Shanti Devi vs D.N. Sood And Anr.
1995 Latest Caselaw 205 Del

JUDGMENT

Arun Kumar, J.

(1) By this petition, the petitioner landlady has challenged an order dated 22/09/1992 passed by the Additional Rent Controller,Delhi granting leave to defend the eviction petition to the respondent tenant.Briefly, the facts giving rise to the petition are that the petitioner filed an eviction petition under Section 14D read with Sub-section 25B of the Delhi Rent Control Act (hereinafter referred to as 'Act') for eviction of the respondent on21.3.1990. The case of petitioner is that she is a widow. She is the owner landlady of the tenancy premises which is in occupation of the respondent. The said premises was let out by the petitioner's husband to the respondent for residential purpose only. The premises is required by the petitioner for her own residence as she has no other residential accommodation. The husband of the petitioner died in the year 1981leaving behind a Will bequeathing therein half of the property bearing No. B-12,West End, New Delhi in favor of the petitioner for life and half of the said property was bequethed in favor of the daughter Mrs. Usha N.P. Singh. As a result of partition between the petitioner and her daughter, the residential unit in occupation of the respondent fell to the share of the petitioner. The partition between the petitioner and her daughter had also been recognised by the Delhi High Court. The respondent has been exclusively dealing with the petitioner as the owner landladyof the suit premises. The respondent has been all along paying rent to the petitioner.

(2) The respondent tenant filed an application for leave to defend supported by his own affidavit under Section 25B(4) of the Act on 5.1.1991. The impugned order granting leave to defend was passed on 22/09/1992.

(3) Before coming to the merits of the case, I may deal with a preliminary objection raised on behalf of the respondent. According to the learned Counsel for the respondent, this revision petition is not maintainable since it is directed against an interlocutory order granting leave to defend to the tenant. According to the learned Counsel for the respondent, the proviso to Section 25B (8) of the Act only envisages a revision to the High Court against a final order of the Controller allowing or rejecting eviction petition. As per Sub-section (4) of Section 25B, unless the tenant obtains leave to contest the eviction petition, the statements made by the landlord in the eviction petition are deemed to be admitted by the tenant and an eviction order must follow. However, as per Sub-section (5), the Controller can grant leave to contest to the tenant if he finds that the affidavit by the tenant discloses such facts as would disentitle the landlord from obtaining an order for recovery of possession of the premises on the grounds specified in clause (e) of the proviso to sub-section (1) of Section 14. Sub-section (8) clearly bars any appeal or second appeal against an order for recovery of possession of any premises made by the Controller. However, as per the proviso to the said sub-section, the High Court may for the purpose of satisfying itself that an order made by the Controller under this Section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit. It may be better to reproduce Sub-section (8):"(8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this Section:Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit."

(4) The learned Counsel for the respondent has in this connection place dreliance on certain judgments of this Court wherein it has been held that revision does not lie against an order granting leave to defend since it is an order which is interlocutory in nature. The first decision is Devi Singh v. Chaman Lal, 1977 RLR566. It has been noted in the said judgment that prior to incorporation of Chapter III-A in the Act, first appeal and second appeal were provided against orders of the Controller. The said right was taken away by provisions of Chapter III-A and only limited right as contained in the proviso to Sub-section (8) quoted above has beengiven. The arguments in support of the contention that revision would lie in such cases was that since the High Court was given power to call for the records of a casein order to satisfy itself that an order passed by the Controller was in accordance with law, revision would lie against every order passed under Section 25B and not necessarily only against a final order allowing or rejecting an eviction petition.While negativing the contention regarding maintainability of the revision to the High Court, it heavily weighed with this Court that the object behind introduction of Chapter III-A by the legislature was expeditious disposal of the cases under section 14(l)(e) of the Act. Chapter III-A lays down a procedure for summary trial and curtails the rights of appeal altogether against the orders passed by Controllers in cases falling under Chapter III-A. It was observed. "No doubt the wording permits the High Court to call for the records of any order passed by the Controller.But the very setting of proviso suggests that revision would lie only against order allowing or dismissing an application for eviction because it is well settled that proviso is an explanation to main para, i.e.. Sub-section (8) which talks of final disposal of application for eviction." The Court felt that if revisions were allowed against interlocutory orders like the one granting leave to defend, it will defeat the very object of expeditious disposal. This reasoning was approved by another Single Judge of this Court in Bhagwati Prasad v. 0m Prakash, 1979 Rlr 26. This was followed by another judgment of a Single Judge of this Court in Ram Labhaya v.Ram Prakash, 1982 Rlr 35. It was noticed in that judgment that the proviso to Sub-ection (8) referred to "an order by the Controller under this Section" which expression was capable of being construed as any order passed by the Controller while dealing with a case under the provisions of Section 25B of the Act. But it was felt that the proviso has to be read as a legislative measure carved out of the sub-ection to which it is appended and the order mentioned therein has to be regarded as an order of the type which the sub-section speaks of, i.e., "an order for the recovery of possession of any premises made by Controller in accordance with the procedure specified in this Section." It was thus concluded that revision would lie under Section 25B(8) only against a final order either accepting or rejecting an application of the landlord for recovery of possession.

