Vinod Kumar Malhotra vs S.L. Sehgal

S. Ranganathan, J.

(1) This is a revision petition u/s 25-B(8) of the Delhi Rent Control Act against an order passed by the Additional Rent Controller rejecting the application of the petitioner for leave to contest the petition for eviction filed by the landlord; u/s 14(l)(e) read with Section 25-B(8) of the above Act.

(2) The present petitioner is the tenant and the respondent the landlord of the premises bearing municipal No. E-336, Greater Kailash-I New Delhi. The landlord is residing in the first floor of the premises which consists of two bedrooms and a drawing/dining room. The tenant is residing in the ground floor consisting of three bad-rooms and a drawing/dining room.

(3) The petitioner become the tenant of the premises in 1969.

(4) The landlord filed the petition for eviction on the ground that the ground floor of the premises was bonafide required by him for the residence of himself and his family members and that they had no other reasonably suitable accommodation with them. It was stated that the accommodation with the landlord on the first floor was not reasonably suitable because of "illness of the petitioner''s wife necessitating her residence on the ground floor; son of the petitioner having become of marriageable age is to be married and due to paucity of accommodation and non-availability of reasonably suitable accommodation the marriage is being postponed and due to the petitioner being obliged to accommodate his parents to be able to serve them and also for assistance required from them due to illness of the petitioner''s wife." Along with the petition the petitioner had enclosed inter alias a certificate from the Sr. Resident Medical Officer of the All India Institute of Medical Sciences certifying that his wife who had been undergoing treatment in the department of psychiatry had developed fear of heights and that she was advised to reside in the ground floor "as her mental condition at present warrants it."

(5) The tenant filed an application seeking leave to defend the above petition on merits. The grounds of objections raised by him were ;

(A)that the notice of termination of tenancy given by the landlord on 10,6.77 was not valid in law.(b) the son of the petitioner was employed outside Delhi and didn''t require to reside or settle down at Delhi; and(e) that the petitioner and his parents were having strained relationship and that the parents of the petitioner who were living all Along with their younger son in their own premises were never brought by the petitioner to look after his wife at any stage though the petitioner''s wife had been sick for quite a long lime, even interior to the period of tenancy of the petitioner himself.

It was stated that the plea of alleged illness of his wife and the medical certificate filed raised triable issues. It was also alleged that the landlord bad wanted to increase the rent and the eviction petition was the result of the tenants refusal to pay increased rent.

(6) The Rent Controller has dismissed the above application as she was satisfied that the affidavit did not disclosed facts or pleas which if proved would disentitle the petitioner from obtaining an order of eviction.

(7) Sri L.R. Gupta appearing on behalf of the petitioner submits that the petitioner had taken very clear, cogent and definite grounds fur demonstrating that the basis on which the eviction was sought was not tenable and that the Controller erred in deciding on the merits of the contentions even at the stage of application for leave to defend. He points out that the pleas of the landlord regarding his son''s marriage and his parents ''presence on the premises had been refuted on the basis of definite and positive facts and that the Rent Controller has said nothing about these two grounds. The only ground on which the learned Rent Controller has rejected the plea of the petitioner wasin regard to the ground of illness of the landlord''s wife. In regard to this ground the learned Rent Controller has observed that the illness of the landlord''s wife was virtually admitted and that the "respondent had not denied or even challenged the plea of the petitioner that the wife of the petitioner has been advised to live in the ground floor or that her menial conditions were the same" Sri Gupta points out that this is an incorrect statement because it was only in his reply to the application filed by the tenant that the landlord had put forward the plea that though she had been ill all along her present condition was such that it required her to be shifted to the ground floor. He says that against this he had no opportunity to but forward his contentions. In support of his contentions Sri Gupta referred to a number of decisions of this Court holding that under Sec. 25B the tenant should be allowed to contest the petition if his affidavit discloses a triable issue and that it would not be proper for the Rent Controller even at the stage to assess the merits of the defense and give a conclusion on the facts without looking at the evidence which the parties may adduce in the course of the trial.

(8) On the other hand on behalf of the landlord Sri Kohli contended that there were two lines of decisions of this Court in regard to petitions u/s 25B. According to him one line of decisions based themselves mere or less on a comparison of the provisions of Section 25B with the provisions of Order 37 of the Code of Civil Procedure. These decisions held that if the affidavit of the tenant discloses same grounds cr triable issues then permission to defend the eviction petition should be granted. The other line of decisions, Sri Kohli points out, have held that the two sets of provisions are not comparable and that so far as the petitions u/s 25B are concerned it is not sufficient merely if there is some bare denial or some triable issue, What is necessary is that the tenant should place on record positive, clear and definite sets of facts which if accepted would disentitle the landlord from obtaining an order of eviction .Sri Kohli referred in particular to the decision of the Supreme Court in Busching Schmitz Private Limited Vs. P.T. Menghani and Another, where it has been pointed out that the provisions of Section 25B should not be approximated to the provisions, of Order 37 Rule 3 of the C. P. C. He contended that in the present case the tenant had not been able to deny that the landlord''s wife was ill and in the face of the certificate which had been filed along with petition the learned Rent Controller was prefectly justified in rejecting the application filed by the tenant. Sri Kohli also contended that the scopes of a revision u/s 25B is very limited and in this contenxt he referred to the decision of the Supreme Court in Hari Shanker and others v. Rao Gitdhari Lal A. I. R. 1963 S. C. 698.

