Sanwal Ram Agarwal vs Smt. Gianwati
1998 Latest Caselaw 1096 Del

ORDER

C.M. Nayar, J.

1. This judgment will dispose of Civil Revision Petition Nos. 900/94 and 18/97. The first petition arises out of the judgment dated September 5, 1994 passed by Shri N.K. Goel, Addl. Rent Controller, Delhi by which an application of the petitioner for leave to defend was dismissed and an order of eviction was passed in favour of the respondent in respect of the tenanted premises. The second petition, Civil Revision 18/97 challenges the order dated November 8, 1996 dismissing an application of the petitioner for staying the proceedings under Section 14(1)(d) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') in view of the pendency of the first petition in this Court.

The respondent filed an eviction petition against the petitioner under Section 14(1)(e) read with Section 25B of the Act in respect of the tenant-ed premises. Summons in the prescribed proforma were issued to the petitioner and an application under Section 25B(5) for leave to defend along with an affidavit was moved wherein the petitioner pleaded that the petition had been filed as a pressure tactic and with a sinister design to pressurise the petitioner to increase the rent. The premises in question were let out to the petitioner on August 12, 1962 and since then the petitioner has been utilising and staying in the same as well as carrying on his activities. The premises are being used strictly in terms of the agreement of letting and one room all along is being used for ommercial activities as per the permission granted by the respondent in the rent agreement dated August 12,1962. It is further alleged that the respondent is an old lady and she is staying with her husband who has his own business of lending money and is in a comfortable situation, the son of the respondent is also engaged in the business of manufacture of wall colours and his business is flourishing, he is self-sufficient and has a huge income and is self-dependent, that none of the family members of the respondent are dependent upon her and she has the entire first floor and the Barsati floor under her occupation. The respondent, therefore, has sufficient accommodation for herself and her entire family. The respondent has two rooms on the ground floor near the stair-case which are under her occupation and which are lying locked and are not being used by her. She is residing with her family in the first floor only having sufficient accommodation for the entire family and she is not using the Barsati floor on which she has a room and a toilet and the said Barsati floor is also lying locked. The petitioner made further averments that the respondent and his representative insisted to increase the rent on the basis of the present market value of the property which is very high and as the petitioner did not increase the rent, the respondent filed the instant petition to pressurise him so that the petitioner succumbed to this illegal demand. The need and requirement of the respondent is, therefore, not genuine and bona fide and the eviction petition has been filed merely as a device to coerce the petitioner to increase the rent. As a consequence, it was prayed that leave to defend the petition be granted.

2. The averments made by the petitioner have been denied and it is stated that the premises in dispute are only used for residential purposes and no commercial activity is carried therein and as per the terms of the Agreement the petitioner has merely allowed to use one room for his personal office which does not tantamount to commercial letting. It was also denied that the husband of the respondent was doing the business of money lending. The extent of accommodation as canvassed by the petitioner was denied for which a reference was made to the site plan filed along with the petition. It was also denied that the respondent was not using the Barsati floor on which a room and toilet had been constructed and it was lying locked and vacant.

3. The petitioner, admittedly, did not file any counter plan to show that any other accommodation existed in the premises apart from the one as specified by the respondent. It was also denied that the respondent ever asked the petitioner or his representative to increase the rent on the basis of the prevailing market value of the property and none of the property dealers ever visited the premises nor the respondent ever asked or contacted any property dealer for some of the premises in dispute. It was denied that the need and requirement of the respondent was not genuine and bona fide and the instant petition had been filed merely as a device to coerce the petitioner to increase the rent.

4. The learned Additional Rent Controller examined the pleas of the parties on the basis of the material placed on record and arrived at the following findings:

A. The petitioner did not deny that the respondent was the owner of the property in dispute either in the application for leave to defend or in the accompanying affidavit. The finding in this regard is, therefore, unassailable.

B. The plea that the premises were let out for residential-cum-commercial purposes and the provisions of Section 14(1)(e) of the Act were not attracted was repelled. The copy of the Rent Agree- ment along with its translation was placed on the record and a perusal of the same would show that the petitioner was let out three rooms, one latrine, one bath room, kitchen and a passage and he was allowed to use one room for his personal office whenever necessity arose. This will imply that the petitioner was not allowed to use the room for his personal office permanently but he could use it as his office whenever it was deemed necessary. The respondent was,therefore,entitled to eject the petitioner when he required the premises bona fide for his personal use because the premises by the user never ceased to be let out for residential purposes. It was abundantly clear that respondent was not to use one room for his personal office permanently and he was to use it as such as and when there was necessity to do so. The premises it was clear were let out for residence of the petitioner and a petition under Section 14(1)(e) of the Act was maintainable.

