Yogeshwar Dayal, J.
(1) This petition for revision is under the proviso to Sub-section 8 of Section 25B of the Delhi Rent Control Act, 1958 (59 of 1958) (hereinafter referred to as the 'Act') against the order of the Rent Controller, Delhi dated 31st July, 1980 dismissing the application filed by the petitioner-tenant for leave to contest the application for ejectment filed by the respondent-landlord on the grounds specified in clause (e) of the proviso to Sub-section I of Section 14 of the Act.
(2) For a proper appreciation of the case of the parties it is necessary to deal with the pleadings and facts in detail.
(3) An application for ejectment was filed by the respondent-landlord, Shri S.L. Sarna against Shri S.K. Arora (tenant) for ejectment on the ground of bonafide personal requirement under the aforesaid provision. Since the petition for ejectment was filed on the aforesaid ground the application for ejectment was dealt with under the summary procedure for trial for such applications provided for by Section 25B.
(4) The case of the landlord in the application for ejectment was that the suit premises which are situated on the First floor of premises No. L-22, South Extension, Part Ii, New Delhi, was let out to the tenant on or about 7th May, 1973 for residential purposes. It was pleaded that the agreed monthly rent is at the rate of Rs. 925.00 per month and the landlord pays house tax, ground rent etc. without charging the same from the tenant and the electric charges are paid by the tenant according to meter reading while the water charges are paid on the fixed rate of Rs. 50.00 per month. That the demised premises consists of three bed rooms, one drawing-cum-dinning room with attached kitchen with two bath rooms having attached toilets and a covered lobby. The premises demised are shown in red colour in the plan attached with the ejectment application situated in the first floor.
(5) The particulars of bonafide personal requirement are rather peculiar in this case. It was alleged in the petition 'that the petitioner is an old man of about 80 years of age and usually and constantly does not keep good health. The petitioner's wife is also of 75 years of age and remains constantly ill and both of them are very weak and cannot look after themselves. The petitioner also suffers from eye trouble and has developed cataract in the eye and is a heart patient and in view of his advanced age, illness and physical ailments, the petitioner and his wife need constantly being looked after and being nursed by the other family members viz. daughters and sons. The petitioner has three sons and three daughters and it is of utmost necessity that one or the other sons and his wife and family members and daughter's husband constantly to stay with the petitioner and his wife with a view to nurse them without which the petitioner and his wife cannot survive and in that respect the petitioner and his wife are dependent on the children and need their constant support and nursing. The petitioner has very meagre accommodation on the ground floor and has only two bed rooms and one Puja Room and drawing-cum-dinning room as shown in the blue colour shown in the plan attached. But considering the advanced as;e of the petitioner and his wife and the high status and standard of living of the petitioner, the present accommodation with him is extremely meagre and most inadequate and apart from the soni and daughters and daughter-in-laws and sons-in-laws the petitioner has to accommodate other guests who come to meet the petitioner and his family from outstation and for that purpose the accommodation is most inadequate and hence this petition for eviction with respect to the first floor on the ground of bona fide personal necessity for the above said reasons.'
(6) It was also pleaded that the tenant has been requested several times to vacate the premises but he has not vacated the same and the landlord-petitioner does not have any other suitable residential accommodation on which the landlord and his family members can avail of.
(7) Along with the petition for ejectment, apart from the documents of title, the petitioner also filed a copy of medical certificate from Prof. S.R.K.Malik, M.S., F.R.G.S.,F.A.M.S. dated 12th November, 1979 to the following effect:-
'SH. S.L. Sarna was examined by me on 19.10.1979 with complaint of gradual diminution of vision, of both eyes. My observations are as under:- Vision: Re - 3/60- no improvement with glasses Le -6/18 with glasses + 1.2 D. Cyl. 180-6/6. Immature cataract both eyes. Tension -RE 20.6 mm./Hg. Schiotz Le 18.9 mm./Hg. Schiotz Fundus examination; Re - Circinate ratinopathy. Le - Honeycomb choroiditis. In view of the circinate retinopathy in the right eye the cataract operation is not indicated. Advised to show after six months.'
(8) At this stage before I deal with the application of the tenant for leave to contest the application for ejectment, I may point out that the application for ejectment as drafted and filed was for the bonafide requirement by the landlord for occupation as residence for 'himself' and not 'for the requirement of any family member dependent on him', within the meaning of the grounds specified in clause (e) of the proviso to Sub-section I of Section 14 of the Act.
(9) In substance, thus the plea was that the landlord, Shri S.I.. Sarna as well as his wife are a very old couple and having very weak health constantly remain ill and cannot look after themselves. The landlord suffers from eye trouble as well as he is a heart patient. Both landlord and his wife need constantly being looked after and being nursed and for accommodating one of the sons or daughters that the accommodation is required as a 'bonafide requirment for himself.''
(10) The summons being served on the petitioner-tenant in the prescribed form, he made an application under Section 25-B of the Act for seeking leave to contest the petition. The application was accompanied by an affidavit of the tenant-petitioner dated 25th February, 1980.
