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inder Pal Vs. Ram Charan Sharma - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberC.R. No. 184 of 1981
Judge
Reported in23(1983)DLT226
ActsDelhi Rent Control Act - Sections 14(1) and 25B(5)
Appellantinder Pal
RespondentRam Charan Sharma
Appellant Advocate Vinod Kumar Verma, Adv
Respondent Advocate Ravinder Sethi, Adv.
DispositionPetition allowed
Cases ReferredPrecision Steel and Engineering Works and Anr. v. Prem Deva Niranjan Deva Tayal
Excerpt:
.....held consistently by this court as also the supreme court that the tenant must fail or succeed on the facts which he discloses and if he fails to disclose such facts as would non-suit the landlord then in such a case, the controller would be justified in refusing to grant leave to contest. it is equally well established that the defense sought to be raised has to be clear, precise and specific. the said clause, thereforee, clearly would entitle the controller to look to the documents which are annexed to the affidavit......6. sub-section (5) to section 25-b lays down that 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 anorder 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. thus, disclosure of facts which disentitle recovery of possession is a sine qua non for grant of leave and it is only if the tenant is able to make out a ground, which in the opinion of the controller would disentitle the landlord to the grant of an eviction order, that leave to contest would be granted. so, it has been held consistently by this court as also the supreme court that the tenant must fail or.....
Judgment:

J.D. Jain, J.

1. The respondent is owner-landlord of premises bearing municipal No. 1143, Deva Ram Park, Delhi. The petitioner is a tenant in a portion of the said premises comprising one room, common courtyard and common latrine. The demised premises is situate on the ground floor. At present the petitioner is paying Rs. 23/- (Twenty-three) per mensem as rent besides electricity charges etc. The tenancy in favor of the petitioner was oral. The respondent moved an application for eviction of the petitioner in May 1980 on the ground of bonafide personal requirement falling under Clause (e) of proviso to Sub-section (1) of Section 14 read with Section 25-B of the Delhi Rent Control Act (for short the Act). He contended that the premises in question had been let out for residential purpose only, that his family consisted of himself, his wife and four children, that the accommodation available with him comprised only one room, one store and a kitchen which was not reasonably suitable and sufficient for his requirements and he had no other reasonably suitable accommodation with him.

2. In view of the special procedure laid in Section 25-B of the Act for such applications, the petitioner moved an application for leave to contest the eviction petition on the grounds stated therein and he also filed an affidavit in support thereof. Reply to the said application was filed by the respondent who opposed the same. He also filed a counter-affidavit controverting the allegations made by the petitioner in his application for leave to defend. The learned Controller, on consideration of the facts disclosed by the petitioner in his application for leave to contest as also the reply of the respondent-landlord, came to the conclusion that the facts disclosed in the application for grant of leave were not sufficient and clear to disentitle the respondent-landlord to an order for eviction of the petitioner. So, he declined the leave petition and treating the facts stated by the respondent-landlord as deemed to have been admitted, passed an order of eviction against the petitioner on 12th November 1980. Feeling aggrieved the petitioner has come up in this revision against the said order.

3. Leave was sought by the petitioner on the following grounds :

(1) non-service of legal notice of termination of tenancy;

(2) absence of permission to seek eviction from the Competent Authority (Slums) because the premises in question were situated in a slum area;

(3) want of bonafides on the part of the landlord because he wanted to enhance the rent from Rs. 23/- per mensem to Rs. 30/- per mensem. It was specifically averred that the rent had been increased even earlier from Rs. 18/- per mensem to Rs. 23/- per mensem in 1976. According to the petitioner, the sole motive of the respondent-landlord was to harass him and let out the premises, after the same were evicted, at higher rent;

(4) the past conduct of the respondent-landlord was such as to disentitle him to claim an order of eviction against the petitioner because whenever the premises were vacated in the past the same were let to various tenants and the first floor of the premises had been let out to one Mushadi Lal;

(5) that the respondent-landlord was also in possession of premises bearing No. 88, Ashok Vihar, Delhi; and

(6) that the accommodation in the possession of the landlord was sufficient for the needs of the landlord and members of his family and the application made by him was malafide and was aimed at harassing him. It was pointed out that the petitioner was a physically crippled person and could ill-afford to maintain six members of his family.

