Delhi High Court (AUGUST 20, 2001) 2001 (TLS)125374 2001-DLT-93-370 :: 2001-AD (Del)-6-266 B. R. ANAND Vs. Prem Sagar VIKRAMAJIT SEN ( 1 ) THE present revision petition has been filed against the Order of the Rent Controller dated 5. 8. 2000 whereby the Tenant s application seeking Leave to contest the eviction petition under Section 14 (1) (e) read with Section 25-B of the Delhi Rent Control Act (hereinafter referred to as the DRC Act ) had been dismissed. Learned counsel for the petitioner/tenant has relied on the decision of the Hon ble Supreme Court in Inder jeet Kaur v. Nirpal Singh, JT 2001 (1) SC 308. What has been observed by the Apex Court is as follows: "we are of the considered view that at a stage when the tenant seeks leave to defend, it is enough if he prima facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. It would not be a right approach to say that unless the tenant at that stage , itself establishes a strong case as would non-suit the landlord leave to defend should not, be granted when it is not the requirement of Section 25b (5 ). A leave to defend sought for cannot also, be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter iiia of the Act. Leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of a landlord to recover possession of the premises from a tenant under Clause- (e) of the proviso to Sub-section (1) of section 14, when as a matter of -fact the requirement may not be bona fide. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to him and his family members, if any, although he could establish if only leave is granted that a landlord would be disentitled for an order of eviction. At the stage of granting leave to defend, parties rely on affidavits in support of the rival contentions. At the stage of granting leave to defend, parties rely on affidavits in support of the rival contentions. Assertions and counter-assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend were either, frivolous, untenable or most unreasonable. Take a case when a possession is sought on the ground of. personal requirement, a landlord has to establish his need and not his mere desire. The ground under clause (e) of the proviso to sub~section (1 ) of Section 14 enables a landlord to recover possession of the tenanted premises on the ground of his bona fide requirement. This being an enabling" provision, essentially. the burden is on the landlord to establish his case affirmatively. In short and substance wholly frivolous and totally untenable defence may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the Rent Controller by the statute itself to grant leave. At the stage of granting leave the real test should be whether facts disclosed in-the affidavit filed seeking leave to defend prima facie show that the landlord would be disentitled from obtaining-an order of eviction and not whether at the end defence may fail. It is well to remember that when a leave to defend is refused, serious consequences of eviction shall follow and the party seeking leave is denied an opportunity to test the truth of the averments made in the eviction petition by cross-examination. It may also be noted that even in cases where leave is granted provisions, are made in this very chapter for expeditious disposal of eviction petitions. Section 25b (6) states that where leave is granted to a tenant to contest the eviction application, the Controller shall commence the hearing of the application as early as practicable. Section 25b (7 ) speaks of the procedure to be followed in such cases Section 25b (8) bars the appeals against an order of recovery of possession except a provision of revision to The High Court. Section 25b (7 ) speaks of the procedure to be followed in such cases Section 25b (8) bars the appeals against an order of recovery of possession except a provision of revision to The High Court. Thus a combined effect of Sections 258 (6), (7) and (8) would lead to expeditious disposal of eviction petitions so that a landlord need not wait and suffer for long time. On the other hand, when a. tenant is denied leave to defend although he had fair chance to, prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims. " ( 2 ) WHAT is, therefore, to be considered is whether the Tenant has disclosed such facts as would prima facie disentitle the Landlord from claiming eviction. Grounds which are unrealistic or wholly unsubstantiated, or are in the nature of moonshine, cannot be viewed as having disclosed a prima facie case, for grant of Leave to contest the eviction petition. It is only when the facts pleaded by the Tenant disclose a triable case that leave to Contest is to be granted. The Hon ble Supreme court has observed that it is not proper for the Rent controllers to prejudge any issue, that is before a trial is concluded. Opportunity must be granted to the tenant to prove its case once a triable issue has been raised. However, this opportunity is not to be given where the defence disclosed is frivolous and vexatious. The Apex Court has also observed that where additional accommodation is pleaded to be needed, Leave to Contest should ordinarily be granted. . This has been so held in santosh Devi Soni v. Chand , JT 2000 (3) SC 397. ( 3 ) IN the present case the Tenant has asserted that the premises were. let for composite purposes and that he was using a part thereof as a Beauty Parlour. There is no satisfactory reply to the. Landlord"s argument that in the previous petition filed under Section 14 (1) (e) of the DRC Act, the Tenant had admitted that the premises were Let for residential purposes. At least ,a bare denial in respect of this averment was necessary even if this issue did not arise in that petition since the ground urged was of the non-payment of rent. At least ,a bare denial in respect of this averment was necessary even if this issue did not arise in that petition since the ground urged was of the non-payment of rent. The Tenant is clearly estopped from taking a stand contrary to that adopted in the previous litigation. Moreover;, the property has been developed by the Delhi Development authority and has been held not to be of commercial character. It has also been taken into account that the rent Agreement has no whisper of commercial activity. The Rent Controller has correctly returned a finding that it was let for residential purpose only,and that no grounds, even prima facie, have been disclosed for the grant of Leave to Contest. ( 4 ) IN respect of the question of ownership, the premises were taken on rent by the Tenant from the landlord/respondent and the former was put into possession thereof by the latter. It is, therefore, not legally open to the Tenant by virtue of Section 116 of the Evidence Act to challenge the ownership of the landlord. The Rent Controller has, however, returned a finding that the Landlord had been allotted the demised flat by the Delhi Development Authority. Even otherwise the finding on the question of the Respondent s ownership cannot be successfully assailed and no grounds, even prima facie, have been shown for the grant of Leave to Contest the eviction petition. ( 5 ) THERE is no controversy as to the non-existence of any other suitable alternative residence available to the Landlord. ( 6 ) THE only possible debate is as to whether a bona fide case has been made by the Landlord or that the tenant has prima facie disclosed that a case to the contrary has been pleaded. The Landlord has averred that at present he together with his wife and son are living with his mother in her own property. This property is not spacious enough for four adult members to reside therein, Undoubtedly it is settled, in a catena of cases that an owner has every right to want to reside in his own premises, where there is a paucity of accommodation there is a strong likelihood of relations being strained even amongst close relatives. However, these questions can be resolved only after parties are permitted ,to lead evidence and the Rent Controller has prejudged the issue. However, these questions can be resolved only after parties are permitted ,to lead evidence and the Rent Controller has prejudged the issue. Unlike in the aspect of the purpose of letting, and the ownership of the premises, the genuine intention of the landlord to shift to his own premises where he is. presently living with his mother leaves a prospect of doubt; which can only be dispelled upon an appreciation of the evidence that has been led. The circumstances would be totally different if the Landlord was living in rented accommodation. The onus lies on the Landlord to prove disharmony in the home and more importantly that while he and his wife would shift to the demised premises, his son and aged mother. would continue to reside in the present residence. The Rent Controller could not be. satisfied on the question of bona fides of the Landlord at this stage of the lis. A jurisdictional error has been committed by him, which calls for interference. ( 7 ) THE petition is allowed and the Leave to Contest is granted to the Tenant. The impugned order is set aside. The Tenant shall file his written Statement on the next date of hearing, before the Rent Controller which is fixed for 20. 9-2001. The case is remanded for adjudication in these terms. The application stands disposed, off in terms of the above. --- *** --- .