V.L. Kashyap vs R.P. Puri

B.C. Misra, J.

(1) This bunch of cases has been placed for disposal These are revisions filed under sub-section (8) of section 25B of the amended provisions inserted by the Delhi Rent Control (Amendment)Act 18 of 1976, which came into force with effect from 1/12/1975. The amendments have been made in the Delhi Rent Control Act ,59 of 1958 (hereinafter referred to as ''the Act''). These revisions raise common questions of law of general importance and are, Therefore, taken up for decision together.

(2) The amending Act has, besides expanding the definition of tenant in clause (1) of section 2 of the Act, inserted a new section 14A and also prescribed a summary procedure for trial of certain applications by addition of Chapter Iiia and insertion of sections 25A and 25B in it. Section 25A applies the provisions of Chapter Iiia notwithstanding anything inconsistent in the Act or elsewhere in any other law for the time being in force. The procedure is prescribed by section 25B and it governs only two kinds of petitions, viz. (1) petition for eviction by the landlord on the ground of bona fide personal necessity mentioned in clause (e) of the proviso to sub-section (1) of section 14 of the Act, and (2) the petition for eviction on the ground mentioned in section 14A. It shows that the other proceedings will continue to be governed by the existing provisions under the Act prior to the amendment viz. section 37 and the Rules under the Act. In case proceedings u/s 14(l)(e) are already pending, they will continue to be governed by the provisions prior to the amendment, since by their very nature the procedure prescribed by section 25B will govern only new petitions, as summons are directed to be issued in a special form and the provisions of law have prescribed for grant or refusal of leave, which can appropriately not be applied to pending proceedings. The pending proceedings must, Therefore, be continued under the existing Act or be withdrawn with liberty to file another petition on the same cause of action, or it may be open to the landlord to file a new petition on a fresh cause of action, either under clause (e) or section 14A, ashe may be advised.

(3) The procedure prescribed by section 25B makes a special provision for service of summonses in the prescribed form on the tenant. Its sub-sections (4) and (5) read as follows :

"(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 files 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 recovery of possession of the premises on the ground specified in clause (e) of the proviso to sub-section(1) of section 14, or u/s 14A."

(4) The question for consideration is under what circumstances the leave should be granted. Reference in this connection has been made to the provisions of Order 37 Rule 3 of the CPC and the decision of the Supreme Court in Santosh Kumar Vs. Bhai Mool Singh, , a it has been urged that once it is found upon the affidavits that there was a triable issue, then the leave should be given unconditionally, but if the court doubts the bona fides of the defendant and thinks that the defense is only to gain time, then leave should be made conditional. It is contended that the dictum of the Supreme Court is :

"IT is always undesirable, and indeed impossible to lay down hard and fast rules in matters that affect discretion. But it is necessary to understand the reason for a special procedure of this kind in order that the discretion may be properly exercised.................. Taken by and large, the object is to see that the defendant does not unnecessarily prolong the litigation and prevent the plaintiff from obtaining an early decree by raising untenable and frivolous defenses in a class of cases where speedy decisions are desirable in the interest of trade and commerce. In general, therefore, the test is to see whether the defense raises areal issue and not a sham one, in the sense that, if the facts alleged by the defendant are established, there would be a good, or even a plausible, defense on those facts."

(5) The decision of the Supreme Court referred to above, in my opinion, has a persuasive value, but it does not apply to the provisions of law under our consideration. Under Rule 3 of Order 37, the requirement is seeking leave upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application. Again the leave may, in the discretion of the Court, be given unconditionally or be subject to such terms as to payment into court, giving security, etc. Consequently, in very many cases, the provision about imposing conditions and terms in cases under Order 37 meets the ends of justice, but no such provision is available in the procedure prescribed by section25B. Moreover, the language of the two provisions is not identical. The requirement of sub-section (4) of section 25B is that the affidavit filed by the tenant must disclose facts as would disentitle the landlord from obtaining an order for recovery of possession. THE language of the provision under consideration is, more stringent and is to be strictly construed and applied.

(6) I am, Therefore, of the view that where''s tenant, seeks-leave to contest the petition for eviction he must file an affidavit raising his defense, which must be clear, specific and positive. The defense must also be bona fide and if true must result in the dismissal of the petition of the landlord. In the view I am taking, the defenses of a negative character which are intended to put the landlord to proof or are vague, or are raised inala fide only to gain time, are not of the kind which will entitle the tenant to the grant of leave. For example, in a petition for eviction u/s 14(l)(e) if the tenant urges that the petitioner is not the landlord, then he must state the name and address of the person whom he alleges to be his landlord or the owner. Again if the defense raised is that the landlord has other reasonably suitable accommodation, then he must state what and where the other accommodation is. Should the tenant deny the alleged number of members of the family dependent on the landlord, then he must state who according to him are the members of the family dependent on the landlord. In case the tenant raises a defense that the notice for eviction is bad, then he must point out specifically what the invalidity is. If the tenant alleges lack of permission of the Competent Authority ( Slum Areas ) then he must assert that the property is situated in slum area and give reference to the appropriate notification.

(7) So far as the defense u/s 14A is concerned, as will be presently shown, the defenses available in clause (e) of section 14(1) are not available and the defense will be confined to the ingredients of section 14A, but in any event they must be clear, specific and positive and it shall be raised bona fide, e.g. if it is contended that the landlord owns or has obtained possession of more than one dwelling house than the exact particulars of the said accommodation must be specified.

