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Shri Devi Singh Petitioner v. Shri Chaman Lal Itorora, Advocate

Delhi High Court

Jul 12, 1977

Judgment

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Judgment Summary — Rajindar Sachar, J.

Factual and Procedural Background

This is a petition under the proviso to sub-section (8) of section 25B of the Delhi Rent Control Act (the Act). The petitioner a landlord, initiated proceedings under Section 25B seeking recovery of premises on the ground of bona fide personal need (clause (e) of the proviso to sub-section (1) of section 14). Chapter 3A (inserted by Parliament Act 18 of 1976) provides for a summary trial procedure in such matters.

Under Section 25B(4) the tenant is barred from contesting eviction unless he files an affidavit stating grounds to contest and obtains leave from the Controller; if he does not appear the landlord's statements are deemed admitted and eviction follows. Section 25B(5) prescribes when leave to contest should be granted.

In the present case, following service of summons, the respondent tenant filed an affidavit raising several objections: (i) alleged defective notice under section 106 of the Transfer of Property Act (service on 6-11-1975 while being asked to quit on 30-11-1975); (ii) the contention that the premises were not purely residential and therefore the eviction ground might not arise; and (iii) that the landlord's son lived in the lower portion and was constructing, and that any rearrangement of accommodation involving the son and the tenant's first-floor portion would not constitute bona fide need. On consideration of these matters the Controller granted leave to the tenant to contest the eviction application.

The landlord challenged the Controller's grant of leave by approaching this Court in revision under the proviso to section 25B(8).

Legal Issues Presented

Whether the proviso to sub-section (8) of section 25B of the Act — which allows the High Court to call for the record and pass such order as it thinks fit — permits the High Court to exercise revision jurisdiction against an interim order of the Controller granting leave to a tenant under section 25B(5).
Whether, on the merits and within the limited scope of revision available under the proviso, the Controller committed any illegality or perversity in granting leave to the tenant such as to justify interference by this Court.

Arguments of the Parties

Counsel urging maintainability of the petition

It was argued (by counsel for the respondent/landlord as recorded) that the proviso to sub-section (8) of section 25B permits the High Court to call for the record of any order made by the Controller under that section, and therefore the High Court may revise an order under section 25B(5) granting leave to the tenant.

Arguments advanced by the tenant in the Controller's proceedings

Objection that notice required by section 106 of the Transfer of Property Act was not properly served (service dated 6-11-1975 while date to quit was 30-11-1975).
Submission that the premises were not let purely for residential purposes and hence the eviction ground did not arise.
Assertion that the landlord's son already lived in the lower portion and that any rearrangement (landlord moving to lower portion and providing the son accommodation in the tenant's first-floor portion) would not amount to bona fide need.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court analysed the statutory scheme of Chapter 3A and section 25B in detail. The key steps in its reasoning were:

Chapter 3A creates a summary procedure: section 25B(4) bars a tenant from contesting unless he obtains leave from the Controller; failure to obtain leave results in the landlord's averments being deemed admitted and an entitlement to eviction.
Prior to Chapter 3A the Act provided rights of first and second appeal; Parliament removed those rights to secure expeditious disposal and replaced them with a limited right of revision vested in the High Court by the proviso to section 25B(8).
The Court interpreted the proviso as a limited exception (proviso) to the general rule in sub-section (8) that no appeal lies; accordingly the proviso must be read as permitting revision only against final orders disposing of the application for eviction (i.e., orders allowing or dismissing the eviction application after full hearing under sub-section (7)).
It would be anomalous and contrary to the object of summary disposal if the proviso were construed to permit revision against every interim or interlocutory order (such as the grant of leave under sub-section (5)), because that would reinstate extensive review and delay.
The Court concluded that revision under the proviso could apply when refusal of leave operates to conclude the proceedings (because eviction follows under sub-section (4)), or against the final order after a full hearing; but it does not extend to interim orders granting leave which do not finally dispose of the matter.
Separately, even assuming revision could be invoked against the leave order, the Court found no illegality or perversity in the Controller's decision: the Controller had to consider contested issues (notice, bona fide need, nature of letting) and, having done so, permissibly granted leave. There was therefore no ground for interference in the limited scope of revision available.

Holding and Implications

HOLDING: The revision petition is dismissed as incompetent and not maintainable; the Court found no ground to interfere in any event and dismissed the petition with no order as to costs.

Implications: The direct effect is that the Controller's order granting leave to the tenant remains intact and the summary proceedings under Chapter 3A continue before the Controller. The opinion emphasises that the proviso to section 25B(8) provides only a limited revision jurisdiction against final dispositional orders and does not broadly entitle the High Court to revise interim interlocutory orders granting leave; the judgment does not purport to lay down a broader new principle beyond this statutory interpretation.

Show all summary ...

Rajindar Sachar, J. (Oral):— This is a petition under proviso to sub-section (8) of section 25B of the Delhi Rent Control Act (hereinafter to be called the Act).

