S.S. Chadha, J.
(1) This revision petition under Section 25(B)(8) of the Delhi Rent Control Act. 1958 is directed against the order dated December 23, 1978 pasted by Shri J.D Kapoor, Additional Rent Controller, Delhi declining an application for leave to defend filed under the provisions of Section 25B of the said Act and directing the petitioner to hand over the vacant possession of the suit premises.
(2) The Respondents-landlords filed a petition for eviction under Section 14(1)(e) read with Section 25 of the said Act for eviction of the petitioner from the premises comprising of two rooms, passage, verandah, kitchen, W.C. court yard and a bath bearing municipal No. 6404/2, Block No. 7-B (popularly known as Block No. 7), Gali No. 4, Dev Nagar, Karol Bagh, Ward No. 16 New Delhi. Summons were issued to the petitioner-tenant in the form specified in 3rd Schedule. On the receipt of the summons issued by the Additional Rent Controller, the tenant moved an application for leave to defend and to contest the case. The application was supported by a detailed affidavit of the tenant in terms of the application. Reply to the application was filed by the landlords supported by an affidavit of Shri S.K..Gupta, one of the respondents. The learned Additional Rent Controller, Delhi considered the averments made in the affidavits and expressed that the tenant has in his affidavit raised the following defenses in support of his claim of being granted the leave to contest the eviction petition :-
(1) that the premises are situated in slum area and the petition is not maintainable as no permission from the Competent Authority (Slum) has been obtained; (2) that the premises were let to the tenant with clear understanding that he will be entitled to use the premises for carrying on his business besides using it as his residence and he has throughout been using the premises for residential-cum commercial purposes; (3) that no rent note as alleged by the landlords was ever executed at the time of commencement of tenancy and signatures of the tenants were obtained on blank paper; (4) that the present accommodation in occupation of the landlords is more than sufficient as the landlords are in occupation of entire second floor besides the first floor accommodation.
(3) The learned Additional Rent Controller noticed the principles seitled by this Court governing the grant or refusal of leave to the tenant for coniesting the eviction petition filed by the landlords by staling that if the facts disclosed by the tenant in the affidavit filed under Section 25B of the said Act are of such nature which when presumed to be correct or found substantiated would non-suit the landlord that is to say would disentitle the landlords from seeking eviction of the tenant, the tenant should ordinarily be granted leave. It was further noticed that the facts disclosed and the defenses raised by the tenant in the affidavit should be specific, positive and of categorical nature and should give rise to triable issues. After stating these basic principles, the Additional Rent Controller erred in law in going the merits of the pleas raised by considering the affidavit of the tenant and the counter-affidavit of the landlords.
(4) The principles for the grant of leave have been stated by H.L. Anand, J. in 'Ram Chond v. Gokal Chand', 1977 R.L.R. 73 and I will do well to reproduce the same:-
'It appears to me that on their plain language and on a combined reading of sub-Section (4) and (5) of Section 25B of ihe Act, in the context of the compulsions that led to the amendment, the provisions are clear as to the circumstinces in which leave to contest should be granted and do not admit of any controversy. Ordinarily, a party who brings a case 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, Civil Procedure Code , as indeed the provisions of S. 25B(4) and (5), 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 defend. 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 assertion of fact or of law, would non-suit the landlord, if those 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 upon 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 of fact and law which could eventually disentitle that 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 to assess the material or to determine as to how the Controller 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 Controller is to find out if such a plea is possible plea to take of the law and on such a plea prevailing with the 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 chooses to look at the plea 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 Controller.'