(11) In his affidavit the tenant purported to disclose such facts as would disentitle the landlord from obtaining recovery of the possession of the premises. The facts in paragraphs I to 3 of the affidavit of the tenant are as under:-
'THAT the present petition has been filed with malafide intentions, and the need of the petitioner is not at all bonafide. From his own showing, the Petitioner is in occupation of three rooms and one drawing-cum-dining room. the family members of the Petitioner are two, i.e. the Petitioner himself and his wife. The Petitioner has purposely not given the full particulars nor the names of his children. The Petitioners' all daughters are married and are settled in their own families. Two of the daughters of the Petitioner are staying in Delhi and own their own property. One daughter is staying at D-36, South Extenson Part Ii, New Delhi whereas the other daughter is staying somewhere in .Greater Kailash. The third daughter of the Petitioner is married and does not stay in Delhi. To the best of my knowledge two sons who are married are settled abroad, and one of them married to a foreigner. Both these sons of the petitioner own their property abroad and they have no intention whatsoever of coming back and settling down in India and particularly with the Petitioner. The third son of the Petitioner is settled in Bombay, working there, and he has also no intention of coming and settling down with the Petitioner. The two sons of the Petitioner who are settled abroad have never visited the Petitioner during the period of my tenancy from 1973. These sons who are fully independent are not dependent on the Petitioner in any manner whatsoever. The present accommodation available with the Petitioner and his wife is more than sufficient and he can accommodate his guests if they visit him.
2. The malafide of the Petitioner is also proved from the fact that there is more accommodation available on the ground floor itself which he has let out lastly on or about 1st October 1979 when Mr. S.K. Vasan vacated the premises. The extra accommodation available on the ground floor is, two bed rooms with attached bath rooms, one kitchen and one covered verandha. Apart from this, the Petitioner has constructed a fullfledged one room set in the garage which is again let out by him on or about September/October 1978. The Petitioner has letting out the rear portion of the ground floor from time to time on increased rent. After Mr. S.K. Vasan vacated the house who was paying approximate rent of Rs. 825/ per month, the Petitioner again let out this premises in the month of October 1979 at an enhanced rent. The need of the Petitioner is not sudden and no changed situation have taken place from October 1979 till the filing of the present Petition. From his own showing the Petitioner is eighty years and his wife is seventy five years of age and the Petitioner also does not keep good health, it would not thereforee be convenient or advisable for the Petitioner to occupy the first floor which would be against his interest. If the Petitioner wanted genuinely more accommodation, firstly he would not have let out the rear portion of the ground floor in the month of October 1979. Consequently if the need was so dire, he would have asked for the eviction of the tenants on the ground floor and not of the tenants of the first floor.
3. The real bone of contention and the purpose of filing the present Petition is that the Petitioner wanted to coerce the Respondent to increase the rent, since as per his words the rent in the area has increased substantially of similar buildings. The Petitioner on or about 10th June 1979 approached the Respondent and told him that he should increase the rent of the premises in his occupation from Bs. 925.00 to Rs. 1,500/. The Respondent categorically informed the Petitioner that he was not in a position to increase the rent as demanded, but informed the Petitioner that if he so agrees, he could increase the rent by Rs.lOO.00 orRs.l50.00 . The Petitioner did not agree this increase and insisted that the rent of the premises in occupation of the Respondent cannot be less then Rs. l,500.00 and as the rent prevailing in the area of similar accommodation was about Rs. 2,000.00 . When the Respondent finally refused to accede to the demand of the Petitioner of increasing the rent to Rs. l,500.00 , the Petitioner threatened the Respondent of eviction proceedings. The Petitioner again approached the Respondent on 23rd September 1979 and told the Respondent that the Petitioner needed the accommodation for himself and thereforee the Respondent should vacate. The Respondent immediately pointed out to the Petitioner that since the tenants at the rear of the ground floor, Mr. S.K. Vasan, was vacating his premises in the end of September, he should occupy the same as shat is suitable and convenient to him and his wife. The Petitioner however informed the Respondent that he is going to let out that portion to somebody else which would fetch him higher rent, and in case the Respondent was also ready to increase the rent as demanded earlier, he would not proceed against the Respondent in the Court of Law. The Respondent again informed the Petitioner that under no circumstances he could increase the rent as demanded, but again gave his alternative offer of increasing the rent by Rs. 100.00 or Rs. 150.00 . The petitioner then told the respondent that he would get his house vacated from the Court by filing an eviction petition against him. The present petition has thereforee been filed as a device to coerce the respondent to accede to the illegal and unjustified demand of the petitioner for increase of rent. '
(12) In view of the application of the tenant for leave to contest the ejectment application along with the affidavit an opportunity was given to the landlord to file his reply.
