Kul Parkash Tejpal vs S.P. Bhandari
1997 Latest Caselaw 132 Del

JUDGMENT

Usha Mehra, J.

(1) This revision has been preferred by the petitioner/landlord because learned Additional Rent Controller (in short ARC) granted leave to contest to the respondent/tenant. The learned Arc vide order dated 16th December, 1995 found that the respondent had raised triable issues challenging the bonafide requirements of the landlord.

(2) Aggrieved by that order landlord preferred this petition, inter alia, on the grounds that having accommodation with the petitioner is not sufficient. His needs being bonafide the leave could not have been granted. Moreover, no legal or factual pleas were raised which could non-suit the petitioners.

(3) RESPONDENT/TENANT contested this petition by raising legal objection of the maintainability of this petition besides contesting the petition on merits. According to respondent, the order under challenge being an interlocutory order cannot be challenged by way of revision. On merits the contended that requirement of the petitioner being not bonafide as he has sufficient accommodation hence his petition was rightly dismissed.

(4) Before I deal with the case on merits, I would like to deal the legal objection raised by the respondent. Ms.Urmila Khanna appearing for the respondent contended that the order allowing leave to defend is not a final order. Under proviso to Section 25-B(8) of the Delhi Rent Control Act (in short the Act) revision would lie only against a final order. The order granting leave is merely a permission to contest 'the case on merits, therefore, cannot be called a final order. Hence the provisions of Section 25-B(8) of the Act could not be attracted.

(5) I gave my thoughtful consideration to this objection of Ms.Urmila Khanna, at the outset it can be said that this argument of Ms.Khanna at the first flats appears to be very convincing. However, if we go deep into the mailer we can say it does not stand the test of law. On the touch stone of law it would miserably fail. By granting leave to defend the learned Arc has given a right to the tenant to oust the petitioner/ landlord from his right of immediate possession. Such an order if not allowed to be agitated it would discriminate qua one set of persons i.e. landlords. It is now settled principle of law that when leave is refused the tenant has a right to file revision. Refusing leave means his right to defend is taken away. Therefore, he is permitted to approach this Court. Similarly by granting leave a vested right is created with the tenant which disentitle the landlord of his right of immediate possession of his house. In fact the scheme of Chapter III-A of the Act shows that the tenant as of right cannot contest the application for eviction unless he obtains leave from the Controller. In default of obtaining leave the statement made by the landlord in his application for eviction shall be deemed to be admitted by the tenant. Thus if leave is pot granted the landlord shall be entitled for an order of eviction from the said premises. If leave is refused eviction follows. But if leave is granted the right of eviction which was to flow stood deprived. It is in this context and eventuality it can be said that such an order can be challenged by way of revision thereby invoking the provision of Section 25-B(8) of the Act. When the right of the landlord of immediate eviction is deprived he can File a petition under Section 25-B(8) of the Act against such an order. For support reference can be had to the decision of this Court in the case of K..K. Sarin V. Mis Pigott Chapman & Co. Air 1992 Delhi 361 where this Court while rejecting such an objection as raised by Ms. Urmila Khanna held that revision was maintainable even when leave to defend is granted. Supreme Court in the case of Vinod Kumar Chowdhry V. Smt.Narain Devi Taneja while considering Chapter-111 of the Act under the heading "Summary Trial of Certain Applications " consisting of three Sections, namely, Sections 25-A, 25-B and 25-C, observed that:- "SECTION 25-B provides a special procedure for the determination of an application by a landlord claiming recovery of possession from his tenant of the premises let out to the latter on either of two grounds, viz, those specified in clause (c) of the proviso to sub-section (1) of Section 14 and in Section 14-A. Thus if such an application is based on the ground that the landlord requires the demised premises bonafide for his own occupation as a residential accommodation, it has to be dealt within accordance with the procedure specified in Section 25-B and not under the provisions contained in chapters other than Chapler-III-A, insofar as the latter arc inconsistent with the former. This follows directly from the provisions of Section 25-A read with those of sub-section (1) of Section 25-B. That procedure envisages a shortcut to the conclusion of the proceedings before the Controller and for that purpose makes the right of the tenant to contest the application of the landlord subject to the Controller's leave obtained on grounds specified in an affidavit. The scheme of the Act and the object of the introduction of Section 14-A and Chapter III-A into it by the Amending Act make us form the opinion that sub-section (8) of Section 25-B is exhaustive of the rights of appeal and revision in relation to the proceedings held under that chapter. Before the enforcement of the Amending Act, all dispels between a landlord and his tenant were liable to be dealt with according to a uniform procedure before the Controller as also in appeal and second appeal. No distinction was made between one kind of dispute and another. When it was felt that the procedure prescribed in the Act defeated, but reason of the delay involved, the very purpose of an application made under clause (c) of the proviso to sub-section (1) of Section 14, especially in the case of landlords who themselves held accommodation allotted by the Government or a local authority which they were required to vacate. Section 14-A and Chapter III-A were introduced by the Amending Act so as to cut down the time factor drastically, so much so that a tenant was required to obtain leave from the Controller for contesting an application for his eviction before he could put up his defense, and the Controller was given the power to refuse leave and straightway pass an order of eviction if he found that the grounds disclosed by the tenant in support of his right to dispute the landlord's claim were not such as would disentitle the landlord from obtaining an order of eviction. Sub-section (7) further simplified the procedure on contest being allowed, even though sub-section (2) of Section 37 itself provided for a procedure far simpler than ordinarily obtains in proceedings before a civil court. Then there is sub-section (8) which provides for the abolition of the right of appeal and second appeal and replaces it by a power in the High Court to revise an order passed by the Controller. That provision, as a part of the overall picture painted, must necessarily be construed as laying down procedure exclusive of that provided is Sections 38 and 39."

