Precision Steel and Engineering Works and Anoteer Vs. Prem Deva Niranjan Deva Tayal [1982] INSC 69 (7 October 1982)

DESAI, D.A.

SEN, A.P. (J) ISLAM, BAHARUL (J)

CITATION: 1982 AIR 1518 1983 SCR (1) 498 1982 SCC (3) 270 1982 SCALE (1)849

ACT:

Delhi Rent Control Act 1958-Sub-s. (5) of S. 25B read with Clause (e) of proviso to S. 14(1)-Jurisdiction of Controller-Grant of Leave to tenant to contest landlord 's application for eviction-Nature and scope of.

Delhi Rent Control Act 1958-Sub-S. (1) of S. 31-Not attracted at the stage of considering affidavit of tenant seeking Leave to contest under sub-s. (SJ of S. 25B.

Code of Civil Procedure 1908-o. XXXVIl, rule 3(5) and Delhi Rent Control Act 1958-S. 25B(5)-Jurisdiction to grant leave-Comparison of.

Rent restriction legislation-Approach to interpretation of.

Laws of procedure-Approach to interpretation of.

HEADNOTE:

A landlord can make an application for recovery of possession under . Clause (e) of the proviso to s. 14(1) of the Delhi Rent Control Act, 1958, on the ground that the premises let for residential purposes are required by him bona fide for occupation as a residence for himself or for any member of his family dependent upon him, provided he has no other reasonably suitable residential accommodation. Sub- s. (S) of s. 25B lays down 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 obtaining on order for recovery possession" of the premises on the ground specified in Cl.

(e) of the proviso to s. 14(1).

The respondent, a Hindu Undivided Family (HUF), filed a petition under Cl. (e) of proviso to s. 14(1) through the constituted attorney of its karta for an order for recovery of possession of the premises in question alleging that the premises had initially been given to the appellant on leave and licence, that the landlord (the karta of the HUF) who had gone out of the country had since settled down in Delhi, that the landlord had called upon the appellant in May, 1974 to vacate the premises as he had no other suitable accommodation and that 499 the landlord bonafide required the same for his personal occupation. The appellant sought leave to contest the petition and filed an affidavit denying the allegation that it had entered the premises initially as a licensee and contending that according to cl. 6 of the lease agreement the premises were let for residential as well as commercial purpose, that the landlord had been residing in a house as spacious as the demised premises and equally spacious accommodation in an identical unit located at the back side of the demised premises was available to, him which had been let successively to three tenants during the period 1970 to 1976, each time raising the rent, and further that the landlord owned spacious accommodation at another place in Delhi. An affidavit in reply was filed on behalf of the landlord stating that the landlord had no interest in the building in which he was residing, that the identical unit located on the back side of the demised premises had been let to a tenant upto 1981 and that the accommodation located at another place in Delhi and referred to by the appellant was only a garage block.

The Controller decided all questions of fact taking the affidavits as unquestioned evidence and refused to grant leave to the appellant to contest the petition and passed an order of eviction in favour of the landlord. The revision petition filed by the appellant against the order was rejected by the High Court.

The question before the court was: What is the jurisdiction of the Controller under Sub-s. (S) of s.25B while dealing with an affidavit of the tenant seeking leave to contest an application for eviction filed by a landlord under cl. (e) of he proviso to s. 14(1) ? Allowing the appeal.

HELD: (By the Full Court) Leave to contest the petition for eviction under cl.

(e) of proviso to s.l4(1) must be granted to the appellant under sub s (S) of sub-s. 25B of the Delhi Rent Control Act, 1958.

(per Desai and Baharul Islam JJ )

1. (a) While examining the question whether leave to defend ought or ought not to be granted, the limited jurisdiction which the Controller enjoys is prescribed within well defined limits. The language of sub-s. (5) of s. 25B casts a statutory v duty on the Controller to give to the tenant leave to contest the application, the only pre- condition for exercise of jurisdiction being that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground mentioned in B. 14(1)(e). The legislature has used the expression "the Controller shall give leave to the tenant to contest the application." When the language of a statute is plain the principle that legislature speaks its mind in the plainest language has to be given full effect. The legislature has used the plainest language namely "facts disclosed in the affidavit of the tenant" and avoided the phraseology of the 500 analogous provision in order XXXVII, C.P.C., namely "substantial defence" and "vexatious and frivolous defence".

[513 F; 514 E; 513 G: 514 B-D] (b) Undoubtedly, the rules of natural justice, apart from the adversary system we follow must permit the landlord to contest the affidavit filed by the tenant and he can do so by Sling an affidavit in reply. If the averments made in the affidavit of the tenant are controverted by the landlord, that fact may be borne in mind but if the facts disclosed in the affidavit of the tenant are contested by way of proof or disproof or producing evidence in the form of other affidavits or documents that would not be permissible. The Controller has to confine himself to the affidavit filed by the tenant under sub-s. (4) of s. 25B and the reply, if any and on perusing these, he has to pose to himself the only question: Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in s. 14(1)(e) ? On browsing through the affidavit of the tenant, if there emerges averment of facts which, on a trial, if believed would non-suit the landlord, leave ought to be granted. The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against other set of affidavits as it is clear from the language of sub-s. (S) of s. 25B that he has to confine himself to the affidavit filed by the tenant disclosing such facts as would primafacie and not on contest disentitle the landlord from obtaining an order for recovery of possession. It is wholly impermissible for the Controller to proceed to examine the rival contentions on the basis of affidavits untested by cross-examination and unproved documents. The regular trial required to be held by a Court of Small Causes as contemplated by sub-s. (6) Read with sub- s. (7) of s. 25B is not to be substituted by affidavits and counter-affidavits. The scheme of s. 25B does not introduce a trial for arriving at the truth at the stage of proceeding contemplated by sub-s. (4) of s. 25B. It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown. [524 B; 523 H; 524 A; SIS G-H; 514 A; 516 A-C; 517 E- G; 518 B; 516-E] Santosh Kumar v. Bhai Mool Singh [1958] S.C.R. 1211, relied on.

