Tilak Raj Gulati vs Veena Rani
1993 Latest Caselaw 38 Del

JUDGMENT

Santosh Duggal, J.

(1) After hearing the parties, I find that the Addl.Rent Controller has adopted an erroneous approach for appreciating the pleas taken by the petitioner in his affidavit field with application for leave to contest under Section 25-B(4) of the Delhi Rent Control Act, 1958, (in short the 'Act'). The copy of the affidavit has been annexed with this revisionpetition, which reveals that there was a specific plea to the effect that the premises were neither let out by the petitioner nor her deceased huband, and that in fact, it was one Bhisham Kumar Anand who had let out the premises,and it was he who had collected the rent since the inception of the tenancy.Copies of the rent receipts were also filed.

(2) In the reply affidavit, that was filed on behalf of the petitioner by herattorney, there was no definite and clear averment that it was the petitioner or her deceased husband who had let out the premises. It was asserted very vaguely that Bhisham Kumar Anand had nothing to do with the property.The Additional Rent Controller had taken into account the affidavits of the parties to see as to whether the defense raised disclosed any such fact whichmay, if proved, disentitle the landlady from the relief claimed in THE petition.

(3) One of the main ingredients to be established by the petitioner under Section 14D of the Act is that the premises were let out, to the respondent in the eviction petition, by her or by her late husband, and unless that is shown to the satisfaction of the Additional Rent Controller to be theposition, the petition under Section 14-D may not be maintainable. It was incubent on the petitioner, while filing reply affidavit to the application for leave to contest, to make a clear assertion about the premises having been let out to the petitioner by her or by her late husband, and also explain the receipt of rent by Bhisham Kumar Anand, which was prima facie evidence of receipts of rent filed, by the petitioner. The inconsistency of the stands further betrayed by the reply affidavit to the show cause which has now been filed stating that Bhisham Kumar Anand was the brother of the landlady, and had been Realizing rent on her behalf. There was no such plea in the reply affidavit filed before the Rent Controller.

(4) In fact of this. I am of my considered view that the Additional Rent Controller committed an error while holding that the defense raised in this respect was sham and frivolous, and this fact alone would have entitled the petitioner for leave to contest.

(5) Another plea taken in paragraph 4 of the affidavit to the leave to contest application was that the petitioner was a lady of unsound mind, and she remained admitted in the Mental Hospital at Shahdara for sufficiently long time, and had not even recovered from the said mental diseases, and as such in the eye of law she was not competent person to file the evictionpetition, except through a next friend.

(6) All that was stated in the reply affidavit filed by her attorney Shri Khub Chand was that para 4 was false and wrong. There was no specific denial that she has been admitted in the hospital for mental disease at Shahdara. The petitioner also kept away inasmuch as the eviction petition was filed by her through an attorney. Shri Khub Chand. Counsel appearing for the respondent is not able to say as to what relationship said KhubChand bore to the landlady/respondent. Even the reply affidavit to the leave to contest application was not filed by her.

(7) In this setting of facts, I think that the Additional Rent Controller was not right in straight way rejecting this defense by characterising it as false and sham, and this was also a plea which deserved consideration by granting leave to contest to the tenant.

(8) No other plea has been pressed in this revision petition.

(9) I accordingly allow the revision petition limited only to these two pleas, namely, premises having been let out by the respondent/landlady herself or by her deceased husband, and as to her mental capacity to file the petition, and the leave to contest is granted only on these two grounds.

(10) The eviction order passed after dismissal of the leave to con test application dated 9.7.1991 is accordingly set aside and the matter remanded to the Additional Rent Controller for being disposed of after taking the written statement of the petitioner which shall be limited to the points as per directions contained berein.

(11) The matter be placed before the Additional Rent Controller concerned on 22.2.1993 when parties personally or through Counsel shall appear before the Additional Rent Controller, who shall have the file summoned from the record room and give an appropriate date to the petitioner (as respondent in the eviction petition) for filing written statement. The pleadings shall be completed within six weeks of the date the matter is put up before theAddl. Rent Controller, and the petition shall be finally disposed of on merits after allowing the parties opportunity of leading evidence, within six monthsthereof.

(12) The revision petition stands disposed of accordingly in the aboveterms. No order as to costs.