Sultan Singh, J.
(1) This is a revision petition under the proviso to subsection (8) of Section 25B of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act') on behalt of the tenant challenging the order dated 31st August, 1979 passed by the Rent Controller whereby he refused leave to the petitioner to contest the eviction application and consequently passed an order of eviction under-Section 25B(4) of the Act. 0n 29th May, 1979 the respondent filed a petition for eviction under Section 14(l)(e) of the Act against the petitioner for his eviction from ground floor of B-105, Greater Kailash-I. New Delhi. The petitioner became a tenant with effect from 15th August, 1969 at Rs.3000.00 per month with respect to the ground floor and. first floor of the suit property at B-105, Greater Kaslash-I. New Delhi. The tenancy of first floor was surrendered on 31st October, 1973 and it continued to be a tenant on the ground floor on a monthly rent of Rs.1500.00 . The ground floor consists of four bed rooms besides dining room, drawing room, garage etc. The ground of eviction as set out in para 18 of the eviction, application is as follows :
'18(A)The petitioner is the owner of the premises in dispute holding. the same for the benefit of himself, his wife Shrimati Baljit Raw Sial and his sons Ajit S. Sial, Vikram S. Sial and Ajay S.Sial. The said premises were let out to the respondent for residential purposes. The petitioner bona fide requires the said premises for his own residence and residence of members of his family. namely, the petitioner's wife and his two sons Vikram S. Sial and Ajay S.Sial who are of the ages of 22 years and 15 years respectively, who are dependent on the petitioner and for whose benefit also the premises are held The petitioner has no other reasonably suitable residential accommodation available to him. The petitioner had on or about December 25, 1977 let out the first floor of the building in which the disputed premises are situated to Shri S.K. Khosia for a fixed term of tenancy of three years with effect from December 25,1977 after obtaining the permission of Shrimati Kanwal Inder, Additional Rent Controller, Delhi, which was granted by her order dated December 24, 1977 in Case No. 851 of 1977. Subsequently, however, the petitioner was relieved of his job by way of compulsory retirement by an order made by the President of India on August 19, 1978 and the petitioner handed over the charges on September 8,1978 Even if the first floor of the said building becomes available to the petitioner in the end of the year 1980, the petitioner would require the same for the residence of his son Shri Ajit S Sial who is 24 years old and who went to the United Kingdom in the year 1975 for doing Chartered Accountancy and who would be returning to India in the end of 1980 after completing the course'.
(2) The family of the respondent thus consists of himself, his wife, his sons Ajit Sial aged 24 years, Vikram S. Sial aged 22 years and Ajay S. Sial aged 15 years. The first floor was let out under Section 21 of the Act for three years from 25th December, 1977, and as alleged by the respondent the same would be occupied by Ajit S Sial who would be returning to India from U.K. after doing the course of Chartered Accountancy. It is apparent from the eviction application that the respondent-landlord did not plead the existing accommodation with him. The petitioner-tenant filed his application for leave to defend supported by an affidavit dated 3rd August, 1979. The petitioner slates that the respondent is not the owner of the suit premises; the respondent-landlord has deliberately and mala fide not disclosed the accommodation in his possession; he is occupying B-261, Greater Kailash-I, New Delhi consisting of four big bed rooms with attached bath, drawing cumdining room, kitchen, rear and front varandahs ; the said building is on a plot of land measuring 450 sq yards; the accommodation in B-261, Greater Kailash-l, New Delhi is more than sufficient for the residence of the respondent and his family members and as such the disputed premises are not required by him bona fide. The petitioner further says that he was a tenant on the ground floor and the first floor and on the representation that the respondent required the first floor for his residence and believing his statement he surrendered the possession of the first floor in the year 1973. He further says that after surrender of possession in 1973, the respondent occupied the first floor for some time and thereafter he let out the same on enhanced rent. In 1977 he let out the first floor to S.K. Khosla. The petitioner further says that the respondent had within his knowledge that he was due to retire; he wants to enhance the rent ; his son Ajit S.Sial has acquired citizenship of the United Kingdom and he is not likely to come back till 1980; that in any case three-year period of tenancy under Section 21 of the Act with respect to first floor was to expire on 25th December. 1980 and the accommodation on first floor would be sufficient for the respondent ; the Barsati floor in the suit house has also been lying vacant and is in his possession. The petitioner has raised various other pleas for leave to defend but it is not necessary to refer all as I am of the view that the pleas referred to above alone are not sufficient for the grant of leave. The respondent in reply denied the various allegations. He asserts that he is the owner by virtue of sale deed dated 20th October, 1962 with respect to the plot; the plan was sanctioned in his favor on 29th November, 1963; he has been paying property taxes. He denies that he is in occupation of B-261, Greater Kailash-I, New Delhi ; the property B-261 belonged to his father-in-law who died in March, 1974 leaving behind for heirs i.e. three sons and daughter. This daughter is the wife of the respondent. He further says that he has been occupy ing B-261, as a licensee. He denies that he is inpossession of four bedrooms as alleged by the petitioner. He says that the area of B-261 is 355 sq. yards and not 450 sq. yards; and he never requested the petitioner to vacate the first floor in 1973.
(3) In his eviction application the respondent admitted that the first floor was vacated by the petitioner on 31st October, 1973, but in his reply to leave application he has changed his position and says that the first floor was surrendered in October, 1974. As already stated, the Rent Controller refused to grant leave to the petitioner and passed an order of eviction against him.