(8) The Controller, where leave to contest the petition is sought, will consider whether the affidavits for leave are clear, specific and positive and the defense raised is bona fide and prima fade not untenable and untrue. But the Controller in granting or refusing the leave cannot determine any disputed questions of fact, and if any such dispute arises bona fide where the defense taken is clear, specific and positive, then the petition must be set down for trial on evidence and the facts should be investigated as quickly as possible, as is required by subsections (6) and (7) of section 25B. On the other hand should the Controller find that the defense raised is not clear, specific and positive or is not bona fide, but has been made only to gain time, he would be justified in refusing the leave to contest the petition. In case leave to contest has been granted, the petition for eviction would be set down for trial in accordance with the procedure prescribed by law and the landlord would then be required to lead evidence to prove the ingredients of the grounds on which he seeks eviction and the burden will lie on the landlord to prove his claim except in so far as any part of the claim be admitted by the tenant.

(9) This takes us to the consideration of the defenses available IN a petition for eviction on the ground of bona fide personal necessity mentioned in section 14(1)(e) of the Act as well as section 14A of the amended Act, and I shall take up clause (e) first.

(10) The ingredients of clause (e) of the proviso to sub-section (1)of section 14 remain ''the same, as they existed prior to the amendment and no change has been made in the substantive law, although a more summary procedure for decision of such applications has been provided. The landlord has, .therefore, to establish the ingredient of clause (e),namely, (1) relationship of landlord and tenant exists between the parties, (2) the petitioner is the owner of the premises in dispute, (3)the premises have been let out for residential purposes, (4) the premises are required bona fide by the landlord for residence of himself or any member of the family dependent on him, and (5) the landlord has no other reasonably suitable residential accommodation.

(11) The tenant is entitled to contend that any of the ingredients of the ground of eviction is lacking, and if on an affidavit properly filed for the purpose, as indicated above, the tenant has obtained leave and, contests the petition then the landlord has to establish all the ingredients according to law, and if he fails the petition for eviction is likely to be dismissed. In addition, it is also open to the tenant to raise the question that the contractual tenancy had not been terminated by a valid notice of eviction or that the Competent Authority (Slum Areas) had not granted or had refused permission to institute the petition for eviction in view of section 54 of the Act. In other words, all the defenses, which were available to the tenant under the existing Act prior to amendment are still available; the only difference made bythe Parliament is in procedure and the tenant is now to raise a clear, specific and positive defense and in a bona fide manner, otherwise the allegations of the landlord would be deemed to have been admitted and it has already been indicated as to how the tenant must proceed to seek the leave and then contest the petition.

(12) So far as section 14A is concerned, the defenses which were available to the tenant in a petition for eviction u/s 14(l)(e) are not available. Section 14A is a new provision of law inserted by the amending Act and it confers a new statutory right on the landlord in the special circumstances. The exercise of this right is, Therefore, circumscribed only by the conditions imposed by the amendment and not by any other provisions of law or contract to the contrary. At this stage, it would be convenient to reproduce the relevant provisions of section 14A of the Act:

"14A.(1) Where a landlord who being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required by, or in pursuance of, any general or special order made by that Government or authority, to vacate such residential accommodation, or in default, to incur certain obligations, on the ground that he owns, in the Union Territory, of Delhi, a residential accommodation either in his own name or in the name of his wife or dependent child, there shall accrue, on and from the date of such order, to such landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether express or implied), custom or usage to the contrary, a right to recover immediately possession of any premises let out by him ;Provided that nothing in this section shall be construed as conferring a right on a landlord owning, in the Union territory of Delhi, two or more dwelling houses, whether in his own name or in the name of his wife or dependent child ,to recover the possession of more than one dwelling house and it shall be lawful for such landlord to indicate the dwelling house, possession of which he intends to recover .

The object of section 14A is that persons owning residential accommodation in Delhi and occupying public premises allotted by the Central Government or any other local authority must vacate such public premises, so that they can be allotted ''to more deserving cases ''and IN a default they must incur certain special obligation in respect of Government accommodation. Such a person, who has been required to vacate or incur obligations in respect of public premises must be enabled to shift to residential accommodation owned by him. Therefore, the law confers a new right upon such a person to recover possession of the residential premises untrammeled by any restrictions or conditions imposed by any provision of principle of law or terms of contract of tenancy. Such a landlord must be enable to obtain the possession immediately and with this end in view Chapter Iiia has been inserted. The ingredients of section 14A require existence of relationship of landlord and tenant and the landlord or his wife or dependent child being owner of the premises. The landlord must have been ordered to vacate or in default incur certain obligations in respect of the public premises allotted or occupied by him. Again the premises in respect of which eviction is sought must be residential. In case the landlord satisfies the conditions mentioned in section 14A, a special right to obtain eviction accrues to him. The statutory provision lays down that there shall accrue on and from the date of such order to such landlord a right to recover immediately possession of any premises let out by him. This right has been conferred and has been made effective notwithstanding anything contained elsewhere in any other law for the time being in force or in any contract, custom or usage to the contrary, whether express or implied, to the contrary.

