Judgment Summary — Yogeshwar Dayal, J.
Factual and Procedural Background
This is a revision petition under the proviso to sub-section (8) of Section 25B of the Delhi Rent Control Act, brought by Shri S.S. Makhijani (the petitioner/tenant) against the order dated 8 July 1976 of the Rent Controller, Shri R.K. Sain, which dismissed the tenant's application for leave to defend an eviction petition filed by Shri V.K. Jotwani (the respondent/landlord) under Section 14A(1) of the Act.
The landlord's eviction petition (filed on or about 14-1-1976) alleged that he was the owner of tenement No. 185-A, Block No. 30, New Double Storey Quarters, Lajpat Nagar, New Delhi and that he was in occupation of government residential accommodation which he had been required to vacate under a general notification dated 9-9-1975 and a letter dated 24-11-1975; he claimed a right to recover immediate possession of the privately owned premises let out to the tenant pursuant to Section 14A(1).
The tenant applied for leave to contest under Section 25B(4) & (5) (application dated 5-2-1976), alleging among other things that the landlord owned multiple houses (Nos. 185, 185A, 186 and 186A) and that some of these premises were either available or likely to become available (including eviction orders in related suits against other tenants). While the leave application was pending, the tenant made further applications and affidavits asserting that decrees or orders in related matters had been obtained in favour of the landlord in respect of other tenements (references were made to V.K. Jotwani v. Subarya and V.K. Jotwani v. Chhibbal and to Suit No. 39 of 1976 and Suit No. 40 of 1976).
The landlord replied that the petition against Subarya was withdrawn on 9-3-1976. The landlord also produced lease deeds, certificates of sale and a will purporting to establish title to the tenements in question. The Rent Controller dismissed the tenant's application for leave to defend on 8-7-1976. The tenant sought revision of that order under the proviso to Section 25B(8).
Legal Issues Presented
- Whether, having already obtained an order for recovery of possession under Section 14A(1) in respect of one tenement (No. 186), the landlord is nonetheless entitled to obtain a separate order for recovery of possession of another tenement (No. 185A) occupied by the petitioner, given the proviso to Section 14A(1) which restricts recovery to not more than one dwelling house.
- Whether the Rent Controller erred in dismissing the tenant's application for leave to defend under Section 25B, in particular by failing to consider the proviso to Section 14A(1) and by not permitting disputed questions of fact (as to whether two tenements constitute one dwelling house) to be tried.
Arguments of the Parties
Petitioner (Tenant) — Shri S.S. Makhijani
- Asserted that the landlord owned multiple houses (Nos. 185, 185A, 186 and 186A) and that other tenements providing similar accommodation had become or would become available to the landlord as a result of eviction decrees obtained by the landlord in related proceedings (references to orders in V.K. Jotwani v. Subarya and V.K. Jotwani v. Chhibbal were made).
- Contended that since the landlord had already obtained an eviction order under Section 14A(1) in respect of tenement No. 186, the landlord could not recover possession of another separate dwelling house (No. 185A) because the proviso to Section 14A(1) restricts recovery to not more than one dwelling house.
- Submitted that, in the alternative, leave to defend should be granted because disputed questions of fact (whether the tenements constitute one dwelling house) could defeat the landlord's petition.
Respondent (Landlord) — Shri V.K. Jotwani
- Admitted filing a petition for eviction against Shri K.S. Subaraya in respect of tenement No. 186A but stated that that petition had been withdrawn on 9-3-1976 (denying the tenant's assertion that it was decreed).
- Filed documents to establish title and ownership: original lease-deed dated 21-3-1959, certificate of sale by the Settlement Commissioner for tenement Nos. 185-185A, a certified copy of lease and certificate in respect of Nos. 186-186A showing prior transfer, and a will dated 3-12-1964 purporting to be of Shrimati Sugi Bai bequeathing Nos. 186 and 186A to the landlord.
- The Rent Controller's order (relating matters placed on record by the landlord) indicates the landlord's position that he is an allottee of government accommodation called upon to vacate it, that he owns the disputed premises and that Section 14A does not require inquiry into the landlord's bona fides; the landlord relied on those points in support of immediate recovery under Section 14A(1).