(5) I do not propose to deal with the reasons advanced by the learned Additional Rent Controller in negativing the pleas of the tenant in the impugned order except to the extent of ascertaining the bona fides or mala fides in raising the pleas. The affidavit made an averment that the eviction petition is not maintainable inasmuch as the premises in dispute were specifically let out and have all through been used for residential-cum-commercial purposes till date with the consent, knowledge or intimation of the landlords. Averments had also been made in the affidavit that no rent deed was executed either at the time of the commencement of the tenancy of the premises in dispute or later on. The affidavit further deposed that the signatures of the tenant were obtained on the stamp paper in blank in the circumstances stated in the affidavit and thus the landlords with the help of a forged document which was never prepared or executed by the tenant, are trying to claim eviction on the plea that the premises were let for residential purposes. The original rent note is on the record. If shows that the stamp paper was purchased by Shri R.C. Jain on June 21, 1973 of the value of Rs. 4.00 .This is the time when the tenant took the tenancy of the first floor at a monthly rent of Rs. 330.00 . The requisite stamp paper fora monthly tenancy of Rs. 330.00 for a period of 11 months would be Rs. 40- The tenancy of the premises in dispute is at the rate of Rs. 400.00 per month with effect from August 21, 1973. The stamp paper for rent note for 11 months would be Rs. 43.00 or Rs. 50.00 . The tenant had also taken the plea that the signatures were obtained on blank. The typed matter on the rent note doss suggest for further examination whether the rent note was executed in the manner stated by the tenant in his affidavit or not. The signatures of the tenant are on the front sheet of the stamp paper at the bottom as well as on the back side at the bottom. The pleas raised by the tenant could thus not be termed as sham and fictitious. The Additional Rent Controller then stated that the tenant has admitted that he has been using the premises for residential purposes. Such an averment is not contained in the affidavit. On the contrary, the averment is that the premises in dispute have all throughout been used for residential-cum-commercial purposes till date with the consent, knowledge or intimation of the landlords. The plea raised by the tenant of the letting purposes thus did raise a triable issue which could not have been dismissed in law merely on the allegations contained in the affidavits at the time of the grant of leave. The trial Court, obviously, misdirected itself in going into the merits of the contentions. Such a plea as is raised in the affidavit entitled the tenant to the grant of leave to contest the petition for eviction.
(6) Another plea raised by the tenant was that the premises in dispute are included in areas which have been declared as slum areas under Section 3 of the slum Areas (impsoement and Clearance) Act, 1956. The premises are admittedly situated in Ward NJ. XVI. The block, number mentioned in para 1 of the eviction petition is Block No. 7-B (popularly known as Block No. 7). The landlords also made an averment that the property in dispute is not included in the slum area. In the notifications which were placed before the Additional Rent Controller, Block No.7-B is excluded from Ward No. Xvi in the declaration of the slum areas. The tenant, however, claims that the property is situated in Block No. 7 which is included in the Slum Area. A letter obtained from the Delhi Development Authority was placed on the record certifying that the premises are not included in the area which has been declared as a Slum Area under Section 3 of the Act. The learned Additional Rent Controller looked into the documents as it was purely a technical plea to hold that the objection of the tenant does not raise any real issue. Apart from it, the argument is that the provision of Section 14(1)(e) read with Section 25B must prevail over those contained in Section 19 of the Slum Areas (Improvement & Clearance) Act. Reliance is placed on 'Sarwan Singh v. Kastwri Lal'', 1977 Raj. L.R 48. That was a case under Section 14A read with Chapter III-A of the Delhi Rent Control Act, 1958. I do not express any considered opinion.
(7) The last ground raised by the tenant that the present accommodation in occupation of the landlords is more than sufficient is only a half-hearted plea and should not detain me.
(8) The learned Additional Rent Controller transgressed his jurisdiction by going into the merits of the pleas on the basis of the affidavits while considering the application for grant of leave to the tenant. The plea of letting purpose, if substantiated, would have non-suited the landlords in a petition for eviction under Section 14(1)(e) of the said Act. The learned Additional Rent Controller virtually embarked on a premature investigation into the rival claims at the stage of considering the application for grant of leave. The impugned order thus clearly suffers from illegality in exercise of the jurisdiction and is quashed. The tenant is granted leave to contest the eviction petition on the ground of bona fide necessity. The parties are directed to appear before the Sixth Additional Rent Controller Delhi (now presided over by Shri M.L. Sahni)on 20th August, 1979. The Additional Rent Controller, Delhi will decide the eviction petition expeditiously.
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