S. Kanjibhai & Ors. v. Mohanraj Rajendra Kumar A.I.R. 1970, Gujarat 32 and Kishan Singh v. Mohd. Shafi & Ors., A.I.R. 1964 J & K 39; approved.

(c) Section 14(1) starts with a non obstante clause which would necessarily imply that the Controller is precluded from passing an order for recovery of possession in favour of the landlord unless the case is covered by any of the clauses of the proviso. Upon a true construction of cl. (e) of the proviso to s. 14(1) it would appear that the burden is on the landlord to satisfy the Controller that the premises are let for residential purpose, that possession is required by him bonafide for occupation as residence for himself or for any member of his family and that he has no other reasonably suitable residential accommodation. This burden, the landlord is required to discharge before the Controller gets jurisdiction to make an order for eviction.

On a combined reading of s. 14(1)(e) and sub-ss. (1) and (4) of s. 25B, the legal position that emerges is that on a proper application being made in the prescribed manner which is required to be 501 supported by an affidavit, unless the tenant obtains leave to defend as contemplated by sub-ss. (4) and (S) of s. 25B, the tenant is deemed to have admitted all the averments made in the petition filed by the landlord and the Controller would act on the admission of the tenant presuming every averment in the petition of the landlord as unchallengeable and truthful. This consequence itself is sufficient to liberally approach the prayer for leave to contest the petition.

[514 E-H; 515 D-E; 513 E] (d) The underlying thrust of all rent restriction legislation is to check profiteering by owners of property and to protect weaker sections. Their provisions are not to be so construed or interpreted as would make the protection conferred on the tenant illusory. [512 E-F: 510 E-F] Bahadur Singh & Anr. v. Muni Sabrat Das & Anr., p[1969] 2 S.C.R. 432, Kaushalya Devi & Ors. v. Shri R.L. Bansal, [1969] 2 S.C.R. 1048, Bega Begum & Ors. v. Abdul Ahad Rehman

[1980] 1 S.C.R. 854 referred to.

(e) A code of procedure is something designed to facilitate justice and further its ends. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard. Too technical construction that leaves no room for reasonable elasticity of interpretation should be guarded against lest the very means designed for the furtherance of justice be used to frustrate it. The procedure prescribed in Chap. IIIA is harsh and weighted against the tenant. The Controller is the final arbiter of facts. Once leave is refused no appeal is provided against the order refusing leave. No one should be in doubt about the narrow constricted jurisdiction of the High Court while interfering with findings of facts in exercise of revisional jurisdiction. Wisdom, sagacity and the consequence of refusal to grant leave coupled with limited scope of inquiry being confined to facts disclosed in the affidavit of the tenant should guide the approach of the Controller.

[527 B-C; 513 D; 527 F-G-H; 528 A] Sangram Singh v. Election Tribunal, Kotah & Anr., [1955 Z S.C.R. I and Maneka Gandhi v. Union of India, [1978] 2 S.C.R. 621, referred to.

In the instant case, the Controller had overlooked disclosure of important facts which put the bona fides of the landlord in issue and necessitated grant of leave to the appellant: The leave and licence agreement had been renewed in 1972 and 1973 though the landlord had been in Delhi since 1972; the landlord had admitted that the identical unit at the back of the demised premises which had fallen vacant in 1973 had been let out to another tenant; no action had been taken till 1979 on the notice seeking eviction served in 1974; every time a fresh letting had been indulged into, it had been done after raising the rent; and the landlord who had sought possession for himself and was admittedly in Delhi had not stated a single word on oath about his requirements and as to in what right he was occupying the premises in which he was staying. [529 B-H; 530 A-E] The High Court had adopted an incorrect approach as to how the matter had to be examined at the stage of granting or refusing to grant leave under sub- 502 s. (S) of 8. 25B. It had failed to ascertain as to when the licence had been terminated and a contract of lease entered into and what were the terms of the lease as alleged by the landlord and whether the rules of the local authority permitted use of the premises for non-residential purposes.

The High Court had dismissed the contention that the landlord had other suitable accommodation by an observation that the Controller had rightly come to the conclusion that the premises in which the landlord was residing belonged not to the landlord but to his brother. This approach was unjustified because the question was not whether the landlord was the owner of the premises occupied by him but the substantial question was in what right he was occupying it for a period extending over 7 years and how it had become imperative for him to vacate the same. [530 F-H; 531 A-H]

2. The contention that the non obstante clause in sub- s. (7) of s. 25B excludes the application of sub-s. (2) of s. 37 but not of sub-s.(l) of 8. 37 and therefore it was obligatory for the Controller to not only hear the landlord but examine evidence at the stage of granting or refusing to grant leave to contest cannot be accepted. Sub-s. (2) of s.

37 provides that subject to any rules that may be made under the Act, the Controller shall, while holding an inquiry in any proceedings before him, follow as far as may be, the practice and procedure of a Court of Small Causes. including the recording of evidence. The very fact that sub-s. (7) of s. 25B provides that while holding an inquiry in a proceeding to which Chap. IIIA applies, the Controller has to follow the practice and procedure of a Court of Small Causes including the recording of evidence indicates the legislative intention of treating Chap. IIIA and especially s. 25B as a self-contained code and this conclusion is buttressed by the provision in sub-s. (1) of s. 25B which provides that every application by landlord for recovery of possession of any premises on the ground specified in cl.

(e) of the proviso to s. 14(1) shall be dealt with in accordance with the procedure specified in s. 25B. That is why sub-s. (7) of s. 25B opens with a non obstante clause.

Any other section, including sub-s. (t) of s 37 prescribing procedure for disposal of an application covered by sub-s.