(6) In the above case while taking note of the decisions of this Court in the cases of Devi Singh V. Chaman Lal (1977) Rajdhani Law Reporter 566, Mahavir Singh V. Kamal Narain (1979) Rlr 159 and Bhagwati Parshad V. Om Prakash (1979) Rlr 26, Apex Court concluded that since the provision of Section 25-B(8) of the Act excludes the right of appeal under Sections 38 and 39 of the Act hence to make it equally applicable to both the parties and to prevent it from being called discriminatory, the provisions contained under Section 25-B(8) of the Act would apply to both the landlord and the tenant. An order to be covered under sub-section (8) of Section 25-B it must be an order "for recovery of possession of any premises". If this wording is accepted it counters to the decisions of this Court referred to above. Apex Court, therefore, observed that the impression "Order for the recovery of possession of any premises" has to be construed in the context in which it appears as an order "deciding an application" for the recovery of the possession of any premises. It is an accepted rule of interpretation that if a provision can be construed in a manner which upholds its legal or constitutional validity it should, if possible, be so construed rather than the other way round. Proviso to Section 25-B(8) provides 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. Proviso does not say "an order for the recovery of possession" or even such orders as aforesaid, but instead employs the words "an order made by the Controller under this Section" meaning thereby that it is not always when order of eviction is passed that provisions of Section 25-B(8) of the Act can be invoked. This provision can be invoked on Controller passing an order under Section 25-B. Since in the case in hand leave to defend was granted under section 25-b hence petitioner being aggrieved can invoke the provision of Section 25-B(8) of the Act.

(7) This Court in the case of K.K.Sarin (Supra) observed that:- "A glance at the provisions of Chapter III-A shows that the policy and purpose of the legislature in enacting Sections 25A, 25B and 25C is to introduce a swift and expeditious procedure for trial where the landlord's application for eviction is filed on the ground of bonafide requirement. A broad scheme of Chapter III-A of the Act is that if an application is for eviction moved under Section 14(l)(e) or 14A, 14B or 14C or 14D, Section 25B(4) bars the tenant from contesting the application for eviction unless he obtains leave from the Controller and in default of obtaining leave, the statements made by the landlord in his application for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled for an order of eviction from the said premises. Thus, when the leave is refused an order of eviction follows. If the Rent Controller grants Leave to the tenant to contest the eviction petition the proceeding will take time for its conclusion and naturally the landlord, who has been given the benefit of summary trial will be deprived of his right of immediate possession".