     C. The husband and son of the respondent are admittedly  residing  with  her and though they may not be financially  dependent  upon  her  they  are  dependent upon the respondent for  the  place  of      residence.  The  extent  of accommodation was  examined  and  the      discussion and findings are recorded in paragraph 9 which read as      follows: 
 


     "The  learned  counsel for the respondent has  further  contended      that  apart from the accommodation available with the  petitioner      on the first floor and the barsati floor, the petitioner has  two      rooms on the ground floor which are lying locked. He has  further      contended  that  barsati  floor portion is lying  locked  as  the      petitioner is in possession of more than sufficient accommodation      for herself and her family members. The contention of the learned      counsel for the respondent is that this fact also requires investigation.  On the other hand, the learned counsel for  the  petitioner  has  contended  that the petitioner has no  room  on  the      ground  floor and the barsati floor is not capable of being  used      as residence. He has further contended that as the respondent has      not  filed  any counter site plan to rebut the site plan  of  the      petitioner,  the  site  plan filed by the  petitioner  should  be      deemed to be correct. In support of his ontention, he has relied      upon  a decision of our own Hon'ble High Court reported  as  R.K.      Bhatnagar  Vs. Sushila Bhargava 1986 RLR 232 wherein it has  been      held that if a tenant does not file a site plan showing that  the      plan filed by the owner is incorrect, then the owner's plan would      be  assumed  to be correct. In the petition, the  petitioner  has      pleaded that the petitioner is living on the first floor and  the      barsati floor of the property in dispute and she is in possession      of  two  bed rooms, one kitchen, W.C., bath and  latrine  on  the      first floor and one room on the second floor; that the family  of      the petitioner consists of herself, her husband, one son, namely,      Shri Ashok Jain, his wife and three grand children, namely, Mohit      Jain aged 18 years, Priyanka Jain aged 18 years and Deepika  Jain      aged 11 years; that the petitioner has got two married  daughters      who visit the petitioner and reside with the petitioner for  days      ogether  and the petitioner requires at least one bed  room  for      herself  and her husband, one bed room for her son  and  daughter      in-law, one bed room each for grand children, one drawing-dinning      and  one  guest room besides store etc. The  respondent  has  not      disputed  all these facts in his affidavit, filed along with  the      application for leave to defend except that the married daughters      of the petitioner rarely visit the petitioner or reside with  her      and in any event the petitioner has entire barsati floor and  two      rooms  on  the ground floor which are lying  locked  for  several      years  and the petitioner never used the same. Thus, it is  abundantly clear that the petitioner is in possession of three rooms,      one  kitchen, W.C., bath and latrine and her family  consists  of      herself,  her  husband, one son, one  daughter-in-law  and  three      grand children aged 18 years, 18 years and 11 years. The respondent  has not filed any site plan to show that the plan  filed  by      the  petitioner is incorrect or by showing the alleged two  rooms      on  the ground floor which according to him are in possession  of      the  petitioner  and are lying locked. Therefore, the  site  plan      filed  by the petitioner should be deemed to be correct. As  both      the  parties have relied upon the rent agreement  dated  12.8.62,      the  same can be looked into for this purpose as well. A  perusal      of  the photostat copy of the said rent agreement shows that  the      petitioner  had kept with her one kolki and one  kothri  situated      near  the  staircases with her. It is, thus, clear that  the  respondent has mentioned the said kolki and the kothri as two rooms      on the ground floor near the stair-cases under the occupation  of      the  petitioner. A kolki is a place beneath the stair cases.  The      kothri  can  not also be said to be a living room. Had  the  said      kolki  and  the kothri been rooms, the same would have  been  described  as such in e rent agreement because the  accommodation      let out to the respondent has been described as three  rooms.....      Thus,  it is abundantly clear that the petitioner is not in  possession  of two rooms on the ground floor. In Brij  Mohan's  case      (supra) their Lordships have held that each grown-up child  needs      one  separate room. In Tilak Raj Vs. Krishan Lal 1982 RLR  (Note)      33, their lordships of our own Hon'ble High Court have held  that      a  landlord  is entitled to have a guest house  for  his  married      daughters. Three grown-up children of the petitioner require  one      separate  room each. The need of one room each by the  petitioner      for  herself and her husband and for her son and  daughter-in-law      is also not mala fide. The requirement of one room for her visiting  married  daughters is also not mala fide. Thus,  keeping  in      view  the  number  of family members of the  petitioner  and  the      extent  of accommodation available with her, the  requirement  of   the  suit premises by the petitioner for use as a  residence  for      herself  and her family members dependent upon her for  the  purposes of residence cannot in any manner be said to be  whimsical,      fanciful  or  not genuine. Thus, in my considered  opinion,  this      fact also does not require any investigation."  


5.   In  view  of the above, the application for leave to defend  was  dismissed  and an order of eviction was passed under Section 14(1)(e)  of  the Act which is impugned in the present proceedings. 
 