(13) The landlord filed an affidavit dated 16th April, 1980 on 22nd April, 1980 and pleaded that the tenant has not disclosed any true facts and does not entitle him to get any permission to defend the petition and it was pleaded that it is entirely false on the part of the tenant to allege that the eviction petition has been filed with malafide intention and/or is not bonafide. It was further stated by the landlord in his affidavit that he was not in possession of three bed rooms and one drawing-curn-dinning room as alleged. The true fact is that he possess only two small sizes bed rooms and one small room which is a Puja Room used for the purposes of Puja only and cannot be used as bed room or for any other purpose and the drawing-cum-dining room is also very small although according to his status he needs a separate drawing room and a separate dining room. It was again reiterated in the affidavit that he and his wife were very old, elderly and do not keep good health on account of advanced age and thereforee have to be constantly escorted and nursed by the family members i.e. sons, daughter-in-law, daughters and sons-in-law and the children and in fact he and his wife are wholly dependent on them. It was denied that his two sons have permanently migrated abroad and there is no intention of their coming back to India. It was also stated that only one of his sons is temporarily living abroad and keeps on visiting India and stays with him and even at that time the landlord has a short of accommodation considering the status of his sons and sons- in-law. It was also stated that two of his sons live in India and temporarily get posted outside Delhi but their main residence is in Delhi and they stay with him and keep on coming to Delhi even when they are temporarily posted outside Delhi as the landlord is dependent on his sons and daughters- in-law on account of old age. It was also stated that it is wrong on the part of the tenant to allege that his youngest sons i.e. the third son, who is at present at Bombay is permanently settled there and has no intention of coming back and settling down to Delhi. It was also denied that two of his sons have settled abroad and have never visited him since 1973. It was also stated that his son V.K.. Saran, who is at present working as Controller of Goal Supplies with the Steel Authority of India Ltd; and who is at present temporarily posted at Dhanbad, is not visiting him. It is also stated that his eldest son, K.K. Sarna is temporarily staying in the United Kingdom and has been visiting him during the years 1974-75. Regarding the ex-tenant Sh. S.K. Vasan, it was stated that the fact stated in paragraph 2 of the affidavit of the tenant was false and was denied. It was stated that Sh. S.K. Vasan was a tenant with respect to a very small portion on the rear side of the building and had only one small room measuring 10' X 10' and a small living room which was wholly insufficient and unsuitable for his purposes and that of his family members and considering his status it was useless for him. It was denied that the said portion was let out at any enhanced rent. It was also denied that he got constructed any extra accommodation consisting of one room set over the garage and it was stated that the said room cannot be used by the landlord and is meant to accommodate the servant only and not for a person of the status of the landlord. It was then stated in reply that the ground floor portion held by him (landlord) would be used by him and his wife and his son and his wife to nurse him and/or his daughter and her husband and the first floor would be used to house his family members on whom he was dependent and who would nurse him and look after him. It was denied that he ever asked for any increase in rent by single penny much less to pay the increase sum of Rs. 100.00 or Rs. 150.00 .
(14) The ejectment application thereafter came up for arguments before the Controller on 26th May, 1980. During arguments, counsel for the landlord, stated that one of the sons of the landlord has been transferred to Delhi and they would stay in the premises with the landlord and this development has taken pla.ce after the filing of the petition and, thereforee, the landlord wanted to file an additional affidavit in this regard. This request for landlord was allowed subject to the right of the tenant-respondent to file counter affidavit. It was directed that the landlord should also file the copy of the order of transfer of his son and the matter was adjourned to 9th July, 1980 for filing of the affidavit of the landlord and 24th July, 1980, for counter-affidavit of the tenant. On 9th July, 1980, on request of counsel for the landlord, the matter was adjourned to 14th July, 1980. On 14th July, 1980 the landlord filed a detailed affidavit and it was inter alias stated in paragraphs 2 to 9 as under :-
' 2. That I have got three sons:- a) Shir K.K. Sarna who is an Engineer in U.K. and is of 56 years of age and is highly placed there; b) Shri V K. Sarna who is Mining Engineer and is at present Controller of coal supplies posted at Dhanbad under Steel Authority of India and helds very senior post; c) Shri P.K. Sarna, Assistant Service Manager (Service Headquarters) with Tata Engineering and Locomotive Co. Ltd. (TELCO) at Bombay and his remunerations at the present moment are Rs. 45,000/ per year. His services are likely to be transferred to various places.
3. That I have got three daughters: a) Mrs. India Mahindru, who is marriaged to Shri J .R. Mohindru working as Assistant Sales Tax Officer at Delhi. My daughter Indra Mohindru is also working in the Railways. Both of them are residing in Delhi but they both are employees; (b) Mrs. Shakun Vohra, who is wife of Shri R.P. Vohra, Regional Manager with M/s. Ashok Leyland Ltd. posted at Delhi. His total remunerations are Rs. 60,000.00 per year; c) Mrs. Sunit Blaggan who is wife of Shri K.K. Balaggan, a Senior Professor of Industrial Engineering in National Institute of Training Industrial Engineers (NITIE), Bombay.
4. That I have already stated in my earlier affidavit that I am of 80 years of age and my wife is of about 75 years of age. We are both old people and immediately require the assistance of our near and dear relations for the purpose of being looked after in our life. My eye-sight is seriously affected and both myself and my wife are victims of many diseases natural to the old age persons.
5. That of all my sons and daughters, the only suitable person who can look after myself and my wife is my daughter Smt. Shakun Vohra, who, as stated above, is the wife of Shri R.P. Vohra, Regional Manager of M/s. Ashok Leyland Ltd. She has agreed to shift to my premises with her family so that she can remain with us and render all possible help and assistance required by us. Affidavit to that effect from my daughter Smt. Shakun Vohra, is also being filed herein.
