B.C. Misra, J.
(1) This revision petition has been filed under sub-section 25-B of the Delhi Rent Control Act, 59 of 1958 (as amended by Act No. 18 of 1976 hereinafter referred to as the Act) by the tenant Fateh Singh, and is directed against the order of Controller, dated 7th September, 1976, by which he has refused the application of the tenant for leave to contest the eviction petition.
(2) The material facts of the case are that the respondent landlord instituted a petition under section 14A of the Act against two tenants including the petitioner before me, on the ground that the respondent landlord had been allotted Government accommodation which had been cancelled and which had been vacated by him and so he is entitled to obtain vacant possession of the tenanted premises from the two tenants.
(3) Notice of the petition was issued for trial in a summary manner. Both the tenants filed applications for leave to contest the eviction petition. The applications were supported by affidavits. The Controller below by the impugned order has refused leave to both the tenants and finally ordered their eviction. The other tenant Anand Parkash Singal, has already surrendered possession and has not filed any revision in this court and so nothing in this order will affect the order of eviction that had been passed against him. This revision has been filed only by Fateh Singh and this order will dispose of the revision only in so far as Fateh Singh is concerned.
(4) The main contention that has been raised by the petitioner tenant was that the respondent landlord had never resided in the Government accommodation allotted to him, but he had been living continuously in 74-A, Kamla Nagar, Delhi, along with members of his family and for this reason the petition of the landlord must fall.
(5) V. S. Deshpande J. in 0. P. Gupta v. Ram Nath, 1976 R .L. R. 613, has held that if the landlord is not actually in occupation of the Government accommodation then he is not entitled to an order for eviction on the grounds mentioned in section 14A of the Act. In a separate judgment delivered by me V. L. Kashyap v. R. P. Puri C, R. 369 of 1976, decided on 22nd September 1977 RLR 397, I have agreed with my learned brother V. S. Deshpande, J. and have held that this is certainly one of the defenses which is still available to the tenant in a petition under section 14A of the Act. This proposition of law is not disputed,
(6) In the instant case, the petitioner tenant had raised the plea specifically, categorically and bona fide and had averred that the landlord never resided in the alleged Government accommodation in Timarpur, but he is now residing in another accommodation. In reply the landlord averred that the allegation of the tenant was wrong and it was denied that the landlord had not been allotted Government accommodation and it was also denied that the tenant did not know of the same. It was further denied that the landlord and his family members had not been residing in the Government accommodation. In the reply no averment was made in respect of the allegation of the tenant that the landlord had been continuously residing in the house at Kamla Nagar. The Controller in paragraphs 6 and 7 of the judgment had dealt with this question. He has, although correctly stated that he was not to assess the evidence and to pre-judge the case of the parties, still he went wrong in applying the rule of law to the facts of the case. He has observed that the landlord had produced some letters which he had received at that address. The letters had not been produced in the case of the present petitioner, Fateh Singh nor had the said letters been admitted or proved and so they could not be treated as an evidence on which the Controller could act. The Controller further observed that the landlord had not produced any ration card or electricity or water bills to show that he was in occupation of the Government accommodation, but he rejected the objection on the ground that it did not matter. Further the Controller observed that the petitioner tenant had not filed an affidavit of Mrs. Sodhi or any other person who was alleged to be living instead of the respondent in the Government accommodation. In this way, the Controller clearly fell into an error. The question of filing the affidavit of Mrs. Sodhi or any other person did not arise at the stage of the proceedings before him. This is precisely the question that ought to have been set down for trial on evidence. In my judgment in V. L. Kashyap's case (supra) I have observed thus : 'The Controller, where leave to contest the petition is sought, will consider whether the affidavits for leave are clear, specific and positive and the defense raised is bonafide and prima facie not untenable and untrue. But the Controller in granting or refusing the leave cannot determine any disputed questions of fact, and if any such dispute arises bonafide where the defense taken is clear, specific and positive then the petition must be set down for trial on evidence and the facts should be investigated as quickly as possible as is required by sub-sections (6) and (7) of Section 25B'.
(7) V. S. Deshpande. J. in Om Parkash Gupta's case (supra) observed that the Controller had purported to assess, the strength of documentary evidence adduced by each party and such a course was not permissible to the Controller and the stage for assessment of evidence was not reached and so the decision of the Controller had to be made on the pleadings and admitted documents only. In the instant case, the Controller has not passed his order only on the pleadings and admitted documents. He has tried to assess the value of the affidavits of the parties and has recorded a finding against the tenant petitioner entirely contrary to law.
(8) V. S. Deshpande, J. in the judgment cited above, has further observed that what Controller did was to hold that even though the facts were disclosed by the tenant, they were not believed by him. In doing so, the Controller clearly acted contrary to the provisions of sub-section (5) of section 25B. The Controller's opinion was vitiated by his premature assessment of facts made by tenant in affidavit and documents was such as would disentitle the landlord from obtaining the order under section 14A(I) if the tenant later on is able to prove these facts. The refusal of the leave to defend by the Controller was thus contrary to sub-section (5) section 25B and was thereforee 'contrary to law' within the meaning of the proviso to sub-section (8) of section 25B'.
(9) In the instant case, the Controller has fallen into the same error, which was pointed out by my learned brother, V. S. Deshpande, J. in the above noted case. Consequently, I allow the revision, set aside the order of the Controller so far as as it related to Fateh Singh, the petitioner before me. The application of the petitioner for grant of the relief to contest the eviction petition is allowed and the case will be set down for trial on evidence according to law, as expeditiously as is required by sub-section (6) of section 25B of the Act. Costs of this revision will abide by the result of the eviction petition.