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Ramesh Chand Sharma Vs. Harpal Singh Sharma - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 1040 of 1979
Judge
Reported in18(1980)DLT412; 1981(2)DRJ27
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantRamesh Chand Sharma
RespondentHarpal Singh Sharma
Advocates: Maehswar Dayal and; I.S. Mathur, Advs
Cases ReferredIn Smt. Gejoli Roy v. Amar Singh
Excerpt:
delhi rent control act, 1958 - section 14(l)(e) and 25(b) landlord filing eviction petition for his bona fide need under summary procedure--application of tenant for leave to contest the petition alleging that petitioner is in possession of reasonably suitable residential accommodation and that his need is not bona fide. tenant alleging induction of new tenant at the time of giving notice to him and after--landlord denying by filing affidavits controller relying on affidavit of landlord refusing leave--how far justified. - .....the landlord is entitled to an order of eviction against the tenant, then on the basis of such facts leave to contest need not be granted to such a tenant. sub-sections (4) and (5) of the act provide the filing of an affidavit by the tenant with a view to obtain leave to contest. on the other hand, the form of summons specified in the third schedule referred to in section 25b(2) of the act prescribes that leave to appear and contest the application may be obtained on an application to the controller supported by an affidavit. (4) the comulative effect of sub-sections (4) and (5) read with the form prescribed in the third schedule of the act is that the tenant is required to file an application to contest the application for eviction. in such applications and/or affidavits the tenant.....
Judgment:

Saltan Singh, J.

(1) This is tenant's petition under Section 25B(8) of the Delhi Rent Control Act. 1958 (hereinafter called 'the Act') challenging the order of the Additional Controller dated 8th November, 1979 by which he dismissed the petitioner's application for leave to contest the eviction application filed by the respondent under Section 14(1)(e) of the Act. Consequently he also passed an order of eviction against the petitioner. Chapter Iiia was inserted in the Act by Act 18 of 1976 with effect from 1st December, 1975. There are two sections 25A and 25B in this chapter. It prescribes a summary trial for applications for recovery of possession filed by a landlord claiming eviction under Section 14(1)(e) and section 14A of thke Act Section 14A of the Act was also inserted by the said amendment of 1976. Section 25B of the Act prescribes a special procedure for disposal of applications on the ground of bona fide requirement. After the service of summons of the eviction application a tenant is required to obtain leave to contest the eviction application. The tenant is required to file an affidavit staling the grounds on which he seeks to contest the application for eviction. Sub-section (5) of Section 25B of the Act provides that leaveo contest the application for eviction shall be granted by the Controller if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession. The landlord is entitled to an order for recovery of possession on the ground specified in clause (e) of the proviso to sub-section (1) of Section 14 of the Act if he proves the following ingredients prescribed therein :

(I)That the premises were let for residential purposes; (ii) That the landlord is the owner of the premises; (iii) That the premises are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him; and (iv) That the landlord has no other reasonably suitable residential accommodation.

(2) All the ingredients are to be proved before the Controller can pass an order of eviction against the tenant. Sub-section (4) of Section 25B of the Act provides that if leave to contest the application for eviction is refused, the allegations made by the landlord in his application for eviction shall be deemed to be admitted by the tenant and consequently an order of eviction is to be passed by the Controller in favor of the landlord. If, however, leave to contest is granted, the procedure for disposal of the eviction application is the same as the procedure for disposal of applications for eviction on other grounds. The crucial consideration in eviction cases filed under Section 14(l)(e) is whether a tenant is entitled to leave to contest. Sub-sections (4) and (5) of Section 25B read as under-

'4)The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he filed an affidavit staling the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid. 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.'