6. That Shri R.P. Vohra, husband of my daughter, as stated above, is holding a senior post of Regional Manager with M/s. Ashok Leyland Ltd. and is drawing Rs. 60,000.00 per year. The man of his status requires a suitable and decent accommodation to live for himself and other members of his family. My daughter Mrs. Shakun Vohra and her husband who are parents of one daughter, need at least 3-bed room flat in the premises in dispute which are in occupation of the respondent.
7. Efforts were made to get my son Shri P.K. Sarna transferred from Bombay to Delhi. I was assured that such transfer will materialise but due to certain internal company matters, the transfer of my son from Bombay to Delhi is not likely to materialise in the near future. However the authorities of my son's employers have assured my son that he would be transferred to Delhi as and when it would be possible provided he makes his own arrangements of accommodation there. A letter to that effect issued by M/s. Telco is also enclosed herewith.
8. That my other daughter viz. Mrs. Indra Mohindru is living in Delhi with her husband Shri J.R. Mohindru and other members of her family. It is not possible for her to look after me because as stated above, both of them are employees and they have to go to work everyday.
9. THATat this old age of both myself and my wife and with the falling health, I being the owner of the premises am finding it very difficult to continue living alone and I submit that first floor be got vacated so that I can accommodate my daughter Mrs. Shakun Vohra along with her family members to live there. She will be a source of great help and assistance to both myself and my wife.'
(15) Along with this affidavit the landlord also filed the original letter dated 16th June, 1980 received by his son Shri P.K. Sarna from M/s. Tata Engineering & Locomotive Co. Ltd; Bombay with whom his son was working to the following effect:-
'DEAR Mr. Sarna, This refers to your application dated 21st April 1980 for transfer to our Delhi office, to enable to lookafter your aged parents, who are keeping indifferent health. We have also discussed this matter with you. As explained to you, we shall advise you as and when we are in a position to transfer you to Delhi. However, please note that in case you are transferred to Delhi, you will have to make your own arrangements for accommodation. With best wishes, Yours sincerely, sd/- K.P. Panthaky Mr. P.K. Sarna, Asstt. Service Manager, Service Bombay.'
This letter shows the request of Shri P.K. Sarna to his employers to transfer him to Delhi to enable him to lookafter his aged parents, who are keeping indifferent health and the fact that his transfer was under consideration subject to the rider that hii employers are not in a position to give him accommodation in Delhi and that he will have to make his own arrangement for the accommodation.
(16) Along with his own affidavit and the aforesaid letter the landlord also filed an affidavit of his daughter, Smt. Shakun Vohra and it was stated in this affidavit that her brother Shri P.K. Sarna is holding a senior post with Telco at Bombay. All efforts are being made to get him transferred to Delhi so that he and his family members can look after his old parents. It was also pleaded by Smt. Shakun Vohra, daughter of the landlord that she was the only fit person to look after her old aged parents at the moment and she was married to Shri R.P. Vohra, who is working as Regional Manager, Ashok Leyland Ltd; posted at Delhi and is drawing a total remuneration of Rs. 60,OOU.00 per year. With that type of status and stretcher of her husband, they needed at least three bed rooms for their accommodation and they could stay in the demised premises to render all possible assistance to her parents who are living on the ground floor with only two living rooms. It was also stated that her brother Shri P.K. Sarna is unable to come to Delhi for the time being and his employers would consider his transfer to Delhi only when he got his own arrangements for stay. It was slated by her that she was permanently staying with her husband in Delhi and would stay with her parents at the premises in dispute with a view to look after and nurse them at all limes.
(17) After the two affidavits had been filed, one of the landlord and the other of his daughter, Smt. Shakun Vohra, an affidavit was filed by the tenant-petitioner dated 24th July; 1980 and it was stated therein that the landlord has misused the opportunity provided to him for filing additional affidavit regarding his transfer of one of his sons from Bombay to Delhi and instead filed his own affidavit and that of his daughter. It was stated that his daughter, Smt. Shakun Vohra was presently residing at 11 Ring Road, Lajpat Nagar, New Delhi and has fairly large accommodation provided to her husband by his employers. Not only this Smt. Shakun Vohra and/or her husband own a big residential property at Greater Kailash, New Delhi and Smt. Shakun Vohra has filed her affidavit in order to help her father to build up a betier case for eviction. It was stated that the additional affidavit of the landlord cannot be taken note of in view of the orders passed by the Court dated '^6th May, 1980. It was stated that the petitioner has made a wrong statement on the last date of hearing when he informed this Hon'ble Court in so many words that his son has been transferred.
(18) Before the Rent Controller, following submissions appear to have been made on behalf of the tenant-petitioner for leave to contest the eviction petition:- '
(1) that only daughters of the petitioner are staying in Delhi and have their own houses and the ions are not dependent upon the petitioner for any purpose and the petitioner has not disclosed in the petition as to which of the daughters wants to shift to him.
(2) That the accommodation on the ground floor available with the petitioner is sufficient and adequate for them as his family consists of himself and his wife and even if one of his daughter shifts to his residence, the same accommodation would also be sufficient for their family.