(5) On the other hand, the learned Counsel for the petitioner landlady has drawn my attention to a recent judgment of this Court in KJ. Sarin v. Mis. Pigott Chapman and Company (1992) 46 Dlt 352. In this case, this Court has held that a revision petition against an order for leave to defend is maintainable. The judgments relied upon by the Counsel for the respondent herein and referred to above were also noticed by the Court. It was ultimately held that revision petition against an order granting leave to defend is maintainable.

(6) The important distinction to be noticed is that the present is a case under section 14D of the Act and not a case under Section 14(l)(e). In K.K. Sarin (supra),the eviction petition was under Section 14C of the Act. At the time when the decisions relied upon by the learned Counsel for the respondent were handeddown, the provisions of Sections 14B, C and D were not in existence. By the amended Act 57 of 1988, some more classes of landlords have been carved out under Sections 14B to 14D. Section 14B gives a right to recover immediate possession of premises to certain members of armed forces. Section 14C gives a similar right to retired and retiring Central Government and Delhi Administrationemployees. Seciton 14D gives a right to recover immediate possession of premises to a widow. The present case is of a widow falling in Section 14D. The entirecontext, therefore, has to be considered in view of the new legislative measure. The Sections 14B, 14C and 14D talk of right to recover immediate possession which is not so in case of Section 14(l)(e). In Surjit Singh Kalra v. Union of India and Another , the Supreme Court has held that Section 14(l)(e) on the one hand and Sections 14B, C and D on the other are two classes apart. The defenses open to the tenant under Section 14(l)(e) are not open to the tenant in petitions filed under Sections 14B, 14C or 14D of the Act. Otherwise, it will obliterate the purpose of object of fresh classification created by the legislation in favor of certain categories of landlords specified in Section 14B, 14C and 14D of the Act.

(7) It has to be noted that in view of the words "right to recover immediate possession" used in Sections 14B, 14C and 14D, the approach to the issue cannot be the same as was at the time of decisions in cases relied upon by the learned Counsel for the respondent. The new legislative measure requires a fresh look.True, the object of expeditious disposal by way of summary trial as per Section 25B stays but the use of the word 'immediate' has an accelerating effect and the Courts have to ensure that the object of the legislature in introducing Sections 14B, 14C nd 14D is not lost specially when these Sections use the word 'immediate'. If the tenant raises frivolous pleas, specially pleas which are not germane for an in quiryunder provisions of Section 14B, 14C and 14D and still the Controller grants leave to defend to the tenant, the landlord should not be left without any remedy. It is a known fact that once leave to defend is granted, the cases linger before the Controllers for years. What could be a better example of this than the present caseitself. I am informed that after leave to contest was granted on 22/09/1992, only the statement of the landlady has been recorded so far. In order to uphold the object of the legislation, the High Court should have the power to examine the record of the case and interfere if it finds that there is no case made out for grant of leave. It has been observed in Surjit Singh Kalra (supra) that Section 14B and other allied provisions ought to receive a purposeful construction and Sub-section (5) of Section 25B should be so construed as to implement the object and purpose of Sections 14B to 14D. It is the duty of the Court to give effect to the intention of the legislature as expressed in these Sections. To quote: "THOUGH it is not permissible to read words in a statute which are not there,but "where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing words of all meaning, it is permissible to supply the words". Having regard to the context in which a provision appears and the object of the statute in which the said provision is enacted the Court should construe it in a harmonious way to make itmeaningful. An attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute."

