J.D. Jain, J.
(1) This petition under Article 227 of the Constitution of India is directed against order dated 24th December 1983 of an Additional Rent Controller (respondent No. 2 herein) granting leave to contest the eviction petition to respondent No. 1.
(2) The undisputed facts of this case are that the petitioner was in the employment of Delhi Fire Service as a Fireman. The said Service is a wing/unit of Municipal Corporation of Delhi. Thus, being a municipal employee he was allotted official accommodation, viz. A-20, S.P. Mukherjee Marg, Delhi, by the Municipal Corporation of Delhi. During his tenure in Delhi Fire Service he was able to build a house for himself which bore municipal No. AB-86, Shalimar Bagh, Delhi. It comprised one living room on each of the two floors besides common bath room and lavatory etc. He let out a portion of the said premises comprising one room & open terrace on the first floor with common user of W.C. on the ground floor to respondent No. 1 sometime in 1978/1979. He was retired from service by the Municipal Corporation of Delhi vide order dated 31st October 1981 pursuant to the regulations framed by the Municipal Corporation which entitled them to retire employees of the Fire Service on attaining the age of 53 years. The petitioner and some of his colleagues who had been retired likewise challenged the validity of the amendment in the service rule fixing their age of superannuation as 53
(3) In the meanwhile, the petitioner moved an application in December 1982 for eviction of respondent No.1 on the ground of bonafide personal requirement under Section 14-A read with Section 25-B of Delhi Rent Control Act (for short the Act). He averred that pursuant to order of superannuation dated 31st October 1981 he was being asked to vacate the premises allotted to him officially by the Municipal Corporation and he could not retain possession of the said premises on retirement as per provisions of the fundamental rules applicable in this behalf. He further averred that the premises in question had been let out to respondent No.1 for residence and that he (i.e. the petitioner) had no other reasonably suitable accommodation. He pointed out that his family consisted of his wife, three sons and a daughter, the latter having been already married. However, his married daughter was living with her husband on the ground floor of the premises in question and as such no portion of the premises was vacant.
(4) Upon service of summons in the prescribed form, respondent No.1 moved an application under Section 25B(4) of the Act for leave to contest the petition. In the said petition respondent No.1 did not controvert that (i) the letting purpose was residential, and (ii) the petitioner did not own any other property either in his own name or in the name of any member of his family which could be used as residence. However, he sought leave to contest on the ground that the petitioner was already in occupation of sufficient accommodation which had been allotted to him officially by the Municipal Corporation and that he did not require the premises in question because his compulsory retirement from service had been quashed by a Division Bench of this Court and thus he could well retain the government accommodation. Thus, he accused the petitioner of suppressing material facts. Secondly, he urged that the petitioner had in August 1982 let out a portion of the house comprising a room, a bath room and a kitchen on the ground floor, which had been vacated by the erstwhile tenant Jodh Singh on 17th July 1982, to his daughter. This according to him, smacked of malafides on the part of the petitioner inasmuch as his services had already been terminated by the order of retirement dated 31st October 1981 i.e. prior to the vacation and relating of the said premises and he would not have relet the same had he needed the said accommodation bonafide. Lastly, he urged that the only intention of the petitioner was to enhance the rent because the rents had escalated very sharply during the past few years and the petitioner could easily fetch Rs. 350.00 per month while he was paying Rs. 120.00 per month only and the petitioner was pressurising him to pay Rs. 250.00 per month on the threat of being evicted.
(5) In the reply affidavit filed by the petitioner in May 1983, the petitioner reiterated that his occupation of municipal quarter was permissive and he was liable to vacate the same on superannuation. He then specifically stated that his date of birth as recorded in the Delhi Fire Service records was 17th January 1926 and he would be superannuating on attaining the age of 58 years in January 1984 in view of the judgment dated 2nd February 1983 of the Division Bench. As for letting the premises to his daughter he asserted that she was residing there only as a licensee and he had permitted her to live there because he could occupy the whole of his house only when both the rooms therein were available to him, one room in occupation of his daughter being absolutely insufficient to accommodate all the members of his family. In other words, he took up the stand that the legal possession of the said room on the ground floor being with him he would occupy the whole of the house, as and when available.