(3) That the main object of the petitioner is to increase the rent as in June, 1979, the petitioner had approached the respondent for increasing the rent from Rs. 925.00 to Rs. 1500.00 but the respondent informed that he was not in a position to increase the rent and this gave rise to the present petition and further that some extra accommodation available to the petitioner on the ground floor, which was vacated by Shri S.K. Wason in 1979, but the petitioner let out the same lastly at enhanced rent and this shows that the requirement of the petitioner is not bona fide.
(19) The Rent Controller also noticed that
'THE petitioner has admitted having let out the portion vacated by Shri S.K. Wason but the Explanationn given by the petitioner in the affidavit is that S.K. Wason was a tenant in a small portion on the rear side of the building in question and had only one small room measuring 10' X 10' and a small living room which was insufficient and unsuitable for the petitioner's purpose as well as for the purpose of the family of his daughter and that was why he let out that portion to some other tenant'.
(20) After noticing the aforesaid pleas the controller held that the plea, that the daughter of the petitioner who wants to shift in the suit premises also owns a house will not be available to the tenant in view of the fact that the landlord and his wife are running in their eighties and their sons are out of Delhi. They do require somebody to look after them. For that purpose, the married daughter is also member of the family of the landlord and thereforee, the landlord has every right to accommodate any of the daughters in the premises for being looked afler. The Controller also found that the accommodation with the landlord has also been admitted though the Puja Room in occupation of the landlord is denied. He has proceeded to observe that
'LET us assume that there are three rooms with the petitioner as-disclosed by the respondent in the affidavit. the petitioner and his wife are old person. They do require separate accommodation because of their having various ailments. Three rooms accommodation is most unsuitable for a family of the petitioner, his wife and daughter and her husband who is Regional Manager of some private limited company and is getting about Rs. 5,000.00 per month and, thereforee, his status is also to be looked into. He is already living in three bed rooms accommodation on rent. Thus we have to see whether the accommodation which is in the present occupation of the petitioner is also reasonably suitable for ihe family of the daughter or not.'
(21) The Controller also found that the premises which were vacated by Shri S. K. Wason was re-let and the re-letting has been satisfactorily explained. It was observed that 'the premises in occupation ofthesaid tenant Sh. S. K. Wason were admittedly only one room and kitchen on the rear side of the building. Thus accommodation on the ground floor obviously neither reasonable nor sufficient for the family of the daughter of the petitioner. The landlord has every rights to let out the premises which are not suitable to him and which cannot be used by him or his family members.
(22) The Controller also observed further that 'the petitioner who has gone very old and his wife is also very old, and they cannot look after themselves of their own and as such they have every right to be looked after by their children. The need of such a child who may be independent for accommodation purposes or otherwise, does come within the ambit of the need of the landlord 'himself.'
(23) While challenging the impugned order of the Controller, refusing leave to the tenant to contest the eviction petition, Mr. VinayBhasin, learned counsel for the tenant made the following submission :-
(I) The Court cannot go into the averments beyond the ejectment application and can at the most look to the reply to the application for leave to contest.
(II) under Section 25-B the tenant has to plead such facts, which if accepted, would disentitle the petitioner to the relief prayed for and for this the averments made by the tenant in its application will be deemed to be correct and on the admitted facts it will have to be decided whether the leave to contest should be granted or not.
(III) The question of bonafies necessity cannot be decided without taking evidence when the petitioner's requirement was disputed and particulaly so when the stand of the landlord has been shifting.
(IV) That the family members who were not normaly residing with the landlord cannot come within the meaning of the expression 'himself' contained in proviso (e) to sub-section (1) of Section 14 of the Act.
(24) Before dealing with the submissions certain facts admitted by the parties have to be stated. The first admitted farts is that the landlord is a retired gentelman who had got up his sons very well, educated them very highly and they are all very well placed in life. The second admitted fact is old age and ill health of both the landlord and his wife. Landlord is more than 80 years old and his wife is more than 75 years old. Both are having numerous ailments and constantly do not keep good health. They have got no family member to look after. All their sons are out of Delhi and all the daughters are married, living comfortably in their own houses. It can just be assumed that they are in dire need of a person/or persons who can look afier them. The other admitted fact is the extent of accommodation with the landlord. The accommodation with the landlord consists of two bed rooms and drawing-cum-dining room. They also have another room, which is described as a Puja Room by the landlord but which is called by the tenant as a living room. This so called third living room is 6.4.' X 9'. The size of the drawing-cum-dining is 14' X 18' and the bed rooms are 12' X 12' and 12' X 12.6'. The premises vacated by Shri S. K. Wason were situate on the rear side of the building, arc two rooms besides kitchen and bath room. The two rooms were described by the landlord as one small room measuring 10' X 10' and a small living room. The tenant described the two living rooms as two bed rooms. It is also common case that the landlord has one room set over the garage. It is also admitted that Shri S.K. Wason was paying Rs. 825.00 per month and soon after its vacation it was let out in October, 1979.
(25) The dispute thus centres round the following questions :-
(A) What is the nature of the third room (b) Is the third room sufficient for the requirement of the landlord for having some person/persons to look after him and his wife (c) Can it be said that though the petition for eviction was filed in December, 1979, the petition is mala fide as the landlord had let out the rear portion of the accommodation on the ground floor vacated by Shri S. K. Wason to another tenant in October, 1979 (d) Can the accommodation built on the garage is suitable for the landlord for accommodating the person/persons whom they require for looking after him and his wife (e) Can the requirement of landlord to keep the family of his son or daughter, who are not living with the landlord, to look after him and his wife come within the expression 'himself' occurring in proviso (e) to Sub-section (1) of Section 14 of the Act.'