(13) SUB-SECTION (2) of section 14A makes it clear that even If there be a contract of tenancy, which is subsisting, then also the abovementioned category of landlords is entitled to immediate possession and no compensation shall be payable by him to the tenant. As such neither the plea of want or validity of the notice to terminate the tenancy lack of permission of the Competent Authority (Slum Areas), nor any stipulation in the contract of tenancy to the contrary would prevent the landlord from obtaining immediately possession of the premises. Therefore, his right u/s 14A to obtain possession is to be exercised by the landlord untrammelled by any. other restriction or conditions notwithstanding anything contained in any other law or contract to the contrary except of course subject to the conditions and restrictions contained in section 14A itself.

(14) It has been urged that section 54 of the Act also states that nothing in this Act shall affect the provisions of the Slum Areas(Improvement & Clearance) Act and so the protection granted by the said Act is still available, as section 14A also becomes a part of the Act. The argument is attractive, but suffers from a fallacy. Section 14A has been added by the amendment Act mentioned above. It, therefore ,expresses the later will of the Parliament and when this provision lays down that the right conferred by this section shall accrue notwithstanding anything contained elsewhere in the Act or in any other law for the time being in force, then it is the later will of the Parliament which will prevail and not the other provisions to the contrary existing earlier which will yield place [see Shri Ram Narain Vs. The Simla Banking and Industrial Co. Limited, , and Crais on Statutory Law, pages 337 and 338].

(15) The right conferred by section 14A is a special right and it is not dependent upon the need or bona fides of the landlord, but it accrues on and from the date of the order of the Government or local authority requiring the landlord to vacate the premises or to Incur certain obligations on the specified ground and so this furnishes anew and special cause of action and the landlord on fulfilling the requisite conditions of Section 14A acquires the right to obtain immediate possession of the premises. The same view has been taken by V. S. Deshpande, J. in 0m Parkash Gupta vs. Ram Nath Gupta, Civil Revision 280 of 1976, decided on 3/08/1976 (3) and I respectfully agree with it.

(16) An argument had been advanced in one of the revisions filed before me that the premises in dispute must have been let out bythe landlord himself and if the premises had been let out by the predecessor-in-interest or by the agent of the landlord, then he is not entitled to obtain eviction. There is no force in this contention. The expression "possession of any premises let out by him" only means the premises in respect of which the petitioner is the landlord and ordinarily the rights and obligations of an owner of the property on succession or transfer are transmitted to the successor-in-interest and can be enforced by him as if in law/ he had let out the premises. The expression is, Therefore, not confined to the petitioner landlord as having personally let out the premises. The successor landlord is entitled to obtain eviction of the tenants and all persons occupying the premises under the tenant, if he satisfies the other conditions and happens to be the landlord of the premises owned by him or by'' his wife or any dependent child. This is further supported by section 25C which has excluded the restrictions imposed on transferee landlords by section 14(6) of the Act.

(17) Another question that has been raised in the revisions is that the right to obtain eviction conferred by section 14A is confined to residential accommodation and if the premises in dispute bad been let out for residential-cum-commercial purpose or were in fact used bythe tenant for such purposes then the landlord cannot avail of the right. The Explanation to clause (e) of the proviso to sub-section (1)of section 14 of the Act says that the premises let for residential purpose include any premises which having been let out for use as residence, are without the consent of the landlord, used incidentally for commercial or other purposes. This Explanation governs the expression "premises let for residential purpose which occur in clause(e). In clause (e), Therefore, the letting purpose of the premises isan important factor. The said considerations do not apply to the petition u/s 14A. In my opinion, the object of letting out of the premises or the purposes for which the tenant is using the premises with or without the consent of the landlord are not a relevant consideration. What is material is that the landlord petitioner himself or his wife or dependent child owns an accommodation in the Union Territory of Delhi, which is residential in nature. The premises would be residential in nature if they are structurally residential or are in law residential, e.g. a residential accommodation used for a shop or factory will still be residential within the meaning of section 14A. On the other hand, if a garage (apart from appartenant to the residential accommodation) is let out separately even for residence, it will not constitute residential accommodation within the meaning of section 14A, nor will a shop or premises or recognised by law as a shop constitute residential accommodation, although the tenant maybe using it for purposes of residing or sleeping there. This is a distinction which is apparent from the difference in the use of the language in section 14A and section 14(1)(e) of the Act. The intention behind section 14A is that a landlord who owns a residential accommodation in Delhi, has been allotted residential premises by the Government and is asked to vacate the Government premises on that account, must be enabled to save his eviction and the sufferance of the penal obligations and to occupy his own residential accommodation. Obviously, if the premises in dispute were not residential accommodation, the Government could not pass an order for eviction on the ground of his owning such a residential accommodation, but if suchan order has been passed, then it is certain that the premises in dispute are residential accommodation and the landlord is entitled to obtain their possession if they are structurally and legally residential, notwithstanding the letting purpose or the actual use by the tenant.

(18) Another defense open to the tenant is to show that the landlord is not the allottee of the residential premises or he was not in occupation of the said premises. But, more often than not, sucha defense may turn out to be not bona fide since the landlord would scarcely ever file a petition u/s 14A, unless he has an order of the Government on the subject directing him to vacate or incur obligations on that account. But, if in an appropriate case, it is established clearly, specifically and bona fide that the landlord is notan allottee, nor has he been in occupation of the public premises, then it follows that the landlord will not be entitled to proceed u/s 14A of the Act, but he would have to confine his claim for eviction on other grounds mentioned in the Act.