(3) Under sub-section (5) a tenant is required to file an affidavit disclosing the facts which would disentitle the landlord from obtaining an eviction order. Such facts must be material and substantial, and they must be bona fide. Further, it has to be seen that the allegations of facts are not meant to delay the disposal of the eviction application. In other words, the Controller has to discharge an onerous duty to come to the conclusion whether a tenant is entitled to leave to contest. He has to consider whether the facts disclosed by him in his affidavit are so material that if the same are deemed to be proved, the landlord would not be entitled to an order of eviction against the tenant. But if on the basis of the facts alleged in the affidavit of the tenant the Controller is in a position to hold that even if those facts are deemed to be proved, the landlord is entitled to an order of eviction against the tenant, then on the basis of such facts leave to contest need not be granted to such a tenant. Sub-sections (4) and (5) of the Act provide the filing of an affidavit by the tenant with a view to obtain leave to contest. On the other hand, the form of summons specified in the Third Schedule referred to in Section 25B(2) of the Act prescribes that leave to appear and contest the application may be obtained on an application to the Controller supported by an affidavit.

(4) The comulative effect of sub-sections (4) and (5) read with the form prescribed in the Third Schedule of the Act is that the tenant is required to file an application to contest the application for eviction. In such applications and/or affidavits the tenant is required to disclose such facts as would disentitle the landlord from obtaining an order of eviction. This is the procedure prescribed under the Act. This procedure does not refer to the taking into consideration of any kind of evidence on behalf of the landlord or the tenant except that in the form of an affidavit on behalf of the tenant. Before deciding such an application for leave to contest the landlord must be given an opportunity to reply to the various facts pleaded on behalf of the tenant. He may also support his reply with an affidavit. Thus on the basis of the affidavits of the tenant and the landlord the Controller has to decide whether leave to contest should be granted.

(5) The further question that may arise whether any reference can be made to any document filed by the landlord. These documents may be necessary to prove the facts of ownership, purpose of letting, bona fide requirements and the possession of reasonably suitable residential accommodation by a landlord.

(6) The trial of application for eviction being summary a landlord may plead in his application various documents and file them with application for eviction to prove the ingredients mentioned in Section 14(l)(e) of the Act. If such facts with regard to the documents are pleaded and the tenant in his application for leave to contest disputes those facts or the documents then again the Controller has to decide on the facts of each case whether or not leave to contest should be granted. In case the tenant in his application for leave to contest does not challenge any fact or document filed by the landlord and referred to in his application for eviction, the law of pleading presumes that he has accepted the allegations of the landlord to that extent.

(7) In the present case the question for decision is whether on the facts pleaded by the landlord in his application for eviction and the facts pleaded by the tenant-petitioner in his application for leave to contest supported by an affidavit together with the reply and affidavit on behalf of the landlord, the tenant has made out a case for the grant of leave to contest.

(8) The respondent-landlord in his application for eviction pleads that the premises are residential which were let to the petitioner-tenant in January, 1969, that no rent deed was executed between the parties, that he is the owner of the suit premises, that the premises were let for residential purposes, that he has been in possessson of two rooms, one kitchen on the ground floor and a Tin-Saiban on the first floor of the property bearing Municipal No. IX/3695, Gali No. 2, Dharampura, near Gandhi Nagar, Shahdara-Delhi which premises are shown in red in the plan attached with the eviction petition. The landlord further pleads that he is in possession of the portion on the ground floor shown in yellow colour in the said plan. This portion consists of two rooms and one kitchen besides common bath and latrine. The landlord further pleads that his family consists of himself, his wife, his one son aged 18 years one daughter aged 20 years and one maternal grandson aged 9 years. He further pleads that he requires the suit premises for himself and his family members and he has no other reasonably suitable residential accommodation. The landlord further pleads that a notice of demand and termination of contractual tenancy of the respondent dated 6th May, 1977 was served upon the petitioner-tenant.

