Holding

The Controller must grant leave to contest when the tenant's affidavit discloses facts that would, if proved, disentitle the landlord, and his jurisdiction at this stage is limited to the affidavit, not a full evidentiary trial.

Summary

The landlord, a Hindu Undivided Family, sought eviction of the tenant, Precision Steel & Engineering Works, under clause (e) of the proviso to Section 14(1) of the Delhi Rent Control Act, claiming bona‑fide personal need for the premises. The tenant filed an affidavit seeking leave to contest, denying the landlord's claim and asserting that the premises were let for both residential and commercial purposes and that the landlord had suitable accommodation elsewhere. The Controller refused leave, treating the affidavits as unchallenged evidence and ordered eviction; the High Court affirmed. On appeal, the Supreme Court held that under Section 25B(5) the Controller has a mandatory duty to grant leave if the tenant's affidavit discloses facts that, if proved, would disentitle the landlord, and that the Controller must consider only the disclosed facts, not conduct a full trial at this stage. The Court emphasized the purpose of the Act to protect tenants and to ensure procedural fairness, rejecting the Controller’s expansive approach. The appeal was allowed, the orders of the Controller and High Court were set aside, leave to contest was granted, and the matter remitted to the Controller for proper disposal.

Issues considered

The scope of the Controller's jurisdiction under sub‑section (5) of Section 25B when evaluating a tenant's affidavit for leave to contest an eviction petition.
Whether the Controller must grant leave to contest if the affidavit discloses facts that would, on proof, disentitle the landlord.
Whether the Controller may consider the landlord's counter‑affidavit and other documents at the leave‑to‑contest stage.
The relationship between Section 25B(5) and the procedural provisions of Order XXXVII of the CPC and Section 37 of the Act.

Legislation cited

Code of Civil Procedure, 1908s. Order XXXVII, rule 3(5)
Delhi Rent Control Act, 1958s. 14(1)(e), s. 258, s. 25B(10), s. 25B(4), s. 25B(5), s. 25B(7), s. 31(1)
Section 37 of the Delhi Rent Control Acts. 37(1), s. 37(2)

Subjects

Delhi Rent Control Actevictionleave to contestaffidavitcontroller jurisdictionsection 25B(5)natural justicesummary trialbona fide requirementresidential premises

Judgment

A 498

PRECISION STEEL AND El~GINEERING
WORKS AND ANOTEER

v.
B
.PREM DEVA NIRANJAN DEVA TAYAL

October 7, 1982

[D.A. DBSAI, A.P. SEN AND BAHARUL ISLAM, JJ.]

Delhi Rent Conlfol :Act, 1958-Sub-s. (5) of S. 258 read with Clouse ( e) of
proviso to S. 14( !)-Jurisdiction of Controller-Grant of leave to tenant to contest
..
.
f' -
landlord's application for eviction-Nature and scope of.

Delhi Rent Control Act, 1958-Sub-S. (I) of S. 31-Not attracted at the
stage of considering affidavit of tenant seeking leave to contest under sub-s. (5) of
s.2so:
Code of CM/ Procedure, 1908-0. XXXV!l, rule 3(5) and De/ht ' Rent Con-
trol Act, 1958-S. 25B(5J~Jurisdiction to grant /eaVe-Comparison of.,

E Re1tt restriction legislation-Approach to interpretation of.

Laws of procedure-Approach to interprela!ion of.

A landlord cab make an application for recovery of possession under
Clause (e) of the proviso to s. 14(1) of the Delhi Rent Control Act, 1958, on the
ground that the premises let for residential purposes· are required by him bona
F fide for occupation as-a residence for himself or for any me(I!.ber of bis family
dependent upon him, provided be has no other reasonably suitable residential
accommodation. Sub·s. (5) of s. 25B lays down 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 on order for
recOvery of posstssion" of the premises on the ground specified in Cl. (e) of the , .
G proviso to s. 14(1).

The respondent, a Hindu Undivided Family (HUF), filed a petition under
Cl. (e) of proviso to s. 14(1) through the constituted attorney of its karta for an
order for recovery of possession of the premises in question alleging that the
• premises had initially been given to the .appellant on leave and licence, that the
landlord (the karta of the HUF) who had gone out of the country had since
JJ settled down in Delhi, that the landlord bad called upon the appellant 'in May,
1974 to vacate the l'remises as be had no otbcr suitable accommodation and that
•
PRECISION STEEL, V. PREM DEVA 499,

the landlord bona fide required the same for hiS personal'occ~pation. The appel- A
lant SOU;ght leave 'tO cont~~t the petitioll and filed an affidavit denying the allega-
..> tioi;i that it bad entered the premises initially as a licensee and.contending that
accbrding to cl. 6. of the lease agreement the premises Were let for residential as
well as comme'rcial pufpose, that the landlord ·had been 'residing in a house as
¥' spa~ious as the demised premises and equa.lly spacious accommodation 1 in an
idehtical unit located at the back side of the demised premises was available to
. hirh which had beeri let successively to three tenants during tho period 1970 to '
197,6, each· time ~:Hsing the rent, and further-that .the landlOrd owned spacious
acCommodation at. another place in Delhi. An affidavit in reply was filed on
• be'half of the landlord slating that the landlord had no interest in the building in

'. ;
· vAiich he was residing, that the identical· unit located on the back side of the
~cm.ised premises had been let to a tenant upto 19_81 and that the accommodation
/ ~ocated at anot~er place in Delhi and referred to by the appellant was only a
c

t
garage block. ·

The Controller decided all questions of fact t'aking the affidavits as un-
questioned evidenc~ and· refu'sed to grant · teave to the appellant to contest thC
petition and passed an order of ev'iction in favour of the landlord. The revision
petition filed by the appellant against· the order was rejected by the High
Court. · · D
' The question before the court was : What is the jurisdiction of the Con-
troller un~er Sub-s. (5) of.s.25B while dealing with. an affidavit of the tenant seeIC-
ing leave to contest an application fof eviction filed by a landlord under ·cl. (e) of
the proviso to s. 14(1) ·1 ·

Allowing the appeal, B

HELD : (By the Full Court)

Leave to contest the petition for evictiOn under ct: (e) of proviso to S.14(1)
,. must be granted to the appellant under sub s. (5)'of sub-s. 25B 1 of the Delhi Rent
. ' I
Control Act, J958.

~ ( pttr Desai a_nd Baharul Islam, JJ.) .
~.
1. (a) While examining the question whether leave to defend ought or ough
not to be granted, the limited jurisdiction which the Controller enjoys is prescribed,
within well defined limits. ·The langtiage of sub·s·. (5) of s. 2.SB casts a statutory G
duty on the Controller to give to the tenant leave to contest the application, the -
only pre-cc;>ndition for exercise of jurisdiction b~ing that the affi.davi~ ff!Cd by the
tenant discloses such facts as wOuld: diseiltitle the . landlord froni. obtaining an
·order (or the recovery of possession of the premises on the ground mentioned in
s. 14(1)(e). The legislature has used. the expression ''t.he Controller shall give
leave to the tenant to cqntest ·the applicaf.ion." When the 13.nguage of a statute
is plain the principle that legislature speaks ''its mind in the plainest' language has H
to be given full effect. The legfslature bas used the plainest language na,mely
\ •'facts,disclosttd in the affidavit of the tenant,. and av~ided th~ v,hraseolo~y of th,e

\
500 SUPREME COURT REPORTS (1983] 1 S.C,ll.
•
A analogous provision in Order XXXVll, C.P.C., namely "substantial defence" and
"vexatious and frivolous defence". [513 F; 514 E; 513 G,· 514 B-D]

(b) Undoubtedly, the rules of natural justice, apart ·from the adversary
system.we foUow Must permit the la~dlord to contest the affidavit file~ by the
tenant and he can do so by filing an' affidavit in reply. If the averments mad.e in
the affidavit of the tenant are controverted by the landlord, that fact may be
B bom.e in mind but if the facts disclosed in 1the affidavit of the tenant are contested
by way of proof or disproof or producing evide~ in the form of oth~r affidayits
or documents that would not be permissible. The Controller has to confine him·
self to the affidavit filed by. the tenant under sub-s. (4) of s. 2;B and the reply', if
1
any and on perusing these, he has to pose to himself the only question : D6es
the affidavit disclose, not prove, facts a_s would disentit1e the landlord froin
obtaining an order for the recovery of possession on the grpund specified in
c El: 14(l)(e) 1 On browsing through the affidavit of the tenant~ if there emerges
averment of facts wh~ch, on a trial, if belie~ed would non-suit the landlord, leave
ought to be granted. The Controller is not to record a fitlding on disputed
questions Of facts or his preference of onl! set of affidavits against other set of
affidavits as it is clear from the language of sub-s. (5) of s. 25B that be has to
confine himself to the affidavit filed by the tenant disclosing such facts as Would
prima facie and not on contest disentitle the landlord-from obtaining an order for
D recovery of possession. It is wholly impermissible for the Controller to proceed
to examine the rival contentions on the basis of affidavits untested by cross-
, examinat4on and unproved documents. The regular trial required to be hC:ld by a
Court of Stnall Causes as contemplated by sub-s. (6) read with srib-s. (7) of s.25B
is not to be substituted by affidavits and counter.affidavits. The scheme of s. 258 ~
'does· not introduce· a· trial for arriving at the truth at the stage of proceeding con-
templated by sub-s. (4) of s. 25B. It is immaterial that facts alleged and disclosed
E are contr'6verted by the landlord because the stage of proof is yet to come. Plau- '
sibility of the defence raised and proof of the same are materially di!fere~t from
each other and ·one cannot bring in the concept of proof at the stage when plau-
sibility has to be shown. [524 B; 523 H; 524 A; 515 G-H; 514 A; 516 A-C;
517 E-G; 518 B; 516-E]

Santosh Kumar v. flhai Moo! Singh, [1958] S.C.R. 1211, rel!ed on.
F
S. Kanjibhai & Ors. v. Mohanraj Rajendra Kumar. A.LR. 1970,_Gujarat 32 ,.):
and Kishan Singh v. Mo~d. Shafi & Ors., A.LR. 1964 J & K 39; approved. / . '