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Smt. V.L. Kashyap v. R.P. Duri (Civil Revision No. 369 of 1976), judgment of B.C. Misra, J., 22 September 1976 |
Interpretation of the expression "dwelling house" (not synonymous with "premises"); test to determine whether two parts of a building constitute one or more dwelling houses. The test includes cumulative consideration of: (a) situation; (b) entrance; (c) municipal numbers; (d) nature of construction; (e) inter-communications; (f) completeness and independence of each unit; and (g) other relevant circumstances.
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The court expressed respectful agreement with this approach and applied the principle that whether two tenements constitute one dwelling house is a question of fact requiring examination of relevant factors. The court found no material on record to determine how the tenements were constructed and held that the Rent Controller had overlooked the proviso to Section 14A(1); thus leave to defend should have been granted so that the factual question could be examined.
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Court's Reasoning and Analysis
The court proceeded by reference to the text, purpose and proviso of Section 14A(1) (as inserted by the Delhi Rent Control (Amendment) Act, 1976) and to the special procedure in Section 25B. The court noted that Section 14A(1) confers, on and from the date of the government order calling an allottee to vacate, a right to recover immediate possession of premises let out by such landlord; however, the proviso limits that right by providing that a landlord owning two or more dwelling houses shall not have a right to recover possession of more than one dwelling house and may indicate which dwelling house he intends to recover.
The court emphasized the legislative purpose: emergency legislation to ensure government accommodation is vacated by those who own private accommodation and to provide a special and expeditious remedy to landlords who are allottees required to vacate government accommodation. Simultaneously, the proviso was identified as a safeguard preventing landlords from evicting tenants from more than one dwelling house.
The court analyzed the language of the Act, noting varied terminology used in different provisions ("premises", "residential accommodation", "dwelling house") and observed that "premises" is defined in the Act while "dwelling house" is not. The opinion accepted the reasoning in Smt. V.L. Kashyap v. R.P. Duri which provides a practical, multi-factor test for determining whether parts of a building constitute one or more dwelling houses (factors such as situation, entrance, municipal numbers, nature of construction, inter-communications, and completeness/independence of each unit).
Applying these principles to the facts, the court observed that the landlord had purchased tenements 185-185A as one unit and tenements 186-186A as a separate unit (purchased separately and originally transferred as separate tenements), and that the landlord had already obtained an order for recovery of possession in respect of tenement No. 186. The crucial question was whether tenement No. 185A (occupied by the petitioner) formed part of the same dwelling house as tenement No. 186 such that the landlord could validly seek recovery of both.
The court found that there was no material on the record to determine how the two tenement-pairs were constructed or whether they constituted one dwelling house under the multi-factor test. The Rent Controller had held that matters such as availability of alternative accommodation were no defense to Section 14A(1), but had failed to apply or consider the proviso which restricts recovery to one dwelling house. The court concluded that because the Rent Controller ignored the proviso and because the factual question (whether the tenements constitute the same dwelling house) could defeat the landlord's petition, the tenant's application for leave to defend should have been granted so that those disputed facts could be tried.
Holding and Implications
Holding:
The revision petition is accepted to the extent that the Rent Controller's order dated 8 July 1976 dismissing the tenant's application for leave to defend is set aside, and the petitioner (tenant) is granted leave to defend and contest the eviction petition filed against him.
Direct consequences and directions:
- Parties were directed to appear before the learned Rent Controller on 22-2-1977.
- The Rent Controller was directed to proceed in accordance with law in the light of the observations in this judgment (i.e., to permit resolution of the disputed factual question whether the tenements constitute one dwelling house under the proviso to Section 14A(1)).
- Parties were ordered to bear their own costs.
Implications: The immediate effect is to permit the tenant to defend the eviction petition so that factual issues bearing on the proviso to Section 14A(1) can be adjudicated. The court reiterated and applied an existing multi-factor test (from Smt. V.L. Kashyap v. R.P. Duri) for determining what constitutes a single "dwelling house" under the proviso; the opinion does not announce that it sets a new precedent beyond applying the cited authority and directing a factual inquiry.
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