(9) After the service of summons under section 25B of the Act the petitioner tenant filed the application for leave to contest. His allegations in short are that the landlord of suit House No. 3695 is in possession of two rooms, one kitchen on ground floor and one room on the first floor and that the landlord's wife owns property No. 3685 in Gali No. 2, Dharampura, Gandhi Nagar, Shabdara Delhi near the suit property wherein the petitioner is in possession of two rooms and one kitchen on the first floor and that the landlord inducted one Ram Nath Sharma, his friend, in October, 1978 on the ground floor comprising of three rooms and two kitchens. The tenant further alleges that the landlord inducted one Rajinder Kumar Sharma in 1977 in one room of the suit property and at the time when he served a notice of eviction upon the tenant. The tenant says that if the landlord was actually in need of accommodation, his action of letting out the room to Rajinder Kumar Sharma was not jusified. The tenant further pleads that the landlord has sufficient accommodation as disclosed by him in the application. Lastly the tenant says that the eviction petition has been filed with a view to enhance the rent and let out the vacated portion on higher rent. The applications supported by an affidavit of the tenant Ramesh Chand Sharma. The ownership of the landlord and the purpose of letting is, however, not denied by the tenant. In other words the application for leave to contest alleges facts to show that the landlord is in possession of reasonably suitable residential accommodation and that his alleged requirement of the suit premises is not bona fide. Mere reading of this application for leave to contest shows that if these two facts are deemed to have been proved on behalf of the tenant, it appears that the landlord would not be entitled to obtain an order for eviction.

(10) The landlord filed reply to the application for leave to contest. He pleads that there is a Saiban on the upper floor and not the room as alleged by the tenant. The landlord further pleads that the property bearing No. IX/3685 owned by the wife was sold by her on 9th November, 1978 in consideration of Rs. 38,000.00 to Smt. Yashoda Devi, wife of Shri Ram Nath Sharma, and that possession of the property was delivered to her, and that the purchaser along with her husband and other family members has been residing since the date of the purchase i.e. 9th November, 1978. The landlord, however, in reply has neither accepted nor denied that two rooms and one kitchen in this property are with him or with his wife. There is only general denial although there is specific denial of other allegations of facts contained in clause (2) of the application for leave to contest. As regards induction of Rajinder Kumar Sharma in suit property in 1977 the landlord pleads that he was inducted in 1975 in one room and a common bath room and latrine. He further pleads that at the time of inducting Rajinder Kumar Sharma, his need was not so acute. He disputes the contention of the tenant that he has sufficient accommodation. The landlord besides his own affidavit filed the affidavits of Yashoda Devi, the alleged purchaser of his wife's house, and Rajinder Kumar Sharma, the tenant alleged to have been inducted in 1975. On the basis of these pleadings and affidavits the Additional Controller refused to grant leave to contest and passed the order of eviction as stated.

(11) On the allegations of the tenant as contained in the application for leave to defend the landlord is in possession of two rooms, one kitchen on the ground floor in the suit house and two rooms and one kitchen on the first floor of property bearing No. IX/3685 owned by his wife. If this accommodation is available to the landlord whose family consists of himself, his wife, one son and one daughter it may be said that the landlord is in possession of reasonably suitable residential accommodation. The dispute is whether the landlord and his wife are in possession of the two rooms and kitchen in the property belonging to the wife and whether the wife's suit property has been sold as contended on behalf of the landlord. Admittedly the notice of eviction was given on 6th May, 1977 and the tenant alleges that Rajinder Kumar Sharma was inducted in one of the rooms of the suit property simultaneously at the time of issue of notice of eviction. There is a dispute whether Rajinder Kumar Sharma was inducted in 197 7 or in 1975 as alleged by the landlord. If the landlord was in a need of more accommodation and he served a notice of eviction it may be said that if he let out any portion of the suit property to Rajinder Kumar Sharma it may not be a bona fide act on the part of the landlord. Further, the tenant pleads that Ram Nath Sharma, husband of the alleged purchaser of Property No. IX/3685 belonging to his wife was inducted in October, 1978 while the landlord says that his wife sold this property on 9th November, 1978. There is no allegation on behalf of the landlord that any sale deed was executed by his wife with respect to the suit property. In the absence of the registered sale deed as required under Section 54 of the Transfer of Property Act, 1882 it cannot be held at the moment that the landlord's wife has sold the house. Thus there is a dispute whether the landlord's wife is still in possession of her house specially the two rooms and one kitchen on the first floor. On these facts it appears that there are disputed questions of fact raised by the petitioner-tenant and these facts are not alleged to be mala fide, they appear to be bona fide and if these facts are deemed to be proved, it appears that the landlord would not be entitled to obtain an order of eviction against the tenant.