(c) 'Section 14(1) starts with a non obstante clause whi~h would necessarily
imply that the Controller is precluded from passing an order for recovery of
possession in favour of the landlord unless the case is covered by any of the
G clauses of the proviso. Upon a true construction of cl. (e) of the proviso t~
s. 14(1) it would appear that the burden is on th.e landlord to satisfy tbe Control-
ler that the pren1ises are let for residential purpos~. that possession is required by
him bona fide for occupation as residence for himself or for any member of his
family and that he has no other reasOnably soi.table residential accommodation. ·
This burden, the-landlord is required to discharge before the Controller gets
H jurisdiction to make an order for eviction. On a combined reading of s. l4(1)(e)
and sub~ss. (1) and (4) of s. 25B, the legal positiOn that emerges is that on a pro-
per application being made iq the prescrib~d manner which i.s requir~d to be
PRECISION STEEL v. PREM DEVA 501

supported by an affidavit, unless the tenant obtains leave to defend as c~ntempla.'
A
ted by s"ub-ss. (4) and (5) of s. 25B, the tenant is deemyd to have adfnitted all tJ:ie
averrnents made in the petition filed by the landlord and the Controller "'oul.d act
on the admission of the tenant presuming every averment in the petition of the
landlord as uncha1lengable and truthful. This consequence itself is sufficient to
liberally approach the prayer for leave to' contest the petition.
[514 E-H; 515 D-E; 513 E]
B
(d) The underlying thrust of all rent restriction legislation is to chCck
profiteering by owners of property and to protect weaker sections. Their provi-
sions are not to be so construed or interpreted as would make the protection con-
•, ferred on the tenant illusory. [512 E'F; 510 E-F]

Bahadur Singh & Anr. v. Muni Sabrat Das & Anr., [1969]' 2 S.C.R. 432,
Kaushalya Devi & Ors. v. Shri K.L. Bansal, [1969] 2 S.C.R. 1048, Bega Begum & c
Ors. v. Abdul Ahad Khan & Ors., [1979] 2 S.C.R. I and Kewal Singh v. Lajwanli,
[1980] !"S.C.R. 854 referred to.

(e) A code of procedure is something designed to facilitate justice and
further its ends. Our lawS of procedure are grounded on a principle of .natural
justice which requires that men should not be condemned unheard. Too technical
a construction that leaves no room for reasonable elasticity of interpretation D
should be guarded against lest the very means deSigned .for the rurtheranCe or
justice be used ·to frustrate it. The procedure prescribed in Chap. IIIA is harsh
~ and weighted agai~st the tenint. The Contro Iler is the final arbiter of facts.
Once leave is refused no appeal is provided against the order refusing leave. No
one should be in doubt about the narrow \.onstricted jurisdiction of the High
Court While interfering with 'findings of facts in exercise of ieVisional jurisdiction.
Wisdom, sagacity and the consequence of refUsal to grant leave coupled With
limited scope of i_nquiry being confirled to facts disclosed in the affidavit of the
tenant should guide the approach of the Controller.
[527 B-C; 513 D; S27 _F-G-H; 528 A]

. Sangram Singh v. Election Tribunal, Kotah & Anr., [1955] 2 S.C.R. I and
Maneka Gandhi v. Union of India, [1978} 2 S.C.R. 621\ referred to. -F
J:·
-~ In the instaOt case, the Controller had overJooked disclosure of important
\. facts which put the bonafides of the landlord in issue and necessitated gra'.nJ of
leave to the appellant: The leave and ~licence ag-reement had been renewed in
1972'and 1973 though the landlord had been in Delhi since 1972; the landlord
had admitted that the identical unit at the back of the demisod Premises which
.bad fallen vacant in 1973 had been Jet out to another tenant.; no actiOn had been G
taken till 1979 on the notice seeking- eviction served in 1974; every tirne a·fresh
letting had been indulged into, it had been done after raising the rent; and the
landlord who had sought possession 'for himself and was admittedly in Delhi had
not stated a single word on oatQ. about his requirements and as to in what right
be was occupying the premises ·in which he was staying. [529 B-H; 530 A·E]
H
The High Court had adopted an incorrect approach as to how the matter ·
had to be ex:imine~ at the stage of $,rantipg or refusing to grant leave under s~~~

\
502 SUPREME COURT REPORTS (1983) 1 S.C.R.
A s. (5) of s. 25B. It had failed to ascertain as to when the licence bad been termi-
nated and a contract Or lease entered into and what were the terms of the lease as
alleged by the landlord and whether the rules of the local authority pern1ttted use
of the premises for non~residential purposes. The High Court had dismissed the
'Contention that the landlord had othet suitable accommodation by an observation
that the Controller had rightly come to the con:Iusion that the premises in which
the landlord was residing belonged not to' the landlord but to his brother. This
B approach was unjustified because the question was not whether the landlord was
the owner of the premises occupied by him but the substantial question was
in what right he was occupying it for a period extending. over 7 years and bow
it had beeomo imperative for him to"vacate the same. [5.30 F-H; 531 A·H)

2. The contention that the non obstante clause in sub-s. (7) of s. 25B ex-
cludes the application of sub-s. (2) of s. 37 but not. of s\Jb·s.(1) of s. 37 and there-
c fore it was obligatory for fbe Controller to .not only hear the landlord but exa-
mine evidence at the stage of granting or refusing to grant leave to contest' cannot
'be accepted. Sub-s. (2) of s. 37 provides· that subject to any rules that may be made
under the-Act, the Controller shalJ, while holding an inquiry in any proceedings
before him, follow as fai' as may be, the practice and procedure of a "Court of
Small Causes. including the recording of eVidence. The very fact that sub-s. (7) ·
I
of s. 25B provides that while holdins an inquiry in a proceeding to· which Chap.
D IIIA appiies, the Cbniroller has to ,follow the practice and procedure of a- Court
of Small Causes including the recording of evidence i~di~ates the legislative
intention of treating Chap. IIIA and especially s. 25B as a self-contained code
and this conclusion·. is buttressed by· the provision in sub-s. (1) of s. 25B which ·
provictes that every application by· landlord for recovery of possession of any
premises on the ground speci{ied in cl. ,(e) of the proviso to. s. 14(]) shaU be
dealt with in accordance with the procedure specified in s. 25B. That is why
E sub-s. (7) of s. 25B .opens with a non obstante clause. Any other section, including
sub-s. (l) .of s. 37 p.rescribing procedure for disposal of an application covered
by sub·s. (I) of s. 25B is therefore excluded . .The exclusion of s. 37(1) also
necessarily follows. from the provision contained in sub-s. (10) of s. 25B which
makes it .clear' that the procedure prescribed for hoiding a~ inquiry consequent
upon the granting of -leave to contest shal-1 by the same as required to be followed ·
by the Controller for disposal of applications. Sub~s. (10) of s. 25B operates to
F · 'bring ins. 37(1) after leave tO contest is granted. If sub-s. (1) of s. 37 were to
govern all proceedings including the application for leave to contest the proceed-
ings, both sub-s. (7) and sub-s. (IO) of s. 25B w6uld be rendered redundant.
0

[525 C; 524 E-F; 526 A·B; 525 A-B; 525 E-F-H)

3. Neither the argumer\t that the Scope arid ambit of sub~s. (5). of s. 25B
of the Act in it~ comparison with 0. XXXVII, r. 3 sub-r. (5) C.P.C. is no more
G res integra in view of the decision in Busching Schmitz ( P) Ltd. v. P.T. Mengha'ni
& Anr. nor the interpretation of t~e C1bservations therein to the effect that the
scope for granting leave undef sub-s. (5) of s. 25B is narrower than the one
under 0. XXXVII, r. 3-Can be accepted. It is not clear from the decision whether
the Court took Dote of the whole of the re-structured r. 3 or it was keeping in
veiw the unamended .r. 3 of 0. XXXVII. The provisoes to O. XXXVII, r. 3 make
H it clear that leave to defend shall not be refused unless· the Court is satisfied that
the facts disclosed by the defendant do not indicate thai he has ·a substantial
(l~fen~ t<.> rajse qr t~~t che defence intended tp be put up by the defendant is
,
PRECISION STEEL v. PREM DEVA 503
frivolous or vexatious. On the other hand. sub·s. (5) of s. 25B makes it A
obligatory upcn 1hc Controller, by u~e of mandatory Ja~guage, to give leave
· if the affidavit filed by the tenant discloses such facts as would· diSentitle the
·landlord from Qbtaining an order for recOvery of posseision. Under 0. XXXVII,
r. 3,.defenCe has to be sllbstantial before leave can be obtained. fyferC disclosure
of facts is the ,sine qua non under sub s. (5) of s. 25B. Further, the Court can
1

grant conditional leave or leave limited to the issue under 0. XXXVII, r. 3; no·
such power is conferred on the Controller under sub·s. (5) of s. 25B. Assuming B
that O. XXXVIJ, r. 3 (5) confers wider discretion on the Court, that, by mere
comparison, cannot cut down 9r narrow or limit the power coupled with the
duty conferred On the Contro'Uer under sub s. (5) of s. 2SB.
" , [519 D-H; 520 A·G; 519 A-B; 521 Fl
I " ... .
Busching Schmitz (P) Ltd. v. P.T. Menghani & Anr., [1977] 3 S.C.R.
312;. B.N.. Mutta & Anr: y. T.K. Nandi, [1979] i S.C.R. 409; Charan Dass
DUffgal v. Brahma Nand (C.A. No. 179/82 decided OD 11-1-1982) and Om
c
Prakash S~lu}" v. Smt. Saraswati Devi (C.A. No. 527/82.~ecided OD 8-2-1982),
referred to. ·

Sa~~a.n. Singh & Anr; v. Kasturilal, [1971] 2 S.C.R. 421, distinguished.
Mohan/al v Tirath Ram Chopra. & Anr. 22 (1982) Delhi Law Times !,
disapproved.
D
(per Sen, J., disSenting)

1. (a) ·There is a definite public purpose behind ·enactment of Chap.
IIIA and sub-s. (5) of s. 25B musl be construed in a Sense whiCh. would carry
out that purpose. I s.' 1"4A was eii~Cted to ensure that all government servants
to whom residen.tial accommodation had been a Hotted by . the Government E
I vacated such accommodation if they had any, house of their oWn in the Union
Territory or· Delhi 1 and the section conferred upon them the right" to recover
immediate possession of their own houses. Further, experience in the past had
shown. thit landlords who were in bpnafide requirement of thCir accommodation( ·
for residential purpose under cl. (e) of the proviso to sub-s. (1) of s. 14 were
being pUt tO great hardship due to the dilatory procedure of the suit. The
object behind enactment of Chai). IllA was that these two classes of landlords F
should not be at the mercy of law's delays but there s,hould be a quick and
~>-...i._~, expeditious re_medy ava.ilable1to them agai!lst their" own tenants. The provisions
'fri Chap. IIJA confer a real, effective and immediate right to obtain possession
by confining the trial only to such 'cases where the tenant bas such a defence ·as
1 would disentitle the landlord from obtaining an order fof eviction under s:t4(l)(e)
or under. s. 14A. Chap. Ill A seeks _to stiike a balance ·betwee,n the competing
needs of a . 1andlord and a tenant and has therefore provided that the tenant· G
shall have a right to apply" for leave to contest. The words ''if the affidavit
filed by the tenant discloses such f<icts" usCd in· sub-s.· (5) of s. 25B must therefore
take their colou·r from the context 'in which they appear.
. [533 A-D-E-F-H; 534 A; 536 D; 535 C-D;. 535 A-BJ

