Kamal Kapoor vs Bank Of India
1993 Latest Caselaw 453 Del

JUDGMENT

D.K. Jain, J.

(1) This revision petition under section 25B(8) of the Delhi Rent Control Act, 1958 (for short the 'Act') is directed against the order dated 17 November 1992 passed by the Additional Rent Controller, Delhi granting to the respondent/tenant (hereinafter referred to as the tenant) leave to defend petitioner's/landlady's (hereinafter referred to as the landlady) eviction petition under section 14D read with section 25B of the Act.

(2) Premises bearing No.E-198, Naraina Vihar, New Delhi, a two and half storeyed residential - cum - commercial building was let out to the tenant with effect from 01 December 1973, as per agreement dated 17March 1974, for a period of three years. Subsequently, another agreement was executed on 18 May 1982 extending the tenancy for a further period of three years with effect from 01 December 1981.

(3) The landlady filed the eviction petition, wherein it was stated that she was the owner of the said premises; she was a widow; the demised premises were the only property owned by her in Delhi; she being a heart patient was advised to avoid long journeys and she had to stay in Delhi for proper treatment and the one room tenanted accommodation with her son, with whom she was staying, was insufficient. She, therefore, required the premises for her own residence as she had no other alternative accommodation.

(4) After service of summons, an application was filed by the tenant seeking leave to defend the eviction petition. It was, inter alia, stated that the landlady was not the owner; she did not require the premises for her occupation as she was residing with her son, and being an old lady, required to be looked after by her son; she had not pleaded that the premises were required for the residence of her son and the petition had been filed only to pressurise the tenant to increase the rent. It was also stated that the premises had been let out for running the tenant's banking branch and, therefore, the petition under section 14D read with section 25B of the Act was not maintainable. Along with the application, an affidavit of the branch manager was also filed staling that the land lady was a permanent resident of Yamuna Nagar and was looking after some business under the name and style of S.P.Kapur & Co. and, therefore, had no intention to reside in the premises in question.

(5) In her reply to the tenant's leave application, while reiterating that she bona fide required the premises for her own and her family's residence, the landlady asserted on affidavit that after the death of her husband in April 1975, she did carry on the aforesaid business for a short time but ultimately decided to close the business in the year 1981 and since then she had not done any business at Yamuna Nagar.

(6) The learned Additional Rent Controller vide his impugned order came to the conclusion that a friable issue had been raised by the tenant on the grounds (i) that on the title of the eviction petition itself, the landlady had mentioned her residential address as that of firm's address and if the business at Yamuna Nagar had been closed in the year 1981, as claimed, the landlady would not have mentioned the address of the firm as her residential address and (ii) that the landlady had not placed on record any document showing the names of other partners and that the firm had beenclosed. He was,therefore,of the view that the matter could not be decided without recording evidence. He. accordingly, granted leave to defend to the tenant. Hence the present petition.

(7) It is now well settled that the scope of enquiry under section 14D of the Act cannot be equated with that of section 14(1)(e) of the Act, though both the provisions deal with eviction of the tenant on the landlord's requirement of the residence. Applications under sections 14B to 14D of the Act cater to the requirements of classified landlords, who have been given the benefit of a summary trial under Chapter III-A by introduction of the said sectionsinsub-section(l) of section 25B of the Act. In Surjit Singh Kalra vs. Union of India & another, , while considering the scope of enquiry in this special category of cases under sections 14B to 14D, the Supreme Court has held that the Rent Controller's powers to give leave to contest the application filed under section 14(I)(e) or section 14A 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 the respective sections. It has been observed that if an application is filed under section 14D, the tenant's right to contest the application is narrowed down and is restricted to the parameters of the said section and the tenant's scope of defense cannot be widened by relying upon section 14(1)(e) of the Act. Similar view is expressed in K.L.Malhotra vs. Smt.Prakash Mehra, .

(8) It appears that the landlady in the present case has throughout been not a resident of Delhi. The address given in the petition is that of Yamuna Nagar.The requirement for stay in Delhi, as mentioned in the application, is that she is suffering from heart disease, her being advised not to undertake long journeys and stay in Delhi for medical treatment, that she is now living with her son in the letter's one room tenanted premises, which is not sufficient for her needs, and she, therefore, requires the premises in question.

(9) The tenant in the reply and the supporting affidavit though contests landlady's requirement for residence in the premises on the plea that she has business interest in Yamuna Nagar where she lives, and says that the application is mala fide and the premises in question are not required by her for residence but there is no contest in application or the tenant's affidavit about the landlady's plea of her suffering from heart disease or requirement of the premises in question for her residence on that score. On the contrary, by way of counter to the defense taken by the tenant in resistance to the application seeking leave and the affidavit, the landlady has reiterated her stand of the requirement of the premises on the plea of her ailment and treatment at Escorts Heart Institute, I feel that this was an important factor to be looked into for assessment of requirement of the premises by the landlady within the meaning of section 14D of the Act, which has not been touched upon in the impugned order and seems to have been entirely over-looked by the Add). Rent Controller. The Additional Rent Controller has granted leave to defend only on the ground that the landlady has given her address in the petition of Yamuna Nagar and has not explained why that address was given. The basic plea of ailment, necessitating her residence in Delhi, raised in the eviction petition, but not contested in the tenant's reply or affidavit, appears to me to be of prime importance having material bearing on the issue, to which the learned Addl.Rent Controller should have addressed himself before coming to the finding, as it did. The approach of the learned Rent Controller is ex facie erroneous. The impugned order is not sustainable and is set aside.

(10) Along with her revision petition, the landlady has placed on record some medical reports in support of her ailment and requirement of the premises and has also filed an undertaking in the form of an affidavit that she would neither re-let nor sell the property but would reside herself in the premises in question, which, prima facie, appear to support her stand. Though, these have not been contested on facts before me, an objection to their consideration has been taken by the tenant in its reply to the petition and it has also been contended by its learned counsel that the scope of consideration in these proceedings being limited, the said documents or the undertaking, being not placed before the Rent Controller, he had no occasion to consider them or record a finding thereon, these could not be noticed in these proceedings.

(11) Under the circumstances I am constrained to remand the matter back to the learned Additional Rent Controller for re-decision inaccordance with law after hearing both the parties, preferably within two months from today.

(12) The parties are directed to appear before the Additional Rent Controller concerned on Petition stands disposed of in the aforesaid terms with no order as to costs.