then is the true test to determine if a tenant is entitled to leave to contest the plea for eviction What are the circumstances in which such leave would be granted What is the true meaning and correct interpretation of the provisions contained in sub-sections (4) and (5) of Section 25B of the Act, particularly of the words 'discloses such facts as would disentitle the landlord from obtaining an order' occurring in sub-section (5). These are the questions that are posed and must be answered before the different subsidiary questions raised in the various petitions may be dealt with.
(11) In terms of sub-rule (2) of Rule 2 of Order 37 of the Code of Civil Procedure
'THEdefendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend'.
Sub-rule (1) of Rule 3 of Order 37 lays down the procedure to obtain leave and gives an indication of the circumstances in which leave shall be granted. Sub-rule (1) of Rule 3 of Order 37 reads:
'3(1)The Court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application'.
In the case of Santosh Kumar v. Bhai Mool Singh (supra) the provision of Rule 3 of Order 37 came up for interpretation. This is how Bose. J., who spoke for the Court, laid down the test to deteri) mine if leave should or should not be granted :
'TAKENby and large, the object is to see that the defendant does not unnecessarily prolong 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, thereforee, the test is to see whether the defense raises a real issue and not a sham one, in the sense that. if the facts alleged by the defendant are established, there would be a good, or even a plausible, defense on those facts'.
Elsewhere the learned Judge observed thus :
''THISis a surprising conciusion. The facts given in the aindavit arc clear and precise, the defense could hardly have been clearer. We find in dicult to sec how a defense that on the face of it is clear becomes vague simply because the evidence by which it is to be proved, is not brought on file at the time the satisfence is put in'.
(12) Two of my claimed brothers V. S. Deshpande and B. C.Mitra, JJ. considered the question as to the circumstances which leave should be granted under sub-section (5) of Section 25B of the Act in two separate cases in the context of the aforesaid provisions of the Code and of the observations of the Supreme Court made in relation thereto. In C.R. 280/76 decided on 3-8-1976(2) Deshpande, J. described the provisions of sub-section (5) of Section 25B of the Act to he parallel and corresponding to the provisions of Rules 2 and 3 of Order 37 of the Code o' Civil Procedure and held, following the observations of the Supreme Court in the ca?e of Santosh Kumar (supra), and find that the defense raised is not clear, specific and positive or is not bona fide, but has been made only to gain time, he would be justified in refusing the leave to contest the petition. In case leave to contest has been granted, the petition for eviction would be set down for trial in accordance with the procedure prescribed by law and the landlord would then be required to lead evidence to prove the ingredients of the grounds on which he seeks eviction and the burden will lie on the landlord to prove his claim except in so far as any part of the claim be admitted by the tenant'.
(13) It appears to me that on their plain language and on a combined reading of sub-sections (4) and (5) of Section 25B of the Act, in the context of the compulsions that led to the amendment, the provisions are clear as to the circumstances in which leave to contest should be granted and do not admit of any controversy. Ordinarily, a party, which brings a cause to court, must prove such facts as would entitle it to the relief and a bare denial, thereforee, by the party that contests such an action would be sufficient to put the question, whether of fact or of law, in issue between the parties casting a duty on the party which went to the court to establish the facts and, thereforee) a corresponding obligation on the court to investigate both the facts and the law to arrive at a Just conclusion. The provisions of Order 37 Rules 2 and 3, as indeed the provisions of sub-sections (4) and (5) of Section 25B of the Act, however, represent a departure from the ordinary norm in that in both the cases the defendant has no right to contest the prayer for relief unless it obtains leave to contest the action or the application for eviction as the case may be. It follows, thereforee, that a bare denial would not ordinarily entitle the defendant in an action under Order 37 or a tenant in an application for ejectment which may be within the mischief of Section 25B to leave to contest. While in the case of Order 37 the defendant must raise triable issues to entitle him to leave, the affidavit that may be filed by the tenant must disclose facts as would . 'disentitle' the landlord of the relief of eviction. The tenant 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 obtaining 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 cf fact and of .law which cou!d even tually 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 lo deicrnrne as to how the Can roller 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 pica to take of the have and on such a plea prevailing '.with...; 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. even though the plea raises a triable question of law. the Controller clioses to look at the pica 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
(14) 'Two subsidiary questions which are common to some of the petitions may now be considered. The first of these questions is as to the interpretation of the expression 'a residential accommodation' occurring in sub-section (1) of Section 14A of the Act. The second question relates to the entitlement of an allottee of Government accommodation to evict his tenant under Section 14A(1) where the allotmerit of such a person was liable to be cancelled by virtue of rctriment or transfer even though the requisition to vacate the allotted premises was based on the ground of ownership of a reidential accomodation.