Sarwan Sinch'. v. Kasturi Lal, [197'1] 2 s'.c.R. 421, referred to. H
(b) The Controller obviously ."cannot cbme 'to a deci~ion as to whether
1or not loavo to contest should be granted under
' ' (S) of s. 25B without
sub•s.
\
504 SUPll.BME cOURT ll.EPOP.Ts [1983) l S.C.ll.,
'
A affording the parties an opportunity of hearing. The Controller must conform
to the rules of natural justice. Once it is conceded that the landlord has a right
to be heard, the . Controller is bound to give him. an opportunity to refute the•
facts alleged by the tenant in ·his affidavit filed under sub-s. (4) of sc25B. The
Controller nlust app(y his mind not only to the averments made by the landlord
in his applicaiion for evicfion, but also to the facts alleged by the tenant in bis
affidavit for leave to contest as well as the facts disclosed by the landlord in his
B affidavit in rejoinder, besides the othei- maleriat on record i.e., the documents
Hied by the parties in support of their-respective claims, in order to come to a
conclusion whether the requirements of sub-s. (l) Ors. _25B are fulfilled. To ask
Controller to confine himself only to the affidavit filed by the tenant is to ask.
him not to apply bis mind in a ·judicial manner even if be feelS that the
justice of the case so demands. The Controller must endeavour to resolve.the'
· competing claims of landlord and tenant to the grant or refusal of !Cave-by
c finding a solution which is just and fair to both the parties. It is not that the
proceedings initiated QD an application by the landlord~under s. 14(1) (e), or
under s. 14A must undergo trial at two stages. Under sub-s. (5) of s. 25B. the
Controller ·must prima facie be satisfied that· the facts a1leged by the tenant are
such as would disentitle the landlord from obtaining an order for recovery of
1
\
possession. The word 'disentitle' is a strong word, and the Controller must be
satisfied that the tenant has such a defence as wOuld defeat the claim of the
D t'andlord under s. 14 (1) (e) or under s. 14A. It cannot be that the Controller
would set down the application for trial merely on perusal of the affidavit filed
by the tenant without applying bis mind to the pleadings of the parties and the
material on record. If he finds that the pleadings are such as would entail a
trial, then the Controller must grant the tenant leave to contest as the words.
''shall grant to the tenant leave to contest" in sub-s. (5) of s. 25B make the
grant of leave obligatory. [536 G; 537 ll-H; 538 A-Bl
E

\ 2. The scope of sub-s. (5) of s. 25B is restricted and the test of "triable
issues" under 0. XXXVII. r. 3 (5), C.P.C. is not applicable, as the language of
the two provisions ~s different. The use of the word 'such' in sub~s. (S), of
s. 25B implies that the Controller has the power to limit the grant of leave to a
F" · particular ground. A tenant may take all kinds of pleas in defence. The
· whole object of sub-s. (5) of s: 25B was to prevent the taking of frivolous plev
by tenants to protract the trial. Where the tenant seeks leave 'to contest th~
applicaiion for eviction ·under s. 14(1) (e), or "Qnder s. 14A, be must file an affi~
davit under :ub-s. (4) of s. 25B raising his defence which must l;>e clear, specific
and~positive. The defence must also be ·bona fide and if true, must result iii the
G dismissal of landlord's. application. Defences of negative char_acter which are
intended to put the landlord to proof or are vague, or are raised ma/a.fide only
to gain time and protract the proceedings, are not of the kind which will
entitle the tenant to the grant of leave. The Controller cannot set down the
ff . application for bearing without n1aking an order in terms of sub-s. (5) of s. 25B•.
·The tdal must be confined only to such grounds as would disentitle the land·.
lord to any relief. [538 C-F]
'
Pil.ECISION STE~L v. PREM DEVA (Desai, 1.) 505
.. A
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 209
. of 1981.
.;.>
Appeal by special leave from the judgment and order dated the
8th December, 1980 of the Delhi High Court in Civil Revision
No. 317 of 1980. ' B
. Dr. Y.S. Chitale, K:K. Mancha.nda and C.N. Murty for the
, Appellant.
\
D.V. Patel U.R. La/it, Pramod D"yal; Rajesh Mitra and
S.K. Gupta for the Respondent.· c
, ·The following Judgments were delivered

DESAI, J. A provision conferring power' enacted to mollify
slogans chanting public opinion of speedy justice, if not wisely·
interpreted. may not only prove counter-productive but disastrous.·
D
And that is the only raison d'etre for this judgment because in the
course of hearing at the stage of granting special leave Mr. D.V.
• Patel, leamed counsel for the respondent straightway conceded that
. '
this is such a case in whic1l-1eave to defend could ·never have been
refused. Unfortunately, however, not a 'day passes without the
routine refusal of leave, tackled as a run of mill case by the High E
Court in revision with one won! judgment 'rejected', has much
to our discomfiture impelled u; write to this short judgment.

'First the brief narration of facts .. Respondent M/s. Piem Deva
Niranjan Dava Tayal (Hindu Undivided Family) through Prem
Deva Tayal, constituteil attorney of Niranjan Deva Tayal (landlord) F
moved the C,ontroller having jurisdiction by a petition under sec-
tion 14 (1) proviso (e) [for short 's. 14 (e)'] read with section 25B of
the Delhi. Rerlt Control Act, 19 58 ('Act' for short), for an order
for recovery of possession of the premises being, front portion of
premises bearing No. B,44, Greater Kailash Part I, New Delhi, 'on
G
the ground that the premises were let out for residential purpose
and are now required bona fide by the landlord for occupation as
residence for himself and the members of his family dependent on
him and that the landlord has no other reasonably suitable
accommodation. To this petition he impleaded M/s. Precision Steel H
& Engineering Works (tenant), a firm and Shri B.K. Beriwala cons-
. titutcd attorney of the firm. Landlord alleged in his petition th;it
'

. ----·--- -
\

,,
SiJl>iUJM~ COURT REPORTS [1983I 1 S.C,R.
A the premises in question were first given on leave and license and
subsequently relationship of lessor and lessee was established and
that the tenant is in possession since Octpher I, 1971. Landlord
further alleged that he now requires the premises for himself and the
members of his family consisting of himself, his wife and two school
going children. He admitted that he has been; employed in India
B ~ince 1965 .but was posted at Bombay in 1970 arid returned to Delhi
in 1972. He went to Saudi Arabia and has now returned to India.
It was alleged that on May I, 1974, he called upon the tenant to
vacate the premises but the ro;quest has fallen on deaf ears. It was •
specifically alleged that as tl:ie landlord has now taken up a job and
has settled down'in Delhi and that he has no other suitable accom-
c modation, and accordingly he bonafide requires possession of the
demised premises for his personal' occupation. It. was allege(! that
M/s. Prem Deva Niranjan Deva Tayal (HUF) is the owner of the 1
suit premises and Shri Niranjan Deva Tayal is the Karla of the ·
HUF and second notice dated June 22, 1979 was given under
instructions by the constituted attorney Prem Deva Tayal. Even
D though the landlord who sought possession of tire premises for his
personal requirment was in Delhi at the relevant time, i.e. in 1979,
the petitioh' was also filed through the constituted attorney and
Niranjan Deva Tayal who seeks p°Ossession for his use being in
Delhi and available is conspicuous by his absence throughout the
E pNceedings.

On the petition being lodged the Controller directed summons·
to be ser.ved in the prescribed form. On service of the summons the
tenant being a firm M/s. Precision Steel & Engineering Works, and
its constituted attorney Shri B.K. Beriwala appeared and filed an
F affidavii seeking leave to contest eviction petition. Io the affidavit
teriant contended that respondent I, i.e. M/s Precision Steer &
Engineering Works is the tenant and respondent 2 does not claim
any interest in the premises in question in his personal capacity and
ought not to have been impleade\! as ·a respondent. While denying
G that there is any undivided family styled as Prem Deva· Niranjao
Deva Tay al it was contended that. the petitioner is not entitled to
file a petition ,under section 14 (1) (e) because the purpose'o( letting
· was not residential alone but combined purpose of residence-cum-
business. It was denied that the tenant entered the premises as a
H licensee and subsequently the conrract of lease was entered into and
it was submitted that the tenant entered the premises as tenant
. PRECISION STEEL· v. PREM DEVA (Desai, J.) 507