(26) Before dealing with these disputes I find it appropriate to deal with the submission made by learned counsel for the tenant, which I noted earlier.
(27) So far as the statutory provisions are concerned it will be noted that Chapter III-A which provides the procedure how an application by landlord for the recovery of possession of any premises on the ground specified in clause (e) of the proviso to Sub-section (1) of Section 14 is headed as 'Summary trial of certain applications' and Sub-section (5) of Section 25-B merely state as under :-
'25B(5) 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 an order 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, or under Section 14A'
When the leave is granted, the Controller is expected to commence the hear ing of the application for ejectment as early as possible. But how the application for leave to contest is to be decided or the procedure to be dealt with by the Controller for deciding the application for leave to contest is not mentioned. But the clue to it can be gathered from the heading of Chapter-111 A, namely 'Summary trial of certain applications'.
(28) Mr. Bhasin, learned counsel for the tenant, wanted that the Controller should merely look at the application for leave to contest and the affidavit accompanying it, as filed by the tenant, and the reply thereto filed by the landlord. If I were to accept this submission in this form the whole purpose of providing for summary trial of applications based on the grounds mentioned earlier will become force. It will then result in one party saying yes and other party saying no. It is true that the tenant is bound to disclose such facts as would disentitle the landlord for obtaining orders for recovery of possession, but it does not show what facts or material the landlord should place on record in order to defeat the application of the tenant. To illustrate, suppose the landlord claims to be the owner but tenant dispute the title. If in this situation the landlord asserts his title and also produce prima facie documents of title, can it be said that still the leave must be granted because tenant is disclosing a fact which is essential for landlord to prove. The only answer can be that the landlord is entitle to not only reply to the facts averred by tenant but also to place on record material which can prima facie show that the plea by the tenant is negative in character or vague or malafide or sham, only to gain time. It is not, as suggested by learned counsel for the tenant, that tenant should aver facts which have to be accepted and then consider whether such facts would disentitle the landlord for obtaining the order of eviction. The landlord is equally entitled to refute those facts and this application by its very nature has to be decided summarily. But while deciding it summarily it does not mean that landlord cannot place facts or documents to defeat the application of the tenant. In law there is no limitation or bar to the parties from bringing on record documents in support or opposition to the application and/or from filing further affidavits. All that is required is that the Controller should observe the rules of the natural justice.
(29) In this connection I was referred to the decision, namely ; Shri 0m Prakash and. another v. Shri Bishan Lal 1977 (2) R.C.J. 267 ; (2) Smt. Leela Wati v. Smt. Oanga Devi : AIR1980Delhi209 (3) Delhi Cloth and General Mills Co. Ltd. v. Shri T. S. Bhatia : 13(1977)DLT100 and Smt.V.L. Kashyap v. Sh. R. P. Puri I.L.R. 1977 DelHI 22.
(30) In Shri 0m Prakash and another v. Shri Bishan Lal 1977 (2) R.C.J. 267 (supra) Kapur, J. pointed out what the approach of the Controller- ought to be and no exception can be taken to the approach pointed out by learned Judge and it was rightly observed that it will depend on circumstances of each case and the extent that it is necessary to examine the defense and if the defense is not sham or improbable and raises triable issues leave will have to be granted.
(31) Again in Smt. Leela Wati v. Smt. Oanga Devi : AIR1980Delhi209 , Kapur,J. pointed out that under Section 25-B of the Act, the Rent Controller has only to find out whether there is a case requiring trial and not to decide the case on imaginary evidence to reach the conclusion that it is not triable. It was also observed by learned Judge that the trial court should not to decide the falsehood or correctness of what has stated but has to see that if these facts are on record what would happen. Of course, there may be some completely outrageous defense which may be summarily rejected by the Conrect troller. In the plausible defense, it is the duty of the Controller to put the matter for trial and allow leave to defend.
(32) Both these cases again do not laydown the procedure as to be followed for deciding the application for leave. They only indicate the correct approach to be adopted for deciding such applications.
(33) The decision of Anand, J. in Delhi Cloth and General Mills Co. Lid. v. Sri T.S. Bhatia, : 13(1977)DLT100 , however, throws some light. The learned Judge observed as under :
'THAT the only question that the Additional Rent Controller was required to determine at the preliminary stage of the proceedings was if the affidavit filed by the petitioner disclosed a case which, if accepted would non-suit the respondent. For consideration of such a question it was not open to the Controller to consider the documents filed on the record by the respondent or to decide the question of fact in controversy between the parties as the Additional Rent Controller appears to have done. Both the questions raised by the petitioner as to the bona fides of the respondent and the sufficiency of the accommodation available to the respondent including the subsidiary questions which were raised at the hearing in this Court as to whether the sons could be treated as members of the family dependent on the respondent and if the respondent was entitled to live in his own house, whether or not the present accommodation was sufficient for his requirement, involved controversies of fact and of law which would require careful consideration and even involve evidence. None of these questions could be said to raise sham issues or to be described as frivolous pleas, which may justify their rejection out of hand.'