(4) Chapter Iiia was inserted in the Act by Act 18 of 1976 with effect from 1st December, 1975. Section 25B prescribes a summary procedure for recovery of possession filed by a landlord claiming eviction under Section 14(l)(e) and 14A of the Act. A landlord has to prove that he is owner of the suit premises, that the same were let for residential purposes, that the premises were required by him for the residence of himself and members of his family and he has no other reasonably suitable residential accommodation. If the Controller is satisfied on all these points he is empowered to pass an order of eviction against the tenant. Whether the premises required bona fide and whether the landlord has no other reasonably suitable residential accommodation, the two requirements are interconnected. It is desirable for a landlord to plead in his application the family members and their requirements He should also plead the existing accommodation with him and in what manner the same is not suitable for him. In the present case the landlord did not plead at all the existing accommodation in his possession and how it is not suitable. It is the tenant who says in his application for leave to defend that the landlord has been in possession of sufficient and suitable accommodation consisting of four bedrooms besides drawing-cum-dining room at B-261, Greater Kailash-1, New Delhi. If these facts as alleged by the petitioner-tenant are deemed to be correct, it seems the landlord would be non-suited. In other words, no order of eviction can be passed against the petitioner-tenant.Section 25B(5) of the Act requires a tenant to file an affidavit disclosing the facts which would disentitle the landlord from obtaining an eviction order. Such facts of course must be material and substantial and they must be bona fide. It is also to be seen by the Controller that the allegations of fact are not meant to delay the disposal of the eviction application. At the time of grant of leave, the Controller is to refer to the eviction application and the application for leave to defend supported by an affidavit, The reply on behalf of the landlord to the application for leave to defend may be referred to but if the landlord makes new allegations which he ought to have made in the eviction application certainly the disputed questions arise and such questions cannot be decided without recording evidence. The landlord in the present case has denied all the allegations made by the petitioner in his petition for leave to defend. Thus it seems to me that the case cannot be decided without recording of evidence on various facts. It appears to me that if disputed questions of fact are raised and their decision is necessary to grant relief to the landlord, then those questions should not be decided on affidavit, if any, filed by the landlord in reply to the application for leave to contest and that leave should be granted (See: Mool Chand v. Gunda Ram, 1977 RLR 249, Kalyan Singh v. J.P. Gupta, 1977 RLR 242 and Fateh Singh v. Hukam Chand, 1977 RLR 244. Further in Delhi Cloths & General Mills v. T.S Bhatia, 1977 (1) R.C.J 902 it has been held that if an application raises disputed questions which were not sham and requires consideration after recording evidence then leave to defend should be granted. There is no allegation on behalf of the respondent-landlord that the disputes raised are sham or frivolous or malafide. It appears to me that the respondent-landlord was entitled to vacant possession of the first floor premises from his tenant S.K.Khosla whose fixed-term tenancy expired in December, 1980. Further, the respondent as alleged by the petitioner is in-occupation of four big rooms at B-261, Greater Kailash-I, New Delhi. One of the sons of the respondent is also alleged to be out of India. At the time of argument it is stated by the learned counsel for the respondent that his son has since come back to India. Whatever may be the position these are disputed questions of fact which require evidence.
(5) Besides this another question of ownership has been raised by the petitioner-tenant and this is on the basis of an application made in this court seeking leave; to bring facts about the ownership of the disputed property. The first floor of the suit premises was let for three years under Section 21 of the Act in December, 1977 to S.K. Khosla not the respondent but by his wife. In those proceedings the wife declared herself to be the owner of the property in suit. She also stated in December, 1977 that the first floor would be required after the expiry of three years by her husband after his retirement for residence. The tenant also made a statement in the proceedings under Section 21 of the Act and undertook to vacate the first floor after the expiry of the fixed term of three years of three years from 25th December, 1977. The respondent-landlord in reply to the application of the peritioner in this in this court staled that his wife is also a co-owner Thus there are three statements. One is, the respondent-landlord is the owner of the premises in-the suit as alleged in the eviction a application; the second statement is of the wife of the respondent in proceedings under Section 21 of the Act while letting the premises to S.K. Khosla that she is the owner of the disputed house and the third statement is now made by the respondent in this court by means of an affidavit that he and his; wife are the co owners of the property. If the statement of the respondent's wife as made by her in proceedings under Section 21 of the Act that she is the owner is correct, the respondent ceases to be the owner and as such he would not be entitled to seek eviction of the petitioner-tenant. As already stated, the landlord has to prove that he is the owner of the suit premises in suit. After taking into consideration all these facts I am of the view that the petitioner-tenant is entitled to leave to contest the eviction application. The Rent Controller has gone into the disputed questions of fact and as such has committed an error in law. He is to consider the application for leave supported by an affidavit and to determine whether the facts disclosed would non-suit the landlord. All the facts as set out are sufficient to non-suit the landlord and thereforee the Controller ought to have granted leave to contest. The impugned order refusing leave to contest the eviction application and passing an eviction order is not in accordance with law and is thereforee set aside. The petitioner-tenant is granted leave to contest the eviction application. Parties are directed to appear before the Rent Controller on 9th March, 1981. Parties are left to bear their own costs.