(6) The learned Additional Rent Controller has granted leave to Con-1, test to respondent No.1 vide impugned order, inter alia, observing that the controversy as to whether one room situated on the ground floor which bad been vacated by Jodh Singh on 17th July 1982 had been let out by the petitioner to his daughter or whether the same had been given by him to his daughter on leave and license basis raised a triable issue and could be decided only after the parties had been given an opportunity to lead evidence.
(7) Feeling aggrieved by the said order the petitioner has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India to quash the impugned order and issue an appropriate rule or order.
(8) The learned counsel for the petitioner has canvassed with considerable fervour that the impugned order is had in law inasmuch as the affidavit filed by the respondent No.1 in support of his application for leave to contest does not disclose any ground which would non-suit the petitioner. Adverting to Sub-section (5) of Section 25-B, he has urged that leave to contest can be allowed only if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for 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 14-A but the affidavit filed by respondent No. 1 in the instant case did not disclose any such facts.
(9) The learned counsel for respondent No. 1, has, on the other hand. contended with equal vehemence that the affidavit filed by him in support of his application for leave to contest clearly brings out malafides on the part. of the petitioner in seeking eviction of respondent No. 1. He has argued that the ground floor portion of the property in question admittedly fell vacant in July 1982 i.e. much after order dated 31st October 1981 retiring the petitioner from service had been made, but even then the petitioner with bids eyes wide open chose to let out that portion to his daughter. This, according to him, would indicate that the petitioner never wanted to shift to the house in question and the ground of bonafide requirement raised by him in the eviction petition is Just a device to somehow get rid of him i.e. respondent No. 1 and re-let the premises at a higher rent. In this context he has also adverted to the decision of the Supreme Court in Precision Steel & Engineering Works and another v. Prem Deva Niranjan Deva Tayal 1982 (3) Drj 418, to the effect that.
'AT the stage when affidavit is filed under Sub-section (4) by the tenant and the same is being examined for the purposes of Sub-section (5) the Controller has to confine himself only to the averments in the affidavit and the reply if any and that becomes manifestly clear from the language of Sub-section (5) 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 recovering possession etc. 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 if the relevant document and one must confine to the averments in the affidavits.'
Thus, the argument of the learned counsel for respondent No. 1 precisely is that the affidavit filed by respondent No. I in support of his application for leave to defend clearly makes out a case of malafides on the part of the petitioner and as such the impugned order is perfectly in accordance with law.
(10) I have bestowed my careful thought and consideration on the rival contentions of the learned counsel for the parties. Admittedly, order had been made by the Municipal Corporation on 31st October 1981 retiring him from service under the amended rules framed by the Municipal Corporation. However, the eviction petition was filed by the petitioner after about a year thereafter. It was for the obvious reason that a stay order had been granted to him by the Division Bench of this Court before whom the writ was pending. It was during the pendency of the writ petition that Jodh Singh an erstwhile tenant ot' the ground floor, vacated the same. He then let the same to his daughter. Although his contention is that her possession is permissive inasmuch as she had been allowed to live in the premises as a licensee on account of her being his daughter but surely, this plea cannot be taken into account at the stage of granting/refusing leave to contest in view of the dictum laid by the Supreme Court in Precision Steel & Engg. Works (supra), wherein it was further observed that :
'THE Controller is not to record a finding on the 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 question whether 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.'