6.   The  learned  counsel for the petitioner has contended that  leave  to defend  was incorrectly refused on the basis of the settled law.  The  Controller  merely  has to refer to the averments made in  the  affidavit  and grant  leave  when they require adjudication on the basis of  the  evidence adduced  by the parties. Reference is made to paragraphs 3,4,5,6,11 and  12 of  the  affidavit in support of leave to defend application which  may  be reproduced as under: 
  


     "3.  That the premises in question was let out to the  respondent      on  12th  August,  1962 and since then the  respondent  has  been      utilising and has been staying in the said premises and has  been      carrying  on  his  activities. The  premises  is  being  utilised      strictly  in  terms of the agreement of letting out and  the  respondent has all-along duly paid all rents to the petitioner till      date and there is no amount of rent in arrears as on date. 
 


     4. That the petitioner is an old lady. The petitioner is  staying      with  her husband who has his own business of lending monies  and      is  in a pretty well of situation. The son of the  petitioner  is      also engaged in the business of manufacture of Wall Colours, Wall      Paints  etc. and his business is flourishing. He  is  self-sufficient  and has a huge income and is self-dependent. None  of  the      family members of the petitioner are dependent upon the petitioner and they are pretty well of in their own individual capacity. 
 


     5.  That  the respondent has been using the premises  in  dispute      all-along and one room is being used for commercial activities as      per  the permission granted by the petitioner in the rent  agreement dated 12.8.1962. It is absolutely incorrect to state on  the      part  of  the petitioner that the premises are lying  locked  for      last  about  2  years without any use.  However,  the  respondent      states that since the respondent has a net work of his activities throughout India specially at Calcutta and Kanpur, the respondent  occasionally  has to visit such places and has to remain  outside Delhi  to  attend the other Branch Offices of the  respondent  in  different parts of India. 
 

6. That the respondent states that on the basis of petitioner's own saying, the petitioner has the entire first floor and the Barsati floor under her occupation and it is submitted that the petitioner has more than sufficient accommodation for herself and her entire family. The respondent further states that apart from the accommodation as mentioned in the petition as shown in the plan annexed hereto, the petitioner also has 2 rooms on the ground floor near the staircase which are under her occupation and which are lying locked and are not being used by the petitioner. The respondent further states that the petitioner is residing with her family in the first floor only having sufficient accommodation for the entire family. The petitioner is not using the Barsati floor on which she has a room and toilets. The said barsati floor is lying locked and is vacant and is under the possession of the petitioner.

11. That the married daughters of the petitioner rarely visit the petitioner or reside with the petitioner. In any event the petitioner has the entire barsati floor and two rooms in the ground floor which are lying locked for several years and the petitioner never used the same.

12. That the family members of the petitioner are not dependent on the petitioner.

The reading of the above will clearly, it is argued, entitle the petitioner to be granted leave on the basis of the law as laid down by the Supreme Court in Precision Steel & Engineering Works and another Vs. Prem Deva Niranjan Deva Tayal . Reference is made to paragraphs 10 and 11 of the judgment which read as under:

"10.Undoubtedly the procedure prescribed in Chapter III-A of the Act is materially different in that it is more harsh and weighted against the tenant. But should this procedural conundrum change the entire landscape of law? When a landlord approaches Controller under Section 14(1) proviso (e), is the court to presume every averment in the petition as unchallengeable and truthful? The consequence of refusal to grant leave must stare in the face of the Controller that the landlord gets an order of eviction without batting the eyelid. This consequence itself is sufficient to liberally approach the prayer for leave to contest the petition. While examining the question whether leave to defend ought or ought not to be granted the limited jurisdiction which the Controller enjoys is prescribed within the well defined limits and he cannot get into a sort of a trial by affidavits preferring one set to the other aus concluding the trial without holding the trial itself. Short-circuiting the proceedings need not masquerade as a strict compliance with sub-section (5) of Section 25-B. The provision is cast in a mandatory form. Statutory duty is cast on the Controller to give leave as the legislature uses the expression "the Controller shall give" to the tenant leave to contest if the affidavit filed by the tenant discloses such fact as would disentitle the landlord for an order for recovery of possession. The Controller has to look at the affidavit of the tenant seeking leave to contest. Browsing through the affidavit if there emerges averment of facts which on a trial, if believed, would non-suit the landlord, leave ought to be granted. Let it be made clear that the statute is not cast in a negative form by enacting that the Controller shall refuse to give to the tenant leave to contest the application unless the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order, etc. That is not the mould in which the section is cast. The provision indicates a positive approach and not a negative inhibition. When the language of a statute is plain, the principle that legislature speaks its mind in the plainest language has to be given full effect. No canon of construction permits in the name of illusory intendment defeating the plain, unambiguous language expressed to convey the legislative mind. And the legislature had before it Order 37, an analogous provision where leave to defend is to be granted and yet avoiding the phraseology of the Code of Civil Procedure, namely, `substantial defense' and `vexatious and frivolous defense', the legislature used the plainest language, `facts disclosed in the affidavit of the tenant'.

