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Lila Wati Dev Vs. Mohinder Kumar Juneja - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberC.R. No. 936 of 1980
Judge
Reported in23(1983)DLT335
ActsDelhi Rent Control Act - Sections 14(1), 14(5), 25B and 25B(4)
AppellantLila Wati Dev
RespondentMohinder Kumar Juneja
Appellant Advocate Harnam Dass, Adv
Respondent Advocate D.L. Malhotra, Adv.
DispositionPetition allowed
Cases ReferredIn Precision Steel and Engineering Works and Anr. v. Prem Deva Niraym Deva Tayal
Excerpt:
- .....3. pursuant to the receipt of the summons under section 25b the petitioner smt. leila wati dev filed an application seeking leave to defend the petition. in the affidavit filed along with the application, the please sought to be raised are (i) the father of the present respondent had left one daughter also and the present respondents alone were not competent to file the application ; (ii) the tenancy had not been terminated ; (iii) dr. tej bhan devthe original tenant had also left two sons and two daughters besides the widow i.e. the petitioner, (iv) the petition was malafide. the respondents were in occupation of seven large rooms, two stores, kitchen, two bath rooms etc and (v) earlier an eviction petition had been filed by amar dass juneja, father of the respondents against the.....
Judgment:

G.C. Jain, J.

1. This revision under proviso to Clause 8 of S. 25B oi the Delhi Rent Act, 1958 (for short the Act), is directed against the order dated July 19, 1980 passed by Shri Shiv Charan Kain, Additional Rent Controller, Delhi.

2. On April 16, 1977 Sarvashri Mohinder Kumar Juneja, Romesh Kumar Joneja and Pran Nath Joneja, respondents herein, brought an application claiming eviction of the petitioner Smt. Lila Wati Dev under proviso (e) to Sub-section 1 of Section 14 read with Section 25B of the Act. It was averred that the respondents-landlords were owners of the premises in dispute. The same had been let out for residential purposes and were bona fide required by them for their occupation as residence for themselves and members of their family and they were not in possession of any reasonably suitable accommodation. It was explained that all the three petitioners were married. Romesh Kumar and Pran Nath Joneja had two children and one child respectively. Mohinder Kumar Juneja and Romesh Kumar Joneja were Chartered Accountants earning Rupees 30 thousand and 15 thousand per annum and they were men of status. The accommodation with them was not sufficient inasmuch as they had no drawing room, no dining room and no puja room.

3. Pursuant to the receipt of the summons under Section 25B the petitioner Smt. Leila Wati Dev filed an application seeking leave to defend the petition. In the affidavit filed Along with the application, the please sought to be raised are (i) the father of the present respondent had left one daughter also and the present respondents alone were not competent to file the application ; (ii) the tenancy had not been terminated ; (iii) Dr. Tej Bhan Devthe original tenant had also left two sons and two daughters besides the widow i.e. the petitioner, (iv) the petition was malafide. The respondents were in occupation of seven large rooms, two stores, kitchen, two bath rooms etc and (v) earlier an eviction petition had been filed by Amar Dass Juneja, father of the respondents against the husband of the petitioner in which it was held that the ground for bona fide requirement was not available.

4. The learned Additional Rent Controller held that none of these pleas constituted an plausible defense and, thereforee, dismissed the application. As a result he granted an order directing the eviction of the petitioner from the premises in dispute granting her 6 months' time to vacate the premises.

5. Feeling aggrieved the tenant has filed the present revision.

6. In Precision Steel and Engineering Works and Anr. v. Prem Deva Niraym Deva Tayal 22 (1982) D.L.T. 458 it has been held that the Controller has to confine himself to the affidavit filed by the tenant under Sub-section (4) and the reply, if any. On pursuing the affidavit filed by the tenant and the reply, if any, filed by the landlord, the Controller has to pose to himself the only question, 'Does the affidavit disclose, not prove, facts, as would disentitle the landlord from obtaining an order for the recovery of the possession on the ground specified in Clause (e) of the proviso to Sub-section 1 of Section 14 The Controller is not to re-cord a finding on the disputed question of facts or his preference of one set of affidavits against the other set of affidavits. That is not the jurisdiction conferred on the Controller by Sub-section 5 because the Controller while examining the question whether there is a proper case for granting the 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.

7. I have examined the affidavit filed by the petitioner and the counter affidavits filed by the respondents-landlords. The affidavit of the petitioner in my view does disclose the facts which may dis-entitle the landlords from obtaining an order for eviction under proviso (e) to Sub-section 1 of Section 14. It has been averred in clear terms that the respondents were in occupation of seven rooms, two stores, which accommodation was sufficient turn them. It has been averred further that in the earlier proceedings between the parties it has been held by the High Court that the ground of bona fide requirements was not available. That decision is reported in Shri Amar Dass Juneja v Shn Tej Bhan Dev 1978 (2) R.C.R. 263. A perusal of para 6 shows that the Rent Control Tribunal in the proceedings between the predecessor-in-interest of the parties to this petition had held that the premises had not been left for residential purposes only. This finding was assailed before the High Court but the contention of the landlord was negatived. In all these circumstances it cannot be said that the affidavit does not disclose the facts which may dis-entitle the landlords from getting an eviction order.

8. Learned counsel for the landlords vehemently contended that in the revision petition, the petitioner herself had admitted that the respondents were in possession of five rooms and that was a change from the stand which had been taken in the affidavit. However, it may be mentioned that in para 6 where the accommodation has been given, it has also been stated that the respondents were in possession of a covered verandah which was being usedas a study room besides five rooms. The question whether the accommodation was sufficient can be decided only after leading evidence and after examining all the facts and circumstances of the case. In any case the question as to what was the finding in the previous proceedings about the letting purpose and what is its effect on the present petition requires consideration.

9. Keeping in view all the facts and circumstances of the case I am of the considered view that the petitioner was entitled to leave to defend. I consequently accept the petition, set aside the impugned order and instead allow the petitioner leave to defend the petition. The petitioner would be entitled to costs.

10. The parties are directed to appear before the trial court on 20th of March, 1983. The trial court file will be sent back immediately so as to reach there before that date.


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