Topic: Precision Steel & Engg. Works vs Prem Deva Niranjan Deva Tayal / mere disclosure of facts not a substantial defence is the sine qua non
Mere disclosure of facts, not a substantial defence is the sine qua non. What is a substantial defence depends upon facts and circumstances of each case.
Precision Steel & Engg. Works vs Prem Deva Niranjan Deva Tayal
Bench: Desai, D.A., Sen, A.P. (J), Islam, Baharul (J) - Citation: 1982 Air 1518 1983 Scr (1) 498 - 1982 Scc (3) 270 1982 Scale (1)849 - Date Of Judgment07/10/1982
Delhi Rent Control Act 1958-Sub-s. (5) of S. 25B read with Clause (e) of proviso to S. 14(1)-Jurisdiction of Controller-Grant of Leave to tenant to contest landlord 's application for eviction-Nature and scope of. Delhi Rent Control Act 1958-Sub-S. (1) of S. 31-Not attracted at the stage of considering affidavit of tenant seeking Leave to contest under sub-s. (SJ of S. 25B. Code of Civil Procedure 1908-o. XXXVIl, rule 3(5) and Delhi Rent Control Act 1958-S. 25B(5)-Jurisdiction to grant leave-Comparison of.
Rent restriction legislation-Approach to interpretation of.
Laws of procedure-Approach to interpretation of.
A landlord can make an application for recovery of possession under . Clause (e) of the proviso to s. 14(1) of the Delhi Rent Control Act, 1958, on the ground that the premises let for residential purposes are required by him bona fide for occupation as a residence for himself or for any member of his family dependent upon him, provided he has no other reasonably suitable residential accommodation. Sub- s. (S) of s. 25B lays down that 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 on order for recovery possession" of the premises on the ground specified in Cl. (e) of the proviso to s. 14(1).
The respondent, a Hindu Undivided Family (HUF), filed a petition under Cl. (e) of proviso to s. 14(1) through the constituted attorney of its karta for an order for recovery of possession of the premises in question alleging that the premises had initially been given to the appellant on leave and licence, that the landlord (the karta of the HUF) who had gone out of the country had since settled down in Delhi, that the landlord had called upon the appellant in May, 1974 to vacate the premises as he had no other suitable accommodation and that
the landlord bonafide required the same for his personal occupation. The appellant sought leave to contest the petition and filed an affidavit denying the allegation that it had entered the premises initially as a licensee and contending that according to cl. 6 of the lease agreement the premises were let for residential as well as commercial purpose, that the landlord had been residing in a house as spacious as the demised premises and equally spacious accommodation in an identical unit located at the back side of the demised premises was available to, him which had been let successively to three tenants during the period 1970 to 1976, each time raising the rent, and further that the landlord owned spacious accommodation at another place in Delhi. An affidavit in reply was filed on behalf of the landlord stating that the landlord had no interest in the building in which he was residing, that the identical unit located on the back side of the demised premises had been let to a tenant upto 1981 and that the accommodation located at another place in Delhi and referred to by the appellant was only a garage block.
The Controller decided all questions of fact taking the affidavits as unquestioned evidence and refused to grant leave to the appellant to contest the petition and passed an order of eviction in favour of the landlord. The revision petition filed by the appellant against the order was rejected by the High Court.
The question before the court was: What is the jurisdiction of the Controller under Sub-s. (S) of s.25B while dealing with an affidavit of the tenant seeking leave to contest an application for eviction filed by a landlord under cl. (e) of he proviso to s. 14(1) ?
Allowing the appeal.
HELD: (By the Full Court)
Leave to contest the petition for eviction under cl. (e) of proviso to s.l4(1) must be granted to the appellant under sub s (S) of sub-s. 25B of the Delhi Rent Control Act, 1958.