11. The language of sub-section (5) of Section 25-B casts a statutory duty on the Controller to give to the tenant leave to contest the application, the only pre-condition for exercise of jurisdiction being that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground mentioned in Section 14(1)(e). Section 14(1) starts with a non obstante clause which would necessarily imply that the Controller is precluded from passing an order or decree for recovery of possession of any premises in favour of the landlord against the tenant unless the case is covered by any of the clauses of the proviso. The proviso sets out various enabling provisions on proof of one or the other, the landlord would be entitled to recover possession from the tenant. One such enabling provision is the one enacted in Section 14(1) proviso (e). Upon a true construction of proviso (e) to Section 14(1) it would unmistakably appear that the burden is on the landlord to satisfy the Controller that the premises of which possession is sought is (i) let for residential purposes; and (ii) possession of the premises is required bona fide by the landlord for occupation as residence for himself or for any member of his family, etc.; and (iii) that he landlord or the person for whose benefit possession is sought has no other reasonably suitable residential accommodation. This burden, landlord is required to discharge before the Controller gets jurisdiction to make an order for eviction. This necessarily transpires from the language of Section 14(1) which precludes the Controller from making any order or decree for recovery of pos- session unless the landlord proves to his satisfaction the conditions in the enabling provision enacted as proviso under which possession is sought. Initial burden is thus on the landlord."

Similar reliance is placed on the judgments reported as C.D.Korpal Vs. Capt. A.K.Madan and others and Smt. Jamna Devi and others Vs. Kude Ram and others (1982) 3 Supreme Court Cases 376 which lay down that leave to defend must be granted if facts as disclosed in the tenant's affidavit prima facie dislodge the landlord's claim for eviction. Such facts are not required to be proved at the stage of grant of leave.

7. The second contention as raised by learned counsel for the petitioner is that the premises were let out for a composite tenancy of residentialcum-commercial user and,therefore, no order of eviction can be passed under the provisions of Section 14(1)(e) of the Act. In this regard reliance is placed on the judgment as Kulwant Singh and others Vs. Smt. Amar Kaur and others . This judgment has been cited to reiterate that where a plea is raised that the suit premises were let out both for residential and commercial purposes the Rent Controller ought to have granted leave to defend as the landlords were not entitled to maintain an action on the ground of personal requirement when the premises were let out for composite purposes. This is a short judgment which only refers to the facts of the case and do not lay down any general proposition of law.

8. Thirdly, it is argued that the respondent is in possession of sufficient accommodation and the requirement is neither genuine nor bona fide in the facts and circumstances of the present case.

9. To deal with the first contention it may be worthwhile to refer to grounds on the basis of which the eviction petition was filed. Paragraph 18(a) of the application reads as follows:

"That the petitioner is the owner of the property in dispute. The premises in dispute was let out to the respondent for residential purposes and was always used predominantly for residential purposes. The petitioner requires the premises in dispute for her residence and for the residence of her family members dependent upon her bona fidely. The petitioner is not in possession of any other residential suitable alternate accommodation, except the premises in dispute. The petitioner is living on the first floor and Barsati floor of the property in dispute. The petitioner is in possession of two bed rooms, one kitchen, W.C., bath and latrine on first floor and one room on second floor. The family of the petitioner consists of herself, her husband, one son namely Shri Ashok Jain, his wife and three grand-children namely Mohit Jain aged 18 years; Priyanka Jain 18 years and Deepika Jain aged 11 years. The petitiner has got two married daughters who visit the petitioner and resides with the petitioner for days together. The accommodation in possession of the petitioner is highly insufficient for the needs of the petitioner and her family members dependent upon her. The petitioner requires the premises in dispute for comfortable living of her family members. The petitioner requires at least one bed room for herself and her husband; one bed room for her son and daughter-in-law, one bed room each for grand-children, one drawing-dinning and one guest room, besides store etc. The accommodation with the petitioner is highly insufficient."

10. The above facts are not in dispute. The site plan which forms part of the record will also indicate the nature of accommodation available to the petitioner. No contrary plan has been filed by the petitioner. The petitioner is in possession of the entire ground floe whereas the respondent is in possession of the first floor which is practically the same accommodation as the ground floor as well as one room on the Barsati floor. In view of these facts, the judgment of Precision Steel and Engineering Works and another (supra) may be examined. The facts are incorporated in para-graph 2 which may be reproduced as follows:

"2. First the brief narration of facts. Respondent M/s Prem Deva Niranjan Deva Tayal (Hindu undivided family) through Prem Deva Tayal, constituted Attorney of Niranjan Deva Tayal (landlord) moved the Controller having jurisdiction by a petition under Section 14(1) proviso (e) [for short `Section 14(1)(e)'} read with Section 25-B of the Delhi Rent Control Act, 1958 ( `Act' for short), for an order for recovery of possession of the premises being, front portion of premises bearing No.B-44, Greater Kailash Part I, New Delhi, on the ground that the premises were let out for residential purpose and are now required bona fide by the landlord for occupation as residence for himself and the members of his family dependen on him and that the landlord has no other reasonably suitable accommodation. To this petition he imp leaded M/s Precision Steel and Engineering Works (tenant), a firm and Shri B.K. Beriwala constituted attorney of the firm. Landlord alleged in his petition that the premises in question were first given on leave and license and subsequently relationship of lessor and lessee was established and that the tenant is in possession since October 1, 1971. Landlord further alleged that he now requires the premises for himself and the members of his family consisting of himself, his wife and two school-going children. He admitted that he has been employed in India since 1965 but was posted at Bombay in 1970 and returned to Delhi in 1972. He went to Saudi Arabia and has now returned to India. It was alleged that on May 1, 1974, he called upon the tenant to vacate the premises but the request has fallen on def ears. It was specifically alleged that as the landlord has now taken up a job and has settled down in Delhi and that he has no other suit- able accommodation, and accordingly he bona fide requires posses- sion of the demised premises for his personal occupation. It was alleged that M/s Prem Deva Niranjan Deva Tayal (HUF) is the owner of the suit premises and Shri Niranjan Deva Tayal is the Karta of the HUF and second notice dated June 22, 1979 was given under instructions by the constituted Attorney Prem Deva Tayal. Even though the landlord who sought possession of the premises for his personal requirement was in Delhi at the relevant time, i.e. in 1979, the petition was also filed through the constituted attorney and Niranjan Deva Tayal who seeks possession for his use being in Delhi and available is conspicuous by his absence throughout the proceedings."

The presumption of law and the findings which are relevant to the facts of the present case are contained in paragraphs 22,23,24 and 25 which make the following reading:

"22. When then follows. The Controller has to confine himself indisputably to the condition prescribed for exercise of juris diction in sub-section (5) of Section 25-B. In other words, he must confine himself to the affidavit filed by the tenant. If the affidavit discloses such facts - no proof is needed at the stage,which would disentitle the plaintiff from seeking posses- sion, the mere disclosure of such facts must be held sufficient to grant leave because the statute says "on disclosure of such facts the Controller shall grant leave". It is difficult to be exhaustive as to what such facts could be but ordinarily when an action is brought under Section 14(1) proviso (e) of the Act whereby the landlord seeks to recover possession on the ground of bona fide personal requirement if the tenant alleges such facts as that the landlord has other accommodation in his possession; that the landlord has in his possession accommodation which is sufficient for him; that the conduct of the landlord discloses avarice for increasing rent by threatening eviction; that the landlord has been letting out some other premises at enhanced rent without any attempt at occupying the same or using it for himself; that the dependents of the landlord for whose benefit also possession is sought are not persons to whom in eye of law the landlord was bound to provide accommodation ; that the past conduct of the landlord is such as would disentitle him to the relief of possession; that the landlord who claims possession for his personal requirement has not cared to approach the court in person though he could have without the slightest inconvenience cross-examination prosecutes litigation through an agent called a constituted attorney. These and several other relevant but inexhaustible facts when disclosed should ordinarily be deemed to be sufficient to grant leave.

23. And now to the facts of this case. Really no elaborate discussion is necessary but what is stated herein is with a view to pointing out with respect how contrary to well established principles and the mandatory requirements of the statute the learned Controller and the High Court dealt with the matter. The learned Controller in para 2 of the judgment set out five different defenses raised by the tenant in his affidavit seeking leave to contest the petition. The learned Controller then proceeded to note in para 3 of the order that the petitioner filed a counter- affidavit and also filed the sale deed of the house at 32, Anand Lok, New Delhi and further stated that the landlord has only one house of his ownership and that is the demised premises. in summarizing the contentions raised by the tenant in his affidavit the learned Controller overlooked two most important contentions : (1) that though the landlord Niranjan Deva Tayal for whose benefit the petition was filed has been in Delhi since 1972 yet the leave and license agreement in favour of the tenant was renewed in 1972 and 1973 which would mean that even though Niran- jan Deva Tayal, the real landlord whose proxy is Prem Deva Tayal, so-called leave and licence agreement which would necessarily imply that he was not in need of the premises and that he has some accommodation in his occupation which he considers sufficient and could occupy it as of right. If that was not to be he should have so stated in the petition. But the glaring lacuna in summarizing the contentions made by the learned Controller is that the tenant stated in his affidavit that an identical unit at the back of the demised premises fell vacant in 1973 when M/s. Kirloskar & co. vacated the same and the same was let out to the Food Corporation of India at enhanced rent. The learned Controller did not note the fact that a notice seeking eviction was served in 1974 and that too on the ground that Niranjan Deva Tayal requires the premises for his personal occupation because he bona fide needs the same and yet no follow-up action was taken till 1979 when on June 22, 1979, a second notice of eviction was served. If in a regular trial these facts are proved, is there any doubt about the outcome of the petition ? There was the further averment of which proper summary is not made that even Food Corporation of India appears to have vacated the premises at the back of the demised premises and the same is in occupation of M/s Coronation Spinning (India) and it is admitted that the same were let out up to and inclusive of the year 1981. The averment is that every time a fresh letting is indulged into it is done after raising the rent. Could not the bona fide of the landlord on disclosure of these facts be put in issue? Surprisingly, contrary to the provision of law the learned Controller took the affidavit ad counter-affidavit and reply affidavit as unques tioned evidence and proceeded to decide all disputed questions of fact. Is this at all contemplated by Section 25-B ? If not, the whole order would be without jurisdiction. but the more objectionable part overlooked by him is that the landlord who seeks possession for himself and is admittedly in Delhi has not stated a single word on oath about his requirements as to in what right he is occupying the premises in which he is at present staying, why after nearly seven years he is required to vacate the same and what necessitates his seeking possession of the front portion when identical unit at the back fell vacant thrice during the period he was permanently in Delhi. If these facts without further elaboration disclosed in affidavit of the tenant are not sufficient to grant leave, we would find it difficult to ee a single case in which leave could ever be granted which would mean that the landlord fortunately having premises in Delhi where rents are fantastically high can hold tenants at ransom on the threat of eviction on the ground of personal requirement and on refusal of leave obtain possession. We say no more.