effective from September 13, 1971, and .the lease was for residential- ·A
cum-commercial purpose. A specific agreement was pleaded that
the tenant which is a partnership was entitled to use the premises
for the residence of the director and/or partner as also for. the office
purpose. Reliance was placed on clause 6 of the License agreement,
which was really and substantially according to the tenant a contract
of lease. Jt was also alleged that since the inception of the tenancy
the preJ!lises have been used both. for residence and business purposes
· to the knowledge of liindlo,rd and local authorities and no objection ·
has been raised in this behalf. It was emphatically denied that
the premises were required by the landlord for his .personal use as '
well as for .the use of the members of his family and it was also c
denied· that the landlord has not in hi.s possession reasonably suitable
aecommodation in Delhi. It was positively averred that Niranjan
Deva Tay al who claims to be the owner of the premises· and for~
·whose pers~nal requirement the eviction petition, has been filed
· has been residing at · 32, Anand Lok, New Delhi and that
· is the address of the landlord set out in cause title or' the petition .o
filed by the attorney. Dimension of the premises in possession of
the landlord was gi~en out as.2-1/2 storey building built on a plot
of 1000 sq. yards. It was averred that the building now in posses-
sion of the lail~lord is divided into four blocks or units, each block
consisting of four bed rooms, three bath rooms, one kitch~n, one
·living room and one ctrawing-cuoi-dinfog room. It was in terms E
stated that the whole of the house is in occupation and possession of
petitioner landlord and he has been residing all along in the house
much.prior to the beginning of tenancy and.·he is in possession' of'
the· same. It was further averred that the petitioner has concealed
the fact that petitioner is the owner of another building at ·52 Anand
Lok, New Delhi, ~hich building is equally big. One other a~erment
of which notice may be taken is that the petitioner has been
managing both the buildings and whenever blocks fair vacant he lets
· ·~. them out at higher rent. It was· specifically stated· that front portion
of the building at B-44, Greater Kailash Part I has the same accom-
) modation as the building which the landlord has in his possession
'at present. In order to point out' that the petitioner landlord when G
he comes inio possessio11 of premises vacated by tenants lets out the
:same at higher rent thereby .contravening law and obtains unlawful
enrichment, It was averred that the premises of identical size and
nature situated at the back of the demised' pr~mises were taken on
rent ,bY M/s. Kirloskar Company during the period .1970-73 and when H
508 • StJPkEME COURT REPORTS [1983I t s,c.k.
A vacated by the tenant the same was let out to Food Corporation of
India from 1974·1975 and after getting the same. vacated the same
was let'oqt in 1976 to Yash Mahajan and on each such opportunity
rent was enhanced. It was accordingly_ alleged that the petition is
malafide and the claim of bona fide requirement ii' utterly un·
tenable. .
B
A counter-affidavit was filed on behalf of the landlord to the ·
affidavit seeking leave to defend reiterating what was averred in \he
main petition, namely, that Prem Deva Niranjan De~a Tay al (HUF) '
is the owner of the property and · that Niranjan Deva Tayal
is the Karla of the same. It was stated that the landlord bona fide
0 required the . premises for his own 11se. With reference to 'the
building situated at 32, Anand Lok, New Delhi, it was stated that
Niranjan peva Tayal has no interest in the property and that the
petitioner Niranjan Deva Tayal has no other suitable residential
accommodation in Delhi. It was claimed that the property d{ 32,
D Anand Lok, New Delhi, belongs to one K.D. Tayal. .The dimension
of the house was also disputed. With reference to the premises at
52, Anand Lok, . it was stated that the building is not
being used as residential premises but is only a garage block. It
was further averred that Niranjan Deva Tayal was serving in Saudi
Arabia and, therefore, the premises were given on leave and license
E • but now that the petitioner has returned to India and has perma·
nently settled down he requires the premises for his own use. A
further averment was made to the effect that the block at the back
of the demised premises is at present in occupation of M/s. Corona-
tion Spinning· Co., Dadra, and the ·occupant is entitled to occupy the
/
premises till 1981. '
ll
' by special leave under Article 136 it was not
Frankly, in appeal
necessary to set out the pleadings in detail.. However, as the ques-
tion before this Court is whether leave to contest the petition ought
not to be granted and that is clearly relatable and wholly dependent
G upon the averments in the pleadings and the disputed questions· of
facts arising therefrom and that is the apology for detailed narra-
tion of rival contentions.

And now to law. Section 14 (I) (e) of the Act reads as
H
under:
'
PRBCISIO~ STEEL' v. PREM i>BV~ (Desai, J.). 509

A
"14 (1) )'lotwithstanding anything to •the contrary contained
in any other law or ·contract, no order ·or decree
for the recovery of possession of any premises shall be
made ·by any court or Controller in favour of the land'
lord against a tenant ;
B
Provided that the Controller may, on an application
made to him in the prescribed· manner, make an order
for the recovery of possession of the premises on one

,
or ;,ore ·of the following grounds only, namely :-..

(e) that the . premises let for residential · purposes are
required bona' fide by the landlord for occupation .as
c
'
· .a residence for himself or for any member of his family
dependent on him, if·he is the owner therecf, or for
any person for whose benefit the premises are held
and that the landlord or such person. llas no other
reasonably suitable residential accommodation; D

Explanation : For the purposes of this Clause, "pre-
mises let for residential purposes" include any premises
which having been let for use as a residence are, without
the consent of the landlord, used incidentally for commero
cial or other purposes;" E'

Section 25B which forms part of Chapter IIIA was introduced in the
Act by Amending Act 18 of 1976 with effect from December 1, 1975.
'
The fasciculus of sections is headed 'Summary Trial of Certain
Applications'. 'Section 25B (!), (ii) and (5) are, material for the F
present purpose. They read as under :
'
"25B (I) Every application by a l~ndlord for the' recovery of .
possesion of any premises on the ground specified in.
clause (e) of the proviso to sub-sec. (I) of section 14 G
or under section l 4A, shall be dealt with in accor-
dance with the procedure specified in this section.

(4) The tenant on whom the summons is duly served
(whether in the ordinary way or by registered' post) in H
the form specified in the Third Schedule shall not
contest the prayer for evictiO!l from the premises unless
510 SUPREME COURT REPORTS [1983) l s.C.R.
A he files an affidavit stati 0g the ·grounds on which he
seeks to contest the application for eviction. and
obtains leave from controller as hereinafter provided;
and in defa~lt of his appearance in pursuance of the
summons or his obtaining such leave, the statement .
made by the landlord· in the application for eviction
.B shall be deemed to be admitted by the tenant and the
applicant shall be entitled to an otder for eviction on
the ground aforesaid.

(5) The Controller shall give to· the tenant leave to contest
c the application if the affidavit filed by the tenant dis-
closes 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 ' '
sec. 14A."

• The increased tempo of industrialisation since the independence
resulted in mass migration of .population from rural to urban areas.
This urbanisation process resulted in phenomenal demand for hous-
ilig accommo~ation. Harsh economic law of demand and supply
'operated with full vigour to the disadvantage of the under privileged.
To checkmate the profiteering by the owners of property and to
protect the weaker sections,' most of the States in our country enac-
ted legislation for the protection of tenants of premises situated in
urban and semi-urban areas.· These legislations have been enacted
with the avowed object of putting a fetter on the unrestricted right
of re-entry enjoyed by the ,landlords with a view to protecting the
F tenants assuring security of tenure. This avowed object and purpose
for enacting legislation must always inform and guide the interpre-
'· '
tative process 'Of such socially oriented beneficial legislation. But ._/
the language of the statute·. bas to be kept in view to determine the
width and ambit· of protection. Normally in all such statutes a
provision is inserted· pre.scribing 'enabling provision under which
G landlord can recover possession and thereby restricted the unfettered
right of re-entry. One such provision normally to be found in all
such statutes is the one which enables a landlord to recover posses-
sion if he bona fide requires the same. for occupation by himself or
for the use of the members of the family dependent .on him. If the
H landlord seeks possession bona fide for his personal requirement, Ii~
PREOISION STEEL v. PREM DEVA (Desai, J.) Sil

must co1i1mence.the action by filirg a petition and the tenant' would.
be entitled to appear and defend the action. While defending the
action in an adversary system the tenant would file his written state-
ment raising contentions which ·in terms would focus the attention
of the court on questions of facts in dispute on .the basis of which
issues on which parties are at variance would be framed. Both the B
'parties would lead evidence· and ultimately on evaluation of evi4ence
the court/Controller would determine the issues on the principle of
preponderance of probability and answer the issues one way ·or the
'other determining the fate of the petition.

That was the position under the Act. On the introduction of
Chapter IHA a notable departure has been made in the Act with
regard to the procedure for trial of actions brought · under section
· 14A and 14(l)(e). ·When a petition is brought before the Controller
under section l 4(l)(e) a summorts Ms tO be issued to tlie tenant
and when the sum.mans is served the tenant cannot straightway
proceed to contest the petition for evi«ti\lll from the premises but
either he must surrender possession or seek leave tQ contest the peti"
tion. While seeking leave be must file an affidavit setting out the
grounds on which he se~ks to contest the application for eviction.
' . .
This is the Scheme of s~ction 25B(l) and (4). Then comes section
25B(5) which provides that the Controller is under a statutory duty-
note the expression "shall give leave to the tenant to contest the E
application"-'-to grant leave if the ''\ffidavit filed by the tenant dis; ·
closes such facts as would disentitle the landlord from obtaining an
order for the recovery of possession' of the premises on the ground
mentioned in section 14(l)(e), i.e. bona fide requ'irement for his per-
sonal use or the use of the members of his family.

Let us recall the procedure for obtaining a ·decree'or order for·
eviction agai.nst. a tenant entitled to protection of Rent Act other
. than Delhi .Rent Act. What would the court expect the lalidford to
prove before he seeks to recover possession from the tenant on the '
ground that he bo.na fide requires possession· for his. own use or the C
use of the ·members of his family ? In a catena of decisions it bas
been decided that in order to succeed thr landlord should show that
the premises have been let out as a: residence or for' residential pui'-
poses; that the landlord needs to occupy the premises which may
imply that either he has got no other accommodation in the city or H )
town in which the premises in question are situated or the one in
sq SUPREME COURT REPORTS . (1983I I S.C.11.

A his possession does not provide him a suitable residence and he is
required to shift to the premises in ·question, that his need is genuine
and that it is not, merely a fanciful desire of an affluent landlord who
(or the fancy of ·changing the premises would like to shift to the
one from which .the tenant is sought to be evicted; that he is acting
bona fide in approaching the court for recovery of possession; and
B that his demand is reasonable. , These facts have to be proved to
the satisfaction of the Court and once the trend of judicial .opinion
as expressed by the court went so far as to say that the court cannot
pass a decree on .compromise because the st~ute has cast duty on
the court to be satisfied about the requirement of the landlord and
a compromise ,decree was held to 'be a nullity (See Bahadur Singh &
c another v. Muni Sabra/ Dass & another.(1 ) Kaushalya Devi & others
v. Shri K.L. Bansal.(') Certain states have in their respei:tive le&isla-
tions also imposed an additional condition before the landlord can
obtain possession for personal requirement" viz. before making a
decree or order of eviction the Court must weigh the relativ~ hard-
sh}p of the landlord and the tenant anil if greater hardship is likely
D to be caused to tenant, the court is under an obligation to refuse to
pass the decree notwithstanding the fact that landlord has proved.
his requirement. Rent Restriction legislation enacted by States may
differ from State to State. ·Restrictions on the landlord's unfettered
right to re· entry may be stringent or not so stringent depending upon
the local situation. But the underlying thrust of all rent restriction
E
legislations universally recognised must not be lost sight of that the
enabling provisions of the rent restriction Act are not to be so cons-
trued or interpreted as ~ould make the protection conferred on the
teriant illusory by a liberal approach to the desire of the landlord to
evict tenant under the camouflage of- personal.requirement. It is not
for a moment suggested that a landlord should not get possession if
F
he genuinely requires the premises for his own use and occupation .
• That much incidental element -of ownership in a country governed
by mixed economy is still being recognised though in the wake of .I
agrarian relorms the tenants of agricultural land have been made
the owners thereof in· aln1ost the \vhole country. But that" is a su.br
' .
G' ject with which we are not concerned. We must proceed on the
accepted principle that the one element of ownership, viz., right to
personally occupy and enjoy, stands legislatively recognised when an
enabling provision was made while restricting the unfettered right of

(I) [1969] 2 SCR 432.
H
(2) [1969] 2 SCR 1048.

