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Vinod Kumar Malhotra Vs. S.L. Sehgal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 425 of 1978
Judge
Reported in16(1979)DLT98
ActsDelhi Rent Control Act, 1958 - Sections 25B
AppellantVinod Kumar Malhotra
RespondentS.L. Sehgal
Advocates: L.R. Gupta and; R.L. Kohli, Advs
Excerpt:
.....to arc to grant permission to tenant to defend petition. - - the tenant is residing in the ground floorconsisting of three bad-rooms and a drawing/dining room. it was also alleged that the landlord bad wanted to increase the rent and the eviction petition was the result of the tenantsrefusal to pay increased rent. againthe landlord's plea is that in view of his wife's illness he would like his parentsto come and live with him so that she could be attended to by them and lookedafter by them. (13) during the pendency of the revision in this court chadha-j hadby consent of both the parties given a direction that without prejudice to thecontentions of the parties in the revision petition as well as in the rent controlproceedings the following interim arrangement should be adopted..........premises which consists of two bedrooms and a drawing/dining room. the tenant is residing in the ground floorconsisting of three bad-rooms and a drawing/dining room.(3) the petitioner become the tenant of the premises in 1969.(4) the landlord filed the petition for eviction on the ground that theground floor of the premises was bonafide required by him for the residenceof himself and his family members and that they had no other reasonably suitable accommodation with them. it was stated that the accommodation with thelandlord on the first floor was not reasonably suitable because of 'illness of the petitioner's wife necessitating her residence on the ground floor; son of the petitioner having become of marriageable age is to be married and due to paucity ofaccommodation and.....
Judgment:

S. Ranganathan, J.

(1) This is a revision petition under Section 25-B(8) of the Delhi Rent Control Act against an order passed by the Additional RentController rejecting the application of the petitioner for leave to contest the petition for eviction filed by the landlord; under Section 14(l)(e) read with Section 25-B(8) of the above Act.

(2) The present petitioner is the tenant and the respondent the landlordof the premises bearing mulicipal No. E-336, Greater Kailash-I New Delhi. Thelandlord is residing in the first floor of the premises which consists of two bedrooms and a drawing/dining room. The tenant is residing in the ground floorconsisting of three bad-rooms and a drawing/dining room.

(3) The petitioner become the tenant of the premises in 1969.

(4) The landlord filed the petition for eviction on the ground that theground floor of the premises was bonafide required by him for the residenceof himself and his family members and that they had no other reasonably suitable accommodation with them. It was stated that the accommodation with thelandlord on the first floor was not reasonably suitable because of 'illness of the petitioner's wife necessitating her residence on the ground floor; son of the petitioner having become of marriageable age is to be married and due to paucity ofaccommodation and non-availability of reasonably suitable accommodation themarriage is being postpond and due to the petitioner being obliged to accommodate his parents to be able to serve them and also for assistance requiredfrom them due to illness of the petitioner's wife.' Along with the petition the petitioner had enclosed inter alias a certificate from the Sr. Resident MedicalOfficer of the All India Institute of Medical Sciences certifying that his wife whohad been undergoing treatment in the department of psychiatry had developedfear of heights and that she was advised to reside in the ground floor 'as hermental condition at present warrants it.'

(5) The tenant filed an application seeking leave to defend the abovepetition on merits. The grounds of objections raised by him were ;

(A)that the notice of termination of tenancy given by the landlordon 10,6.77 was not valid in law.(b) the son of the petitioner was employed outside Delhi and didnot require to reside or settle down at Delhi; and(e) that the petitioner and his parents were having strained relationship and that the parents of the petitioner who were living all Along with their younger son in their own premises were never brought by the petitioner to look after his wife at any stage though the petilioner's wifehad been sick for quite a long lime, even unterior to the period of tenancy of the petitioner himself.

It was stated that the plea of alleged illness of his wife and the medical certifificate filed raised triable issues. It was also alleged that the landlord bad wanted to increase the rent and the eviction petition was the result of the tenantsrefusal to pay increased rent.

(6) The Rent Controller has dismissed the above application as she wassatisfied that the affidavit did not disclosed facts or pleas which if provedwould disentitle the petitioner from obtaining an order of eviction.