(8) Keeping this in mind, it has to be further noted that Chapter Iii A which contains Section 25B was introduced in the Act with the object of alleviating the hardship faced by the landlords who required the accommodation in possession of the tenants for their personal needs and the needs of their family. The eviction petitions used to linger on for years. By Section 25B, a summary procedure was introduced for the trial of the cases falling under Proviso (e) to Sub-section (1) of Section 14 of the Act. The right of appeal and second appeal which were hitherto in existence in Sections 38 and 39 were curtailed and it was provided that in petitions falling under Proviso (e) to Sub-section (1) of Section 14, there will be no right of appeal or second appeal. The only remedy left was a revision to the HighCourt to enable the High Court to satisfy itself that the order of the Rent Controller is in accordance with law. To uphold the object of this newly introduced legislative measure, this Court took the view in the three cases relied upon by the Counsel for the respondent and referred to above that if revisions to this Court are allowed to be entertained from interlocutory orders of the Controller, the object of speedy disposal of the cases will be lost. Inspite of the said legislative measure, it was again realised that the object of speedy disposal of such cases was not being achieved. It became a matter of common knowledge that once leave to defend was granted, the cases used to remain pending for years. The legislature had to again intervene for the sake of certain categories of landlords who it was felt really needed furtherprotection inasmuch as they should be able to get immediate possession of theirpremises. Sections 14B, 14C and 14D were introduced in the year 1988 to cover cases of defense personnel, retired or retiring Government servants and widows.The vires of this measure was challenged but was ultimately upheld by the Courts.It was felt that the landlords covered under these new provisions could not afford to go through the procedure involved in a normal petition under Section 14(l)(e) of the Act. For them, the legislature used the word 'immediate possession of premises'. In this context, it is important to note that a revision against an order granting leave to defend is really intended to expedite the disposal of the case. If the HighCourt comes to the conclusion that in the facts of the case leave to defend ought not to have been granted, that means end of the trial and end of the drudgery of the landlord. In that sense, the revision if allowed to be entertained by the High Court will if finally accepted by the High Court will fulfill the object of the new legislative measure rather than defeat it in any manner. For this reason also, I am of the view that in view of the changed scenario it must be held that a revision to the High Court will lie against an order of the Controller granting leave to defend.

(9) When the judgments referred to above and relied upon by the learned Counsel for the respondent were handed down. Chapter Iii A was a recently introduced provision in the Act and the Court hoped that to uphold the object of the said provision, revisions against interlocutory orders should not be allowed.Today, the context has totally changed. Once leave to defend is granted, the cases linger on for years and the very object of speedy disposal of the cases is lost. The learned Counsel for the respondent submitted that if I am not inclined to subscribe to the view expressed in the said decisions, the matter must be referred to a Division Bench. I do not agree. For one thing behind this submission is the oblique object that in that process, the decision of the case will get postponed. Secondly,which in fact is the main reason, those decisions were given in proceedings under section 14(l)(e) of the Act whereas the present case arises in context of Section 14D which is a provision introduced on the statute much after those cases were decided by this Court. Therefore, in view of the fact that I am dealing with a new legislative measure, I do not feel it is a case where the matter must be referred to the Division Bench. Further, I have a recent decision of this Court in K.K. Sarin (supra)which is in the context of analogous statutory provision, i.e., Section 14C. I am inclined to agree with the view expressed in the said decision.

(10) For all these reasons, the preliminary objection is overruled and it is held that the present revision petition against an order granting leave to defend is maintainable under Section 25B(8) of the Act.

