IMPORTANT POINT
Tenant cannot dictate the landlord as to how he should utilise his properties.

JUDGMENT :

RANJAN GOGOI, J. –

1. Leave granted.

2. The appellants, who are the landlords, seek to challenge the order dated 20.09.2012 passed by the High Court of Delhi granting leave to the respondent-tenant to contest the proceedings for his eviction under Section 14(1)(e) of the Delhi Rent Control Act, 1958. The order of the High Court is in reversal of the order dated 02.09.2011 passed by the Additional Rent Controller who had refused to grant leave to defend to the tenant.

3. The matter lies within a short compass notwithstanding the elaborate application filed by the respondent-tenant seeking leave duly supported by an affidavit and the detailed manner in which the appellant-landlords had contested the claim of the tenant. Briefly stated, leave was sought by the tenant on the ground that the landlords own several other properties in the vicinity of the tenanted premises from where they are carrying on business or have rented out the same. As such, the tenanted premises i.e. No.38-UB, Jawahar Nagar, Kamla Nagar, Delhi is not bonafide required for the use of the landlords. In response, the landlords contend that the first appellant, Anil Bajaj is running a kiryana shop in premises No. 25-UB, Jawahar Nagar, which is located in a lane 15 feet in width.

According to the appellants on account of the location of the tenanted premises, the appellant No.1 is unable to generate sufficient business causing acute hardship to his large family. Therefore, the appellants need the tenanted premises which is situated on the main road. According to the appellants they had offered the premises in possession of the Appellant No.1 i.e. No.25-UB Jawahar Nagar to the tenant in exchange for the tenanted premises i.e. 38-UB, Jawahar Nagar which offer has been declined by the tenant.

The appellants have further averred that while most of the other properties alleged to be in their ownership are not presently owned by the appellants, some other items of property mentioned by the tenant in the application seeking leave to defend are owned and utilized by other family members of the appellants and the first appellant has no connection with such properties or business carried on by the other members of the family.

4. On the aforesaid broad pleadings of the parties, the learned Additional Rent Controller thought it fit to come to the conclusion that the contentions made by the tenant are mere assertions without any basis and that no triable issue is disclosed warranting grant of leave to defend. In reversal, the High Court held that the precise relationship between the two appellants and the holding/interest of the first appellant in other items of property standing in the name of other family members require a probe for which leave ought to be granted. Hence the impugned order and the present appeal arising therefrom.

5. The principles governing grant or refusal of leave to defend under the Delhi Rent Control Act, 1958 had been squarely dealt with in Charan Dass Duggal vs. Brahma Nand[1]. The issue has been aptly summarized in the following observations of the Court. "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 (see Santosh Kumar v. Bhai Mool Singh[2]). 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 persona