(19) In respect of exercise of right u/s 14A of the Act, an important proviso has been inserted. It is to the effect that the right to obtain eviction u/s 14A (unrestricted and untrammelled by any other statutory or contractual conditions) is confined only to one dwelling house and the landlord is not enabled to recover possession of more than one dwelling house in exercise of the right u/s 14A. In case the landlord owns two or more dwelling houses ,then it is incumbent on him to specify in the petition for eviction all his dwelling-houses and clearly indicate one dwelling house, the possession of which he claims to recover. In my view, the specification of this fact in the petition for eviction is necessary for the reason that the landlord should not be enabled to institute a number of petitions separately in respect of each dwelling-house without disclosing the fact of his owning other houses and if a tenant should not be aware of the landlord being owner of more than two dwelling houses, then the landlord may be able to illegally obtain possession of two or more dwelling houses u/s 14A. So, in my opinion, it is necessary that the landlord must specify in his petition the number of dwelling houses owned by him or by his wife or dependent child and then indicate which one he wants to recover possession of.

(20) What is the meaning of two or more dwelling-houses? In section 14A three expressions have been used, viz. (i) premises, (ii) residental accommodation, and (iii) dwelling-house. The word ''premises'' is defined in clause (i) of section 2 of the Act as follows :

"PREMISES" means any building or part of a building which is, or is intended to be let separately for use as residence or for commercial use or for any other purpose, antiincludes-

(I)the garden, grounds and outhouses, if any, appertaining to such building .or part .of the building;

(II)any furniture supplied by the landlord for use in such building or part of the building;

BUT does not include a room in a hotel or lodging house."

No change has been made in this definition by the amendment. In English law, dwelling-house is used more or less in the same sense as is premises in our statute. In Stroud''s Judicial Dictionary, Vol. 2,page 858, dwelling house is defined as follows:

"A '' dwelling-house'' is obviously a house with the super-added requirement that it is dwelt in or in the dwellers in which are absent only temporarily, having animus revertendi and the legal ability to return (Ford v. Barnes 55 LJQB 34, see further Outer DOOR). ''House'' and dwelling-house'' are used in their respective meanings in the Acts formerly conferring the parliamentary franchise'' house'' in s. 27 of the Representation of the People Act,1832 (c. 41) and ''dwelling-house'' in s. 3(2) of the Representation of the People Act, 1967 (c. 102). The latter Act gave the franchise to one who for the prescribed time has been an ''inhabitant occupier, as owner or tenant, or any dwelling-house''. The word ''inhabitant'' here would seem to bring out more fully the meaning of the word ''dwelling-house'' ".

It was further observed in the said dictionary that dwelling house shall include, any part of a house where the part is separately occupied as dwelling (Ellis v. Burch, Thompson v. Ward, L.R. 6 C.P. 327.The premises used as a corn-store and kiln but in which the occupier occasionally slept and where he always kept a bed; held to be a ''dwelling-house'' within s. 25 of the Towns Improvement (Ireland Act,1854 (C. 103)), although the occupier''s usual residence was just outside the boundary of the town Laws-on v. Fraser, 8 L.R. 55.

(21) In Butterworth''s Words & Phrases, Vol. Ii, page 127, the word ''dwelling-house'' has been defined this:

"1.(a) a rating unit used wholly or mainly for the purpose of a private dwelling ; or(b) any such separately occupied part of a rating unit as issued wholly or mainly for the purposes of a private dwelling ; or .(c) such part of rating unit which is used partly, but not wholly or mainly, for the purposes of a private dwelling as is used for these purposes (Coal Mining (Subsidence)Act), 1957, s. 17(1).

2.''Dwelling'' means a building or part of a building occupied or intended to be occupied as a separate dwelling(Housing Act, 1964, s. 44).

3.''Dwelling'' means a building or part of a building occupied or intended to be occupied as a separate dwelling, together with any yard, garden, outhouses and appurtenances belongs to or usually enjoyed with that building or part ; so, however ,that a building or part which, in the opinion of the Minister, is designed for permanent use as a single dwelling shall be treated as a single dwelling. . .. notwithstanding that it is temporarily divided into two or more parts which are occupied or intended to be occupied as separate dwellings (Housing (Financial Provision) Act,1958, s. 29(i) Housing (Subsidies) Act, 1967, s. 21).

4.''Dwelling-house'' includes any building or part thereof which is occupied as a dwelling, and any yard, garden, garage or outhouse belonging to the dwelling-house and occupied therewith (Matrimonial Homes Act, 1967, s. 1).

5.A ''dwelling-house'' need not ......be a separate building, it may be bounded by a horizontal plane just as well as by a vertical plane. Re. Hecquard Ex. P. Hecquard(1890) 24 Q.B.D. 71, C.A. per Lindley, L.J. at p. 75.

6.By a dwelling house I understand a house in which people live or which is physically capable of being used for human habitation (Lewin v. End, (1906) A.C. 299, per Lord Atkinson, at P. 304).

7.The expression ''dwelling-house'' may include a whole tenement even although that tenement comprises four dwelling-houses. The whole question is one simply of identification. (Kirkpatrick v. Maxwellton Town Council, (1912) S.C. 228, per Lord President, at p. 297)."