(l) of s. 25B is therefore excluded. The exclusion of s. 37(1) also necessarily follows from the provision contained in sub-s. (10) of s. 25B which makes it clear that the procedure prescribed for holding. an inquiry consequent upon the granting of leave to contest shall be the same as required to be followed by the Controller for disposal of applications. Sub-s. (10) of s. 25B operates to bring ins 37(1) after leave to contest is granted. If sub-s. (1) of s. 37 were to govern all proceedings including the application for leave to contest the proceedings, both sub-s. (7) and sub-s. (10) of s. 25B would be rendered redundant.

[525 C; 524 E-F; 526 A-B; 525 A-B; 525 E-F-H]

3. Neither the argument that the scope and ambit of sub-s. (S) of s. 25B of The Act in its comparison with O. XXXVII, r. 3 sub-r. (S) C.P.C. is no more res integra in view of the decision in Busching Schmitz (P) Ltd. v. P.T. Menghani & Anr. nor the interpretation of the observations therein to the effect that the scope for granting leave under sub-s. (S) of s. 25B is narrower than the one under o. XXXVII, r. 3 can be accepted. It is not clear from the decision whether the Court took note of the whole of the re- structured r. 3 or it was keeping in view the unamended r. 3 of o. XXXVII. The provisoes to o. XXXVII, r. 3 make it clear that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is 503 frivolous or vexatious. On the other hand, sub-s. (S) of s. 25B makes it obligatory upon the Controller, by use of mandatory language, to give leave if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for recovery of possession.

Under o. XXXVII, r. 3, defence has to be substantial before leave can be obtained. Mere disclosure of facts is the sine qua non under sub s. (S) of s. 25B. Further, the Court can grant conditional leave or leave limited lo the issue under O. XXXVII, r. 3; no such power is conferred on the Controller under sub-s. (S) of s. 25B. Assuming that o. XXXVII, r. 3 (S) confers wider discretion on the Court that, by mere comparison, cannot cut down or narrow or limit the powercoupled with the duty conferred on the Controller under sub s. (S) of s. 25B.

[519 D-H; 520 A-G; 519 A-B; 521 F] Busching Schmitz (PJ Ltd. v. P.T. Menghani & Anr., [1977] 3 S.C.R. 312; B.N. Mutta & Ant. v. T.R. Nandi, [1979] 2 S.C.R. 409; Charan Dass Duggal v. Brahma Nand (C.A. No. 179/82 decided on 11-1-1982) and Om Prakash Saluja v. Smt.

Saraswati Devi (C.A. No. 527/82 decided on 8-2-1982), referred to.

Sarwan Singh & Anr. v. Kasturilal, [1977] 2 S.C.R. 421, distinguished.

Mohanlal v Tirath Ram Chopra & Anr. 22 (1982)Delhi Law Times 1, disapproved.

(per Sen, 1., dissenting)

1. (a) There is a definite public purpose behind enactment of Chap. IIIA and sub-s. (S) of s. 25B must be construed in a sense which would carry out that purpose. S. 14A was enacted to ensure that all government servants to whom residential accommodation had been allotted by the Government vacated such accommodation if they had any house of their own in the Union Territory of Delhi and the section conferred upon them the right to recover immediate possession of their own houses. Further, experience in the past had shown that landlords who were in bonafide requirement of their accommodation for residential purpose under cl. (e) of the proviso to sub-s. (1) of s. 14 were being put to great hardship due to the dilatory procedure of the suit. The object behind enactment of Chap. IIIA was that these two classes of landlords should not be at the mercy of law's delays but there should be a quick and expeditious remedy available to them against their own tenants. The provisions in Chap. IIIA confer a real, effective and immediate right to obtain possession by confining the trial only to such cases where the tenant has such a defence as would disentitle the landlord from obtaining an order for eviction under s.l4(1)(e) or under s. 14A. Chap. IIIA seeks to strike a balance between the competing needs of a landlord and a tenant and has therefore provided that the tenant shall have a right to apply for leave to contest. The words "if the affidavit filed by the tenant discloses such facts" used in sub-s. (S) of s. 25B must therefore take their colour from the context in which they appear.

[533 A-D-E-F-H; 534 A; 536 D; 535 C-D; 535 A-B] Sarwan Singh v. Kasturi Lal, [1977] 2 S.C.R. 421, referred to.

(b) The Controller obviously cannot come to a decision as to whether or not leave to contest should be granted under sub-s. (S) of s. 25B without 504 affording the parties an opportunity of hearing. The Controller must conform to the rules of natural justice.

Once it is conceded that the landlord has a right to be heard, the Controller is bound to give him an opportunity to refute the facts alleged by the tenant in his affidavit filed under sub-s. (4) of s. 25B. The Controller must apply his mind not only to the averments made by the landlord in his application for eviction, but also to the facts alleged by the tenant in his affidavit for leave to contest as well as the facts disclosed by the landlord in his affidavit in rejoinder, besides the other material on record i.e., the documents filed by the parties in support of their respective claims, in order to come to a conclusion whether the requirements of sub-s. (I) of s. 25B are fulfilled. To ask Controller to confine himself only to the affidavit filed by the tenant is to ask him not to apply his mind in a judicial manner even if he feels that the justice of the case so demands. The Controller must endeavour to resolve the competing claims of landlord and tenant to the grant or refusal of leave by finding a solution which is just and fair to both the parties. It is not that the proceedings initiated on an application by the landlord under s. 14(1) (e), or under s. 14A must undergo trial at two stages. Under sub-s. (S) of s. 25B, the Controller must prima facie be satisfied that the facts alleged by the tenant are such as would disentitle the landlord from obtaining an order for recovery of possession. The word 'disentitle' is a strong word, and the Controller must be satisfied that the tenant has such a defence as would defeat the claim of the landlord under s. 14 (1) (e) or under s. 14A. It cannot be that the Controller would set down the application for trial merely on perusal of the affidavit filed by the tenant without applying his mind to the pleadings of the parties and the material on record. If he finds that the pleadings are such as would entail a trial, then the Controller must grant the tenant leave to contest as the words "shall grant to the tenant leave to contest" in sub-s. (S) of s. 25B make the grant of leave obligatory. [536 G; 537 B-H; 538 A-B]

