Bhuvneshwari Dev vs Kalyan Singh
1993 Latest Caselaw 170 Del

JUDGMENT

P.K. Bahri, J.

(1) This civil revision is directed against order dated 24/07/1986, by which the learned Additional Rent Controller bad dismissed the eviction petition brought by the petitioner on the ground of eviction covered by Clause (e) of proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act.

(2) Facts of the case, in brief, are that the petitioner had filed the aforesaid petition which was brought under Section 25-B of the Delhi Rent Control Act. She had mentioned in the application that she is the owner of the property in question and the premises had been let out to the respondent for residential purpose and she bona fide required the said accommodation for residence for herself and for her family members dependent upon her and she is not in possession of any other reasonably suitable residentialaccommodation.

(3) Elaborating the facts she mentioned that premises in question were let out to the respondent on the condition that he will vacate the premises on 31/10/1982. The letting took place on 31/10/1981.She has mentioned that the ground floor which was let out to the respondent is needed by her as she is suffering from angina pectoris and high blood pressure and has been advised by doctors not to climb up stairs and presently she is living in second floor of Vishwa Apartments, Shankaracharya Road,New Delhi, which accommodation comprises of three bed rooms and one dining-cum-drawing with kitchen, bath and latrine and the family of the petitioner comprises of herself, her husband, two married sons along with their wives having two children each and she has also a daughter who is married and often visits the petitioner. It was repeated in the petition that she was having a chronic disease of engina pectoris and high blood pressure and doctors have advised her not to climb the stairs. She has also mentioned in para 9 of the petition that the ground floor is occupied by the respondent whereas the first floor is in occupation of another tenant. The demised premises are located in B-227, Greater Kailash 1, New Delhi.

(4) Summons being issued in the prescribed form were sent by registered post as well as by ordinary process. From the record it appears that A.D. receipt purported to be signed by someone on 8/04/1986,was received back. The record also shows that the respondent has filed the Power of Attorney in favor of one Sh. Mela Ram, Advocate, dated 25/07/1986. The respondent did not file any application seeking leave to defend the case. However, the Additional Rent Controller proceeded to dismiss the eviction petition holding that the petitioner has not given material facts in the petition which could go to prove the relevant ingredients of the ground of eviction covered by Clause (e).

(5) I am afraid that the Additional Rent Controller has totally misconstrued the pleadings and had, for the reasons best known to him. dismissed the petition. In law it is quite evident from the perusal of Section25-B (4) that as soon as the tenant on whom the summons is duly served in the form specified in the Third Schedule does not contest the prayer for eviction by filing an affidavit seeking leave to contest, the Controller is bound to take the statements made by the landlord in the application for eviction as correct. Now that the learned Additional Rent Controller has done is that he, instead of taking the statements made by the petitioner in her eviction petition as correct, has tried to analyze these facts and has come to the conclusion that ground of eviction has not been made out. He has mentioned that in the petition it is nowhere mentioned how the petitioner is the owner of the property in question. In order to prove ownership of the property the petitioner was to lead evidence if a dispute has been raised by the tenant that she is not the owner and somebody else is the owner of the property. If in law the Additional Rent Controller was to accept the statement of fact given in the petition as correct, the Controller has no legal obligation to look into the merits and analyze the facts and state that in absence of the petitioner disclosing how she became owner of the property in question it would not be possible to hold that the important ingredient of ground of eviction stands established."

(6) The learned Counsel for the respondent has argued that some document showing the title of the property in favor of the petitioner ought to have been filed Along with the petition. The document of title is anevidence to prove ownership. The facts stated in the petition are to be deemed to have been correctly stated by the petitioner. By fiction of lawthe Controller was not to go further and hold that the petitioner ought to have produced some document of title Along with the petition to prove the factor of ownership.

(7) The Additional Rent Controller has then mentioned that in THE petition it is not mentioned since how long the petitioner has been suffering from angina pectoris and high blood pressure and when, in fact, she has been advised by the doctors not to climb the stairs. Again this was a question of evidence which the petitioner was not bound to mention in the eviction petition. Her statement that she was suffering from angina pectoris and high blood pressure and that she has been advised by the doctors not to climb the stairs keeping in view the chronic disease of angina pectoris andhigh blood pressure, ought to have been accepted as correct. The Additional Rent Controller legally was not right in appraising the statement and comminute the conclusion that some material ought to have been there Along with THE petition to show that how long she has been suffering from such disease and who are the doctors who had advised her not to climb the stairs.

(8) The Additional Rent Controller has also noted omission of the petitioner in not filing the plan of the property in question. The plan has been filed Along with the petition. In para 9 of the petition it was clearly mentioned that the first floor is in occupation of another tenant. The ladies not require that the plan of the whole of the house should have beefiled. In the present case, particularly the petitioner was setting up her bona fide requirement for residence in the ground floor and thus it was not at all necessary for her to have disclosed in the petition whether an accommodation in the first floor was at all available or not. If need of the landlord is for residing in the ground floor obviously any other reasonably suitable accommodation for her needs has to be on the ground floor and not on any other floor. The Additional Rent Controller went wrong in saving in the impugned order that there was an omission on the part of the landlady to mention about the whole house in the eviction petition. If we keep in view the facts mentioned in the eviction petition which are to be taken ascorrect, all the ingredients of bona fide requirement on the face of it are already made out and the Additional Rent Controller had no option but to pass the eviction order. A similar view was taken by this Court in the case of Bachan Singh v. Khem Chand, 1987(1) Rcj 523.

(9) The learned Counsel for the respondent has vehemently argued that before looking into the eviction petition the Controller ought to have satisfied himself whether proper service of summons had been effected on the tenant. There is no dispute about this proposition of law. In the present case, we find that registered summons were sent and the A.D. receipt was received bearing the signatures of someone. So, in law a presumption of service arises and there could be no occasion for the Additional Rent Controller to come to any different finding on the point of service. In case the respondent claims that he was not duly served with the summons, then his remedy is to seek setting aside of eviction order on that ground before the Controller. (See Mohd. Quresh v. Smt. Roopa Fotedar & Ors., 1990 RLR(DB)ll2, decided by a Division Bench on 15/12/1989). In the present case. we find that in the record there is Power of Attorney also filed on behalf of the respondent. We do not know as to when this Counsel was actually engaged and how the respondent came to know about the tendency of the case or passing of the impugned order. At the most what the respondent can legally do after the order is passed that he can approach the Controller with any plea which may be permissible under the law for setting aside such an order if it is made without effecting service of summons as prescribed under the statute. The impugned order is vitiated withillegality.

(10) I allow this petition, set aside the impugned order and pass the eviction order on the ground of eviction covered by Clause(e) of proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act and grant six months time to the respondent for vacating the premises.