(per Desai and Baharul Islam JJ )
1. (a) 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 well defined limits. The language of sub-s. (5) of s. 25B casts a statutory v 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 B. 14(1)(e). The legislature has used the expression "the Controller shall give leave to the tenant to contest the application." 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. The legislature has used the plainest language namely "facts disclosed in the affidavit of the tenant" and avoided the phraseology of the
analogous provision in order XXXVII, C.P.C., namely "substantial defence" and "vexatious and frivolous defence". [513 F; 514 E; 513 G: 514 B-D]
(b) Undoubtedly, the rules of natural justice, apart from the adversary system we follow must permit the landlord to contest the affidavit filed by the tenant and he can do so by Sling an affidavit in reply. If the averments made in the affidavit of the tenant are controverted by the landlord, that fact may be borne in mind but if the facts disclosed in the affidavit of the tenant are contested by way of proof or disproof or producing evidence in the form of other affidavits or documents that would not be permissible. The Controller has to confine himself to the affidavit filed by the tenant under sub-s. (4) of s. 25B and the reply, if any and on perusing these, he has to pose to himself the only question: Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in s. 14(1)(e) ? on browsing through the affidavit of the tenant, if there emerges averment of facts which, on a trial, if believed would non-suit the landlord, leave ought to be granted. The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against other set of affidavits as it is clear from the language of sub-s. (S) of s. 25B that he has to confine himself to the affidavit filed by the tenant disclosing such facts as would primafacie and not on contest disentitle the landlord from obtaining an order for recovery of possession. It is wholly impermissible for the Controller to proceed to examine the rival contentions on the basis of affidavits untested by cross-examination and unproved documents. The regular trial required to be held by a Court of Small Causes as contemplated by sub-s. (6) read with sub- s. (7) of s. 25B is not to be substituted by affidavits and counter-affidavits. The scheme of s. 25B does not introduce a trial for arriving at the truth at the stage of proceeding contemplated by sub-s. (4) of s. 25B. It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown. [524 B; 523 H; 524 A; SIS G-H; 514 A; 516 A-C; 517 E- G; 518 B; 516-E]
Santosh Kumar v. Bhai Mool Singh  S.C.R. 1211, relied on.
S. Kanjibhai & Ors. v. Mohanraj Rajendra Kumar A.I.R. 1970, Gujarat 32 and Kishan Singh v. Mohd. Shafi & Ors., A.I.R. 1964 J & K 39; approved.
(c) Section 14(1) starts with a non obstante clause which would necessarily imply that the Controller is precluded from passing an order for recovery of possession in favour of the landlord unless the case is covered by any of the clauses of the proviso. Upon a true construction of cl. (e) of the proviso to s. 14(1) it would appear that the burden is on the landlord to satisfy the Controller that the premises are let for residential purpose, that possession is required by him bonafide for occupation as residence for himself or for any member of his family and that he has no other reasonably suitable residential accommodation. This burden, the landlord is required to discharge before the Controller gets jurisdiction to make an order for eviction. On a combined reading of s. 14(1)(e) and sub-ss. (1) and (4) of s. 25B, the legal position that emerges is that on a proper application being made in the prescribed manner which is required to be
supported by an affidavit, unless the tenant obtains leave to defend as contemplated by sub-ss. (4) and (S) of s. 25B, the tenant is deemed to have admitted all the averments made in the petition filed by the landlord and the Controller would act on the admission of the tenant presuming every averment in the petition of the landlord as unchallengeable and truthful. This consequence itself is sufficient to liberally approach the prayer for leave to contest the petition.
[514 E-H; 515 D-E; 513 E]
(d) The underlying thrust of all rent restriction legislation is to check profiteering by owners of property and to protect weaker sections. Their provisions are not to be so construed or interpreted as would make the protection conferred on the tenant illusory. [512 E-F: 510 E-F] Bahadur Singh & Anr. v. Muni Sabrat Das & Anr., p 2 S.C.R. 432, Kaushalya Devi & Ors. v. Shri R.L. Bansal,  2 S.C.R. 1048, Bega Begum & Ors. v. Abdul Ahad Rehman JUDGMENT:
 1 S.C.R. 854 referred to.
(e) A code of procedure is something designed to facilitate justice and further its ends. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard. Too technical construction that leaves no room for reasonable elasticity of interpretation should be guarded against lest the very means designed for the furtherance of justice be used to frustrate it. The procedure prescribed in Chap. IIIA is harsh and weighted against the tenant. The Controller is the final arbiter of facts. Once leave is refused no appeal is provided against the order refusing leave. No one should be in doubt about the narrow constricted jurisdiction of the High Court while interfering with findings of facts in exercise of revisional jurisdiction. Wisdom, sagacity and the consequence of refusal to grant leave coupled with limited scope of inquiry being confined to facts disclosed in the affidavit of the tenant should guide the approach of the Controller.
