S.B Wed, J:— This is a tenant's revision application against the order of the Rent Controller refusing him leave to contest the landlord's application for eviction u/s 25-B of the Delhi Rent Control Act.
2. S. 25-B is in Chapter III-A which prescribes summary trial where the eviction is sought by the landlord u/s 14(1)(e) or u/s 14-A. Chapter III-A has an over-riding effect on the other provisions of the Act by virtue of S. 25-A Under the Transfer of Property Act a lessor has a right to evict the lessee for any breach of the Agreement of lease. This common law right of the landlord recognised by the Transfer of Property Act, was fettered by the Rent Control Acts passed after the Second World War. Delhi Rent Control Act and its predecessor Acts follow this direction. These enactments imposed restrictions or control in matters of rent to be charged from the tenants and their evictions. We are immediately concerned with the question of eviction in this petition. The new protection given to a tenant in regard to eviction is recognised in Section 14(1) of the Act. This sub-section supersedes the pro-visions of the Transfer of Property Act and the lease agreements between landlords and tenants. Under the Transfer of Property Act, the landlord had relatively absolute right of eviction. The eviction proceedings were regulated by procedure in the C.P.C Tenant had a full right to refute the landlord's claim by cross-examining the landlord and his witnesses and leading his own evidence.
The cases under Transfer of Property Act were tried ordinarily by the civil courts. The Rent Control Act took away the jurisdiction of the civil courts by virtue of S. 50 of the Act. S. 37 prescribes the procedure before the Rent Controller. The procedure is to be the same as is followed by the Small Causes Court under the Small Causes Court Act.
But even that Section provides for the reasonable opprotunity of showing cause as well as the right to lead evidence. The title of Chapter III-A shows that even the summary procedure of the Small Causes Court was found dilatory by the Legislature. It was felt by the Legislature that a more stringent summary trial of the eviction petitions u/s 14(1) (e) and u/s 14A was necessary. The normal right of being heard was made conditional on the tenant obtaining leave from the Rent Controller. The tenant is also not entitled to lead evidence at that stage. He must satisfy the Rent Controller by disclosing facts in the form of an affidavit which would disentitle the landlord from obtaining an order for recovery of possession.
3. The concept of rule of law has two aspects—substantive and procedural. This is expressed in the form of substantive due process and procedural due process in other systems of law. Proper procedure (ensuring fair trial) is a vital component of justice. Common law system recognises importance of procedural legal remedies more than any other system. Right to constitutional remedies in Article 32 is thus itself a fundamental right.
4. Considering the implications of Chapter III-A, two strange results come to mind. Although the main object of the Rent Act is to give protection from eviction, the tenant has only a precarious remedy to enforce this right. His affidavit for leave should be so complete and pursuasive that a mere reading of it has to satisfy the Rent Controller that the landlord is disentitled to get the possession from the tenant. He must disprove the claim of the landlord by his statement. He cannot establish the truth by cross-examining the landlord or his witnesses or by leading evidence. It is almost impossible for any tenant to conjure up a defence to the hilt or even for his lawyer to do so. The position always comes down to this that eviction is a rule and non-eviction is an exception. The Rent Act starts with non-eviction as a rule and eviction as an exception.
5. The provisions of Chapter III-A confer more advantageous procedural benefit on a landlord. He was not entitled to them even in common law. His averments regarding his reasons for eviction are taken as true unless the tenant succeeds in the Herculean task of displacing them by his affidavit alone. He thus enjoys a position of strength which he could not have claimed had there been no Rent Control Act.
6. The provisions of Chapter III-A cannot, therefore, be read in such a way that the substantive protection against eviction and the principal objects of the Rent Act are totally paralysed Provisions of Chapter III-A will have to be strictly construed as its constitutional validity is already negatived by the Supreme Court.
7. The minimum requirement for a landlord to justify his procedural privilege is to establish strictly that he has made the application bon afide and that his need is bona fide. It is also incumbent that he must disclose all the relevant facts truthfully and without reservations. There is a certain amount of uberemi fide in all summary proceedings.
8. Coming to the facts of the case, I find that the landlord has not disclosed the entire accommodation in his possession. He has 3 bed rooms with him. But he states that he has only 2 bed-rooms and one is a guest room. He also does not disclose that he is in possession of the mazzanine floor. He does not disclose that he is in possession of two big rooms in the rear. He also does not state the dimensions of the accommodation in his possession. The prescribed form requires that the landlord should annex the plan of the building. A plan must be a true and an authentic plan. This can be ensured by producing the original plan sanctioned by the Corporation or by the D.D.A The plan on the record produced by the landlord is a private plan. It does not even qualify to be called a plan for a very simple reason. The entire built-up portion is not indicated in the plan. The dimensions of the rooms are not given. It does not disclose whether the plan is prepared by a certified Architect or not. The tenant has also produced a plan wherein a lot of additional accommodation is shown in the possession of the landlord. Now the requirements for the landlord to establish his bona fide is that the present accommodation is insufficient for his new requirements. On the facts of the present case, the size of the accommodation in possession of the landlord must be ascertained with certainty so as to know whether the family of his son can be accommodated or not. In these circumstances, I do not think that the question regarding accommodation in the possession of the landlord can be decided with any certainty unless both sides are permitted to lead proper evidence. I do not agree with the counsel for the landlord in his submission that the tenant has admitted that the accommodation in possession of the landlord is only one room less than the accommodation in his possession. Tnat averment in the affidavit was made by the tenant in the context of describing the accommodation at different floors of the house.
9. This court has held that a necessity of the grown-up sons and daughters (even married) staying with parents is in fact the necessity of the parents-landlords. But is the averment of the landlord that a son or a daughter who has never lived with him after the marriage is going to stay with him to be taken as a gospel truth? Is not the tenant entitled to prove the history of the family through cross-examination or by any other evidence whereby such assertion of the landlord would be disproved ? This would also require evidence to be taken.
10. The tenant had challenged the landlord's claim that he is the owner of the property. It is difficult without further evidence on record to come to a clear finding in this regard. Acceptance of rent may make him a landlord but not an owner. The Rent Controller has erred in his finding. The learned counsel for the landlord submits that both the landlord and his son are very affluent people and that their status and life style justifies the possession of the additional accommodation which is let out to the tenant. It is stated that the landlord is the best judge of his requirement. If the affluent status of the landlord and his life style is to be stretched to this point that would be a good justification even for increasing the rent, according to his whim. Although the question of relative hardship to a tenant cannot be considered as there is no such provision in the Act the law for controlling rents and evictions of tenants cannot be converted into the hand-maid of the affluent landlords and speculators in real estates.
11. I am satisfied that the tenant has raised serious pleas in his affidavit. They can be proved only by means of evidence. They are prima facie likely to disentitle the landlord to get possession. The impugned order dated 16-8-1980 is therefore set aside.
Petition allowed.