(7) Sri L.R. Gupta appearing on behalf of the petitioner submits thatthe petitioner had taken very clear, cogent and definite grounds fur demostrating that the basis on which the eviction was sought was not tenable and thatthe Controller erred in deciding on the merits of the contentions evenat thestage of application for leave to defend. He points out that the pleas of thelandlord regarding his son's marriage and his pareats' presence on the premiseshad been refuted on the basis of definite and positive facts and that the RentController has said nothing about these two grounds. The only ground onwhich the learned Rent Controller has rejected the plea of the petitioner wasin regard to the ground of illness of the landlord's wife. In regard to thisground the learned Rent Controller has observed that the illness of lhelandlord's wife was virtually admitted and that the 'respondent had not deniedor even challenged the plea of the petitioner that the wife of the petitioner hasbeen advised to live in the ground floor or that her menial conditions were thesame' Sri Gupta points out that this is an incorrect statement because it wasonly in his reply to the application filed by the tenant that the landlord hadput forward the plea that though she had been ill all along her present condition was such that it required her to be shifted to the ground floor. He saysthat against this he had no opportunity to but forward his contentions. Insupport of his contentions Sri Gupta referred to a number of decisions ofthis Court holding that under Sec. 25B the tenant should be allowed to contestthe petition if his affidavit discloses a triable issue and that it would not beproper for the Rent Controller even at the stage to assess the merits of thedefense and give a conclusion on the facts without looking at the evidence whichthe parties may adduce in the course of the trial.

(8) On the other hand on behalf of the laadlord Sri Kohli contendedthat there were two lines of decisions of this Court in regard to petitions under section 25B. According to him one line of decisions based themselves mereor less on a comparison of the provisions of Section 25B with the provisions of Order 37 of the Code of Civil Procedure. These decisions held that if theaffidavit of the tenant discloses seme grounds cr triable issues then permissionto defend the eviction petition should be granted. The other line of decisions,Sri Kohli points out, have held that the two sets of provisions are notcomparable and that so far as the petitions u/s 25B are concerned it is not sufficient merely if there is some bare denial or some triable issue, What is necessaryis that the tenant should place on record positive, clear and definite sets of factswhich if accepted would disentitle the landlord from obtaining an order ofeviction. Sri Kohli referred in particular to the decision of the Supreme Courtin Busching Schmitz Pvt. Ltd. V. P. T, Menghani and another : [1977]3SCR312 where it has been pointed out that the provisions of Section 25B should not be approximated to the provisions, of Order 37 Rule 3 of theC. P. C. He contended that in the present case the tenant had not been ableto deny that the landlord's wife was ill and in the face of the certificate whichhad been filed along with petition the learned Rent Controller was prefectlyjustified in rejecting the application filed by the tenant. Sri Kohli also contendedthat the scops of a revision under Section 25B is very limited and in thiscontenxt he referred to the decision of the Supreme Court in Hari Shanker andothers v. Rao Gitdhari Lal A. I. R. 1963 S. C. 698.

(9) It appears to me that the question in this case has to be decidedon the fads and circumstances of the present case. Several decisions werecited both by Mr. Gupta and by Mr. Kolhi and these only emphasis and showthat the decisions were arrived at on the facts and circumstances of each case.It maybe that there was a slight difference in approach between the two lines ofof decisions but I do not think it is necessary to go into this aspect in thepresent case I am prepared to proceed on the basis of the contention of SriKohli that in order for an application under Section 25B(5) to succeed it isnecessary that the tenant should file an affidavit stating the grounds on whichhe seeks to contest the application for eviction and the controller is bound togrant such leave where the affidavit discloses such facts as would disentitle thelandlord from obtaining an order for the recovery of possession of the premises,under Section 14(1)(e). For an application under Section 14(l)(e) four conditions have to be fulfillled :-

(1)the premises must be let in for residential purposes ;(2) the petitioner should be the owner of the premises ;(3) the owner should require the premises bona fide for occupation asresidence for himself or for any member of his family dependenton him; and(4) the landlord has no other reasonably situable residentialaccommodation.