[527 B-C; 513 D; 527 F-G-H; 528 A]
Sangram Singh v. Election Tribunal, Kotah & Anr., [1955 Z S.C.R. I and Maneka Gandhi v. Union of India,  2 S.C.R. 621, referred to.
In the instant case, the Controller had overlooked disclosure of important facts which put the bona fides of the landlord in issue and necessitated grant of leave to the appellant: The leave and licence agreement had been renewed in 1972 and 1973 though the landlord had been in Delhi since 1972; the landlord had admitted that the identical unit at the back of the demised premises which had fallen vacant in 1973 had been let out to another tenant; no action had been taken till 1979 on the notice seeking eviction served in 1974; every time a fresh letting had been indulged into, it had been done after raising the rent; and the landlord who had sought possession for himself and was admittedly in Delhi had not stated a single word on oath about his requirements and as to in what right he was occupying the premises in which he was staying. [529 B-H; 530 A-E] The High Court had adopted an incorrect approach as to how the matter had to be examined at the stage of granting or refusing to grant leave under sub-
s. (S) of 8. 25B. It had failed to ascertain as to when the licence had been terminated and a contract of lease entered into and what were the terms of the lease as alleged by the landlord and whether the rules of the local authority permitted use of the premises for non-residential purposes. The High Court had dismissed the contention that the landlord had other suitable accommodation by an observation that the Controller had rightly come to the conclusion that the premises in which the landlord was residing belonged not to the landlord but to his brother. This approach was unjustified because the question was not whether the landlord was the owner of the premises occupied by him but the substantial question was in what right he was occupying it for a period extending over 7 years and how it had become imperative for him to vacate the same. [530 F-H; 531 A-H]
2. The contention that the non obstante clause in sub- s. (7) of s. 25B excludes the application of sub-s. (2) of s. 37 but not of sub-s.(l) of 8. 37 and therefore it was obligatory for the Controller to not only hear the landlord but examine evidence at the stage of granting or refusing to grant leave to contest cannot be accepted. Sub-s. (2) of s. 37 provides that subject to any rules that may be made under the Act, the Controller shall, while holding an inquiry in any proceedings before him, follow as far as may be, the practice and procedure of a Court of Small Causes. including the recording of evidence. The very fact that sub-s. (7) of s. 25B provides that while holding an inquiry in a proceeding to which Chap. IIIA applies, the Controller has to follow the practice and procedure of a Court of Small Causes including the recording of evidence indicates the legislative intention of treating Chap. IIIA and especially s. 25B as a self-contained code and this conclusion is buttressed by the provision in sub-s. (1) of s. 25B which provides that every application by landlord for recovery of possession of any premises on the ground specified in cl. (e) of the proviso to s. 14(1) shall be dealt with in accordance with the procedure specified in s. 25B. That is why sub-s. (7) of s. 25B opens with a non obstante clause. Any other section, including sub-s. (t) of s 37 prescribing procedure for disposal of an application covered by sub-s. (l) of s. 25B is therefore excluded. The exclusion of s. 37(1) also necessarily follows from the provision contained in sub-s. (10) of s. 25B which makes it clear that the procedure prescribed for holding. an inquiry consequent upon the granting of leave to contest shall be the same as required to be followed by the Controller for disposal of applications. Sub-s. (10) of s. 25B operates to bring ins 37(1) after leave to contest is granted. If sub-s. (1) of s. 37 were to govern all proceedings including the application for leave to contest the proceedings, both sub-s. (7) and sub-s. (10) of s. 25B would be rendered redundant. [525 C; 524 E-F; 526 A-B; 525 A-B; 525 E-F-H]
3. Neither the argument that the scope and ambit of sub-s. (S) of s. 25B of The Act in its comparison with O. XXXVII, r. 3 sub-r. (S) C.P.C. is no more res integra in view of the decision in Busching Schmitz (P) Ltd. v. P.T. Menghani & Anr. nor the interpretation of the observations therein to the effect that the scope for granting leave under sub-s. (S) of s. 25B is narrower than the one under o. XXXVII, r. 3 can be accepted. It is not clear from the decision whether the Court took note of the whole of the re- structured r. 3 or it was keeping in view the unamended r. 3 of o. XXXVII. The provisoes to o. XXXVII, r. 3 make it clear that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is 503
frivolous or vexatious. On the other hand, sub-s. (S) of s. 25B makes it obligatory upon the Controller, by use of mandatory language, to give leave if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for recovery of possession. Under o. XXXVII, r. 3, defence has to be substantial before leave can be obtained. Mere disclosure of facts is the sine qua non under sub s. (S) of s. 25B. Further, the Court can grant conditional leave or leave limited lo the issue under O. XXXVII, r. 3; no such power is conferred on the Controller under sub-s. (S) of s. 25B. Assuming that o. XXXVII, r. 3 (S) confers wider discretion on the Court that, by mere comparison, cannot cut down or narrow or limit the powercoupled with the duty conferred on the Controller under sub s. (S) of s. 25B.