(34) The observation of learned Judge on fact of the case are unexceptional but with due respect it cannot be stated as a rule of law 'that for consideration of questions by the Controller it was not open to the Controller to consider documents filed on the record.' To illustrate, suppose in an application on the ground of personal bona fide requirement one of the points in dispute is as to the purpose of letting;. In order to claim the relief to defend the eviction application the tenant raises a defense that the premises were let out for residential cum-commercial purpose or merely commercial purposes and not for residential purposes and to meet this defense the landlord not only says on affidavit that the premises were let out for residential purposes but also files on record the rent note or lease deed which mentions the purpose of letting and which had never been disputed earlier when occasion arose earlier or which in other proceedings had been admitted as a genuine document, will it be possible in such a case for a tenant to deny the execution of the lease deed or rent note and the Controller will shut its eyes to the document and grant leave. I am afraid, proposition so stated by the learned Judge is rather broad. It will, of course, depend on each case but it cannot be said that the document produced by either parties with the affidavit cannot be looked into. In fact, very often, it is necessary to look into those documents to see if the defense raised is deliberately false, mala fide, sham or bogus. It will thus depends in each case as to what extent the Controller would entertain affidavits and or documents to decide such applications for leave and no hard and fast rule can be laid that the party cannot file more than one affidavit or place further documents whatsoever in support of his case.
(35) B.C. Misra, J. in Smt. V.L. Kashyap v. R.P. Puri I.L.R. 1977 22 (supra) analysed what sort of defense is to be pleaded by the tenant to enable him to be granted permission to defend the petition for ejectment.
(36) The plea of the landlord in the ejectment application was that because of his and his wife's ill health and advanced age he requires either a family of a son or a daughter to look after him. This necessarily meant son or daughter whom he find convenient and who is willing to stay with the landlord. This was mentioned clearly by the landlord in his ejectment application. The tenant's case in the affidavit was that the sons cannot stay with the landlord since they are all out and daughters cannot stay as they are very well settled with their husbands. At one stage the landlord was hopeful that his son who was in Bombay will be in a position to get transferred to Delhi and can stay and look after him and his wife. But it so happened that for the present it was not possible for his son at Bombay to come and stay. There was nothing illegal in landlord filing the affidavit of his daughter living in Delhi to volunteer to shift to the premises in dispute to look after her parents in case they are vacated. The procedure followed by the Controller was just and in no way vocative of the procedure prescribed. I also do not find any merit in the submission of learned counsel for the tenant that the averments made by tenant in his application will have to be deemed to be correct. If this proposition is accepted it will completely defeat the purpose of summary trial. Due to paucity of accommodation the tenant is likely to plead facts if, they are to be deemed to be accepted in every case for the purpose of deciding applications for leave, hardly any application would fail. This certainly is not the idea behind this provision. In my view while deciding these applications for leave to contest, all that is required for the Controller is to observe rules of natural justice i.e. hear both the parties and give opportunity to party to produce the material on which he relies and also grant opportunity to opposite party to rebute that material. I thus, find, that there was nothing wrong in the Controller in entertaining the affidavit of the landlord and his daughter Smt. Shakun Vohra on 14th July, 1980.
(37) Again it is not correct to state that the stand of the landlord was shifting. In the beginning in his petition he was wanting any of son's family or any of his daughter's family to come and reside. At one stage landlord felt that his son posted in Bombay could come and look after him but the son was not able to come. Merely because daughter is able to come and stay with him does not mean that his stand was shifting.
(38) It is clear from the size of the third room that the third room is neither a proper living room nor it is sufficient for need of any relation who may come and resides with the landlord to look after him and his wife.
(39) It will also be noticed that the premises vacated by Shri Wason, on the rear portion of the ground floor, was already on rent. The landlord had denied that the premises had been let out at higher rent. The tenant has not even disclosed as to at what higher rent it has been let out. It was also not the case of the tenant that the landlord had got the premises vacated from Shri Wason for his bonafide personal requirement. In fact there is no such plea. It is also proved from the size of accommodation vacated by Shri Wason that it would not have been suitable for the purpose of which the landlord now requires the premises in dispute. The plea as to the accommodation built by the landlord on the garage is only to be noticed to be rejected. Such accommodation over the garage is built by the landlord, as pleaded by him, for servants and certainly it would not be suitable for the purpose of which the ejectment of tenant is sought.
(40) There if thus no merit to the first three submissions made by the learned counsel for the petitioner-tenant.
(41) The real question is whether the requirement of landlord to keep the family of his son or daughter, who are not living with the landlord, to look after him and his wife come within the expression 'himself' occurring in proviso(e) to sub-section (1) of Section 14 of the Act. In this connection I was referred to the decisions reported as) C.L. Davar v. Amar .Nath Kapur, 1962 Plr 521, Jaswant Singh v. Smt. Prem Kumar, 1964 Plr 881 : Bhagwan Doss v. Smt. Shakuntala Devi, C.R. 411-D/91 decided on 22.10.61 by Khosala, C.J ; T.C. Rekhi v. Uma Gujral, 1970 R C.R. 292 ; Vas Dev Dhawan v. Triloki Nath, 1967 Plr 260 ; J.L. Mehta v. Hira Devi, 1970 Dlt 484 ; Lala Ram v. Smt. Kalawati, : 10(1974)DLT349 : P.D. Sharma v. Ram Lubhaya, 1970 R.C.R. 160 ; Shri Gobind Dass and others v. Shri Kuldip Singh, 1970 R.C.R. 511 ; and Smt. Krishna Devi v. Smt. Parmeshwari Devi, 1978 (1) R.C.R. 3.