In the present case there is no dispute so far as the first two conditions areconcerned. All that has to be seen thereforee is whether the landlord requiredthe premises bonafide for occupying as residence for himself and whether the premises presently in occupation of the landlord was reasonably suitable forhis needs.

(10) In the present case, the latter two conditions have to be consideredtogether as some of the facts are common. The case of the landlord is that hehas been occupying first floor but he wants to move to the ground floor becauseof the Illness of his wife. So far as this plea is concerned the tenant of courseadmits that the landlord's wife has been ill but his answer is that she had beenill for quite a long time. She had in fact been ill even prior to the tenant coming to live in the premises. So his defense is that while it may be true that thelandlord's wife is ill this itself is not a sufficient ground to conclude that ihefirst floor is not suitable for her occupation because she had been living in thefirst floor for practically a period of 8 years inspire of such illness. Again thelandlord says that be needs larger premises because his son has come up of marrigeable age and that larger accommodation is needed for this purpose. Thetenant contradicts this plea on the ground that the son was living outside Delhiand that he was not likely to be married soon or to settle down at Delhi. Againthe landlord's plea is that in view of his wife's illness he would like his parentsto come and live with him so that she could be attended to by them and lookedafter by them. The tenant has an answer to this also and he points out thatthough the wife has been ill for several years now the parents have never cometo live with the landlord. In this state of pleadings I am of opinion that it isnot possible to come to a conclusion one way or the other unless the parties areallowed to let in evider.ce and the evidence is assessed en merits. It is afactthat the landlord's wife has been ill but the question is whether her illness is ofsuch a type or has assumed such preparations that the plea that the ground floor is necessary for her can be made out by the landlord. No doubt thelandlord has filed a medical certificate but the tenant has pointed cut that shehad been ill for a long time but the necessity to live on the ground floor has notbeen felt so far. These would shew that there is a real issue regarding the factin regard to the crucial ground en which eviction is sought. Similarly the pleasregarding the son's mairiage and the necessity of bringing the parents to livewith the landlord are all pleas in regard to which there is a contest between theparties. Whether we view the case as cue of the triable issues having been raised by the tenant or whether we consider it as a case where the facts set out inthe leave to defend the petition requiring to be examined further before one cancome to a conclusion that the need of the landlord is bona fide and that he isentitled to eviction under Section 14(l)(e) the matter is one for examination onthe merits. To me it appears that it is not correct to decide the issues betweenthe parties on the merits even at the stage of the application for leave to defendthe petition for eviction.

(11) It is the unanimous opinion of this Court as laid down in the numerous decisions aimed at the bar that a premature assessment of the evidenceeven at the stage of the application for leave to defend would be an irregularitywhich would justify interference in revision under the provisions of Sec. 25B(8).It is sufficient to refer to the decision referred in Om Parkash Gupta v Ram Mathetc., 1976 Rlr 613.

(12) In my opinion, thereforee, the order of the Additional Rent Controllerrejecting the tenants petition for leave to defend the eviction petition should beset aside. The matter is restored to the file of the learned Additional Rent Controller who will now grant permission to the the tenant to defend the petition forthe merits, and dispose of the same in accordance with law.

(13) During the pendency of the revision in this Court Chadha-J hadby consent of both the parties given a direction that without prejudice to thecontentions of the parties in the revision petition as well as in the rent controlproceedings the following interim arrangement should be adopted : Till thedisposal of the revision petition the petitioner was directed to shift to the firstfloor as a licensee at the same license fee but having tenancy rights on theground floor in dispute. This arrangement was subject to the result of therevision. Both counsel now agree that in view of the order passed by meallowing the tenants application for leave to defend the eviction petition it willbe convenient for both the parties to continue the interim arrangement directedby Chadha-J on 18. 8 1978. I thereforee direct that until the rent controlpetition is eventually disposed of by the Rent Controller the above interimarrangement will continue i.e. the petitioner tenant will continue in the first floorand the landlord will continue in the ground floor. The petitioner will be alicensee in regard to the first floor and will have tenancy rights in regard to theground floor. In the event of the landlord's succeeding in the eviction petitionfinally the tenant will hand over vacant possession of the first floor as of theground floor to the landlord. The parties will report before the Additional RentController on 21/05/1979.


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