Thakur Dass Gulati vs Faqir Chand
1991 Latest Caselaw 388 Del

JUDGMENT

Santosh Dnggal, J.

(1) This is landlord's revision petition filed under section 25-B(8) of the Delhi Rent Control. Act, 1958 (for short 'the Act'), feeling aggrieved by the judgment and order passed by the Additional Rent Controller, Delhi on 29th October 1983, dismissing the eviction petition filed under section 14(l)(c) read with section 25-B of the Act, on the plea of personal requirement.

(2) The Additional Rent Controller did not find the plea of bona fide requirement for personal residence of the landlord and his family established on record, and thus dismissed the eviction petition. Mr. Makhija, during the course of arguments, has pointed out that one of the factors which the Additional Rent Controller took into consideration while recording a finding that the petitioner had failed to prove that there was any bona fide requirement for the tenancy premises, was that he had since shifted to Gurgaon. Learned counsel has urged that there is total misappreciation of evidence because the Additional Rent Controller did not read the statement of the petitioner in this respectfully but in piecemeal and held against him whereas the petitioner had categorically stated that he had been constrained to take a house on rent in Gurgaon for the reason that he could not afford the heavy rents prevailing in Delhi, and- that he had every intention to live in Delhi, and proposes to move back to Delhi as soon as the tenancy premises get vacated. Mr. Makhija has contended that this itself is a ground calling for interference by this Court because misconstruction or misinterpretation of the evidence on record is a point that can certainly be examined in this revision petition filed under section 25-B(8) of the Act.

(3) The learned counsel has taken me through the statement of the petitioner and I find that factually it is correct that the Additional Rent Controller has taken into consideration only a part of the statement of the petitioner and did not advert or comment upon his explanation which he had given in the same breath while stating that he was at that point of time living in Gurgaon. Petitioner's counsel placed reliance on a judgment of this Court reported as 1988(2) R.C.R. 398, Smt. Drashan Garg v. Sri Kishan Das, wherein it has been held that misinterpretation of evidence or a finding given by the Controller by excluding some important piece of evidence was an infirmity which vitiates the finding which can be set aside by this Court in exercise of power of revision conferred by section 25-B(8) of the Act. This proposition was laid down by the learned Single Judge after taking note of certain Supreme Court judgments.

(4) Mr. Kela has nothing to comment in face of this position. He has however, pointed out that in case this Court is inclined to allow this revision petition on this ground, as urged by Mr. Makhija, namely, misconstruction or misinterpretation of petitioner's statement, having an important bearing on the question of his bona fide requirement, then this Court may take into consideration the fact that the respondent while seeking leave to defend had urged a number of grounds but leave to defend was granted only on some them, and others were rejected. He has urged that the Controller, at that stage, could not have embarked upon a detailed examination, such as during trial, of the grounds made out on affidavit, and in case friable issues had been raised. which was the case here, then tentatively the affidavit of the respondent ought to have been considered, and leave ought to have been allowed on all the grounds taken up in the application filed by the respondent under Section 25-B of the Act.

(5) On going through the order passed by the Additional Rent Controller dated 29th October, 1983 I find justification in what Mr. Kela has urged, because a reading of this order reveals that there are five grounds as set up by the respondent in that application and these have been enumerated in the order but the Additional Rent Controller after detailed consideration of these grounds, allowed leave to defend only in respect to two of them, which were shown as 4 and 5 in the order. Mr. Makhija concedes this position as being covered by the judgment of the Supreme Court in Precision Steel and Engineering Works and another v. Prem Dava Niranjan, 1982 (2) R.C.J. 643.

(6) Without examining this matter further and in view of the concession made by learned counsel for the petitioner, I allow Mr. Kela's prayer to the effect that in case the revision petition is allowed and eviction petition revived, the respondent should be given opportunity to urge all the pleas that have been taken up in the application under Section 25-B of the Act while seeking leave to defend and that he should not be restricted to two grounds alone as has been done in the order dated 12 October, 1979.

(7) In view of what has been recorded above, in so far as the petitioner's contention is concerned, that his statement has not been read in proper prospective but in piecemeal, and finding that this is one of the factors which weighed with the Addl. Rent Controller while coming to the conclusion that the landlord had failed to establish bona fide requirement of the tenancy premises, I allow the revision petition and set aside the order of dismissal of the eviction under section 14(l)(e) read with Section 25-B of the Act by order dated 29th October, 1983 with the result that the eviction petition stands revived. In view of what was urged by Mr. Kela and not controverter by Mr. Makhija. I further direct that the order dated 12th October, 1979 whereby leave to defend was accorded to the respondent shall stand modified to the effect that the leave shall cover all the grounds which were urged by the respondent in his application, under section 25-B(4) of the Act.

(8) As a result, the respondent shall get opportunity to file fresh written statement taking up the grounds but it is made clear that he shall not travel beyond the grounds which were taken in his application for leave to defend. The petitioner shall be given opportunity to file replication and then a fresh finding on all the aspects of the matter be recorded after the parties have adduced evidence.

(9) It is also noticed that the report of the local commissioner appointed by this Court has been received along with plan prepared through draftsman. The respondent has filed objections to that report whereas in Court the learned counsel for the petitioner has also indicated that the plan filed with the report was not fully acceptable. That report shall form part of this record only but it shall be open to either party to submit the local commissioner or his report, in case either of them wants to rely on it, as a piece of evidence. The other party can pursue his objections to the report or the plan by means of cross-examination or by other evidence on record.

(10) With these directions the revision petition is allowed, and the order dated 29th October, 1983 is set aside.

(11) Trial Court records be sent back immediately. The parties are directed to appear before the Rent Controller, Delhi on 28th May, 1991 who may keep the matter with herself or assign to any of the Additional Rent Controllers, for disposal.

(12) Mr. Makhija has submitted that the eviction petition was filed as far back as 1979 and that some time frame may by fixed for the Court to finally dispose of the matter. Considering all the facts and circumstances, it is directed that every effort be made by the Controller or the Additional Rent Controller to whom this case is assigned to see that the trial concludes and judgment announced within eight months of the putting up the file before her or him. Matter remanded to the trial court