[519 D-H; 520 A-G; 519 A-B; 521 F]
Busching Schmitz (PJ Ltd. v. P.T. Menghani & Anr.,  3 S.C.R. 312; B.N. Mutta & Ant. v. T.R. Nandi,  2 S.C.R. 409; Charan Dass Duggal v. Brahma Nand (C.A. No. 179/82 decided on 11-1-1982) and Om Prakash Saluja v. Smt. Saraswati Devi (C.A. No. 527/82 decided on 8-2-1982), referred to.
Sarwan Singh & Anr. v. Kasturilal,  2 S.C.R. 421, distinguished.
Mohanlal v Tirath Ram Chopra & Anr. 22 (1982)Delhi Law Times 1, disapproved.
(per Sen, 1., dissenting)
1. (a) There is a definite public purpose behind enactment of Chap. IIIA and sub-s. (S) of s. 25B must be construed in a sense which would carry out that purpose. S. 14A was enacted to ensure that all government servants to whom residential accommodation had been allotted by the Government vacated such accommodation if they had any house of their own in the Union Territory of Delhi and the section conferred upon them the right to recover immediate possession of their own houses. Further, experience in the past had shown that landlords who were in bonafide requirement of their accommodation for residential purpose under cl. (e) of the proviso to sub-s. (1) of s. 14 were being put to great hardship due to the dilatory procedure of the suit. The object behind enactment of Chap. IIIA was that these two classes of landlords should not be at the mercy of law's delays but there should be a quick and expeditious remedy available to them against their own tenants. The provisions in Chap. IIIA confer a real, effective and immediate right to obtain possession by confining the trial only to such cases where the tenant has such a defence as would disentitle the landlord from obtaining an order for eviction under s.l4(1)(e) or under s. 14A. Chap. IIIA seeks to strike a balance between the competing needs of a landlord and a tenant and has therefore provided that the tenant shall have a right to apply for leave to contest. The words "if the affidavit filed by the tenant discloses such facts" used in sub-s. (S) of s. 25B must therefore take their colour from the context in which they appear. [533 A-D-E-F-H; 534 A; 536 D; 535 C-D; 535 A-B] Sarwan Singh v. Kasturi Lal,  2 S.C.R. 421, referred to.
