2000 Supreme(SC) 2055

2000(8) Supreme 350
SUPREME COURT OF INDIA
(From Delhi High Court)
D.P. Mohapatra & Shivaraj V. Patil, JJ.
Inderjeet Kaur -Appellant
versus
Nirpal Singh -Respondent
Civil Appeal No. 7385 of 2000
(Arising out of SLP (C) No. 554 of 2000)
Decided on 15-12-2000
Counsel for the Parties :
For the Appearing Parties : Sudhir Kumar Gupta, R.K. Gupta, Rajwinder Singh, S. Chakraborty, Mrs. Rani Chhabra, Advocates.

IMPORTANT POINT
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).

Headnote:(i) Delhi Rent Control Act, 1958 -Section 25B(5)-Leave to defend-Scope of proceeding-Guidelines to grant or refuse leave to defend-It is enough if tenant prima facie makes out a case by disclosing such facts as would disentitle landlord from obtaining an order of eviction-When a triable issue is raised duty is cast on Rent Controller to grant leave-Consequence of refusal to grant leave-Court s duty while adjudicating issue as to whether leave to be granted or not.

       It appears recourse to summary trial is adopted having due regard to nature of the grounds on which the eviction is sought with a view to avoid delay so that the landlord should not be deprived or denied of his right to immediate possession of premises for his bona fide use. At the same time, it is well settled and accepted position in law that no one shall be subjected to suffer a civil consequence like eviction from a premises resulting in hardship to him without providing adequate and effective opportunity to disprove the case against him and establish his case as pleaded. (Paras 9 and 10)

       As is evident from Section 25B(4) & (5) of the Act, burden placed on a tenant is light and limited in that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the premises on the ground specified in clause (e) of the proviso to Section 14(1) of the Act, with which we are concerned in the case, are good enough to grant leave to defend. A landlord, who bona fidely requires a premises for his residence and occupation should not suffer for long waiting for eviction of a tenant. At the same time, a tenant cannot be thrown out from a premises summarily even though prima facie he is able to say that the claim of the landlord is not bonafide or untenable and as such not entitled to obtain an order of eviction. Hence the approach has to be cautious and judicious in granting or refusing leave to defend to a tenant to contest an eviction petition within the broad scheme of Chapter IIIA and in particular having regard to the clear terms and language of Section 25B(5). (Paras 11 and 12)

       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. 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 noticed 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. Thus a combined effect of Section 25B(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. (Para 13)

       (ii) Delhi Rent Control Act, 1958 -Section 25B(5) r/w Section 14(1)(e)-Eviction on ground of bona fide requirement-Leave to defend-Refusal-Legality of-Tenant disputing that premises was not let out for residential purpose alone but was for residential and commercial purposes-Tenant s further case that landlord citizen of U.K. and settled in U.K. and requirement was not bona fide-Rent Controller considering merits of respective contentions writing order as if he was writing an order after full-dressed trial and refusing leave-Unjustified-Rent Controller exceeded jurisdiction -Triable issue raised by tenant-Leave ought to have been granted-Orders of Rent Controller and High Court set aside-Leave to defend granted to tenant. (Paras 16 and 17)