2. The petitioner landlord brought an application under Section 25B of the Act against the tenant. It is pleaded that the petitioner landlord requires the premises bona fide for personal need. Chapter 3A has been added to the Act by Parliament Act 18 of 1976 for the summary trial of certain applications. Section 25B (1) provides from applications by a landlord for the recovery of the premises on the ground of bona fide need as specified in clause (e) of proviso to sub-section (1) of section 14. Sub-section (4) provides that when the tenant appears in pursuance of summons, he shall not contest the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller, and in default of his appearance the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid. Sub-section (5) provides 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 an order for the recovery of possession of the premises on the ground specified in clause (e) of the proviso to sub-section (1) of section 14 or under section 14A of the Act.

3. In pursuance of the summons served on the respondent tenant an application was filed in which the various picas were taken in the affidavit by him. Objection was taken that notice has not been served as required by section 106 of the Transfer of Property Act inasmuch as service was affected on 6-11-1975 while the respondent was asked to quit on 30-11-1975. Objection was also taken on the ground that the premises in dispute are not residential and the letting was not purely for residential purposes. Affidavit filed by the tenant mentioned that the son of the petitioner was also living in the lower portion of the house and was constructing his own building and if the landlord was moving to the lower portion and providing accommodation for his son in the portion in the first floor occupied by the tenant the same was not bona fide need. On a consideration of various facts, leave to contest the eviction application has been granted. Aggrieved against that the petitioner landlord has come up to this court.

4. Objection has been taken to the maintainability of the petition by the respondent/landlord. Counsel for the respondent/landlord sought to urge that the proviso to sub-section (8) of section 25b permits the High Court to call for the record of the case to satisfy itself that an order made by the Controller under this section is according to law and pass such order in respect thereto as it thinks fit and as the Controller has passed an order under sub-section 25B granting leave to the tenant, the said proviso is applicable. In my view the contention is unsound.

5. The broad scheme of Chapter 3A of the Act is that on an application being moved, sub-section (4) of section 25b bars the tenant from contesting the application for eviction unless he obtains leave from the Controller and in default of obtaining such leave the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to order for eviction from the said premises. Thus when the leave is refused, an order of eviction follows under sub-section (4) of section 25b. Thus the proceedings initiated by the landlord against the tenant stand concluded and the right to move this court is provided in section 25b. sub-section (5) provides the circumstances in which leave can be granted to the tenant and sub-section (6) provides that where leave is granted to the tenant, to contest the application, the hearing shall commence as early as practicable and sub-section (7) provides that the Controller while holding an enquiry in a proceedings to which this chapter applies follow the practice and procedure of a court of small causes, including the recording of evidence. sub-section (8) of section 25b provides that no appeal or second appeal shall lie against an order for recovery of possession of any premises made by the Controller in accordance with the procedure specified in that section. But when a final order is passed under sub-section (7) of section 25b after having granted leave the order whether allowing the application for eviction of dismissing the application would be an order contemplated by proviso to sub-section (8) of section 25b subject, of course, to its limitations. It will be seen that prior to the incorporation of Chapter 3A in the Act first appeal and second appeal was provided. The said right has now been taken away and only the power of revision of the High Court under the provision of proviso to sub-section (8) has been given.

Mr. Ahuja urges that as the proviso to sub-section (8) of section 25b provides that no appeal or second appeal shall lie against an order has been made by the Controller, it will necessarily cover an order under sub-section (5) granting leave as it is an order passed by the Controller under this section (namely section 25B). I am unable to accept this contention which would run counter to the objective which was sought to be achieved by summary trial provided by Chapter 3A.

6. Legislature is so keen on expeditious disposal that it has taken away the rights of appeal under this chapter. It has only given a limited right of revision under proviso to section 25B (8). No doubt the wording permits the High Court to call for the record of an order passed by the Controller. But the very setting of proviso suggests that revision would lie only against order allowing or dismissing an application for eviction because it is well settled that proviso is an exception to main part i.e sub-section (8) which talks of final disposal of application for eviction.

It would be anamolous to hold that the revision should be against all orders. That would defeat the very object of expeditious disposal. Power of revision would cover only cases under sub-section (4) not really against the order refusing leave, but because as a consequence of refusal to give leave, the application for eviction is allowed. But it only permits the proceedings to continue, ultimately resulting in sub-section (7) in either allowing or dismissing the application for eviction. In either case the matter is finally disposed of by the trial court.

I cannot agree that proviso to sub-section (8) of section 25b can compass interim orders (like the granting of leave) which do not conclude the proceedings. As such the petition has to be dismissed as incompetent and being not maintainable.

7. That apart even on the assumption that it is possible to invoke the proviso to sub-section (8) of section 25b. I do not see how and in what manner the illegality has been committed by the trial court as to call for the interference in the limited scope. The trial court has to decide the controversy regarding the issue of notice, bona fide need of the landlord and also letting purpose whether residential or not. If on appreciation of various points raised the trial court has thought it proper to grant leave, it cannot be said it has in any manner acted not according to law or perversely. As such there is no scope for interference with the order of the court below.

8. The result is that I see no merit and dismiss the revision petition, but with no order as to costs.

Petition dismissed.