Ram Kishan Dass vs Anil Kumar
1994 Latest Caselaw 726 Del

JUDGMENT

Devinder Gupta, J.

1. The tenant has come up in revision against an order passed on 17th March, 1994 by Shri P.D. Gupta, Additional Rent Controller, Delhi, declining his application for leave to defend and simultaneously passing an order of eviction by allowing landlord's application under Section 14 read with Section 25-B of the Delhi Rent Control Act, (hereinafter referred to as "the Act").

2. After notice was issued to the respondent and record was called, learned Counsel for the parties stated that matter be heard and disposed of at the admission stage. Consequently, I have heard learned Counsel for the parties at length and gone through the record.

3. Eviction of the tenant was sought from the ground floor of property No. 3179, Lal Darwaja, Bazar Sita Ram, Delhi. The ground in seeking eviction was that the landlord along with his family was residing with his parents. He was married in February, 1992 and was blessed with a daughter in November, 1992. Thus his family consisted of himself, his wife and an infant daughter. He wanted to live and shift to his own house on the ground floor. He was not having any other reasonably or suitable accommodation except the ground floor of the property, which was owned by him.

4. The tenant sought leave to defend by projecting number of grounds, all of which need not be reiterated here since the same had been reproduced by the Additional Rent Controller in the impugned order. Some of the grounds which were urged may be stated here. It was alleged that Ganga Persad Sharma and Krishna Devi, the parents of the landlord are part and parcel of the same family and the said family has five storeyed property bearing No. 3258, Lal Darwaza, Bazar Sita Ram, Delhi in its occupation, which is quite near to the disputed premises. In the said property there are 18 rooms besides other accommodation such as kitchens, toilets, stores, bath rooms etc. The entire family was residing in the said property. In addition to this, property No. 3277, which is also located at Lal Darwaza, Bazar Sita Ram, Delhi belongs to the landlord and his family members, which is a two storeyed building. Ground floor was used for commercial activity while out of four rooms in the first floor, two are locked by the landlord's family. The other two are used as godown. As regards the disputed property, it was stated by tenant that besides the accommodation in question, a small room adjoining the entrance is used for commercial purposes by the landlord and his family. The entire first floor comprising of two halls, kitchen, store, bath, W.C. etc. is with the landlord. On the top floor Another room is in occupation of the landlord. It was alleged that in addition to this accommodation, landlord and his family was also having tenanted premises in property No. 3270 and in property No. 3178.

5. The stand of the landlord, as revealed in reply, as regards the property other than the disputed property if considered plausible is to the effect that he is not concerned with the rest of the property, other than the property in which disputed premises are located, since he cannot live therein as a matter of right. Even in the accommodation 3277, which is owned by his mother, he was in occupation as a licensee only and not in his own right. The explanation which the landlord offered in his affidavit, as regards the building in which disputed premises are located, itself can be said to be giving rise to a friable issue. In Clause (1) of his affidavit the landlord stated that at the time of purchase of the property it was occupied by tenants as per details given in the sale deed. He was delivered possession of only a kitchen on the first floor and one tin shed on the second floor. The property was still occupied by the same tenants except portion, which was occupied by one Brij Mohan Bansal, who vacated it on 22nd October, 1991 and on his vacation it was Along with a kitchen was let out on 11th December, 1991 to one Ravi Shanker Rastogi. It is further stated that he was bachelor at that time and did not require the premises.

6. It is not in dispute that the premises, which fell vacant and were let out, along with a kitchen, are located on the same floor and in addition there is one small portion known as tin shed, which is in occupation of the landlord. Premises fell vacant in October, 1991 and were let out on 11th December, 1991. Need of petitioner arose when his marriage was performed in February, 1992. The landlord stated his age as 30 years. In case he was of marriageable age, when premises fell vacant and need of separate accommodation arose because of marriage, as disclosed in the eviction petition, it cannot be said that the facts disclosed by the tenant in his affidavit that some accommodation fall vacant, which landlord could have very well occupied in case he was in genuine need thereof, would not give rise to a friable issue. Otherwise also it is not the landlord's case that he has been asked by his parents to leave the house or that he is not living comfortably in the building owned by his mother or parents.

7. The jurisdiction of the Controller at the time of considering a prayer for grant of leave to contest or refuse the same is to be exercised on the basis of the affidavit filed by the tenant, which alone is the relevant document, which deserves to be considered. It is immaterial that the facts alleged and disclosed are controverter by the landlord, since such stage of proof is yet to come. This is the position in law, which has been reiterated in Precision Steel & Engineering Works and Anr. v. Prem Deva Niranjan Deva Tayal, .

8. The impugned order would show that the Controller went far-ahead in proceeding to examine the correctness of the allegations of the tenant on merits in the light of the explanation offered by the landlord in his affidavit. It was not the stage of recording a finding on the facts disclosed in the affidavit of the tenant. The only jurisdiction at this stage is to see that whether the facts as disclosed would give rise to a friable issue. In case immediately prior to the marriage of the landlord some premises had fallen vacant, more especially when the landlord became marriageable age, a couple of years also, these facts disclosed, prima facie would give rise to a friable issue. The explanation offered by the landlord could not be tested at this stage, which can be done only when a chance is given to the tenant to cross examine the landlord during trial.

9. In view of the above, the impugned order cannot be sustained and the same is liable to be quashed and set aside. The revision petition accordingly is allowed and the impugned order is set aside. Consequently, the tenant's application for leave to defend is allowed and he is permitted to contest the eviction proceedings.

The Additional Rent Controller is directed to proceed and dispose of the eviction petition in accordance with law. Parties are directed to appear before the Additional Rent Controller, Delhi on 2nd December, 1994.