24. We then turn to the judgment of the High Court rejecting the revision petition filed by the tenant. The learned Chief Justice first examined the contention whether the demised premises were let for residence or for residence-cum-business. While examining the contention, Clause 6 of the licence deed was referred to which inter alia provides that the licensee will however be free to use the said premises in part or in full also for office purposes provided the rules of the local authorities so permit and in such an event the licensees shall pay to the owners any increase in local taxes,etc., etc.occasioned by such change of use of the said premises from residence to office. The contention raised in the petition of the tenant is that the premises were let for residence-cum-business. The landlord has camouflaged licence for lease but it is admitted on all sides and it is so stated in the petition fied before the Controller by the constituted Attorney of the landlord that the respondent was accepted as a tenant on monthly rent of Rs.2000/. It is nowhere examined by the High Court as to when the licence was terminated as alleged by the landlord in the petition and a contract of lease was entered into and what were the terms of the lease. The learned Chief Justice observed : "a plain reading of the Clause, spells out the sole purpose of letting being residence" and this obseration is made in the shape of the positive finding. Since the entry in the premises the tenant has been using part of the premises for office with the specific and undisputed permission of landlord and this fact is gloated over. Whether the rules permit such a use ; whether there was such rule prohibiting such use, is a matter left to be inferred by a statement that no rule or bye-law was brought to the notice of the court that such a use was perissible. If the landlord entered into a contract of lease permitting non-residential use and yet if it is pleaded that such use can be made if the rules of the local authority permitted it ordinarily one would expect the landlord to show that such use was impermissible. There is no finding to that effect.

25. The learned Chief Justice then proceeded to examine the second contention, whether the landlord Shri Niranjan Deva Tayal as a Manager of the Hindu Undivided Family has other suitable accommodation at 32, Anand Lok, New Delhi. The High Court disposed of the contention by an observation which bespeaks of nonexamination of contention assuming that such examination at that stage was permissible. The High Court observed that the learned Controller rightly came to the conclusion that the premises belong not to the respondent but to his brother. This approach is wholly unjustified because the question was not whether Shri Niranjan Deva Tayal for whose benefit possession was sought was the owner of the premises occupied by him and situated at 32, Anand Lok, New Delhi, but the substantial question was in what right he was occupying the premises for a period extending over 7 years on the date of the petition before the leared Controller and how it has become imperative for him to vacate the premises. No examination of the relevant aspects appeared to have been undertaken and the revision petition was dismissed. With great respect to the learned Chief Justice, if such an approach is to be upheld, the legislative purpose in enacting the Rent Act stands defeated. Therefore it is not possible to accept the conclusion recorded by the High Court, both on account of nonexamination of the relevant contentions and also on account of utterly incorrect approach as to how the matter has to be examined at the stage of granting or refusing to grant leave under sub-section (5) of Section 25-B."

The relevant portion of the minority judgment of A.P.Sen,J. as stated in paragraphs 30,31,33,34 and 41 may be reproduced as follows:

"30. Sub-section (5) of Section 25-B of the Act reads as follows:

The Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause (e) of the proviso to sub-section (1) of Section 14, or under Section 14-A.

31. There is a definite public purpose behind the enactment of Chapter III-A introduced by the Delhi Rent Control (Amendment) Act, 1976. The words "if the affidavit filed by the tenant dis- closes such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises oon the ground specified in clause (e) of the proviso to sub-section (1) of Section 14, or under Section 14-A" used in sub-section (5) of Section 25-B are to be interpreted in a manner which is in consonance with the intention of the legislature and must be construed in a sense which would carry out the object and purpose of the Act. The construction to be adopted must be meaningful and innovative. A mechanical and literal construction of these words detached from the context of the other provisions as also the object and purpose of the enactment will reduce this beneficial legislation to futility.