2. The scope of sub-s. (S) of s. 25B is restricted and the test of "triable issues" under O. XXXVII. r. 3 (5), C.P.C. is not applicable, as the language of the two provisions is different. The use of the word 'such' in sub- s. (5) of 6. 25B implies that the Controller has the power to limit the grant of leave to a particular ground. A tenant may take all kinds of pleas in defence. The whole object of sub-s. (5) of s. 25B was to prevent the taking of frivolous pleas by tenants to protract the trial. Where the tenant seeks leave to contest the application for eviction under s. 14(1) (e), or under s. 14A, he must file an affidavit under sub-s. (4) of s. 25B raising his defence which must be clear, specific and positive. The defence must also be bonafide and if true, must result in the dismissal of landlord s application. Defences of negative character which are intended to put the landlord to proof or are vague, or are raised mala fide only to gain time and protract the proceedings, are not of the kind which will entitle the tenant to the grant of leave. The Controller cannot set down the application for hearing without making an order in terms of sub-s. (5) of s. 25B. The trial must be confined only to such grounds as would disentitle the landlord to any relief.

[538 C-F] 505 & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 209 of 1981.

Appeal by special leave from the judgment and order dated the 8th December, 1980 of the Delhi High Court in Civil Revision No. 317 of 1980.

Dr. Y.S. Chitale, K.K. Manchanda and C.N. Murty for the Appellant.

D. V. Patel, U.R. Lalit, Pramod Dayal, Rajesh Mitra and S.K. Gupta for the Respondent.

The following Judgments were delivered DESAI, J. A provision conferring power enacted to mollify slogans chanting public opinion of speedy justice, if not wisely interpreted may not only prove counter- productive but disastrous. And that is the only raison d'etre for this judgment because in the course of hearing at the stage of granting special leave Mr. D.V. Patel, learned counsel for the respondent straightway conceded that this is such a case in which leave to defend could never have been refused. Unfortunately, however, not a day passes without the routine refusal of leave, tackled as a run of mill case by the High Court in revision with one word judgment 'rejected', has much to our discomfiture impelled us write to this short judgment.

First the brief narration of facts. Respondent M/s.. Prem Deva Niranjan Deva Tayal (Hindu Undivided Family) through Prem Deva Tayal, constituted attorney of Niranjan Deva Tayal (landlord) moved the Controller having jurisdiction by a petition under section 14 (1) proviso (e) [for short s. 14 (e)'] read with section 25B of the Delhi Rent Control Act, 1958 ('Act' for short), for an order for recovery of possession of the premises being, front portion of premises bearing No. B-44, Greater Kailash Part I, New Delhi, on the ground that the premises were let out for residential purpose and are now required bona fide by the landlord for occupation as residence for himself and the members of his family dependent on him and that the landlord has no other reasonably suitable accommodation. To this petition he impleaded M/s. Precision Steel & Engineering Works (tenant), a firm and Shri B.K. Beriwala constituted attorney of the firm. Landlord alleged in his petition that 506 the premises in question were first given on leave and license and subsequently relationship of lessor and lessee was established and that the tenant is in possession since October 1, 1971. Landlord further alleged that he now requires the premises for himself and the members of his family consisting of himself, his wife and two school going children. He admitted that he has been employed in India since 1965 but was posted at Bombay in 1970 and returned to Delhi in 1972. He went to Saudi Arabia and has now returned to India. It was alleged that on May 1, 1974, he called upon the tenant to vacate the premises but the request has fallen on deaf ears. It was specifically alleged that as the landlord has now taken up a job and has settled down in Delhi and that he has no other suitable accommodation, and accordingly he bonafide requires possession of the demised premises for his personal occupation. It was alleged that M/s. Prem Deva Niranjan Deva Tayal (HUF) is the owner of the suit premises and Shri Niranjan Deva Tayal is the Karta of the HUF and second notice dated June 22, 1979 was given under instructions by the constituted attorney Prem Deva Tayal. Even though the landlord who sought possession of the premises for his personal requirement was in Delhi at the relevant time, i.e. in 1979, the petition was also filed through the constituted attorney and Niranjan Deva Tayal who seeks possession for his use being in Delhi and available is conspicuous by his absence throughout the proceedings On the petition being lodged the Controller directed summons ' to be served in the prescribed form. On service of the summons the tenant being a firm M/s. Precision Steel & Engineering Works, and its constituted attorney Shri B.K. Beriwala appeared and filed an affidavit seeking leave to contest eviction petition. In the affidavit tenant contended that respondent 1, i.e. M/s Precision Steel Engineering Works is the tenant and respondent 2 does not claim any interest in the premises in question in his personal capacity and ought not to have been impleaded as a respondent. While denying that there is any undivided family styled as Prem Deva Niranjan Deva Tayal it was contended that the petitioner is not entitled to file a petition under section 14 (1)(e) because the purpose of letting was not residential alone but combined purpose of residence-cum business. It was denied that the tenant entered the premises as a licensee and subsequently the contract of lease was entered into and it was submitted that the tenant entered the premises as tenant 507 effective from September 13, 1971, and the lease was for residential-cum-commercial purpose. A specific agreement was pleaded that the tenant which is a partnership was entitled to use the premises for the residence of the director and/or partner as also for the office purpose. Reliance was placed on clause 6 of the License agreement, which was really and substantially according to the tenant a contract of lease.

It was also alleged that since the inception of the tenancy the premises have been used both for residence and business purposes to the knowledge of landlord and local authorities and no objection has been raised in this behalf. It was emphatically denied that the premises were required by the landlord for his personal use as well as for the use of the members of his family and it was also denied that the landlord has not in his possession reasonably suitable accommodation in Delhi. It was positively averred that Niranjan Deva Tayal who claims to be the owner of the premises and for whose personal requirement the eviction petition has been filed has been residing at 32, Anand Lok, New Delhi and that is the address of the landlord set out in cause title of the petition filed by the attorney. Dimension of the premises in possession of the landlord was given out as 2-1/2 storey building built on a plot of 1000 sq. yards.