4. In the reply affidavit filed by the respondent-landlord, all these allegations were controverter and it was explained that Mushadi Lal, who was his brother, had been in occupation of the first floor as his tenant since 1970 and that premises had never been let out to any other tenant since then. The petitioner had been inducted as a tenant earlier in 1968. He explained that the rent of the premises was increased from Rs. 18/- to Rs. 23/- per mensem because facility of flush latrine was provided to the tenant and some necessary repairs were also carried out in the premises. He denied that he wanted to increase the rent further. He also denied that he was in possession of any accommodation at Ashok Vihar or elsewhere. Thus, according to him, the allegations made in the application for leave to contest were false, frivolous and untenable.

5. The learned counsel for the petitioner has pressed only grounds Nos. 3, 5 and 6 before me, indeed he did not press grounds Nos. 1 and 2 even before the Controller. As for the landlord having let out premises to any tenant other than Mushadi Lal, he has fairly conceded that the latter had been living on the first floor for the last several years and no fresh tenant was inducted by the respondent-landlord.

6. Sub-section (5) to Section 25-B lays down that 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 anorder 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. Thus, disclosure of facts which disentitle recovery of possession is a sine qua non for grant of leave and it is only if the tenant is able to make out a ground, which in the opinion of the Controller would disentitle the landlord to the grant of an eviction order, that leave to contest would be granted. So, it has been held consistently by this Court as also the Supreme Court that the tenant must fail or succeed on the facts which he discloses and if he fails to disclose such facts as would non-suit the landlord then in such a case, the Controller would be justified in refusing to grant leave to contest. It is equally well established that the defense sought to be raised has to be clear, precise and specific. A bare denial by the tenant of the grounds contained in the application under Section 14(1)(e) would not be enough. Further the tenant should not make vague assertions or merely controvert the averments made by the landlord in his eviction petition. However, there has been divergence of judicial opinion as to whether the Controller while granting/refusing leave to contest has to confine himself to the affidavit filed by the tenant in support of his application for leave to contest or whether the Controller can also look into the reply-affidavit of the landlord and the documents accompanying the affidavits of both the parties in support of their respective pleas. This question was considered recently by a Full Bench of this Court in Mohan Lal v. Tirath Ram Chopra and Anr. : AIR1982Delhi405 (F.B.) and it was held that :

'While dealing with an application for leave to contest, the Controller is to first see as to whether the grounds raised are sham, mala fide or frivolous. In order to decide this, it may become necessary for the Controller to refer to such documents as may be filed before him either with the eviction petition or with any of the affidavits................................................................................. In such a case the Controller would be entitled to see the document of title, which may have been filed on the record, which would enable him to come to the conclusion whether the ground raised by the tenant is false or frivolous............................................................The documents which are annexed to the affidavits become a part of the affidavits. Sub-section (5) of Section 25-B enables the Controller to look to the affidavit. The said clause, thereforee, clearly would entitle the Controller to look to the documents which are annexed to the affidavit.'

7. However, the aforesaid view has not found favor with the Supreme Court, which had an occasion to consider scope and ambit of Sub-sections (4) and (5) of Section 25-B recently in Precision Steel and Engineering Works and Anr. v. Prem Deva Niranjan Deva Tayal, XXII (1982) D.L.T. 458 (S.C.). The Supreme Court has observed that:

'It would be open to the landlord to contest the application of the tenant seeking leave to contest and for that purpose he can file an affidavit in reply but production and admission and evaluation of documents at that stage has no place. The Controller has to confine himself to the affidavit filed by the tenant under Sub-section (4) and the reply, if any...........................................................................The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against other set of affidavits. That is not the jurisdiction conferred on the Controller by Sub-section (5) because the Controller while examining the questionwhether there is a proper case for granting leave to contest the application has to confine himself to the affidavit filed by the tenant disclosing such facts as would prima facie and not on contest disentitle the landlord from obtaining an order for recovery of possession.'

