Sham Singh Bist vs Sushil Bhatia
1992 Latest Caselaw 37 Del

JUDGMENT

S.C. Jain, J.

(1) This revision petition has been filed challenging the order passed by the Addl. Rent Controller Shri Rakesh Kapoor on 20.3.90, whereby leave to defend the eviction petition was granted to the tenant respondent herein. As per the record. Sham Singh Bisht petitioner herein filed an eviction petition under Section 14 read with Section 25B of the Delhi Rent Control Act for the eviction of the respondent from the suit premises alleging himself to be the owner landlord of the premises. It has been alleged that these premises were let out to the respondent on 11.6.85 on a monthly rent of Rs. 250.00 and that it was agreed that after 11 months he would vacate these premises as the petitioner would require the same for his residence and for the residence of his family members. His father was working as Daftri and he along with his father was living in a Govt. accommodation which stood allotted to his father and that his father was due to retire on 31.12.89 when he would be vacating the allotted accommodation. This petition has been filed for personal bonafide requirement. As the petition was filed under Section 14 read with Section 25B of the Delhi Rent Control Act, summons as specified in Iii Schedule were served on the respondent who filed an application seeking leave to defend the eviction petition under Section 25B of the Delhi Rent Control Act. The pleas taken by the respondent tenant in his application seeking leave to defend were that the petition was malafide without any cause of action and that the same was not maintainable. The ownership of the petitioner was also denied and it was alleged that the premises were let out for residential-cum-commercial purpose. In the affidavit filed in support of his application these facts were reiterated. It was further mentioned that the petitioner wanted to enhance the rent failing which to get the premises vacated and that there was no bonafide necessity in favor of the petitioner who is comfortably residing with his father and that be is unmarried.

(2) That application was contested by the petitioner who filed a reply supported by an affidavit. In his reply he stated that his father retired on 31.12.1989 and that he was required to vacate the Govt accommodation and that his need was bonafide. It is reiterated that he is the owner landlord of the premises in question. It was denied that the premises were let out for residential-cum-commercial purpose.

(3) The Addl. Rent Controller vide order dated 20.3.90 granted leave to defend only on the plea taken by the tenant in his application that the premises were let out for residential-cum-commercial purpose and that the petition under Section 14 was not maintainable.

(4) From the impugned order I find that the Addl. Rent Controller has gone wrong while granting leave to defend the eviction petition. Section 25B of the Delhi Rent Control Act enjoins a duty on the Addl. Rent Controller to grant leave to contest the petition if the facts disclosed in the affidavit of the tenant are such, which if proved would disentitle the landlord from obtaining the eviction order. However, 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. The landlord is entitled not only to file reply to the affidavit of the tenant but also to place on record material which can prima facie show that the plea taken by the tenant is negative in character or vague or malafide or sham only to gain time.

(5) In this case the plea taken in the application seeking leave to defend are not specific and are negative in character and they appear to be sham taken only to gain time. The plea that the eviction petition is malafide and without cause of action Is not maintainable In law or that the same is an abuse of the process of law and is a vague plea and that it is not sufficient to grant leave to defend the eviction petition. The plea that the premises were let out for residential-cum-commercial purpose is also not tenable in the present circumstances of the case. There Is a rent agreement duly executed between the parties. Clause 7 of the agreement specifically provides that that the premises shall be used for residential purpose only by the respondent for himself and his family members. It it settled law that when there is a lease agreement In existence and it contains a stipulation regarding the purpose of letting, then only the lease agreement is to be looked into and no other circumstances can be looked into.

(6) Regarding the malafide on the part of the petitioner landlord, it was specifically mentioned in the counter affidavit that the Govt. accommodation which stood allotted in the name of his father in which he was living was to be vacated after his father would retire on 31,12.1989 and the government accommodation has to be vacated. Therefore, the need of the petitioner is genuine and bonafide. There is nothing in the application seeking leave to defend that the petitioner has any other reasonably suitable accommodation for his living and the plea that the petitioner landlord wanted to increase the rent and when the respondent did not agree the petitioner filed the eviction petition does not help the respondent in getting leave to defend. This is vague allegation and no detail of the plea has been given as to when the landlord made a demand to increase the rent. There is no writing in this regard. It appears to be sham plea taken only to gain time.

(7) The challenge to the ownership of the petitioner landlord is also malafide. A rent note was executed admitting the petitioner to be the owner landlord of the premises. Rent was paid to the petitioner as landlord and tenant. The tenant has not stated as to who else is the owner of these premises if the petitioner is not the owner of the premises. The plea that the premises were let out for commercial-cum-residential purpose is also not tenable in the presence of the rent note which mentions the purpose of letting as residence. The vague pleas taken by the respondent do not help him in seeking leave to defend. The decision relied upon by the learned Counsel for the respondent tenant reported in 1982 S.C. 1518 also does not help the tenant in the present circumstances of the case. Much water has flown under the bridge after this decision. The procedure followed by the Addl. Rent Controller in this case while granting leave to defend to the respondent tenant is unjustified. He has committed an irregularity while appreciating law and facts. There is jurisdictional error and that the impugned order passed by the Adde. Rent Controller is unjustified and not based on law and facts. He has committed material irregularity in granting leave to defend which has resulted in miscarriage of justice. I, therefore, set aside the impugned order dated 20.3.90 and accept this revision petition with costs. Counsel for the parties who are present in person in the Court are directed to appear before the Addl. Rent Controller concerned on 31.1.1993, fixed in the case. Record be sent back immediately,