It was averred that the building now in possession of the landlord is divided into four blocks or units, each block consisting of four bed rooms, three bath rooms, one kitchen, one living room and one drawing-cum-dining room. It was in terms stated that the whole of the house is in occupation and possession of petitioner landlord and he has been residing all along in the house much prior to the beginning of tenancy and he is in possession of the same. It was further averred that the petitioner has concealed the fact that petitioner is the owner of another building at 52, Anand Lok, New Delhi, which buildings is equally big. One other averment of which notice may be taken is that the petitioner has been managing both the buildings and whenever blocks fall vacant he lets them out at higher rent. It was specifically stated that front portion of the building at B- 44, Greater Kailash Part I was the same accommodation as the building which the landlord has in his possession at present. In order to point out that the petitioner landlord when he comes into possession of premises vacated by tenants lets out the same at higher rent thereby contravening law and obtains unlawful enrichment, it was averred that the premises of identical size and nature situated at the back of the demised premises were taken on rent by M/s. Kirloskar Company during the period 1970.73 and when 508 vacated by the tenant the same was let out to Food Corporation of India from 1974-1975 and after getting the same vacated the same was let out in 1976 to Yash Mahajan and on each such opportunity rent was enhanced. It was accordingly alleged that the petition is malafide and the claim of bona fide requirement is utterly untenable.

A counter-affidavit was filed on behalf of the landlord to the affidavit seeking leave to defend reiterating what was averred in the main petition, namely, that Prem Deva Niranjan Deva Tayal (HUF) is the owner of the property and that Niranjan Deva Tayal a is the Karta of the same. It was stated that the landlord bona fide required the premises for his own use. With reference to the building situated at 32, Anand Lok, New Delhi, it was stated that Niranjan Deva Tayal has no interest in the property and that the petitioner Niranjan Deva Tayal has no other suitable residential accommodation in Delhi. It was claimed that the property at 32, Anand Lok, New Delhi, belongs to one K.D. Tayal. The dimension of the house was also disputed. With reference to the premises at 52, Anand Lok, it was stated that the building is not being used as residential premises but is only a garage block. It was further averred that Niranjan Deva Tayal was serving in Saudi Arabia and, therefore, the premises were given on leave and license but now that the petitioner has returned to India and has permanently settled down he requires the premises for his own use. A further averment was made to the effect that the block at the back of the demised premises is at present in occupation of M/s. Coronation Spinning Co., Dadra, and the occupant is entitled to occupy the premises till 1981.

Frankly, in appeal by special leave under Article 136 it was not necessary to set. Out the pleadings in detail.

However, as the question before this Court is whether leave to contest the petition ought not to be granted and that is clearly relatable and wholly dependent upon the averments in the pleadings and the disputed questions of facts arising therefrom and that is the apology for detailed narration of rival contentions.

And now to law. Section 14 (1) (e) of the Act reads as under:

509 "14 (1) Notwithstanding anything to the contrary contained A in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the land lord against a. tenant;

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:- (e) that the premises let for residential purposes are required bona fide by the for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation;

Explanation: For the purposes of this Clause, "premises let for residential purposes" include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes," Section 25B which forms part of Chapter IIIA was introduced in the Act by Amending Act 18 of 1976 with effect from December 1, 1975. The fasciculus of sections is headed 'Summary Trial of Certain Applications'. Section 25B (1), (4) and (5) are material for the present purpose. They read as under:

"25B (1) Every application by a landlord for the recovery of possession or any premises on the ground specified in clause (e) of the proviso to sub-sec. (I) of section 14 or under section 14A, shall be dealt with in accordance with the procedure specified in this section.

(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 510 he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid.

(5) The Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause (e) of the proviso to sub-section (I) of section 14, or under sec.

14A." The increased tempo of industrialisation since the independence resulted in mass migration of population from rural to urban areas. This urbanisation process resulted in phenomenal demand for housing accommodation. Harsh economic law of demand and supply operated with full vigour to the disadvantage of the under privileged. To checkmate the profiteering by the owners of property and to protect the weaker sections, most of the States in our country enacted legislation for the protection of tenants of premises situated in urban and semi-urban areas. These legislations have been enacted with the avowed object of putting a fetter on the unrestricted right of re-entry enjoyed by the landlords with a view to protecting the tenants assuring security of tenure. This avowed object and purpose for enacting legislation must always inform and guide the interpretative process of such socially oriented beneficial legislation. But the language of the. Statute has to be kept in view to determine the width and ambit of protection.

Normally in all such statutes a provision is inserted prescribing enabling provision under which landlord can recover possession and thereby restricted the unfettered right of re-entry. One such provision normally to be found in all such statutes is the one which enables a landlord to recover possession if he bonafide requires the same for occupation by himself or for the use of the members of the family dependent on him. If the landlord seeks possession - bonafide for his personal requirement, he 511 must commence the action by filing a petition and the tenant would be entitled to appear and defend the action. While defending the action in an adversary system the tenant would file his written statement raising contentions which in terms would focus the attention of the court on questions of facts in dispute on the basis of which issues on which parties are at variance would be framed. Both the parties would lead evidence and ultimately on evaluation of evidence the court/Controller would determine the issues on the principle of preponderance of probability and answer the issues one way or the other determining the fate of the petition.

That was the position under the Act. On the introduction of Chapter IllA a notable departure has been made in the Act with regard to the procedure for trial of actions brought under section 14A and 14(1)(e) When a petition is brought before the Controller under section 14(1)(e) a summons has to be issued to the tenant and when the summons is served the tenant cannot straightway proceed to contest the petition for eviction from the premises but D either he must surrender possession or seek leave to contest the petition. While seeking leave he must file an affidavit setting out the grounds on which he seeks to contest the application for eviction. This is the scheme of section 25B(I) and (4). Then comes section 25B(5) which provides that the Controller is under a statutory duty-note the expression "shall give leave to the tenant to contest the application"-to grant leave if the 'affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession' of the premises on the ground mentioned in section 14(1)(e), i.e. bona fide requirement for his personal use or the use of the members of his family.