In Murgatroyd v. Tresarden, (1946) 2 All E.R. 723, it was held that for purposes of the Rent Restrictions Acts the two self-contained flats were to be treated as separate dwelling-houses, and, as the defendant had never resided in the upper flat and there was no evidence thathe intended to reside in it, the principle of Skinner v. Geary applied and the defendant was not entitled to the protection of the Acts in respect of that flat (also see Skinner v. Geary, (1931 All E.R. 302.

(22) Very useful observation occur in Grant v. Langston, 1900 AC 383 :-

"A hundred years ago there was not much difficulty in saying what was a ''house'', but builders and architects have so altered the construction of houses, and the habits of people have so altered in relation to them, that the word ''house'' has acquired an artificial meaning, and the word" is no longer the expression of a simple idea; but to ascertain its meaning one must understand the subject matter with respect to which it is used in order to arrive at the sense in which it is employed in a statute."

"IT establishes undoubtedly that the word ''house'' is an ambiguous word; it shows that you must search otherwise than the word itself what is the meaning in which the Legislature has used it, since the natural and ordinary meaning of an ambiguous word cannot be ascertained without the context."

"ACCORDINGLY, the word ''house'' has no common or ordinary meaning so fixed and definite that by the mere use of The word you can determine in what sense the Legislature has used it."

"I think the original idea of an inhabited house was that of a building inhabited by one person (with his family)responsible for the tax, who was himself the inhabitant of the whole of the house. But very soon questions began to be raised as to what constituted the unity of a house; one side of a whole street is in one sense structurally one building, but the separate unity of each of the structures with all its arrangements for occupation by one family and its head was of course recognised as a house separately liable to the tax. Even semi-detached houses were always recognised as two houses, although they were structurally one and protected by one roof."

"IN modern times a practice has grown up of putting separate houses one above the other; they are built in separate flats or houses, but for all legal and ordinary purposes they are separate houses."

(23) The word ''dwelling-house'' in the Indian Statutes occurs in the Partition Act (s. 4), Provincial Insolvency Act (s. 6) and ''residential house'' in the CPC (s. 60). In Khirode Chand Choshal and another v. Saroda Prosad Mitra, 7 Indian Cases 436at 441(10), after quoting a number of authorities, in particular Grant v. Langeston the Division Bench of the High Court of Calcutta, observed as follows:

"THE rule deducible from these cases, is that the term ''house'' embraces, not merely the structure or building, but includes also adjacent buildings, curtilages, garden, courtyard, orchard and all that is necessary for the convenient occupation of the house, but not that which is only for the personal use and convenience of the occupier. As was observed by Turner, L. J. in Steel v. Midland Railway Company,(1866) L.R. 1 Ch. A 275, the test to be applied, is what is necessary for the convenient use and occupation of the house, whoever may chance to occupy it, and not, what will be necessary for the personal convenience and enjoyment of a gentleman of fortune if betakes the house, or a gentleman without fortune if he chooses to become the tenant."

The same rule of law has been reiterated in Pran Krishna Bhandari v. Surath Chandra Ray, 14 Cal 873 , Nil Kamal Bhattacharjya and Another Vs. Kamakshya Charan Bhattacharjya and Another, and Gour Chand Basak and Others Vs. Khirode Nath Basak and Others, . It is also reiterated in Babulal Tiwari Vs. Hulla Mallah and Others, , where it was observed that the word "dwelling house" in connection with a conveyance of a partition generally means not only the house itself, but also the land and appurtenances which are ordinarily and reasonably necessary for its enjoyment. In AIR 1952 193 (Nagpur) , it was observed that the term ''house'' embraces, not merely the structure or the building, but includes also adjacent buildings, curtilage, garden, courtyard, orchard and all that is necessary for the convenient occupation of the house, but not that which is only for the personal use and convenience of the occupier.

(24) In Agha Jafar Ali Khan v. Radha Kishen, Air 1951 P&H 433, the High Court of Punjab observed that where the whole building is being used for the purposes of residence, the mere fact that there is a shop on the ground floor will not convert the building into something different from a residential house. Considering ''residential accommodation'' in Firm Ganga Ram Kishore Chand Vs. Firm Jai Ram Bhagat Ram, , the High Court of Punjab observed as follows :

"The word ''residential'' and other cognate expressions, such as, ''reside'', ''residing'', ''resident'', ''residence'' and ''occupy'' occurring in several statutes have variously shaded butelastic meaning. A person is ordinarily said to ''reside'' where he lives with his family. The word ''residence'' connotes two elements, (1) actual or physical habitation and (2) the intention to remain there permanently that is, for an unlimited time. In its ordinary sense the word ''reside'' carries with it the idea of permanence, that is for any length of time, as well as continuity. The word ''residence'' denotes a dwelling house where a person lives in a settled abode."

"IN other sense, residential house is a dwelling-house as distinct from a house of business, warehouse, office shop, etc. Residential house is a building, used as a place of abode, in which, people reside or dwell in contradistinction to one which is used for commercial or business purposes."

In Krushna Kar and Others Vs. Kanhu Charan Kar and Others, ,the High Court of Orissa observed as follows :

"THE well settled position of law is that the term ''house'' embraces not merely the structure or building but inclindes also adjacent buildings, curtilage, ''garden, courtyard orchard and that is necessary for the convenient occupation of the house, but not that which is only for the personal use and convenience of the occupier; it includes the land on which the structure of the dwelling house stands; that the applicant u/s 4 of the Partition Act is entitled to purchase from the stranger purchaser not merely the structure of the dwelling house but also the land on which it stands and further every appurtenant and accessory which may be deemed necessary to a full and complete enjoyment of the things sold."