(11) Coming to the merits of the case, briefly the facts are that the petitioner'sson-in-law had taken a premises on rent at A-3/1, Vasant Vihar, New Delhi in the year 1972. In 1973 he was transferred out of Delhi. Thereafter, the petitioner and her husband started residing with their daughter in the Vasant Vihar premises. The landlord of the said premises filed an eviction petition against the son-in-law of the petitioner on the grounds of sub-letting and personal bona fide need. In the said proceedings on the basis of an undertaking to vacate the premises, time to vacate up to 31.12.1990 was granted. After the said date, the petitioner would have no place to reside in Delhi. This would render the petitioner shelterless. Therefore, the present eviction petition was filed by the petitioner under Section 14D of the Act.

(12) In the affidavit filed on behalf of tenant for leave to defend the petition,various points were taken. The main points were:(1) Petitioner is not the owner of the premises. The premises are owned bypetitioner's daughter. Therefore, the petitioner is not entitled to file the petition.(2) - Petitioner was residing in a property bearing no.A-3/1, Vasant Vihar,New Delhi where she had sufficient accommodation with her. Therefore, the premises was not required by the petitioner. The eviction order with respect to that property passed against the son-in-law of the petitioner who was the tenant in the said premises was said to becollusive.(3) The front portion of the property in suit consisting of five bed roomsetc. was let out in May 1990 to the German Embassy which showed that the petitioner did not require the premises in suit.(4) The petitioner wants to enhance rent and, therefore, the petition has been filed with mala fide intentions.

(13) It is interesting to note here that the respondent conveniently kept quite on the question that he had attorney to the petitioner after the death of her husband so far as the tenancy premises is concerned. The respondent had been paying rent to the petitioner all along for the tenancy premises after the death of her husband.This fact had been specifically pleaded by the petitioner in the eviction petition inas much as she stated "the petitioner has been exclusively dealing as the owner and the landlady with the respondent in respect of the premises in his tenancy and occupation since the death of her husband". Inspite of this specific plea, the tenant chose to remain completely silent on this point in the affidavit filed for obtaining leave to defend the eviction petition. Further, so far as the question of ownership is concerned. Section 14D uses the word landlord' and not 'owner' as used in Clause (e) to proviso to Sub-section (1) of Section 14 of the Act. The respondent has all along accepted the petitioner as the landlady qua the tenancy premises. He has attorney to her as a tenant and it does not lie in his mouth to say that the petitioner is not the owner/landlord of the premises.The other plea of the tenant in this behalf is equally frivolous. He denies the partition of the property in suit between them other (petitioner) and her daughter. He submits that the daughter had claimed to be owner of the entire property. The petitioner has referred to a Will of her husband in favor of herself and her daughter. According to the Will, she gets half share in the property for her life. The petitioner's half share is the one which is in the tenancy of the respondent. The front half has fallen to the share of the daughter as per a family arrangement between them which has got a seal of approval of this Court in collateral proceedings. The tenant says the partition is collusive because the petitioner always stayed with her daughter from the time her husband was alive and even after the death of her husband. Assuming that the partition is collusive,the fact remains that the petitioner and her daughter are heirs of deceased Col.Qadam Singh who was husband of petitioner. Even as a co-owner, the petitioner could be landlord of the premises and could file the present petition.

(14) Coming to the next point that petitioner has sufficient accommodation in the Vasant Vihar property, it has already been brought on record that the tenant of the said property, i.e., petitioner's son-in-law had given an undertaking to Court to vacate the same by 31/12/1990. Therefore, the said premises would no longer be available to the petitioner after the said date. The respondent calls the said decree as collusive. In the face of undertaking given to Court to vacate the premises by 31/12/1990, the allegation that it is collusive decree is not open. The tenant has in any case burnt his fingers and is not entitled to retain the premises after the said date having given an undertaking to the Court to vacate it by the particular date. Therefore, the Vasant Vihar accommodation cannot be said to be available to the petitioner and, therefore, cannot be taken into consideration at all.