Let us recall the procedure for obtaining a decree or order for eviction against a tenant entitled to protection of Rent Act other than Delhi Rent Act. What would the court expect the landlord to prove before he seeks to recover possession from the tenant on the ground that he bonafide requires possession for his own use or the use of the members of his family? In a catena of decisions it has been decided that in order to succeed the landlord should show that the premises have been let out as a residence or for residential purposes; that the landlord needs to occupy the premises, which may imply that either he has got no other accommodation in the city or town in which the premises in question are situated or the one in 512 his possession does not provide him a suitable residence and he is required to shift to the premises in question, that his need is genuine and that it is not merely a fanciful desire of an affluent landlord who for the fancy of changing the premises would like to shift to the one from which the tenant is sought to be evicted; that he is acting bona fide in approaching the court for recovery of possession; and that his demand is reasonable. These facts have to be proved to the satisfaction of the Court and once the trend of judicial opinion as expressed by the court went so far as to say that the court cannot pass a decree on compromise because the statute has cast duty on the court to be satisfied about the requirement of the landlord and a compromise decree was held to be a nullity (See Bahadur Singh & another v. Muni Sabrat Dass & another.(l) Kaushalya Devi & others v. Shri K.L. Bansal.(2) Certain states have in their respective legislations also imposed an additional condition before the landlord can obtain possession for personal requirement viz. before making a decree or order of eviction the Court must weigh the relative hardship of the landlord and the tenant and if greater hardship is likely to be caused to tenant, the court is under an obligation to refuse to pass the decree notwithstanding the fact that landlord has proved his requirement. Rent Restriction legislation enacted by States may differ from State to State. Restrictions on the landlord's unfettered right to re entry may be stringent or not so stringent depending upon the local situation. But the underlying thrust of all rent restriction legislations universally recognised must not be lost sight of that the enabling provisions of the rent restriction Act are not to be so construed or interpreted as would make the protection conferred on the tenant illusory by a liberal approach to the desire of the landlord to evict tenant under the camouflage of personal requirement. It is not for a moment suggested that a landlord should not get possession if he genuinely requires the premises for his own use and occupation. That much incidental element of ownership in a country governed by mixed economy is still being recognised though in the wake of agrarian reforms the tenants of agricultural land have been made the owners thereof in almost the whole country. But that is a subject with which we are not concerned. We must proceed on the accepted principle that the one element of ownership, viz., right to personally occupy and enjoy, stands legislatively recognised when an enabling provision was made while restricting the unfettered right of 513 the landlord to renter demised premises at his sweet will giving him A an opportunity to seek possession on the ground of personal requirement. But care has to be taken to visualise that the lust for increasing rent by getting the premises vacated masquerading under the garb of personal requirement does not over reach the Courts. This is the gist of observations of this Court in Bega Begum & Ors. v. Abdul Ahad Rehman & Ors.; (1) where it was held that the expression 'reasonable requirement' in section 11(h) of the Jammu & Kashmir Houses and Shops Rent Control Act, 1966, undoubtedly postulates that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need should doubtless be kept in mind but not so as to make even the genuine need nothing but a desire as the High Court appeared to have done in that case. This observation was quoted with approval in Rewal Singh v.

Lajwanti.(2) In Kewal Singh's case this Court repelled challenge to the constitutional validity of section 25B of the Act.

Undoubtedly the procedure prescribed in Chapter III A of the Act is materially different in that it is more harsh and weighted against the tenant. But should this procedural conundrum change the entire landscape of law? When a landlord approaches Controller under section 14(1) proviso (e), is the court to presume every averment in the petition as unchallengeable and truthful? The consequence of refusal to grant leave must stare in the face of the Controller that the landlord gets an order of eviction without batting the eye lid. This consequence itself is sufficient to liberally approach the prayer for leave to contest the petition. While examining the question whether leave to defend ought or ought not to be granted the limited jurisdiction which the Controller enjoys is prescribed within the well defined limits and he cannot get into a sort of a trial by affidavits preferring one set to the other and thus concluding the trial without holding the trial itself. Short circuiting the proceedings need not masquerade as a strict compliance with sub-section (5) of section 25B. The provision is cast in a mandatory form. Statutory duty is cast on the Controller to give leave as the legislature uses the expression 'the Controller shall give' to the tenant leave to contest if the affidavit filed by the tenant discloses such fact as would disentitle the landlord for an order for recovery of possession. The Controller has to look at the affidavit of the tenant seeking leave to 514 contests. Browsing through the affidavit if there emerges averment - of facts which on a trial, if believed, would non-suit the landlord, leave ought to be granted. Let it be made clear that the statute is not cast in a negative form by enacting that the Controller shall refuse to give to the tenant leave to contest the application unless the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order etc. That is not the mould in which the section is cast. The provision indicates a positive approach and not a negative inhibition. When the language of a statute is plain, the principle that legislature speaks its mind in the plainest language has to be given full effect. No canon of construction permits in the name of illusory intendment defeating the plain unambiguous language expressed to convey the legislative mind. And the legislature had before it order 37, an analogous provision where leave to defend is to be granted and yet avoiding the phraseology of the Code of Civil Procedure , namely, 'substantial defence' and 'vexatious and frivolous defence', the legislature used the plainest language, 'facts disclosed in the affidavit of the tenant'.