So, assuming the averment made by respondent No. 1 to be correct, we have still to consider whether this makes out a case for grant of leave to defend. As would appear from the building plan, placed by the petitioner on record, the house in question is comprised of only one living room on each of the floors besides open terrace on the first floor and bath, W.C. and kitchen on the ground floor. This being the total accommodation in the house, there can be no room for doubt that it is a very small house. Hence, having regard to the number of family members of the petitioner, viz., his wife and three sons (excluding the married daughter for the present) there can be no shadow of doubt that the accommodation on the ground floor itself could hardly be sufficient for residence of himself and members of his family. The writ petition challenging the legality and validity of order dated 31st October 1981 was still pending and he could reasonably think that it was likely to take sometime more. So, the mere fact that he let out the ground floor to his daughter feeling that he was not required to occupy his house immediately would not reflect lack of bonafides on this part. He could legitimately feel sure of his daughter vacating the premises in question if need be on his superannuation. But even otherwise he was not supposed to keep the house vacant as a man of ordinary prudence because he would have suffered considerable financial loss especially in the event of his writ petition succeeding and his continuing in service uptil January 1984. In Inder Sain Seengal & another v. J.E. Compose, 1970 Rent Control Journal i, it was observed by l. D. Dua, C.J. that : that to impose on the landlord an obligation to decide finally three months prior to his date of retirement whether or not he would be shifting and living in his own house three months later and if he was so desirous then of declining to lease the vacant portion of his house is to read in the statutory provisions more than what is clearly discernible therein. To say that if he does not so decide and does not keep the portion of the house vacant during the period of his decision, then he cannot in law establish his bonafide requirements of the premises for occupation as residence for himself or for dependent members of his family in the event of his finally deciding to shift to his own house after retirement is to rewrite the statutory provisions concerned or to read very much more in it than can be reasonably seen.' In that case the landlord had let out a part of his house three months before his retirement. The instant case stands on a stronger footing because in view of the writ petition filed by the petitioner having been admitted to a hearing he could be quite hopeful that in the event of its being allowed he would continue in service up(ii January 1984. Reference in this context may also be made to a regent decision of Yogeshwar Dayal, J. in P. Bhagat v. S. Bannerjee (1983) 24 DLT 7, (Civil Revision No. 529/82 decided on 24th February 1983) in which His Lordship, inter alia, observed that :
A landlord is not to incur financial loss by not relating portion of his house falling vacant when he does not need it at the time and when the same is not suitable to him being insufficient............'
So, the mere fact of letting the ground floor portion of the house to his daughter in August, 1982 can hardly be pressed into service to prove lack of bonafides on his part which would disentitle him to the relief of eviction.
(11) The petitioner, as stated above, is a small house owner being one of the lucky few impecunious government/municipal servants who are able to provide a shelter for themselves for their post retirement life. Let us not dub him a landlord' in the sense the so-called socialistic ideologists and judicial activists use this term and thus condemn him of malafides. Law may be an ass, as the proverb goes, but surely it is not a blind man's stick and the Additional Rent Controller while exercising his discretion in granting or refusing leave to defend cannot but look at the stark realities of life. Here is a person who was to retire from service at the latest by January 1984 and he had no choice but to live in his own house. Hence, his crying need for a residence on his superannuation stared him and everyone else concerned in the face. The crucial question, thereforee, was 'will it be just and fair to prolong his agony and suffering by forcing him to go through the protracted trial merely because he was indiscreet enough to let his daughter occupy the ground floor?'. Unfortunately, the learned Additional Rent Controller did not address himself to this vital question and he was very much swayed by the dust raised by respondent No. 1 to cloud the real issue and cast reflection on the bonafides of the petitioner by highlighting the fact of his letting the ground floor to his daughter. Obviously his writ petition had not been decided by the time he filed the eviction petition and, thereforee, he could not speculate on its ultimate decision and take risk. All the same, the Additional Rent Controller was very much entitled to take the subsequent events into account and decide the matter keeping in view the fact that the petitioner was to retire eventually in January 1984. The petitioner has now filed another affidavit staling that he has actually retired from service and is at present living on the ground floor of the house in question. This fact is not controverter by the learned counsel for respondent No. 1 before me. Under the circumstances, I have no hesitation in holding that the requirement of the petitioner for the premises in question as residence for himself and members of his family is absolutely genuine and sincere and the question of any lack of bonafides on his part does not arise.
(12) As for the imputation of the respondent that the petitioner wants to enhance rent, sortie it to remark that it is based on mere conjecture and surmise and he has not alleged facts disclosing how and when any demand was made by the petitioner from him to enhance the rent. The learned Additional Rent Controller has, thereforee, rightly ignored this contention.
(13) To sum up, thereforee, the impugned order cannot be sustained because it amounts to refusal on the part of the Additional Rent Controller to exercise the jurisdiction vesting in him lawfully. Hence, this petition is allowed and the impugned order is set aside. However, keeping in view the totality of circumstances, the parties are let to bear their own costs.
(14) The parties are now directed to appear before the Additional Rent Controller on 17th October 1984 for further orders.