'
PRECISION STEEL v. PREM DEVA (Desai, J.) 513

the landlord ·to renter demised premises at bis sweet will giving him A
an opportunity to seek possession on the ground of personal require-·
men!. But care bas to be taken to visualise that the lust for increas- ·
ing rent by getting the .premises vacated masquerading .under the
• garb of personal ·requirement does not over reach the Courts. This
is the gist of observations of this Court in Bega Begum & Ors. v.
Abdul Ahad Khan & Ors.; (1 ), where it was held that the expression 8
'reasonable requirement' iil section l l(h) of the Jammu & Kashmir
Houses and Shops Rent Control Act, 1966, undoubtedly postulates
that there must be an element of need as opposed to a mere desire
oi wish. .The distinction between. desire and need _should doubtldss
be kept in mind but not so as to make even the genuine need nothing
but a desire as the High Court appeared to have done in that case. c
This observation was quoted with approval in Kewal Singfl v. Laj-
wanti.(2) In Kewal Singh's ~ase this Court repelled challenge to the
con,stitutional validity of section 25B of the Act.

Undoubtedly the procedure prescribed in Chapter IHA oft h e
Act is materially different in that it is more harsh and weighted D
against the tenant. But should this procedural conundrum change
the entire landscape of law ? When a landlord approaches Con-
troiler under sectfon 14(1) proviso (e), is the court to presume every
averment in the petition as unchallengeable and trut.hful? The
consequence of refusal to grant leave must stare in the face of the
Controller that the landlord gets ail order of evictioll without batting
E
the eye lid. This consequence itself·is sufficient to liberally approach
the prayer for leave to contest the petition. While examining the
question whether leave to defend ought or ought not to be granted
the limited jurisdiction which t~e Con !roller enjoys is prescribed
within the well defined limits and he cannot get into a sort of a trial
F
by affidavits preferring one -set to the other and thus concluding the
triat'witliout holding the trial itself. Short-circuiting the proceed-
a
ings need not masq.uerade as strict" compliance with sub-~ection (5)
of section 25B. The provision is cast in· a mandatory·form. Statu-
tory duty. is cast on the Controller to give leave as the legislature
uses the expression 'the Controller shall give' to the tenant leave to G
' . .

contest if the affidavit filed by the tenant disclos.es suC,h fact as would
disentitle the landlord for an order for recovery of possession.· The
Controller has to fook at the affidavit of the tenant seeking leave to
'I
(ll [i979] 2 SCR l.
ff
(2) (1980) I SCR 854 @ 864,
I.
514 SUPREME COURT REPORTS • [1983 J I s.c.R.
A contest. Browsing through the affidavit if there emerges averment
Of facts Which On a trial, if believed, would !)On-suit the landlord,
leave ought to be granted. Let it be made clear that the statute is
not cast in a negative form by enacting that the Controller· shall '-'-
refuse to give to.· the tenant leave to contest the application unless •
the affidavit filed by the tenant discloses such· facts as would disen- '
8 title the landlord from obtaining an order etc. That is not the mould
in which the· section is cast.. The provision indicates a positive
approach and not a negative inhibition. When the language ofa
statute is plain, the principle that legislature speaks its mind in the
plainest language has. to be given full effect. No canon of construc-
tion pemits in t)le name of illusory intendment defeating the plain,
c unambiguous language expressed to convey the legislative mind. And
the legislature h!\d before it Order 37, an analogous provision where ;,_.
leave to defend is to be granted and yet avoiding the phtaseology of ,
fhe Code of Civil Procedure, namely, 'substantial defence' and
'vexatious and frivolous defence', the legislature used the plainest
language, 'facts disclosed in the affidavit of the 'tenant' ..
D
The language of sub-section 5 of section 25B casts a statutory
duty on the Controlier to give to the tenant leave to contest the
application, the only pre-condition for exercise of jurisdiction being
that the affidavif--filed by. the tenant discloses such facts as would
disentitle the landlord from obtaining an order for the recovery of
E possession of the premises on the ground mentioned in section 14(1)
(e). Section 14(1) starts with a non obstante clause which would
necessarily imply that the Controller is precluded from passing an
order or decree for recovery of ,possession of any premises in favour
of the landlord against the tenant unless the case is covered by any
of the clauses of the proviso. The proviso sets out various enabling
.F provisions on proof of one or the other, the landlord would be
' to recover possession from the tenant. One such enabling
entitled ..

provision is the one enacted in section 14( I) proviso (e). Upon a
. true construction of proviso (e) to section 14(1} it would unmistak-.
ably appear that the burden is on the landlord to s~tisfy the Control-
ler that the premises of which "possession is sought. is; (i) let for
G residential purposes; and (ii} possession of the premises is required
bona fide by the landlord for occupation as residence for himself or
for any membei;. of his family. etc. and (iii) that the landlord or the
person for who'e b·~fit possession is sought has no other reason-
ably suitable residential accommodation. This burden, landlord is
H
required to discharge before the Controller gets jurisdiction to make
PRECISION STEEL v. PREM DEVA (Desai, J.) 515
'··-~-

an order for eviction. This necessarily transpires from the language
of section 14(1) which precludes the Controller from· making any
order or decree for recovery of possession unless .the landlord proves
to bis satisfaction t.be conditions in the enabling provision enacted
as proviso un.der which possession 'is sought. Initial burden is thus
on the landlord.
B

The question is' whether this burden is in any way diluted or
stands discharged or wholly shifted to the tenant because· of a diffe-
\ rent procedure prescribed in Chapter IHA.of the Act.· Section 25(4)

, · provides that in default of the appearance of the tenant in pursuance
of the summons or, ~is 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 landlord shall be entitled . to an
order for eviction on the ·ground set out in section 14(l)(e). · On a
combined reading of section 14(1) proviso (e) with section 25B(l)·
c

and (4) the legal position that emerges is that on a proper applica-
tion being made in the prescribed manner which is required to be D
supported by an affidavit, unless: the tenant o11tains le~ve to defend
· as contemplated by sub-sections (4) and (5) of section 25B, the
tenant is deemed to have admitted all the avermeots made in the
petition filed by the 'landlord. The effect ofthese provisions is that \
the. Controller would act on the admission of the tenant and there ·is E
•. no better proof ·of fact as admission, ordinarily because facts.which
·are admitted need not be proved. ·But what happens if the tenant
appears pursuant to the summons ·issued under sub-sec, 2 of sec-
·tion 25B, files an affidavit stating the grounds on which he seeks to
contest the application. . As a · corollary it would transpire that the
facts pleaded by the landlord are disputed and controverted; How F
"'\..._ is the Controller thereafter
- ' -
to proceed in the matter ,J ~t would be
·· '\_ open to. the landlord to contest the application of the tenant seeking
leave to contest .and for I.hat purpose he can ·file an affidavit in reply
but production and admission and evaluation of documenis at that
'
stage bas no place. The Controller has to ~e himseJLt_<> _the . G·
.•affidavit filed oy the tenant under sub-section 4 and the re.·pJy, if any. \-
. Oiiper&uing the affidavit filed by the tenant and the reply if any
filed by landlord the Controller bas to pose to himself the only
question : Does the affidavi~ disclose, not prove, facts as would dis-
entitle the landlord from obtaining · an order for the . recovery of
possession on the ~round specified in Gla11se (e) of the proviso to R
• 516 ~iJPREME COURT REPORTS [1983) l s.c.R.

'A '---section 14(1). The Controller is not to record a finding on disputed
questions of facts or hi~ preference of one ~et of affidavits against
other set of affidavits. That is not the jurisdiction conferred on the
Controller by sub-sec. 5 because the Controller while examining the
question whether there is a proper case for granting leave to contest
the application has to confine himself to the affidavit filed by the
B tenant disclosing such facts as would prima facie and not on contest
disentitle the landlord from obtaining an order for recovery of
possession. At the stage when affidavit is filed under sub-section (4)
by the tenant and the same is being examined for the purposes of
sub-section (5) the Controller has to confine himself only to the
c averments in the affidavit and the reply if any and that becomes
manifestly cl~ar from the language of sub-section (5) that the Cont-
roller 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 recovering possession etc. The jurisdiction to grant
leave to contest or refuse the same is to be exercised on the basis of
,D the affidavit filed by the tenant. That alone at stage is the relevant
document and one must confine to the averments in the affidavit.
.,/Ir the averments in the affidavit _di'sclose such facts which, if ultima-
tely proved to the satisfaction of the Court,.would disentitle the
landlord fro!ll recovering possession, that by itself makes it obliga-
tory upon the Controller to grant leave. It is immaterial that facts
alleged and disclosed are controverted by the landlord because the
E stage of proof is yet to come, It is distinctly possible that a tenant
may fail to make good the defenc~ raised by him. Plausibility of the
defence raised and proof of the same are materially different from
each other and one cannot bring in the concept of proof at the stage
when plausibility has to' be shown. This view taken in S. Kanfibhai
& Ors. v. Mehanraj Rajendra Kumar,{') Kishan Singh v. Mohd. Shafi
F
& Ors.(') appears to have been approved in Santo•!/ Kumar v. Bhai
Moo/ Singh( 3 ) where at p. 1217 this Court while commenting upon
an order granting conditional leave under Order XXXV!I, r. 3,
passed by the trial judge which was to this effect : ~In the absence
of these documents, the defence of the defendants seems to be vague
consisting of indefinite assertions " observed as under :
G
"This is a surprising conclusion. The facts given in
the affidavit are clear and precise, the defence could hardly

(I) A.LR. 1970 G.ui. 32.
H (2) A.l.R. 1964 J&K 39.
m [1958] S.C.R. 1211 @ 12p;
PRECISION STEEL v. PREM DEVA (Desai, J.) 517

A
have been clearer. We find it difficult to see how a defence
that on the face is. clear bec9mes vague· simply because the
evidence by which it is to be prove~ i~ not brought O? file
a.t the time the defence is put in.
The learned judge has failed to see that the stage of B
proof can only come after the defendant has been allowed
to enter an appearance and defend the suit, and that the
nature of the defence has to be determined at the time when
the affidavit is put in. At that stage all that the Court has
to determine is whether, 'If the facts alleged by the defen-
dant are duly proved' they will afford a good or even a c
plausible answer to the plaintiff's claim. Once the Court
is satisfied about that, leave cannot be withheld and no
questio~- ·about imposing conditions can -arise, and once
leave is granted, the normal procedure of· a suit, so far as
. evidence and proof go, ob,tains".
D
The manifost error committed in the procedure followed at present
by the Controller under s. 25B may be pointed ont. The tenant ha.s
to file an affidavit stating the grounds on which he seeks to contest
the application.. The Controller may accept an affidavit in reply if
·landlord chooses to file one. So far there is no difficulty ... There
· then follow affidavit in rejoinder and sur-rejoinder and the docu- E
ments are produced and when this procession ends the Controller
proceeds to examine the rival contentions as if evidence produced
in the form of the affidaviis untested by cross-examination and
unproved documents are before . him on the appreciation
and evaluation of which he records an affirmative finding
that the 'facts di6closed in the affidavit of tenant . are not
F
proved and therefore leave to contest should be refused.
""-.,_ In our opinion, this is wholly impermissible. - The regular
. ·trial required to be held by a Court of Small Causes as contempla-
- ted by sub-sec. 6 read with sub-sec. 7 of section 25B is not to be G
substituted by affidavits and counter-affidavits at the stage of consi·
dering tenant's' affidavit filed for obtaining leave to contest the
petition under sub-sec. 4. Sub-section 6 enjoins a duty on the Con-
troller where leave is granted to the tenant to contest the application
to commence the hearing of the petition as early as practicable and
sub-section 6 prescribes procedure to be followed as if the Controller ff
is a Court of Small Causes. T~e c;:ourt of Sll!~ll <;:au~~s fQllows the
518 SUPREME COURT REPORTS. (1983] I s.c.a.