(15) On the first question, the contention on behalf of the tenants is that a prermises which is let out for a composite purpose of residence cum-business or was primarily or substantially being used for a commercial purpose, whether with or without the permission of the landlord, was beyond the scope of Section 14A(1). This con.erii.ion is clearly untenable on the plain language of the provision 'nd cannot be supported even otherwise having regard to the object sought to be achieved by the provision. The expression 'residential' qualifies the word 'accommodation' and the former is clearly, thereforee, descriptive of the letter. The expression thereforee, clearly denotes the purpose for which the premises was built, the use to which is was intended to be put and the category to which it belongs. It is used in contra-distintion to a shop or a house of business. Whether an accommodation is residential or not would, thereforee, depend on these factors and the purpose for which it was let out to a particular tenant or the actual use to which it is put or has been put, either with or without the permission of the landlord, would be wholly irrelevant in a determination of the question if the accommodation is residential in character. It is significant to mention in this context that the phraseology employed by the Legislature in Section 14A(1) of the Act represents a clear departure from the corresponding provisions contained in clause (e) of proviso to sub-section (1) of Section 14 of the Act. In terms of clause (e) and the Explanationn to it one of the conditions to eject a tenant is that the premises must be 'let for residential purposes'. an expression which is elucidated in the illustration as including any premises which, having been let to be used as a residence, are without the consent of the landlord, used incidentally for commercial or other purposes. The expression 'let for' has been dropped in drafting Section 14A(1), apparently with a view to widen the scope of the provision so as to entitle the landlord to evict a tenant, if the other conditions Sub Section . 14A(1) are satisfied, from a residential accommodation irrespective of the purpose for which it was let. The object of Section 14A(1) is beyond doubt. It is intended to enable landlords, who are liable to lose Government accommodation, to evict tenants of residential accommodation owned by them. The requirement of the Section would, thereforee, be satisfied if the accommodation in question is capable of being used for a residence. The way I have looked at the expression appears to be consistent with the manner in which my learned brothers have looked at the provision in the two cases referred to above. It may, however, happen in n. given case that a premises which was built, planned or intended to be a residence was let out by the landlord to a tenant to be used either primarily or partly For a commercial purpose and on that account the premises may be so alteredstructurally or otherwise, either by or at theinstance of or within the knowledge of the landlord, in such a wav that in course of its user or otherwise it becomes unfit for being used for a residential purpose. In such a case the premises could be legitimately said to be beyond the purview of the provision of Section 14A(1) of the Act because a premises, which was intended to be used for a residential purpose, has because of the subsequent changes lost its characteristic as residential accommodation.