The language of sub-section S of section 25B casts a statutory duty on the Controller to give to the tenant leave to contest the application, the only pre-condition for exercise of jurisdiction being that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of 13;

possession of the premises on the ground mentioned in section 14(1) (e). Section 14(1) starts with a non obstante clause which would necessarily imply that the Controller is precluded from passing an order or decree for recovery of possession of any premises in favour of the landlord against the tenant unless the case is covered by any of the clauses of the proviso. The proviso sets out various enabling provisions on proof of one or the other, the landlord would be entitled to recover possession from the tenant. One such enabling provision is the one enacted in section 14(1) proviso (e). Upon a true construction of proviso (e) to section 14(1) it would unmistakably appear that the burden is on the landlord to satisfy the Controller that the premises of which possession is sought is; (i) let for residential purposes; and (ii) possession of the premises is required bona Fide by the landlord for occupation as residence for himself or for any member of his family etc.

and (iii) that the landlord or the person for whose benefit possession is sought has no other reasonably suitable residential accommodation. This burden, landlord is required to discharge before the Controller gets jurisdiction to make 515 an order for eviction. This necessarily transpires from the language of section 14(1) which precludes the Controller from making any order or decree for recovery of possession unless the landlord proves to his satisfaction the conditions in the enabling provision enacted as proviso under which possession is sought. Initial burden is thus on the landlord.

The question is whether this burden is in any way diluted or stands discharged or wholly shifted to the tenant because of a different procedure prescribed in Chapter IIIA of the Act. Section 25(4) provides that in default of the appearance of the tenant 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 landlord shall be entitled to an order for eviction on the ground set out in section 14(1)(e) on a combined reading of section 14(1) proviso (e) with section 25B(1) and (4) the legal position that emerges is that on a proper application being made in the prescribed manner which is required to be supported by an affidavit, unless the tenant obtains leave to defend as contemplated by sub- sections (4) and (S) of section 25B, the tenant is deemed to have admitted all the averments made in the petition filed by the landlord. The effect of these provisions is that the Controller would act on the admission of the tenant and there is no better proof of fact as admission, ordinarily because facts which are admitted need not be proved. But what happens if the tenant appears pursuant to the summons issued under sub-sec. 2 of section 25B, files an affidavit stating the grounds on which he seeks to contest the application. As a corollary it would transpire that the facts pleaded by the landlord are disputed and controverted.

How is the Controller thereafter to proceed in the matter.

It would be open to the landlord to contest the application of the tenant seeking leave to contest and for that purpose he can file an affidavit in reply but production and admission and evaluation of documents at that stage has no place. The Controller has to confine himself to the affidavit filed by the tenant under sub-section 4 and the reply, if any. On persuing the affidavit filed by the tenant and the reply if any filed by landlord the Controller has to pose to himself the only question: Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in Clause (e) of the proviso to 516 section 14(1). The Controller is not to record a finding on 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-sec. S 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. 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 (S) 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 stage is the relevant document and one must confine to the averments in the affidavit. If the averments in the affidavit disclose such facts which, if ultimately proved to the satisfaction of the Court, would disentitle the landlord from recovering possession, that by itself makes it obligatory upon the Controller to grant leave. It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come.

It is distinctly possible that a tenant may fail to make good the defence raised by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown. This view taken in S. Kanjibhai & Ors. v. Mehanraj Rajendra Kumar,(l) Kishan Singh v. Mohd. Shafi & Ors.(2) appears to have been approved in Santosh Kumar v. Bhai Mool Singh (3) where at p. 1217 this, Court while commenting upon an order granting conditional leave under order XXXVII, r. 3, passed by the trial judge which was to this effect: 'In the absence of these documents, the defence of the defendants seems to be vague consisting of indefinite assertions ', observed as under:

"This is a surprising conclusion. The facts given in the affidavit are clear and precise, the defence could hardly 517 have been clearer. We find it difficult to see how a defence that on the face is clear becomes vague simply because the evidence by which it is to be proved is not brought on file at the time the defence is put in.

The learned judge has failed to see that the stage of proof can only come after the defendant has been allowed to enter an appearance and defend the suit, and that the nature of the defence has to be determined at the time when the affidavit is put in. At that stage all that the Court has to determine is whether, 'if the facts alleged by the defendant are duly proved' they will afford a good or even a plausible answer to the plaintiffs claim. Once the Court is satisfied about that, leave cannot be withheld and no question about imposing conditions can arise, and once leave is granted, the normal procedure of a suit, so far as evidence and proof go, obtains".

The manifest error committed in the procedure followed at present by the Controller under s. 25B may be pointed out.

The tenant has to file an affidavit stating the grounds on which he seeks to contest the application. The Controller may accept an affidavit in reply if landlord chooses to file one. So far there is no difficulty. There then follow affidavit in rejoinder and sur-rejoinder and the documents are produced and when this procession ends the Controller proceeds to examine the rival contentions as if evidence produced in the form of the affidavits untested by cross- examination and unproved documents are before him on the appreciation and evaluation of which he records an affirmative finding that the facts disclosed in the affidavit of tenant are not proved and therefore leave to contest should be refused. In our opinion, this is wholly impermissible. The regular trial required to be held by a Court of Small Causes as contemplated by sub-sec. 6 read with sub-sec. 7 of section 25B is not to be substituted by affidavits and counter-affidavits at the stage of considering tenant's affidavit filed for obtaining leave to contest the petition under sub-sec. 4. Sub-section 6 enjoins a duty on the Controller where leave is granted to the tenant to contest the application to commence the hearing of the petition as early as practicable and sub-section 6 prescribes procedure to be followed as if the Controller is a Court of Small Causes. The Court of Small Causes follows the 518 summary procedure in the adversary system where witnesses are examined and cross-examined and truth of averment is decided on the touchstones of cross-examination. A speedy trial not conforming to the well-recognised principle of arriving at truth by testing evidence on the touchstone of cross-examination, should not be easily read into the provision at a stage not contemplated by the provision unless the statute positively by a specific provision introduces the same. The scheme of section 25B does not introduce a trial for arriving at the truth at the stage of proceeding contemplated by subsection (4) of section 25B.