(42) I had an occasion to consider the meaning of the expression 'himself' appearing in the proviso (e) to sub-section (1) of Section 14 of the Act, in the case of Lala Ram v.Smt.Kalawati, 1974 R.C.J. 405 (supra). That case was decided by me afier taking into consideration most of the cases which were cited at the Bar in this case as well as the decision of Sachar, J. in J.L. Mehta v. Smt. Hira Devi, 1970 Dlt 484 and in this connection I had an occasion to observe as under :
'7.It has already been held by this court in numerous cases that the expression 'self appearing in the proviso (e) to section 14(1) of the Delhi Rent Control Act includes all members of the family of the landlord who had always been living with the landlord whether as dependent or otherwise. See Bhagwan Dass v. Smt. Shakuntala Devi, (C.R. 411-D/61, decided on 22-10-61 by Khosla, C.J.), T.C. Rekhi v. Uma Gujral, 1970 R.C.R. 292, and P.D.Sharma v. Ram Lubhaya 1970 R.C.J. 160. These cases were followed by SacharJ. in the case of J.L. Mehta v. Hira Devi, 1970 D.L.T. 484. It has been held in the aforesaid cases that the correct reading of proviso (e) to section 14(1) means that where the landlord (or the land-lady as in this case) requires premises for his/her own use then 'his own use' includes the use of himself and the members of his family. The second part of the proviso comes into operation when the landlord requires the premiess himself as well as for the benefit of such family members who had not been living with him earlier but who are in some way dependent on him either financially or for purposes of residence or for any other sufficient reason. In that case it is essential that the member must be dependent on him, otherwise order for ejectment will not be made but as in the present case the landlady herself resides in the house Along with her daughter and her husband, it is not necessary that those members who reside with her should be in some way dependent upon her. In the present case the family consists of landlady, and her married daughter Along with her husband and children. In this case the requirement of the landlady will be treated as 'his or her own use' because she and her daughter's family will be treated as 'self'.
(43) As this stage relevant part of proviso (e) to sub section (1) of Section 14 of the Act may be noticed :-
'(E) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person fur whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation.'
(44) Case of Lala Ram v. Smt. Kalawali (supra) decided by me earlier really construed the expression 'himself' as opposed to the requirement of landlord 'for any member of his family dependent on him'. There the question involved was which family members would come within the expression 'himself' and it was held that family members already living with the landlord would be covered by the expression 'himself'.
(45) The question which has arisen in the present case had not arisen when I decided the aforesaid case of Lala Ram v. Smt. Kalawati (supra). As I noticed earlier this case is concerned to the 'bonafide requirement by the landlord for occupation as a residence for himself'. This case is not concerned with the 'bonafide requiiement for any member of his family dependent on him.' The requirement in this case of the landlord that his son or daughter, not living with him, should come and live with him is a requirement of the landlord himself and is not the requirement of any member not living with but dependent on him. Here the landlord is dependent on a member of the family whom he wants to come and reside with him for his own needs. In such a situation the expression 'himself' is wide enough to include such requirement of the landlord 'himself'. It will be noticed that the requirement is not for the children but for a family who is required to come and live in the premises so as to look after the landlord. If in the situation, like the present, landlord wanted a Doctor or a nurse or their family to stay with him, the requirement would still have been of the landlord himself. But instead of calling a Doctor or nurse to look after him and his wife, the landlord decides that the suitable person to look after him would be his son and his family or a daughter and her family. I think it should come in the expression 'bonafide requirement as a residence for himself'. It is not a question of splitting a family or reuniting the family. It is purely a question of the requirement of the landlord.
(46) Decision of Sachar, J. in Smt. Krishna Devi v. Smt. Parmeshwari Devi, 1978 (1) R.C.R. 3 (supra) also supports my aforesaid view. Sachar, J. observed
'WHERE landlady wanted the premises so that her married daughter and her family should live with her is the requirement of the landlady herself and not that of daughter.'
(47) I am, thereforee, in complete agreement with the observations of the learned Rent Controller that the present case fulfillls the test of 'bonafide requirement by landlord for occupation as a residence for himself'. I am also in agreement with the learned Rent Controller that no facts has been disclosed by tenant in his affidavit as would disentitle the landlord from obtaining an order for the recovery of possession of the premises.
(48) There is thus no merit in the submissions of learned counsel for the petitioner and I also feel that it is not a fit case for interference in revision under the proviso to sub-section (8) of Section 25-B of the Act.
(49) The revision petition thus fails and is dismissed.
(50) Looking at the urgency of the requirement of the landlord as well as the difficulty for the tenant to find out another accommodation the petitioner is allowed three months time from the date of this order to vacate the premises.
(51) There shall be no order as to costs for the present petition.