(8) From the analysis of the provisions of Sections 25-B(1) to (8) of the Act it can be said that if the Rent Controller grants leave to the tenant to contest the eviction petition the proceedings will take long time to be concluded. In that eventuality the landlord who has been given benefit of summary trial would be deprived of his right of immediate possession. In that view of the matter, if what Ms.Urmila Khanna wants this Court to hold is accepted it would amount to discrimination against one set of parties under the Act. This argument of Ms.Khanna goes counter to the intention of the legislature. When the Legislature in its wisdom provided expeditious disposal of cases under the Act and took away the right of appeal under Sections 38 & 39 of the Act it gave only right of revision. To deprive the landlord of even this right particularly when his right of immediate possession is taken away by the Controller by granting leave to defend and above that telling him he has no right of revision even if the order of the Controller is bad. It would be too harsh and would work injustice. The right to challenge such an order by way of revision is the only remedy left with him. If that right is also taken away it would leave the landlord high and dry and without remedy. For not granting leave to defend the tenant has a right to file the revision, but for granting leave the landlord has to face the rigour of long drawn trial. That could not have been the intention of the legislature. Nor the Legislature gave unbridled power to the Controller in the matter of grant of leave to defend. For the reasons discussed above, I find no substance in the legal objection raised by the respondent.

(9) So far as the case on merits, the relationship of landlord and tenant is admitted. Petitioner is the owner of the tenanted premises that is also not disputed, letting purpose had been residential. The only point on which the permission was granted being lack of bonafide requirement of the petitioner. Petitioner No. 2 had mentioned in the petition that it was very difficult for her to climb the stairs being an old woman. Petitioners have one room in their possession on the rear portion of the ground floor. It's entrance is from back lane. That room measures 10' x9'. They have one room on the barsati floor. The approach from the room on the ground floor to barsati floor means one has to cross the back gali and then come to the front and then go to barsati floor. Thus this arrangement of accommodation in their possession is not suitable. Petitioner's family consists of himself, his wife, son working as Executive in "Times FM", married daughter working as Doctor in Safdarjung Hospital. It is in this background eviction was sought. Supreme Court in the case of Precision Steel and Engineering Works and Am. V. Prem Deva Niranjan Deva Tayal reported in 1982 (2) Rcr 544 observed that while deciding the leave to defend application the Court has only to look into the affidavit of the tenant and the reply affidavit of the landlord. The difficulty expressed by petitioner No. 2 to climb the stairs was not disputed nor the difficult expressed to reach the barsati floor could be brushed aside. Petitioner's case is that they got only one bed room on the ground floor measuring 10' x 9' and one room on the Barsati floor measuring 15' x 13.6', one kitchen, one bath room, Wc and open space. The petitioner No. 1 being Army Officer was posted at Gwalior at the time of filing the petition. He, however, had been frequently visiting Delhi and staying in the room on the ground floor with his married son who is working as Executive in "Times FM". His married daughter also live in Delhi. Therefore, the need of the petitioner for additional accommodation can only be genuine. It cannot be doubted. His married son who for the purpose of residence depends on him resides in this house of the petitioner at Delhi. His married daughter also visits and so does the petitioner. Since petitioner visits Delhi quite frequently, therefore, they had kept one room and Wc for himself on the rear portion of the ground floor of this house. First and Second floors are with tenants. One room on barsati floor became available and the same is with the petitioner. Keeping in view the status of the petitioner, his son who is an executive officer in "Times FM" and of the married daughter, accommodation with the petitioner is not sufficient. Needs of petition's married son who for the purpose of residence is dependent on him as well as his own need can be called bonafide. In fact respondent has not been able to raise any triable issue to non-suit the petitioner. To my mind, the Controller fell in error in observing that need of the son and that of the married daughter who visits and stays with her parents at times was not a bonafide need of the petitioners. It is now settled law that need of the children who are dependent for the purpose of residence would be the need of the owner. The plan placed on record show that on the third floor only one bed room is there besides kitchen, bath, Wc, open space and balcony etc. It is a one room barsati floor. Moreover, having proved that their requirement was bonafide, petitioners cannot be compelled to live in one room on the barsati floor and another one room on the ground floor.

(10) For the reasons slated above, the impugned order cannot be sustained. The same is accordingly set aside. The respondent had not made out any ground which could disentitle the petitioners from decree of eviction. Hence respondent's application for the grant of leave stands dismissed with no order as to costs.