( 1 ) SPECIAL leave granted.

( 2 ) RESPONDENT Shri Brahma Nand moved a petition for eviction of the appellant-tenant on the ground that he requires the premises reasonably for his own personal use. In the petition he also averred that he has three sons, Virender Kumar, Rakesh Kumar and Narender Kumar and an unmarried grown up daughter. It was admitted that Rakesh Kumar is a student studying in Guru Nanak Engineering College at Ludhiana: that Virender Kumar is married and both the husband and wife are employed at Bhos but they casually visit respondent landlord. In respect of Narender Kumar it was stated that he is serving as a teacher somewhere in Puniab. He refers to two other daughters Smt. Santosh Vyas and Smt. Tripta who are at present staying in Dhar and Namrup in Assam respectively but they also casually visit twice or thrice a year the respondent-landlord. The appellant-tenant moved an application seeking leave to defend the ejectment petition. He inter alia. contended that the respondent landlord has a big house named parkash Bhawan, Gurdaspur Road, Pathankot. and is residing at that place and is not residing in Delhi. A serious contention was raised that the landlord was not in need of the premises at Delhi. A further averment was that the rent hasbeen increased from time to time and this discloses that the present attempt is merely to bring pressure to increase rent.

( 3 ) THE learned Rent Controller rejected the application for leave to defend the action. Appellant-tenant carried the matter to High court in Civil Revision No. 467 of 1980 without success.

( 4 ) WHEN landlord seeks possession for personal requirement he has to prove his present need. If he has any premises in his possession he must allege and prove why that is not sufficient for his present use, or why he has to shift to the premises of which he seeks possession. If the tenant avers that the landlord is not in need of the premises and that he is not staying in the city in which the premises involved in dispute is situated and that the landlord has a big building in his possession at a different place where he is shown to be staying obviously a very serious triable issue would arise. To return to the facts of this case it is not in dispute that there is a house named parkash Bhawan situated at Pathankot but in this behalf the case of the landlord is that the same belongs to his sons and daughters and he would stay in that house whenever he visits Pathankot and his normal correspondence address is at Pathankot. A sale deed was shown to the learned Judge of the High court relating to Pathankot house which appears to be in the name of the sons and daughters of the respondent-landlord. The High court concluded that there was no reason to doubt the plea of the landlord that he wants to live at Delhi.

( 5 ) WHAT should be the approach when leave to defend is sought There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action. At the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counter-assertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision. the burden is on the landlord to establish his case affirmatively. If as it appears in this case, the landlord is staying at Patha