33. Further, experience in the past showed that landlords who were in bona fide requirement of their accommodation for residential purposes under clause (e) of the proviso to sub-section (1) of Section 14 were being put to great hardship due to the dilato-ry procedure of the suit. It was felt in the public interest that such landlords who were in bona fide requirement of their residential premises for their own occupation or for the occupation of any member of their family dependent on them, should not be subjected to protracted trial of a civil suit with concomitant rights of appeals.

34. The underlying object behind the enactment of Chapter III-A was that these classes of landlords i.e. a landlord who was in bona fide requirement of his residential premises for his own occupation or for the occupation of any member of his family (1) of Section 14, or a landlord seeking to enforce the right to recover immediate possession under Section 14-A of the Act, should not be at the mercy of law's delays but there should be quick and expeditious remedy against his own tenant.

41. It is not suggested for a moment that the proceedings initiated on an application by the landlord under section 14(1)(e), or under Section 14-A, must undergo trial at two stages. Under sub-section (5) of Section 25-B, the Controller must prima facie be satisfied on a perusal of the affidavits of the parties to the proceedings and the other material on record that the facts alleged by the tenant are such as would disentitle the landlord from obtaining an order for recovery of possession of the premises on the ground specified in clause (e) of the proviso to sub-section (1) of Section 14, or under Section 14-A. The word 'disentitle' is a strong word, and the Controller must be satisfied that the tenant has such a defense as would defeat the claim of the landlord under clause (e) of the proviso to sub-section (1) of Section 14, or under Section 14-A. It cannot be that the Controller would set down the application for trial merely on perusal of the affidavit filed by the tenant without applying his mind to the pleadings of the parties and the material on record. If he finds that the pleadings are such as would entail a trial, then the Controller must grant the tenant leave to contest as the words "shall grant to the tenant leave to contest" in sub-section (5) of Section 25-B make the grant of leave obligatory."

11. The Supreme Court has, therefore, laid down certain guide-lines for the grant of leave to defend which will depend on the facts and circum-stances of each case. The facts of that case have been specifically examined in paragraph 23 of the judgment which will indicate that another accommodation was already in possession of the landlord, admittedly, in Delhi and he had not stated a single word on oath about the requirement as to in what right he was occupying the premises in which he was staying and why after seven years he was required to vacate the same and what necessitated his seeking possession of the front portion when identical unit at the back fell vacant thrice during the period he was permanently in Delhi. These facts, the Court concluded, required further investigation and it was imperative on the part of the Rent Controller to grant leave to defend in this background. The facts of the present case would establish that the respondent/landlady is already staying i premises and is having seven members of the family who are dependent upon her for residence. The family comprises of herself, her husband, son and his wife and three grand children. The respondent has two married daughters who also visit the parents. She is 75 years of age and her husband is 85 years whereas the son is also 55 years of age. The assessment of their residential requirement is clearly spelled out from the accommodation in their possession which by no stretch of imagination can be termed as reasonable, adequate and sufficient. In this view it cannot be said that the facts as referred to in the case of Precision Steel & Engineering Works and another (supra) can be equated to the facts of the present case and leave to defend ought to have been granted. For the purposes of determining the bona fide requirement of the respondent no evidence is required when the same is co-related to the size of the family. Therefore, leave to defend has to be declined in such cases. The law does not intend that when the landlords who are in bona fide requirement of the accommodation for residential purposes under clause (e) of the Proviso to sub-section (1) of Section 14 of the Act they are put to great hardship due to the dilatory procedure of the suit. It was felt in the public interest that such landlords who were in bona fide requirement of their residential premises for their own occupation or for the occupation of any member of their family dependent on them, should not be subjected to protracted trial of a civil suit with concomitant rights of appeals. The petitioner-tenant in the present case has come in possession of the premises since the year 1962 and refused to vacate the same despite the fact that the family of the respondent has grown in size and she is not possessed of sufficient, reasonable and alternative accommodation. The finding in this regard of the Additional Rent Controler is sound and is not open to challenge.

12. The question as to whether the premises were let for residential-cum-commercial purposes may now be examined. The petitioner, admittedly, is residing in the premises which comprises of three rooms, one latrine, one bath-room, one kitchen and passage in front of the room with open courtyard on ground floor as shown in red in the plan. The learned counsel has placed reliance on the words in the document, Rent Agreement dated August 12,1962. Emphasis is placed on the permission to use one room for office. The English translation of the words as rendered by the petitioner which have been strongly relied upon will read as follows:

     "That  the property consisting of three rooms, one  latrine  bath      room, kitchen and passage to three rooms bounded by courtyard  of      property  on West and on South and big door at the  ground  floor      house  of Mosiya Gyan resident of Kothi No.2, plot No.28,  Ansari      Road, Darya Ganj, Delhi, property in possession of Smt.Gyan  Wati      daughter  of Lala Ram Chand wife of lala Purshotam Dass  resident      of  1307 Gali Guliyana, Delhi have been taken on monthly rent  of      Rs.275/-  for  own residence from 15.8.62 and on the  South  room      will be used for office." 