A summary procedure in ihe adversary system where witnesses are
examined and cross-examined and truth of av•rment is decided on
the touchstones of cross-examination .. A speedy trial not conform:
ing to the well·recognised principle of arriving at truth by testing evi-
dence on the touchstone of cross-examination, should not be easily .
read into the provisi-On at a stage not contemplated by· the provision
B unless the statute positively by a specific provision introduces the
same. The scheme ·of section 25B does not introduce a trial for
arriving at the truth at the stage of proceeding contemplated by sub-
section (4) of section 25B.

It is at this stage advantageous to refer to the analogous pro-
c: visions in Order 37 of the CoJe of Civil Procedure to find out
whether that provision is bodily incorporated in sub-sec. 5 of sec-
tion 25B or there is material departure so that stare decisis may or
may not shed light on the vexed question. . Order" 37 Rule I sets out
courts and classes of suits to which the order would apply. Rule 2
D provides for institution of summary suits and sub·rule 3 of rule 2
provides that the defendant shall not defend the suit referred to in sub-
rule (I) unless he enters an appearance and in default of his entering
an appearance the allegations in the plaint shall be deemed to be
a
admitted and the _plaintiff shall be entitled to a decree for sum etc.
Sub-rule 3 provides the procedure where the defendant enters an
E appearance. On such appearance being entered the plaintiff has to
serve on the defendant summons for judgment in the prescribed form
which is to be supported by an affidavit verifying the cause of action
and the amount claimed and stating that in his belief there is no
defence to _the suit;

F
It may be recalled that the language of rule 3 of Order XXXVU
Code of Civil Procedure, prior to the amendment of the Code in
J976 was materially different and substantially the whole of rule 3
has been replaced making detailed provision therein about the
manner, method and circumstances in which ieave to defend may.be
granted or refused. Leave to defend under sub-ml•· (5) of rule 3
may be granted if the defendant by affidavit 'or otherwise discloses
such facts to the Court as·may be deemed sufficient to entitle him to
defend. The first proviso makes it clear that the leave shall not be
refused unless the Court is s"atisfiod that th~ facts disclosed by the
H defendant do not indicate that he has. a substantial defence to raise
or that the de~ence intended to be pui up by the defendant is frivo-
lous or vexatious. Re9all the language of sub-s. (5) of s. 25B which
PRECISION STEEL v. PREM DEVA (Desai, J). 519
A
makes it obligatory upon the Controller to give leave by use of the
mandatory language that the Controller shall give leave to defend
to the te.nant to contest the application if the affidavit filed by the
·tenant discloses such facts as would disentitle the landlor~ from
obtaining an order fol' the recovery of possession, etc. For proper
and better apprc.ciation it may be made1clear that when the mandate B
6fthe section is that leave shall be granted as it enjoins a positive
duty while the proviso. to sub· rule (5) of rule 3 of Order XXXVII
provides that leave to defend shall not be refused unless the Court is
satisfied that the facts disclosed by the defendant do not indicate
that he has a substantial defence to raise; etc. Undoubtedly, ·the
test of triable issue has bee'n largely followed by the Court while c
~··
.considering application for leave to defend under Order XXXVII;
tule 3(5) but what constitutes a triable issue always depends upon
the facts and circumstances of each case and its connotation would
change after the recasting of whole of rule 3 ?f Order XXXVII. It
was, however, urged that the scope and ambit of sub-s. (5) of s. 25B
in ifs comparison with sub-rule (5) of rule 3 of Order XXXVII is no D
more res integra in view of the decision of this Court· in Busching
Schmitz (P) Ltd. v. P.T. Menghani & Anr. (') This Court observed
as. und~r : ' ·
*
"But we make it plain even at this stage that it is falla-
cious to approximate (as was . sought to .be done) s. 25B (5) . · E
with Order 37,r. 3 of the Code of Civil Procedure. The
social setting demanding summary proceeding, the nature
of the subject~matter and, abo'e all, the legislative diction
which has been deliberately designed, differ in the two pro-
. visions. The legal ambit and judicial discretion are wider
in the latter while, in the former with which we are concern- F
ed, the scope for opening the door to defence is narrowed
down by the strict words used. The 'Controllet's power to·
give leave to contest, is cribbed by the condition that 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 speci- G
fied in cl. (e) of the proviso to sub-s. (1) of s. J 4 or under
· s.' l 4A .. Disclosure of facts' which· disentitle recovery of
possession is a sine qua non for grant of Ieav.e. ·Are there
facts disentitling the invocation of s·. 'MA 1" ff,
(I) [1977] 3 S.C.R. 312.
520 SUPREME COURT REPRTS (1983] I S.C.R.

It is not clear from the decision whether this Court took note of
whole of the re-structured rule 3 of Order XXXVII or it was keep-
ing in view the unamended rule 3 of Order XXXVII. Neither is
quoted, none is reierred to and it is not clear whether a note of
amendment of 1976 was taken. That apart, compare the language
of both the provisions as hereinabove indicated. The two provisos to
B sub-rule (5) of r. 3 make it clear that the leave cannot be refused if
the defendant has a substa~tial defence to make or that the defence
intended to be put up is neither frivolous· or vexaiious. Defence has
to be substantial before leave can be obtained.· Compare it with ex-
pre5slon 'affidavit discloses such facts as would disentitle the landlord,
etc.'. It is not difficult to ascertain where obligatory duty is cast.
Mere disclosure of facts, not a substantial defence· is the sine qua
non. Further, the Court can grant conditional leave or leave limited
to the issue under Order XXXVII, r. 3(5); There is no such power
conferred on the Controller under sub-s. (5) of s. 25B. Coming to
the social setting referred to by this Court, one must not overlook
the fact that a summary procedure can as well be prescribed for all
D suits to satisfy the felt needs of time referable to highly congested
Court dockets. There is no evangelical sanctity in speeding up the
actions against tenants alone. The landlord at one stage lets out the
premises with the knowledge that it is difficult to evict t~nant and
obtain possession and, therefore, would reasonably be expected to
foresee that even if he has sorne future need he will not get back
E possession ahd yet after letting out premises in a short time approa-
ches the Court on the ground of personal requirement and the tenant
may not get even a chance to defend· himself. Social setting is,
therefore, in favour of tenant. However, referring to this decision
a Full Bench of the Delhi High Court in Mohan Lal v. Tirath Ram
F Chopra & Anr., (') observed that the scope for granting leave under
sub-s. (5) of s. 25B is narrower than the one under Order XXXVII,
rule 3, Code of Civil Procedure. We do not accept the interpreta-
tion of the observations of this Court in Busching Schmitz' s case as
understood by the Delhi High Court.

G At this stage we may also refer with advantage to the decision
of this Court in B.N. Mutta & Anr. v. T.K. Nandi. (2 ) In this case
a petition under s. !4A(I) of the Delhi Rent Control Act was filed

(I) [1982] Delhi Law Times .1.
H (2) [1979f2 S.C.R. 409.
l>Rll~ISION STEEL v. PltllM DEVA (l>esai, J.) 521

for eviction of the tenant on the ground that the landlord has retired .A
from Government service and he bas been called upon to vacate the
Gover~ment premises which he was occupying by virtue of his office.
The only relevant ·observation to which our attention was drawn..
reads as under :

"Leave ti'i contest an application under s~ction 1.4(1) 8
cannot be said to be analogous to the provisions of grant
of leave to defend as -envisaged in the Civil Procedure
Code. Order XXXVII, rule 2, sub rule (3) of the Code
of Civil Procedure provides that the defendant shall not
appear or defend the suit unless he obtains leave from a
.Judge as hereinafter provided so to appea,r and defend. c
Sub-rule(!) of rule 3 of Order XXXVIIlays down the pro-
cedure .to obtain leave. Under the provisions leave to
appear and defend the suit is to be given if the affidavit
discloses such facts as would make incumbent on the holdet
to prove consideration or such other facts as the court may
deem sufficient to support the application. The scope of ' D
section 25B (5) is very restricted for leave to contest can
only be giv~n if the facts are such as would disentitle the
landlord from obtaining an order for recovery of possession
on the ·ground specified in section 14A."
' - '

With respect, the fact that. an obligatory d'uty is cast on the Controller E
to grant leave on disclqsure of facts in: the affidavit.Ills would disen-
title the landlord to obtain possession itself specifies and defines
the scope and ambit of jurisdiction and power of ihe Controller.
Assuming that Order XXXVII, sub-rule (5) of rule 3 confers·
wider discretion on the Court that, by mere comparison cannot cut .
, down or narrow or limit the power coupled with the duty conferred
' on the Controller under ·sub-sec. (5) of s. 25B. Mere disclosure of
~facts which when _proved in a regular trial which would disentitle the
landlord to obtain relief, such disclosure only impels tbe Controller
to grant leave. It is ·not necessary fo record as required by Order
XXXVII Rule 5 whether the defence is substantial .or frivolous as
vexatious. We find it difficult to subscribe to the view that the G
jurisdiction under sec. 25B,(5) is very limited.
We may as well now refer to Sarwan Singh & Anr. v. Kasturi
Lal (1) Of course, the qnestion substantially raised in that case was
H
(I) [1977] 2 S.C.R. 421.