It is at this stage advantageous to refer to the analogous provisions in order 37 of the Code of Civil Procedure to find out whether that provision is bodily incorporated in sub-sec. 5 of section 25B or there is material departure so that stare decisis may or may not shed light on the vexed question. Order 37 Rule 1 sets out courts and classes of suits to which the order would apply. Rule 2 provides for institution of summary suits and sub-rule 3 of rule 2 provides that the defendant shall-not defend the suit referred to in subrule (I) unless he enters an appearance and in default of his entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for a sum etc. Sub- rule 3 provides the procedure where the defendant enters an appearance. On such appearance being entered the plaintiff has to serve on the defendant summons for judgment in the prescribed form which is to be supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit.

It may be recalled that the language of rule 3 of order XXXVII Code of Civil Procedure , prior to the amendment of the Code in 1976 was materially different and substantially the whole of rule 3 has been replaced making detailed provision therein about the manner, method and circumstances in which leave to defend may be granted or refused Leave to defend under sub-rule (5) of rule 3 may be granted if the defendant by affidavit or otherwise discloses such facts to the Court as may be deemed sufficient to entitle him to defend. The first proviso makes it clear that the leave shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious.

Recall the language of sub-s. (5) of s 25B which 519 makes it obligatory upon the Controller to give leave by use of the' mandatory language that the Controller shall give leave to defend to the tenant to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession, etc. For proper and better appreciation it may be made clear that when the mandate - of the section is that leave shall be granted as it enjoins a positive duty while the proviso to sub-rule (S) of rule 3 of order XXXVII provides that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise, etc. Undoubtedly, the test of triable issue has been largely followed by the Court while considering application for leave to defend under order XXXVII, rule 3(S) but what constitutes a triable issue always depends upon the facts and circumstances of each case and its connotation would change after the recasting of whole of rule 3 of order XXXVII. It was, however, urged that the scope and ambit of sub-s. (5) Of s. 25B in its comparison with sub-rule (5) of rule 3 of order XXXVII is no more res intera in view of the decision of this Court in Busching Schmitz (P) Ltd. v. P.T. Menghani & Anr. (1) This Court observed as under :

"But we make it plain even at this stage that it is fallacious to approximate (as was sought to be done) s. 25B (5) with order 37, r. 3 of the Code of Civil Procedure . The social setting demanding summary proceeding, the nature of the subject-matter and, above all, the legislative diction which has been deliberately designed, differ in the two provisions The legal ambit and judicial discretion are wider in the latter while, in the former with which we are concern ed, the scope for opening the door to defence is narrowed down by the strict words used. The Controller's power to give leave to contest is cribbed by the condition that the 'affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in cl. (e) of the proviso to sub-s. (1) of s. 14 or under s. 14A. Disclosure of facts which disentitle recovery of possession is a sine qua non for grant of leave. Are there facts disentitling the invocation of s. 14A ?" 520 It is not clear from the decision whether this Court took note of whole of the re-structured rule 3 of order XXXVII or it was keeping in view the unamended rule 3 of order XXXVII.

Neither is quoted, none is referred to and it is not clear whether a note of amendment of 1976 was taken. That apart, compare the language of both the provisions as hereinabove indicated. The two provisos to sub-rule (5) of r. 3 make it clear that the leave cannot be refused if the defendant has a substantial defence to make or that the defence intended to be put up is neither frivolous or vexatious. Defence has to be substantial before leave can be obtained. Compare it with expression 'affidavit discloses such facts as would disentitle the landlord, etc.'. It is not difficult to ascertain where obligatory duty is cast. Mere disclosure of facts, not a substantial defence is the sine qua non.

Further, the Court can grant conditional leave or leave limited to the issue under order XXXVII, r. 3(5). There is no such power conferred on the Controller under sub-s. (S) of s. 25B. Coming to the social setting referred to by this Court, one must not overlook the fact that a summary procedure can as well be prescribed for all suits to satisfy the felt needs of time referable to highly congested Court dockets. There is no evangelical sanctity in speeding up the actions against tenants alone. The landlord at one stage lets out the premises with the knowledge that it is difficult to evict tenant and obtain possession and, therefore, would reasonably be expected to foresee that even if he has some future need he will not get back possession and yet after letting out premises in a short time approaches the Court on the ground of personal requirement and the tenant may not get even a chance to defend himself.

Social setting is, therefore, in favour of tenant. However, referring to this decision a Full Bench of the Delhi High Court in Mohan Lal v. Tirath Ram Chopra & Anr., (1) observed that the scope for granting leave under sub-s. (5) of s. 25B is narrower than the one under order XXXVII, rule 3, Code of Civil Procedure . We do not accept the interpretation of the observations of this Court in Busching Schmitz's case as understood by the Delhi High Court.

At this stage we may also refer with advantage to the decision of this Court in B.N. Mutta & Anr. v. T.K. Nandi.

(2) In this case a petition under s. 14A(1) of the Delhi Rent Control Act was filed 521 for eviction of the tenant on the ground that the landlord has retired from Government service and he has been called upon to vacate the Government premises which he was occupying by virtue of his office. The only relevant observation to which our attention was drawn reads as under :

"Leave to contest an application under section 14(1) cannot be said to be analogous to the provisions of grant of leave to defend as envisaged in the Civil Procedure Code. Order XXXVII, rule 2, sub rule (3) of the Code of Civil Procedure provides that the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend. Sub-rule (1) of rule 3 of Order XXXVII lays down the procedure to obtain leave. Under the provisions leave to appear and defend the suit is to be given if the affidavit discloses such facts as would make incumbent on the holder to prove consideration or such other facts as the court may deem sufficient to support the application. The scope of section 25B (5) is very restricted for leave to contest can only be given if the facts are such as would disentitle the landlord from obtaining an order for recovery of possession on the ground specified in section 14 A." With respect, the fact that an obligatory duty is cast on the Controller to grant leave on disclosure of facts in the affidavit as would dis