     The stress is placed on the words "and on the South room will be  used for office". This is not the correct translation. If the original from Urdu is examined it will read as follows: 
 
     "Wavakta Zaroorat (whenever need arises) Zanoob Magrib- (Room in      the South can be used) for office. 

13. The admitted case is that the premises were let out and used for residential purposes and one room could be used as office whenever the need arose. This is merely an incidental user as the premises were primarily used for residence of the petitioner as well as of the respondent and it will not become a composite tenancy for residence and commercial purposes in the facts and circumstances of the present case. The Supreme Court in the judgment reported as V.S. Talwar Vs. Prem Chandra Sharma has dealt with similar situation where the premises were permitted to be used for residential and personal office only and not for commercial purposes. Paragraph 2 of the judgment which narrates the fact and paragraph 8 which deals with the findings read as follows:

"2. The respondent was admitted into tenancy of the premises in question under a lease deed dated January 5, 1968. Clause 12 thereof provided:

That the lessee shall use the premises for the purpose of Residential/Personal office only and not for commercial purposes.

The landlord, appellant before us, applied to the Controller on March 14, 1972, for eviction of the respondent under Section 14(1)(e) of the Delhi Rent Control Act, 1958 ('the Act' for short). The tenant obtained leave to contest and pleaded, inter alia, that the premises were let out both for residential as also office and the composite purpose of the tenancy took the premises out of the purview of residential accommodation. The Controller did not accept the defense and passed an order for eviction. Thereupon, the tenant carried a revision to the Delhi High Court and reiterated his defense that the tenancy was not for residential purpose. The High Court found that there was no infirmity in the finding about the bona fide requirement but adverting to the conclusion on the letting purpose held: It is well known that premises may be let out for residence only, for use as an office, for use as a shop and for other commercial purpose. Once any of the latter purposes is combined with the purpose of use as residence, the premises let out for a composite purpose and for residence only.

     The meaning of the word 'office', not defined in the Act, in  the      Chamber's  Dictionary  is a place where business is  carried  on.      Office  is  certainly not residence and a letting  purpose  which      includes  office  must be understood to include a  purpose  other      than residence only.  


     And ultimately concluded by saying: 
 


     Clause  (e)  of Section 14(1) is available as a  ground  to  seek      eviction of tenants only, among other requirements, if the  premises were let out for residence only and once the letting purpose      is  shown  to be composite, an eviction  petition  under  Section      14(1)(e), without more, must fail. 
 


     The High Court rejected the landlord's submission that the use of  the  word 'personal' before 'office' was intended to  convey  the      idea that the tenancy was not for the purpose of accommodating  a      place of business. 
 


     8.Mr.Thakur  placed reliance on another clause of the lease  deed      which reads as follows: 
 


     That  the lessor shall pay all the taxes of any  kind  whatsoever      including  house  tax, ground rent as are or may  hereinafter  be      assessed on the demised premises by the municipality or any other      authority whatsoever provided the premises are used for residence      only. 
 


     We do not think the terms of this clause support the stand of the      lessee.  As  contemplated under the Transfer of  Property  Act  a      document of lease normally provides the rights and obligations of      both  the lessor and the leseee. In stipulating the rent  payable      for the use and occupation of the premises the lessor had  undertaken  the liability of payment of taxes as described therein  as      long  as the premises were used for residence only.  This  clause      necessarily means that what had been stipulated was only residential  user.  It is appropriate to take note of the  admission  of      Mr.Thakur  that  the  lessor had been paying the  taxes  and  the      lessee has not been called upon to share the burden. This  clause      is an added provision to clinch the point in dispute against  the      tenant." 
 

14. The user for office purposes of a small portion of the premises only when it is required being merely incidental in the present case an eviction petition under Section 14(1)(e) of the Act cannot be barred.The premises were primarily let out for residential purposes and even the rent agreement merely specifies that a small room on the South side may be used for office whenever the need arose. There is, therefore, no continued user of the premises for the commercial purposes as the same were never regularly used by the petitioner as such and even the nature of the business has not been specified. The finding in this regard is not open to challenge as the facts brought on record clearly establish that the premises were let out and used for residential purposes.

15. The last question which arises for consideration is as to whether the requirement of the respondent/landlady is bona fide. The members of the family have already been stated to be seven which will include the respondent, her husband, one married son, his wife and three grand children apart from two married daughters. The detailed facts have been cited in paragraph 9 of the judgment which will clearly establish that the respondent is not in possession of sufficient alternative accommodation and no further evidence is required to establish the size of the family as well as the accommodation in her possession which are borne out from the material placed on record. The judgment of the learned Rent Controller is not open to challenge on this score as well and the leave to contest has been correctly refused.

In view of the above the present petition is devoid of merit and is dismissed accordingly. There will be no order as to costs. The petitioner is, however, granted two months' time to vacate the tenanted premises.