(b) The Controller obviously cannot come to a decision as to whether or not leave to contest should be granted under sub-s. (S) of s. 25B without
affording the parties an opportunity of hearing. The Controller must conform to the rules of natural justice. Once it is conceded that the landlord has a right to be heard, the Controller is bound to give him an opportunity to refute the facts alleged by the tenant in his affidavit filed under sub-s. (4) of s. 25B. The Controller must apply his mind not only to the averments made by the landlord in his application for eviction, but also to the facts alleged by the tenant in his affidavit for leave to contest as well as the facts disclosed by the landlord in his affidavit in rejoinder, besides the other material on record i.e., the documents filed by the parties in support of their respective claims, in order to come to a conclusion whether the requirements of sub-s. (I) of s. 25B are fulfilled. To ask Controller to confine himself only to the affidavit filed by the tenant is to ask him not to apply his mind in a judicial manner even if he feels that tho justice of the case so demands. The Controller must endeavour to resolve the competing claims of landlord and tenant to the grant or refusal of leave by finding a solution which is just and fair to both the parties. It is not that the proceedings initiated on an application by the landlord under s. 14(1) (e), or under s. 14A must undergo trial at two stages. Under sub-s. (S) of s. 25B, the Controller must prima facie be satisfied that the facts alleged by the tenant are such as would disentitle the landlord from obtaining an order for recovery of possession. The word 'disentitle' is a strong word, and the Controller must be satisfied that the tenant has such a defence as would defeat the claim of the landlord under s. 14 (1) (e) or under s. 14A. 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-s. (S) of s. 25B make the grant of leave obligatory. [536 G; 537 B-H; 538 A-B]
2. The scope of sub-s. (S) of s. 25B is restricted and the test of "triable issues" under O. XXXVII. r. 3 (5), C.P.C. is not applicable, as the language of the two provisions is different. The use of the word 'such' in sub- s. (5) of 6. 25B implies that the Controller has the power to limit the grant of leave to a particular ground. A tenant may take all kinds of pleas in defence. The whole object of sub-s. (5) of s. 25B was to prevent the taking of frivolous pleas by tenants to protract the trial. Where the tenant seeks leave to contest the application for eviction under s. 14(1) (e), or under s. 14A, he must file an affidavit under sub-s. (4) of s. 25B raising his defence which must be clear, specific and positive. The defence must also be bonafide and if true, must result in the dismissal of landlord s application. Defences of negative character which are intended to put the landlord to proof or are vague, or are raised mala fide only to gain time and protract the proceedings, are not of the kind which will entitle the tenant to the grant of leave. The Controller cannot set down the application for hearing without making an order in terms of sub-s. (5) of s. 25B. The trial must be confined only to such grounds as would disentitle the landlord to any relief. [538 C-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 209 of 1981.
Appeal by special leave from the judgment and order dated the 8th December, 1980 of the Delhi High Court in Civil Revision No. 317 of 1980.
Dr. Y.S. Chitale, K.K. Manchanda and C.N. Murty for the Appellant.
D. V. Patel, U.R. Lalit, Pramod Dayal, Rajesh Mitra and S.K. Gupta for the Respondent.
The following Judgments were delivered
DESAI, J. A provision conferring power enacted to mollify slogans chanting public opinion of speedy justice, if not wisely interpreted may not only prove counter- productive but disastrous. And that is the only raison d'etre for this judgment because in the course of hearing at the stage of granting special leave Mr. D.V. Patel, learned counsel for the respondent straightway conceded that this is such a case in which leave to defend could never have been refused. Unfortunately, however, not a day passes without the routine refusal of leave, tackled as a run of mill case by the High Court in revision with one word judgment 'rejected', has much to our discomfiture impelled us write to this short judgment.
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 s. 14 (e)'] read with section 25B 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 dependent on him and that the landlord has no other reasonably suitable accommodation. To this petition he impleaded M/s. Precision Steel & Engineering Works (tenant), a firm and Shri B.K. Beriwala constituted attorney of the firm. Landlord alleged in his petition that 506
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 deaf 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 suitable accommodation, and accordingly he bonafide requires possession 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 On the petition being lodged the Controller directed summons ' to be served in the prescribed form. On service of the summons the tenant being a firm M/s. Precision Steel & Engineering Works, and its constituted attorney Shri B.K. Beriwala appeared and filed an affidavit seeking leave to contest eviction petition. In the affidavit tenant contended that respondent 1, i.e. M/s Precision Steel Engineering Works is the tenant and respondent 2 does not claim any interest in the premises in question in his personal capacity and ought not to have been impleaded as a respondent. While denying that there is any undivided family styled as Prem Deva Niranjan Deva Tayal it was contended that the petitioner is not entitled to file a petition under section 14 (1)(e) because the purpose of letting was not residential alone but combined purpose of residence-cum business. It was denied that the tenant entered the premises as a licensee and subsequently the contract of lease was entered into and it was submitted that the tenant entered the premises as tenant effective from September 13, 1971, and the lease was for residential-cum-commercial purpose. A specific agreement was pleaded that the tenant which is a partnership was entitled to use the premises for the residence of the director and/or partner as also for the office purpose. Reliance was placed on clause 6 of the License agreement, which was really and substantially according to the tenant a contract of lease. It was also alleged that since the inception of the tenancy the premises have been used both for residence and business purposes to the knowledge of landlord and local authorities and no objection has been raised in this behalf.