(9) It appears to me that the question in this case has to be decided on the fads and circumstances of the present case. Several decisions were cited both by Mr. Gupta and by Mr. Kolhi and these only emphasis and show that the decisions were arrived at on the facts and circumstances of each case. It maybe that there was a slight difference in approach between the two lines of decisions but I do not think it is necessary to go into this aspect in the present case I am prepared to proceed on the basis of the contention of SriKohli that in order for an application u/s 25B(5) to succeed it is necessary that the tenant should file an affidavit stating the grounds on which he seeks to contest the application for eviction and the controller is bound to grant such leave where the affidavit discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises, u/s 14(1)(e). For an application u/s 14(l)(e) four conditions have to be fulfilled :-

(1)the premises must be let in for residential purposes ;(2) the petitioner should be the owner of the premises ;(3) the owner should require the premises bona fide for occupation as residence for himself or for any member of his family dependent on him; and(4) the landlord has no other reasonably suitable residential accommodation .

In the present case there is no dispute so far as the first two conditions are concerned .All that has to be seen Therefore is whether the landlord required the premises bonafide for occupying as residence for himself and whether the premises presently in occupation of the landlord was reasonably suitable for his needs.

(10) In the present case, the latter two conditions have to be considered together as some of the facts are common. The case of the landlord is that he has been occupying first floor but he wants to move to the ground floor because of the Illness of his wife. So far as this plea is concerned the tenant of course admits that the landlord''s wife has been ill but his answer is that she had been ill for quite a long time. She had in fact been ill even prior to the tenant coming to live in the premises. So his defense is that while it may be true that the landlord''s wife is ill this itself is not a sufficient ground to conclude that the first floor is not suitable for her occupation because she had been living in the first floor for practically a period of 8 years inspire of such illness. Again the landlord says that be needs larger premises because his son has come up of marriageable age and that larger accommodation is needed for this purpose. The tenant contradicts this plea on the ground that the son was living outside Delhi and that he was not likely to be married soon or to settle down at Delhi. Again the landlord''s plea is that in view of his wife''s illness he would like his parents to come and live with him so that she could be attended to by them and looked after by them. The tenant has an answer to this also and he points out that though the wife has been ill for several years now the parents have never come to live with the landlord. In this state of pleadings I am of opinion that it is not possible to come to a conclusion one way or the other unless the parties are allowed to let in evidence and the evidence is assessed en merits. It is afact that the landlord''s wife has been ill but the question is whether her illness is of such a type or has assumed such preparations that the plea that the ground floor is necessary for her can be made out by the landlord. No doubt the landlord has filed a medical certificate but the tenant has pointed cut that she had been ill for a long time but the necessity to live on the ground floor has not been felt so far. These would shew that there is a real issue regarding the fact in regard to the crucial ground en which eviction is sought. Similarly the pleas regarding the son''s marriage and the necessity of bringing the parents to live with the landlord are all pleas in regard to which there is a contest between the parties .Whether we view the case as cue of the triable issues having been raised by the tenant or whether we consider it as a case where the facts set out in the leave to defend the petition requiring to be examined further before one can come to a conclusion that the need of the landlord is bona fide and that he is entitled to eviction u/s 14(l)(e) the matter is one for examination on the merits. To me it appears that it is not correct to decide the issues between the parties on the merits even at the stage of the application for leave to defend the petition for eviction.

(11) It is the unanimous opinion of this Court as laid down in the numerous decisions aimed at the bar that a premature assessment of the evidence even at the stage of the application for leave to defend would be an irregularity which would justify interference in revision under the provisions of Sec. 25B(8).It is sufficient to refer to the decision referred in Om Parkash Gupta v Ram Mathetc., 1976 Rlr 613.

(12) In my opinion, Therefore, the order of the Additional Rent Controller rejecting the tenants petition for leave to defend the eviction petition should beset aside. The matter is restored to the file of the learned Additional Rent Controller who will now grant permission to the the tenant to defend the petition for the merits, and dispose of the same in accordance with law.

(13) During the pendency of the revision in this Court Chadha-J had by consent of both the parties given a direction that without prejudice to the contentions of the parties in the revision petition as well as in the rent control proceedings the following interim arrangement should be adopted : Till the disposal of the revision petition the petitioner was directed to shift to the first floor as a licensee at the same license fee but having tenancy rights on the ground floor in dispute. This arrangement was subject to the result of the revision .Both counsel now agree that in view of the order passed by me allowing the tenants application for leave to defend the eviction petition it will be convenient for both the parties to continue the interim arrangement directed by Chadha-J on 18. 8 1978. I Therefore direct that until the rent control petition is eventually disposed of by the Rent Controller the above interim arrangement will continue i.e. the petitioner tenant will continue in the first floor and the landlord will continue in the ground floor. The petitioner will be a licensee in regard to the first floor and will have tenancy rights in regard to the ground floor. In the event of the landlord''s succeeding in the eviction petition finally the tenant will hand over vacant possession of the first floor as of the ground floor to the landlord. The parties will report before the Additional Rent Controller on 21/05/1979.