The Supreme Court in Ghanshiam Das Vs. Devi Prasad and Another, , observed as follows :

"The word building has not been defined in the Act and is, therefore, to be construed in its ordinary grammatical sense unless there is something in the context or object of the statute to show that it is used in a special sense different from its ordinary grammatical sense. So construed according to the dictionary meaning, the existence of a roof is not always necessary for a structure to be regarded as a building. Residential buildings ordinarily have roofs but there can be a non-residential building for which a roof is not necessary. A large stadium or an open air swimming pool constructed at a considerable expense would be a building as it is a permanent stricture and designed for useful purpose. The question as to what is a building under s. 9 of the Act must always be a question of degree a question depending on the facts and circumstances of each case."

(25) The rule of law deducible from the aforesaid decisions is that the word "dwelling-house" is synonymous with residential accommodation as distinct from a house of business, warehouse, office, shop, commercial or business premises. The word ''house'' means a building. It would include the out-houses, courtyard, orchard, garden etc. which are part of the same house, but it cannot include a distinct separate house.

(26) The other view that has been contended finds support from Ganga Dutt Murarka Vs. Sm. Bibhabati Debi and Others, , and it is submitted that the fact that there are different municipal numbers and entrances in different streets, does not show that it is not one building. Reliance has also been placed on a decision of the Income Tax Appellate Tribunal, Hyderabad Bench ''B'', in Wealth-tax Officer, A Ward Chittoor v. Sri C. A. Natesa Mudaliar ChiKor, W.T.A. No. 282/Hyd. 1973-74, decided on 30/06/1975and reported in (1976) Tax 42, for January, 1976.The members of the Tribunal, after quoting C. Grant v. Langstan,1900 A.C. 390, and Yorkshire Insurance v. Clayton, (1881) 8 QBD 421, observed:

"FOR the purpose of Wealth-tax Act, it is clear that the expression has to be one which could be utilised for human residential purposes. The fact that the expression used is a ''House'' and no building would indicate that all conveniences which go with proper human living also have to be considered. If, Therefore, it is not one building but two or three buildings, all in the neighborhood, which are together utilised by a person for his residence-one being used as a kitchen, another as living rooms and the other as cattle shed or store-house, etc. all these together can be treated as a ''house''. On the contrary, if a single house with half a dozen rooms, where normally a single family can live, is sub-divided so that each room is let out to a different person, the fact that the entire unit constitutes a house cannot also be ignored. The only distinctionsought to be drawn by the learned Departmental counsel is that even in the case of a single building constructed in the present case, the assessed has taken care to make the units self-contained by providing them with kitchen, bathrooms, etc., so that each person can stay separately there. This is our opinion by itself does not solve any problem and cannot either restrict or expand the meaning of the expression ''house''."

The Tribunal further observed as follows :

"from these, it would be clear that the word ''house'' for the purpose of exemption under sec. 5(l)(iv) should be given a meaning which is appropriate to the statute where it occurs."

(27) It is, Therefore, clear to me that the use of the word ''dwelling-house'' in section 14A is not synonymous with the word ''premises'' as defined in the Act. The reason is that the allottees of Government residential accommodation are not only Class Iv and Class Iii officers(who may be occupying one or two room tenements in Government premises), but they include Secretaries and Joint Secretaries falling in Class I, who are accustomed to live in complete bungalows, consisting of three or more bed-rooms in addition to other appurtenances and conveniences. If the intention of the amendment is to require them to quit Government accommodation and live in their own house, it is reasonable to infer that they are required to live in their whole house and not only in one premises in part of the building with tenants residing in other premises in the same building. In other words, their need for vacant possession is not confined to only one of the premises in a dwelling house which may have been let out to several tenants. That is the reason why the word "premises" has not been repeated in the proviso and a wider expression ''dwelling-house'' has been inserted. The word ''dwelling-house'' must, Therefore, be given a more extensive meaning than premises, but another whole house must be excluded from its connotation.

(28) The expression ''premises'' in section 2(i) of the Act means and includes a whole or part of the building, which is or intended to be let separately for use as a residence, etc. In the context of the Act, to arrive at the meaning of the word ''dwelling-house'', the expression "let separately" is to be excluded from the consideration, and the building, in order to constitute a dwelling-house, must howsoever let be such as is intended to be used separately as a residence. Where the premises consists of a whole building, the question obviously does not arise, since in such cases the premises and dwelling-house would refer to the same accommodation. The problem arises, if what has been let out as a premises exist in a part of the building. In such cases, IN my opinion, the landlord would, in a case falling u/s 14A, be entitled to obtain possession of the whole building consisting of several premises, provided the whole building constitutes one dwelling-house.

(29) In order to determine whether two parts of the building consist of one or two dwelling-houses, the test to be applied is this:(1) consider the building and see whether it constitutes a whole house or part of the house ; (2) if one part is reasonably needed for convenient and comfortable occupation and enjoyment of the other part of the building, then both the parts of the building constitution are dwelling-house within ''the meaning of the proviso to section 14A. To arrive at this finding, the relevant factors to be taken into consideration are :(a) the situation ; (b) the entrance ; (c) the municipal numbers ; (d)nature of the construction; (e) inter-communications between the two parts ; (f) completeness and independence of each unit ; (g) other relevant and material circumstances. None of these taken singly is decisive, but their cumulative effect must be considered.