(12) The Additional Controller rejected the tenant's application for leave to defend on the ground that there is no allegation whether the landlord has any right, title and interest in the property belonging to his wife and that possession of the premises by the wife in her said house does not mean that the landlord is in possession of reasonably suitable residential accommodation, because the landlord has no right in her house. It is further obterved that as the house has been sold on the basis of the affidavit filed on behalf of the landlord it must be held that the accommodation with the landlord is not sufficient. As regards induction of a tenant in 1977 in a portion of the suit property the Controller observes that full particulars of such induction have not been given. The Controller further held that Rajinder Kumar Sharma was inducted in 1975 as sworn by Rajinder Kumar Sharma in his affidavit and thereforee no ground was available to the tenant for leave to contest. In my view the Additional Controller exceeded his jurisdiction. He has no jurisdiction to take into consideration the affidavit of Smt, Yashoda Devi, the alleged purchaser, and Rajinder Kumar Sharma, the tenant inducted in 1975 or in 1977, Further, the Additional Controller without recording evidence whether the landlord is not in possession of reasonably suitable residential accommodation held to be so merely, on the ground that the landlord has no right, title and interest in the house of his wife. If the wife is the owner of another property and is in possession of two rooms and one kitchen of her property as alleged by the tenant, the alleged requirement for the wife cannot be taken into consideration. It is further contended by the Learned Counsel for the tenant that the alleged requirement of even son and daughter cannot be taken into consideration because the son and daughter are also dependent upon their mother In these circumstances it is not possible to say that the landlord has no reasonably suitable residential accommodation. The question is whether there is accommodation available to the landlord and/or any of his family members for whom the eviction application has been filed to obtain additional accommodation. Further, the Additional Controller has no jurisdiction to consider and hold at this stage whether the property belonging to the wife has or has not been sold on the basis of the affidavits of the landlord and the alleged purchaser.

(13) The Learned Counsel for the landlord-respondent contends that the premises were let in January, 1975 while the eviction application was filed in July, 1977 and there has been a change of circumstances. He further states that the accommodation with the landlord is insufficient and that there is no accommodation in the house belonging to his wife as she had sold the same in November, 1978. On the basis of these facts his contention is that the landlord has no reasonably suitable residential accommodation and that his requirement for suit premises is bona fide. I do not agree. At this stage the court cannot go into the disputed questions of facts. In Mrs. P. H. Karkhanis v. P. N. Chopra 1977 R.C.R. 337 it has been held that the Controller cannot look into any other fact except those disclosed by the tenant in affidavit and the application for leave to contest. In Mool Chand v. Ganda Ram 1977 R. L R 240, Kalyan Singh v. J. P. Gupta 1977 R L R, 242, and Fateh Singh v. Hukam Chand 1977 R. L R, 244, it has been held that if a tenant specifically denies the facts pleaded by the landlord then, their worth and value should not be assessed from the affidavits but tenant should be allowed to leave to contest to prove his assertions. In other words, if disputed questions of facts are raised and their decision is necessary to grant relief to the landlord, then these questions should not be decided on affidavits and leave to contest should be granted. In Smt. Gejoli Roy v. Amar Singh etc. 1977 R L R, 464 it has been observed that if averments of facts and law in tenant's affidavit raise pleas, which if established, would non-suit landlord, then leave to defend should be given. Again in Delhi Cloth and General Mills v. T, S. Bhatia 1977 R. L R, 153 it has been held that if application for permission to defend raises issues which are not sham or frivolous and require consideration after recording evidence on contested matters then leave to defend should be given. There is no allegation on behalf of the landlord that the disputes raised by the tenant are same, frivolous or mala fide.

(14) I, thereforee, find that the order passed by the Additional Controller refusing to grant leave to contest the eviction application is not in accordance with law within the meaning of the proviso to sub-section (8) of Section 25B of the Act. I, thereforee, set aside the same and grant leave to the petitioner- tenant to contest the eviction application of the respondent. In the circumstances of the case, parties are left to bear their own costs. The parties are directed to appear before the Additional Controller on 29th September, 1980.


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