(15) This brings me to the point raised by the tenant that the front portion of the property was given on rent to the German Embassy in May 1990. The respondent has conveniently omitted to mention while making the said averment as to who let out the portion of the property to the German Embassy. The fact is that the portion has been let out by the daughter of the petitioner. The portion belongs to petitioner's daughter as per the partition between the petitioner and the daughter and,therefore, she is entitled to deal with her portion in any manner she likes. She has been letting out this portion earlier also to various tenants as per information placed on record by the tenant in his affidavit in support of his application for leave to defend. Therefore, this fact can have no bearing on the controversy in the present case.

(16) The plea regarding desire to enhance rent is a bald plea with no particulars.This is a usual plea taken by the tenants and does not deserve any discussion. It has to be rejected out of hand.

(17) Unfortunately, the approach of the learned Additional Rent Controller shows confusion which has resulted in the impugned order granting leave to defend to the respondent/tenant being passed. The learned Additional Rent Controller notes that it is admitted that the premises was let out to the respondent by the husband of the petitioner. The husband of the petitioner died in the year 1981. He bequethed the property through a Will in half and a half share to the petitioner and her daughter.The mother and daughter partitioned the property between themselves whereby the portion in the tenancy of the respondent fell to the share of the petitioner. On these facts, the learned Additional Rent Controller went on to observe "there appears to be a collusion between the petitioner and her daughter as on the one hand daughter of the petitioner and son-in-law of the petitioner have not vacated the premises under their tenancy, where the petitioner is admittedly residing and on the other hand have let out the portion which fallen vacant in the year 1989 and allegedly has come to the share of the petitioner's daughter. In case the petitioner was not residing with her daughter i.e. in the premises bearing No.A-3/1, Vasant Vihar,New Delhi, then position would have been different..." Even if there was collusion between the mother and the daughter regarding partition of the property, I do not see how it makes any difference to the point in issue in the present case. Family arrangements by mutual consent are well recognised in law. For partition bad relations or acrimony is not a must. What is most important in this behalf is that the respondent has already attorney to the petitioner qua the tenancy premises right from the death of her husband and has been paying rent to her. Therefore, the petitioner is the landlord of the premises so far as the respondent is concerned. The petitioner is not claiming any right qua the other portion of the property which according to her has fallen to the share of her daughter. Therefore, whatever the daughter may do towards her share in the property is not relevant for the present case. Similarly, the fact that petitioner was residing with her daughter in the tenancy premises at Vasant Vihar does not make any difference so far as the present petition is concerned. The premises admittedly was a tenancy premises and the petitioner is not and was never a tenant therein. Therefore, whether that accommodation is available to the daughter of the petitioner or not is irrelevant. The petitioner never had any right to stay in that premises. The learned Additional Rent Controller observes that if the petitioner was not residing with her daughter,position would be different. I do not see any relevance of petitioner's residence with her daughter in the Vasant Vihar tenanted premises.

(18) The matter has to be viewed in the light of the facts on record and the statutory provisions. The petitioner is landlord so far as the tenancy premises isconcerned. The tenant does not dispute that he attorney to the petitioner so far as the tenancy premises is concerned and has been paying rent to her since the death of her husband. The respondent, therefore, cannot dispute the petitioner's locus standi/right to file the present petition as a landlord under Section 14D of the Act. It is not necessary that the petitioner must have disputes with her daughter and only then she can maintain this petition under Section 14D of the Act. For purposes of this petition, it is enough that the petitioner/landlady is a widow. The third requirement is that the premises is required by the petitioner for her own residence.The petitioner says that she has no other place for her residence in Delhi. Regarding Vasant Vihar property, she has already explained that she has no right to staythere in and in any case, the said property is no longer available in view of the undertakig to vacate the same, referred to hereinbefore. The tenant has not alleged or shown that the petitioner has any other accommodation available to her for purposes of her residence in Delhi. The petitioner has satisfied all the requirements of Section 14D of the Act and the respondent tenant has failed to raise any is suemuch less than any friable issue. The respondent is not entitled to leave to defend in the facts of the present case. The result of the above discussion is that the application for leave to defend filed by the respondent/tenant stands rejected. The further consequence of this is an eviction order is passed in favor of the petitioner and against the respondent tenant qua the entire tenanted premises. The respondent is, however, granted two months time to vacate the premises.The petition is disposed of with no order as to costs.