(30) To take an illustration of the application of the rule, if there be a flat on the ground floor and another flat on the upper floor of the same building, then both would constitute one dwelling-house. On the other hand, if there are several tenements and many apartments in a large building complex, then each would constitute a separate dwelling-house, since there will be no inter-communication and no need of one for occupation, enjoyment and use of the other. Hence the landlord cannot obtain possession of the whole complex.

(31) As a result, my conclusion is that the question in each case will be determined on its own facts and circumstances and the material placed on record and the word ''dwelling-house'' occurring in the proviso to section 14A shall be construed as not confined to a part of the building containing a premises, but it means a whole building consisting, if necessary, of one or more premises, as defined by the Act, but the whole building must be such as is reasonably intended to be used separately as one residential house.

(32) The scope of the revision in the High Court is provided by sub-section (8) of section 25B, which reads as follows :

"NO appeal or second appeal shall lie against an order for recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section;"

"PROVIDED that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit."

This provision of law is analogous of section 25 of the Provincial Small Cause Courts Act and section 35 of the Delhi & Ajmer Rent Control Act, 1952. This has been interpreted by the Supreme Court in HariShankar v. Rao Girdhari Lal Choudhry, Air 1963 Sc 698. The rule of law laid down is that the High Court can satisfy itself that the decision as a whole is according to law and it refers to the overall decision, which it would not be if there be a miscarriage of justice due to mistake of law, but it cannot be equated to errors of law or of fact simpliciter. Instances in which the High Court will be justified in interfering are where the court had no jurisdiction or in which the court had passed a decision on evidence which should not have been admitted or had not been given a proper opportunity of being heard or the burden of proof has been placed on the wrong shoulders. But the High Court will not be justified in interfering with a plain finding of fact.

(33) The result is that the High Court in exercise of powers under sub-section (8) of section 25B of the Act is not entitled to interfere with a plain finding of fact, if it be satisfied that the order of the Controller taken as a whole is according to law and no error of law has been committed resulting in miscarriage of justice. I shall now Summarise my conclusions thus :

1.The object of section 14A is to enable allottees of Government accommodation, who in their name or in the name of their wife or dependent child owned residential accommodation in Delhi must vacate the public premises so that they can be allotted to more deserving cases and in default allottees must incur certain obligations. Such landlord owners, whose allotment of public premises has been cancelled, have been made entitled to recover possession of the residential accommodation owned by them immediately untrammelled by any conditions or restrictions imposed by any law or any term of the contract of tenancy. Such landlords could obtain this relief expeditiously and a special procedure has been prescribed by Chapter Iiia, has also been made applicable to other landlords seeking eviction on the ground of bona fide personal necessity under clause (e) of the proviso to sub-section (1) of section 14.

2.The procedure prescribed by section 25B of the amended Act governs new petitions for eviction and does not apply to the petitions already pending.

3.The leave to contest the petition will be granted if the defense taken is clear, specific and positive and is raised bona fide not intended merely to gain time and the affidavits and documents accompanying the same disclose facts which if true, disentitle the landlord to obtain an order for recovery of possession. After leave has been granted, the petition would be tried on merits according to law.

4.The defenses open to a petition for eviction filed on the ground mentioned in clause (e) of the proviso to sub-s. (1)of S. 14 of the Act are the same as available under the Act prior to its amendment.

5.Such defenses are not available against the merits of THE petition filed under s. 14 of the Act which has created a new cause of action and conferred a new statutory right on the landlord to obtain eviction. The defenses on merits in such cases must be confined only to fulfillment or otherwise of the conditions and restrictions mentioned in s. 14A alone, apart from any defense of a procedural nature ,which be available according to law.

6.In section 14A the last expression in the purview'' possession of any premises let out by him'' includes the landlord filing the petition who has succeeded the landlord who initially let out the premises.

7.The landlord owning two or more dwelling-houses and seeking recovery of possession of one of them must specify all the houses owned by him or his wife or dependent child and indicate the one of which he seeks recovery of possession .

8.The meaning of dwelling-house is not confined to a part of the building containing a premises, but it means the whole building consisting, if necessary, of one or more premises, as defined by the Act, but the whole building must be such as is reasonably intended to be used separately as one residential house.

9.The scope of revision under sub-section (8) of section 25B of the Act is as laid down by the Supreme Court in HariShankar v. Rao Girdhari Lal, Air 1963 Sc 698.