(
522 SUPREME COURT REPORTS [1983] I s.c.R.
A about the apparent conflict between Slum Areas (Improvement and
Clearance) Act, 1956 and ss. 14A, 25 and 25B of Delhi Rent Control
Act, 1958. What is the scope and ambit of jurisdiction of the Con-
troller under sub-sec. (5) of s. 25B did not come up for considera-
tion. What was, however~pointed out was that s. 25B provides for
a procedure to effectuate the purpose underlying s. l 4A and
B s. 14(1) (e) which enables the landlords' to recover; immediate posses-
sion of the premises'. Expostulating the philosop!iy underlying this
provision this Court observed as under :

"Whatever be the merits of that phllosophy, the theory'
is that an allottee from the Ce11tral Government or a 'legal
0 authority should not be at the mercy of law's delays while
being faced with instant eviction by his landlord save on ,
payment of what in practice is penal rent. Faced with a
Robson's choice; to quit the official residence or pay the
market rent for it, the allottee had in turn to be afforded a
quick and expeditious remedy against' his own tenant.
D With that end in view it was provided that nothing, hot
even the slum clearance Act, shall stand in the way of the
allottee from evicting his tenant by resorting to the sum-
. mary procedure prescribed by Chapter BIA. The tenant is
even deprived of'the elementary r'ight of a defendant to
defend a proceeding brought against him, save on obtain-
E ing leave of the Rent Controller. If the leave is refused, by
s. 25B (4) the statement made by the landlord in the appli- •
cation for eviction shall be deemed to be admitted by the
tenant and the landlord is entitled to an order for eviction.
No appeal or second appeal lies· against that order. Sec-
tion 25B(8) denies that right and provides instead for a
revision to the High Court whose jurisdiction is limited
to finding out whether the order complained of is according
to law."
• I

This observatiOn 1s rn the. context of a proceeding under s. 14A '
G where a landlord on ceasing to be in Government service' is likely
to be on the·road. It ill-compares withs. 14(1) (e). But apart from
that, this decision is not helpful because the question did not arise
,.
' in.that case about the scope and ambit of s. 25B(5). Undoubtedly,
as has been stated in the decision, the object and purpose of the
H legislation assumes greater relevance while interpreting the language
of the,,lltatute. The _provision nuder construction finds its place in
PRECISION STEEL V, PREM DEVA (Deiai, J.) 523

the Delhi Rent Control 'Act, 1958. Its long title shows the object
underlying the legislation. The long t'itle is : 'An Act to provide
; for control of rents- and eviction and rates of hotels lodging houses
and for the lease of vacant premises to Government in certain areas
in the Union Territory of Delhi'. The underlying object is to pro-
vide for control of eviction. This must inform every interpretative B•
process including the provision contained in s. 25B(5). By construc-
tion of s. 25B(5) let us not retin'n to the days when under the Trans-
fer of Property Act except in the C!'Se of fixed period of tenancy the
tenant at will had no defence to offer and could· be thrown out at
the mere whim and fancy of the landlord. When leave to contest
the petition is refused the uninvestigated averments iO: the petition c
are deemed to be ohuch great evidentiary value as to r~sult in evic;
tion without the examination of those averments. The outcome of
refnsal to grant leave 'm\lst stare into the . face while deciding the
scope of the power and jurisdiction under s. 25B(5).

In passing we may refer' to tw_o decisions of this Court.. in
CA. 179/82 (Charan Dass Dugga/ v. Brahma Nand, decided on
Janmry 11, 1982) and CA, 527/82 (Om Parkash Saluja v.
Sl]lt. Saraswati Devi, decided on February 8, 1982). We would have
avoided any reference to these two decisions because the decision
in each .case was rendereo on the facts of the case but the Full
Bench of the Delhi High Court referred to these two decisions and E
observed that the ratio in each of it runs counter to the -large
Bench decisions of this Court in Busching S~hmitz and B.N. Mutto' s
' . cases and that the two earlier decisions 'provided the law 'of the land
under Article l 41 of the Constitution. We fail to see ·any inherent
conflict between the .aforementioned two earlier decisions and the
· two later decisions. The earlier two decisions have been fully dis- F
cussed by us and w~ find .nothing in the later two decisions· which
may even remotely be said to run counter to the ratio of the earlier.
decisions.
/

It is indisputable ihat while examining the affidavit of the
tenant filed under s. 25B (4) for the purpose of granting or refusing G
to grant leave to contest the peiition the landlord who has initiated
the action has to be heard. It would' follow as a necessary corollary
that the landlord may controvert the averments made in the affidavit
of the tenant- bu( the decision to grant or refuse leave must be based
on the facts disclosed in the affidavit. "If they are controverted by H
the landlord tha_t fact may be borne in mind but if the facts· ills-
524 SUPllEME COURT REPORTS (1983] I s.C.R.

A closed in the affidavit of the tenant· are contested by way of proof or
disproof or producing evidence in the form of_ other affidavits or
documents that would not be permissible. It is not the stage of .
proof of facts, it is only a stage of disclosure of facts. Undoub-
tedly, the rules of nat_ural justice apart from the adversary system we .
follow must permit the landlord to contest affidavit filed by the tenant , .
B and he can do so by controverting the same by an affidavit. That
would be an affidavit in reply because tenant's affidavit is the main
affidavit being treated as an application seeking leave to contest the
petition. But, the matter should end there. Any attempt at investiga-
ting the facts whether they appear to be proved or disproved is
beyond the scope of sub-s. (5) of s. 25B. Viewed from this angle the
c decision in Mohan Lal's case rendered by the Full Bench of the Delhi
High Court is far in excess of the requirement of s. 25B (5) and the
view taken therein does not commend to us.

It was, however, urged that s. 37 (I) makes it obligatory for
D the Controller to not only hear the landlord but examine evidence
at the stage of granting or refusing to grant leave to contest. Sec-
tion 37 (1) provides that no order which prejudicially affects any
person shall be made by the Controller under the Act without
giving him a reasonable opportunity of showing cause against the
order proposed to be made and until his objections, if any, and •
E evidence he may produce in support of the same have been con-
sidered by the Controller. Sub-section (2) of s. 37 provides that
subject to any rules that may be made under the Act, the Controller
shall, whiie holding an inquiry in any proceeding before him, follow
as far as may be the practice and procedure of a Court of Small
Causes, including the recording of evidence. Section 37 (1) prescribes
F procedure 'to be followed by the Controller in a proceeding under the
•
Act and sub-s. (2) makes it clear that subject to the rules that may be
made under the Act, the Court has to follow·the practice and proce-
dure of the Court of Small Causes inclusive of the provision for
recording of evidence. However, in this context it is advantageous
to refer to sub-s. (7) of s. 25B. It reads as under :
G
"25B (7). Notwithstanding anything contained in
sub-section (2) of section 37, the Controller shall, while
holding an inquiry in a proce<!"ding to which this Chapter
applies, follow the practice and procedure of a Cour\ of
H
Small Causes, including the recording of evidence."
PRECISION STEEL v. PREM DEVA (Desai, J.) 525

Sub-section (7) of s. 25B opens with a non-obstante clause and pro- · ·A
vides that while holding an inquiry in a proceeding to which the
Chapter IHA applies, the Controller has to follow the practice and
procedure of a Court of Small Causes including the recording of
evidence. Section 25B (l) leaves no room for doubt that it is· a self·
contained code and that is why sub·s. (7) had to open with a non-
obstante clause. It is crystal clear that while holding the inquiry
B
under Chapter IIIA which incorporates s. 25B, the Court has to
follow the practice and procedure of a Court of Sinai! Causes. It
was, ·however, submitted that. the non-obstante clause' excludes the
application of sub-s. (2) of s. 37 and not sub-s. (!).of s. 37 and, there·
fore, when leave to contest is sought by the tenant not only the land·
· lord can contest the same which is indisputable but the Conroller
c
will have to follow the procedure prescribed in s. 37 (!), namely,
inviting the objections, taking into consideration, the evidence
that may be ·produced, etc. Ifs. 37 (I)' Is attracted and the
evidence has • to be . produced and the Coµtroller is bound
to take that evidence into consideration, the evidence can as D
well be oral evidence which· necessitates the examination and cross-
examination of witnesses. If that is contemplated by s. 37 (i},
incorporating it in s. 25B would be self-defeating. On the contrary
even the exclusion of. s. 37 (1) will necessarily follow from the pro- --~
vision contained in sub-s. (10) of s. 25B which reads as tinder:
E
"25 (10). Save as otherwise provided in this Chapter,
the .Procedure for the disposal of an application for
eviction on the ground-specified in clause (e) of the proviso
to sub-section (!)_of section 14, or under section 14A,
shall be the same as the procedure for the disposal of F
-applications by Controllers.'.'

It would appear at a glance that, .sub-s. (10) operates to bring in
s. 37 (l) after leave to contest is granted. However, if there is any
provision in s. 25B for dealing ·with an application under that
section that would prevail over other provisions of the Act. While G
considering an applicatio~ amongst others under s.14 (I) proviso (e),
if at the time of considering the application for granting leave the
procedure under s.37 (l) is to be followed it would render sub-s. (IO)
superfluous aqd redundant. Ifs. 37 (I) were to govern all pr~- .
ceedings Including the application , for leave to . contest the pro- .
H
ceedings, sub-s. (i) and sub-s. (IO) would both be rendered
A
526
- SUPREME COURT R~PORTS (1983] 1 S.C.R.