(16) On the second of the above questions, a contention was raised on behalf of the tenants that the landlord could eject a tenant on the other conditions of Section 14A(1) being satisfied only if the landlord was required to vacate Government accommodation 'on the ground that he owns in the Union territory of Delhi a residential accommodation' and that, thereforee, if such a landlord was liable to vacate Government accommodation either on account of his retirement or transfer, both of which may have taken place before he sought eviction, such a case would be beyond the purview of Section 14A(1) of the Act, for, in such a case the landlord being liable to vacate the accommodation on account of retirement or transfer, would be taking an undue advantage of the provision which was only intended for hard cases in which a landlord was required to vacate Government accommodation on account of ownership of a residential accommodation. This contention appears to me to be sound. In terms of Section 14A(1) a person in occupation of any residential accommodation allotted to him by the Central Government or any local authority gets the right to evict his tenant from any residential accommodation owned by him only if such person is required to vacate such accommodation 'on the ground that he owns in the Union territory of Delhi a residential accommodation'. Priina fade, he would not be entitled to evict the tenant under the aforesaid provision if, even independently of such ownership, he was bound to or was liable to vacate the Government accommodation for other reasons such as retirement from service or transfer from Delhi. It may be pointed out that the provision of Section 14A(1) or the summary procedure provided in Section 25B of the Act was not intended to be a charter of emancipation as it were, of the landlords from the so-called tyranny of the tenant as a result of the beneficial legislation undertaken for the protection of the tenants. Nor do these provisions represent a reversal of the social philosophy on which the Act is based. These are extraordinary provisions, which are intended, in the first instance, to ensure a speedy trial of applications where a landlord bona fide needs premises for his own use and has no suitable accommodation for his residence and secondly, to ensure expeditious eviction of tenants who are in occupation of residential accommodation owned by such allottees of Government accommodation who are required to vacate it by virtue of their ownership of such accommodation. These provisions are, thereforee, intended to deal with hard cases and there would, thereforee, be no justification to permit a landlord to take undue advantage of the extraordinary provisions contained in Section 14A(1). If, thereforee, a landlord who must vacate Government accommodation by virtue of his retirement, or transfer it would be a gross misuse of the provision to permit such a landlord to take advantage of the aforesaid provisions merely because he was able to obtain an order of cancellation of his allotment, either because it was made without reference to his actual retirement or transfer or because the factum of such retirement or transfer was not disclosed to the authorities. It is true, that the period that an allottee of Government accommodation is allowed to vacate when required to vacate on account of his ownership of any premises is shorter than the period allowed to him in case the requisition to vacate is based on retirement or transfer. It is equally true that because of the difference in such period the extent of penal financial consequences would vary in the two cases. But that by itself, to my mind, would not make any difference.
(17) In some of the petitions a question was raised that the application for ejectments were not maintainable unless the contractual tenancy had been terminated in accordance with the provisions of the Transfer of Property Act and, in case the premises was situated in a slum area, unless the requirement of the Slum Areas (Improvement and Clearance) Act, 1956 had also been satisfied. Similar contentions were raised in the two cases referred to above and were dispelled by V. S. Desh- pande and B. C. Misra, JJ. These questions are, however, not free from difficulty. The question as to the maintainability of an application for eviction under the Act before its amendment during the subsistence of a contractual pendency has been the subject ' matter of considerable judicial controversy and the view .that ultimately prevailed was that inasmuch as the Act v/as not a complete code the termination of the contractual tenancy was a sine qua non for any plea for the eviction of a tenant. The view that the non-abstante clause in Section 14A(l) has not made any difference, which did not find favor with Deshpande and Misra, JJ., appears nevertheless to be a possible view of the matter, and I say so with utmost respect. Having regard however, to the fact that the petitions in which the questions raised before me are being determined on other grounds and a decision of these questions is, thereforee, unnecessary and also because pursuant to the direction made by the Supreme Court in Civil Appeal No. 682 of 1976 of September 20, 1976 these questions are being referred to a larger Bench, I feel discharged from an obligation to answer these questions. However, in the applications for eviction which survive and arc -being remanded for trial the Controller would be free to consider these questions in the light of the governing decision at the relevant time.
(18) The question as to the propriety of the orders of the Controller in declining leave to contest the various applications and the other questions that may arise in the individual petitions may now be considered. It must, however, be pointed out in that their anxiety to ensure a expeditious disposal of their applications it was suggested on behalf of the landlords in each of these cases that if this Court came to the conclusion that the grounds on which leave was sought disclosed such questions of fact or law which, if substantiated, would not suit the landlord and the matter could be decided either on the existing material or without any evidence whatever the proceedings need not be remanded by this Court but instead be decided on the marits of the defense, as if leave had been granted, and the device of a remand order after granting leave may be confined only to those cases in which evidence would be required to substantiate the pica on which the defense was sought to be grounded. Learned counsel for the tenants did not object to this course being followed.