Their Lordships elucidated the position further as under :

'The jurisdiction to grant leave to contest or refuse the same is to be exercised on the basis of the affidavit filed by the tenant. That alone at that stage is the relevant document and one must confine to the averments in the affidavit. If the averments in the affidavit disclose such facts which, if ultimately proved to the satisfaction of the Court, would disentitle the landlords from recovering possession, that by itself makes it obligatory upon the Controller to grant leave. It is immaterial that facts alleged and disclosed are controverter by the landlord because the stage of proof is yet to come.'

8. Thus, in view of the legal position enunciated by the Supreme Court there can be no manner of doubt that for the purpose of granting/ refusing leave to contest the Controller or for that matter this Court while hearing the revision petition has to confine itself to the affidavit filed by the tenant for finding out whether the affidavit discloses such facts which may provide a plausible defense against the eviction petition. The Controller may, of course, look to the reply-affidavit filed by the landlord but that would be for the limited purpose of ascertaining whether the defense sought to be raised by the tenant is plausible and tenable, in that if the facts disclosed are eventually proved at the trial it will result in non-suiting the landlord. Surely the reply-affidavit of the landlord cannot be looked into for the purpose of finding whether the averments made by the tenant are true or false or malafide. Of course, if the facts disclosed in the affidavit of the tenant are vague or insufficient and do not disclose a positive and tenable defense, leave may be refused. Applying this criterion to the facts of the instant case, I find that the allegation made by the petitioner that the respondent is in possession of premises No. 88, Ashok Vihar, Delhi, is quite vague and obscure. It does not disclose whether the said premises are residential or commercial. It does not describe the accommodation comprised therein. It also does not throw any light as to the right in which the respondent is in possession thereof. Under these circumstances, it cannot be said by any stretch of reasoning that the petitioner has disclosed facts which will disentitle the respondent-landlord to an order of eviction on this score. Similarly his bald allegation that the respondent wants to let the premises at a higher rate does not lead us anywhere. This allegation is not based on any facts and is just a mere conjecture. However, the facts disclosed in ground No. 3 are positive and clear, in that admittedly the original rate of rent was enhanced to Rs. 23/- per mensem in 1976. It is true that according to the respondent-landlord it was due to the fact that he had provided the facility of flush system in the demised premises and had also effected some other repairs. However, that assertion cannot be accepted as proved at this stage and it requires a probe. In view of the alleged past conduct of the landlord it requires to be seen whether he is actuated in filing this eviction petition by a desire to further enhance the rent to Rs. 30/- per mensem. It is true that such an allegation is very easy to make but rather difficult to prove. All the same, if proved, it may disentitle the respondent-landlord to claim eviction of the petitioner for the reason that his requirement is not bonafide. The submission of the learned counsel for the respondent is that the alleged increase from Rs. 23/- to Rs. 30/- per mensem is so meagre that it could hardlybe a motive for filing the eviction petition and no malafides can be attributed to him. However, it will be premature to express any opinion on this aspect of the matter because the motive impelling a landlord to seek eviction of a tenant is primarily a subjective factor and the existence of a motive has to be inferred from proved facts and not on mere conjectures. Looked at from this angle, I think it would be just and fair to afford an opportunity to the petitioner to prove his allegation.

9. The upshot of the whole discussion, thereforee, is that the impugned order needs to be set aside and leave to contest be granted to the petitioner. Hence, I allow this revision petition, set aside the impugned order and grant leave to contest to the petitioner. The parties are directed to appear before the Controller on 7th of February 1983 for further proceedings. No order is made as to costs.


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