In view of the observations made above, the particular revisions are now disposed of. C.R. 369 of 1976

(34) This is a revision by the tenant against the order of the Controller dated 29/05/1976 by which he has refused leave to contest and ordered eviction of the petitioner in a petition for eviction u/s 14A of the Act. In this case, the defense raised is that the landlord had more than one dwelling-house and he is already in possession of house No. 5/61 and has obtained an order for eviction in respect of house No. 5/62 as well as 5/64. The premises in dispute are 5/63. The question for determination is whether premises 5/63and 5/64 constitute one dwelling-house along with premises 5/61 and5/62 or they are two houses. These are four flats on two different floors. The Controller has not taken into consideration the fact that these houses were separately owned by the previous owner and had been separately sold out and as such it is difficult to hold that both of them constitute one building intended to be used separately for residence. This matter requires evidence and, Therefore, trial of the case. The revision is accordingly allowed and the order of the Controller is set aside to the extent is affects the rights of the petitioner before me, namely, V. L. Kashyap. The Controller will now grant leave to the petitioner before me to contest the petition and proceed according. to law. The costs of this revision will abide by the result of the proceedings. The parties are directed to appear before the Controller on 18/10/1976.C.R. 474 of 1976

(35) This revision has been filed by the tenant against the order of the Additional Controller, dated 1/03/1976. The petition for eviction has been filed on the ground mentioned in clause (e) of the proviso to sub-section (1) of section 14 of the Act. The defense raised was challenging the ownership of the respondents and lack of termination of tenancy by a valid notice and the respondents were in possession of sufficient accommodation. All these are defenses which are available to be raised in a petition filed under clause (e) of the relevant proviso. These contentions could not be disposed of by the Controller merely on the affidavits. The revision is, Therefore, allowed. The order of the Additional Controller is set aside. The Additional Controller is directed to consider the matter afresh and if he finds that the defense raised by the petitioner is clear, specific and positive, and bona fide, then he will grant leave to the petitioner to contest THE petition. Should he be not satisfied, then it would be in his discretion A and power ''to refuse leave. Costs of this revision will abide by The result of the proceedings. The parties are directed to appear before the Additional Controller on 18/10/1976.C.R. 322 of 1976

(36) This revision has been filed by the tenant against the order of the Controller dated 17/04/1976 refusing leave to the petitioner to contest and ordering his eviction. The defense raised was that the previous petition filed under clause (e) of the proviso to sub-section (1)of Section 14 of the Act had been withdrawn and the present petition is not maintainable. This objection has been repelled by the Controller, in my opinion, rightly. The other contention raised is the letting purpose of the premises and the ownership of the respondent. So far as the letting purpose is concerned, the Controller has found that the rent receipts show that the premises had been let out for residential purposes and not commercial and that the nature of the premises was residential. I am of the view that this observation of the Controller is correct. So far as the denial of the title of the respondent is concerned, the respondent has based his title on a registered will. Had it been a recent will, I would have accepted the submission of the counsel for the petitioner and ordered the setting down of the case for trial on evidence and proof of the will, since mere production of the will does not prove it. But the will is old and the petitioner tenant has acknowledged the respondent to be his landlord and paid rent to him and obtained rent receipts from 1969 onwards. Thus the tenant had never disputed the relationship of landlord and tenant or the ownership of the property. The defense taken by the petitioner is, in my opinion, not bona fide and has been taken only to delay the trial of the petition. As such I hold that the Controller was justified in refusing leave to contest THE petition. The revision is dismissed and the order of the Controller is affirmed. There will be no order as to costs. C.R. 326 of 1976

(37) In this case, the landlord sought eviction on the ground mentioned in section 14A of the Act and the Controller by order dated 26/04/1976 refused leave to contest and ordered eviction. The defense raised by the tenant is that the respondent is not the owner of the property and that the premises were let out to the tenant for residence-cum-commercial purposes. It has further been contended that* no valid notice u/s 106 of the Transfer of property Act has been served. The Controller observed that the landlord produced the sale deed of the property and that it had not been disputed that the premises were residential in nature and that the tenant had not placed any material to show that the premises were used for business purposes. The Controller held that the question of termination of tenancy did not arise in the case. In my opinion, the order of the Controller is correct. The tenant had admitted the relationship of landlord and tenant and the landlord had produced the sale deed of 1959. It is true that the mere production of the sale deed does not prove itself, but a tenant who admits the existence of the relationship of landlord and tenant must, if he disputes the ownership, as pointed out by me above, allege who the owner of the property is. Had this allegation been made specifically and bona fide, it would have been necessary to set down THE petition for trial on oral evidence, but in the instant case the petitioner had been paying rent to the respondent landlord, who possessed the sale deed. As such the defense raised by the petitioner is not bona fide and has been rightly rejected by the Controller. So far as the question of termination of contract of tenancy and the letting purpose of the premises is concerned, I agree with the Controller below that these defenses are not open to be raised in a petition u/s 14A of the Act. The revision has, Therefore, no merit and is dismissed and the order of the Controller is affirmed. The parties are left to bear their respective costs. C.R. 349 of 1976

(38) In this case, the tenant has filed the revision against the order of the Controller dated 25/04/1976 refusing leave to contest THE petition and ordering eviction. The petition has been filed for eviction on the ground mentioned in section 14A of the Act. The defense raised is that the notice of termination of tenancy is not valid and the premises have been let out for residential-cum-commercial purposes and no permission has been obtained from the Competent Authority (Slum Areas)to institute the petition. The Controller has observed that no material has been placed on record to suggest that the premises were let out for residential-cum-commercial purposes and that the defense about the validity of the notice of termination of tenancy and lack of permission from the Competent Authority (Slum Areas) were not available to the tenant in a petition u/s 14A of the Act. In the view I have taken, the order of the Controller is correct. It was not open to the petitioner tenant to raise the objections about the letting purpose or lack of permission of the Competent Authority or the service of a valid notice of termination of tenancy. The revision has no merit and is dismissed and the order of the Controller is affirmed. There will be no order as to costs.