redundant. ·on the contrary the very fact that sub-s. (7) provides
that while considering the affi\}avit of the tenant seeking permission
to contest the proceedings the practice and procedure of the Small
Causes Court. will have to be followed itself .indicates the legislative ...
·

intention of treating Chapter IIIA. and especiiiJly s. 25B as self-
contained code and this conclusion is buttressed by the provision of
B .sub-s'. (I) which provides tha'i every application by landlord for
recovery of possession of any premises on the· ground specified in
clause (e) of the proviso to' sub-s. (I) of s. 14 shall be dealt with in
accor<jance with the. procedure specified in s. 258. Any other section
prescribing procedure for disposal of application covered by sub-s .. 1
of s. 25B will be excluded. And that will also exclude s. 37 (1).
c The stage for considering the application for leave to contest the
petition is anterior to the stage of hearing the substantive petition
for eviction and the procedure for the disposal is prescribed in
sub·s. (7). After grant of leave to contest sub-s. (JO) of s. 25B comes
into operation· and it makes it abundantly clear that the procedure
prescribed while holding an inquiry consequent upon the granting
D of leave to contest shall be the same as required to be followed by
Contrail.er. This directlrpoints in the direction of s. 37 (!). There-
fore it is crystal clear that s. 37 (I) is not attracted at the stage of .
considering an application for leave to contest filed under sub-s. (4)
_and examined under rule Sub-s. (5) or's. 25B.
E.
Before concluding on this point conceding that a summary
procedure bas been devised so that the bane of law courts and· legal
prCicedure as at present in vogue manifestly showing regard for the
truth being the last item on the list of· priorities. and, therefore, the
tenant should not necessarily be permitted to prolong· the litigation
F anci cause hardship to the landlord who is seeking possession on the -
ground of personal requirement by raising untenable and frivolous
defence where speedy decision is desirable in the interest of society,
'
does not imply that ignoring the mandate of Jaw, the
Controller should hold trial at a stage not prescribed by the statute. -,
Inability to make good a defence does not render every defence either
G , frivolous or vexatious. In a civil proceeding the courts decide on the
preponderence of.probabilities and it may be that while evaluating
the evidence the Court may lean one way or. the other but the one
rejected does not necessarily become vexatious or frivolous.' The
last two are positive concepts and have to be specifically found and.
H it is not an end product of failure to offer convincing proof because
some times a party may fail to prove the fact because 'the .other side
PRECISION STEEL v. PREM DEVA (Desai; J) . 527

can so d~ctor or articulate the facts that the· proof may not be, easily
A
available. Coupled with this js the fact that the justice delivery
.;·.-,' system in tbis country worshipped ao·d ardently eulogised is an
adversary system the basic postulate of which was noticed by this
Court in Sangram Singh v. Election Tribunal, Kotah ·& Anr,(1) as
under:
B
"Now a code of procedure must be regarded. as such.
It is procedure, something designed io facilitate justice and
·further its ends; not a penal enactment for. punishment and
a
penalties, not thing designed ·to trip people up. Too.
technical a construction of sections ~hat leaves no. room -·
for reasonable elasticity of interpretation should therefore c
he guarded against (provided always' that justice .is. done
on both sides) lest the very means. designed for the fur-
therance of justice be used' to. frustrate. it. Next, there
must be ever present to the mind the fact that our laws
of procedure are grounde4 on a principle of natural. justice
D
which requires that men should not be condemned un·-
heard, that decisions should not be reached behind their
hacks, that proceedings that affect their lives and·
property should not continue in their absence ·and that
they should not be precluded from participating in them.
. . '
Of course, there must be exceptions and where they are
E
clearly defined· they must be given 'effect to. But taken by
and large, and subject to that proviso, our Jaws of proce-
dure should be construed, wherever that· is· reasonably
possible, in the light of that principle."

. . . F
Add to ·this the harshness of the procedure prescribed under
section 25B. The Controller is the final arbiter of facts: Once leave
is refused, no appeal is provided against . the order refusing leave
(see sub-section (8) of section 25B). A revision ·petition may be
· filed to the High Court but realistically no one should be in doubt
about the narrow constri9ted jurisdiction of the- High Court while G
interfering with findings of facts in exercise of revisional jurisdic-
tion. Compared to the normal procedure certainly the procedure
is a harsh one and that considerably· adds to the responsibility of
the .Controller at the th,;e of deciding the application for leave to
contest the 1petition.: Wisdom, sagacity and the consequence of ff.
(I) [1955] 2 S.C.R. I @8.
528 SUPREME COURT REPORTS [1983] I s.c.tt.

A refusal to grant leave coupled with limited scope of enquiry . being
confined to facts disclosed in affidavit of the tenant sheuld guide the
approach of the Controller. ·

Since Sangram Singh the ever widening horizon of fair proce-
dure while rendering administrative deci sion as set out in Maneka -
B Gandhi should guide the approach of the Court while examining the
encroachment, fetters and restrictions in the procedure normally
followed in Courts. Speedy trial is the demand of the day but in
the name of speedy trial a landlord whose right of re-entry was
sought to be fettered by a welfare legislation with its social orienta-
tion in favour of a class of people unable to have its own roof over
c the head-the tenant should not be exposed to ·the vagaries of
augmenting that right which even when Rent Restriction Act was
not in force had to be enforced through the machinery of law with.
normal trial and appeal. ·

D What then follows. The Controller has to confine, himself
indisputably tq the condition prescribed for e.xericse of jurisdiction
in sub-section (5) of section 25B. In other words, he must confine
himself to the affidav·it filed by the tenant. If the affidavit discloses
such facts-no proof is needed at the stage, which would disentitle
the plaintiff from se~king possession, the mere disclosure of such
E facts must be held sufficient to grant 'leave because the statute says
on disclosure of such facts the Controller shall grant leave'. It is
•
difficult to be exhaustive as to what such facts could be but
ordinarily when an action· is brought under section 14(1) proviso
(e) of the Act whereby the landlord seeks to recover possession on
F the ground of bona fide personal requirement if the ·tenant alleges.·
such facts as that the landlord bas other accommodation in his •
possession·; that the landlord has in his possession accommodation
which is sufficient for him; that the conduct of the landford
discloses. avarice for increasing rent by threatening eviction; 'that '
the landlord bas been letting out some other premises at enhanced
G rent ·without· any attempt at occupying the same or using it for
himself; that the dependents of the landlord for whose benefit also
possession is sought are not persons to whom in eye of ·Jaw the
landlord was bound to provide accommodation; that the past
conduct of the landlord is such as would disentitle him to the
H relief of possession; that the landlord who claims possession for his
personal requirement has not cared to approach the Court in
PRECISION STEEL v. PREM DEVA (Desai, J.) . 529

person though he could have 'fithout the slightest inconvenience A
approached in person and with a view to shielding himself from
cross-examination, prosecutes litigation through an ·agent called a
constituted ·attorney. These and several other relevant but
inexbausiible facts when . disclosed should ordinarily· be deem~d
to .be sufficient to grant leave. And now fo the facts of this case.
Really no elaborate discu.ssion is necessary but what is stated B.
herein is with a view to poipting out with respect bow contrary to
well established principles and the mandatory requirements of
the statute the learned Controller and the High Court dealt with
the.matter. The learned Controller in para two of the judgment
set out· five different defences raised by the tenant in bis affidavit
seeking leave to contest the petition. The learned Controller t)l.en
c
proceeded,. to note in para 3 of the order tllat the petitio'ner filed
a counter-affidavit and also filed the sale deed of the house at 32,
Anand Lok and further stated that the landlord :bas only one
house of his ~nership and that is the demised premises. In D
summarising the contentions raised by· the tenant in his affidavit
. the learned ·Controller overlooked two most important conten-
. tions : (I) that though the landlord Niranjan Deva Tayal for whose
benefit the petition was filed has been in Delhi since 1972 yet the
Jeave and license agreement in favour of the ·tenant was renewed ·
·in 1972 and 1973 which would mean that even though Niranjan E
Deva Tayal, the real landlord whose proxy is Prem Deva Tayal,
. the constituted attorl\ey, did not seek possession but renewed the
so called leave and license agreement which would necessarily
imply that be was not in need of the premises and that be has
some accommodation .in bis occ'upation which be considers
sufficient and could occupy it as of right. If that was not to be he F
should have so stated in the petition. But the glaring lacuna in
summarising the contentions made by the learned Controller is
that the tenant state.? in bis affidavit that an identical unit at the
back of the demised premises fell vacant in 1973 when M/s. Kirlos-
kar & Co". vacated the same and the same was let out to the
Food Corporation of India at enhanced rent. The learned Controller G
did not note the fact that a notice seeking eviction was served in
1974. and that too on the ground that Niranjan Deva Tayal
requires the premises for his personal occupation because he bona
fide .needs the same and yet no follow up action . was taken till
1979. when on June 22, 1979, a second notice of eviction was
served. If in a regular trial these. facts· are proved, is there any H
<!oul>t 11bo11t the out9ome of the petitioQ? There was t!ieJurth~r
530 SUPREME COURT REPORTS • [1983] I S.C.R.

A averment of which proper summary is not made that even Food
Corporation of India appears to have vacated the premises at the
back of the demised premises and the same is in occupation of
M/s .. Coronation Spiniling!(India) -and it is admitted that the same
were let out up to and inclusive of the year 198 l. The averment
-_is that every tiine a fresh letting is indulged into it is done after
B raising the rent. Could not the bona fides of the landlord on dis-
-closure of these facts be put in issue? Surprislngly, contrary to
the provision of law ihe learned Controller took the affidavit and
counter-affidavit and reply affidavit as unquestioned evidence and
proceeded to decide ali disputed questions of fact. Is this at all
contemplated by section 25B? If not, the whole order would be_
c without jurisdiction. But the more objectionable part overlooked
by him is that the landlord who seeks possession for himself and
is a<Jmittedly in Delhi has not stated a single word on oa'tb about
bis requirements as to in what right he is occupying the premises
in which he is at present staying, why after nearly seven years he is
required to vacate the same and ·w.bat necessitates his seeking
D possession of the front portion' when identical unit at the back fell
vacant- thrice during the period he was permanently in Delhi. If
these facts without further elaboration disclosed in affidavit of the
tenant are not sufficient to grant leave, we would find it difficult
to see a single case in which leave could ever be granted which -
would mean that the 1 landlord fortunately having ·premises in
E Delhi where rents· are fantastically high can bold tenants at ransom -
'on the threat of eviction on, the ground of personal 'requirement
and on refusal of leave obtain possession. We say no more.

We then turn to the judgment of the High Court rejecting
F the revision petition filed by the tenant. The learned Chief Justice
first examined the cont_ention whether rhe demised premises were
' .
let for residence-cum-business. While examining the contention,
Clause 6 of tlle Licence ·Deed was referred to which inter a/ia
provides that the licensee will however" be free" to ~se the said ' .
G premises in part or in full also for office J?Urposes provided the
rules of the local authorities so permit and _in such an event the
licencees' shall pay to the owners any increase in local taxes etc_ etc.
occasioned by such change of use of the said premises from
residence to office. 'U1e contention raised in the petition of the
H tenant is that the pre;n-ises were let for residence-cum-business.
Tile landlord has camouflaged license for lease but it is admitted
- on all sides and - it is so stated in the petition filed before the
PRECISION STBBL v. PREM DEVA (D~sai, J.) 531
I .
Controller ·by t.he constituted attorney of the landlord that the A
respondent was accepted as a tenant on monthly r_ent of Rs 2,000/·.
It is nowhere examined by the High Court as to when the license
· was terminated as alleged 'by the landlord in. the petition and a .
contract of lease was entered into ·and what were the terms of the
lease. ·The learned Chief Justice observed : 'a plain reading of the
clause, spells out the sole purpose_ of letting· being residence' and -B
this observation is made in the shape of the positive findi9g. Since
the entry in the premises the tenant has been using part of the
premises for office with the specific and undisputed permission of
<landlord and. this fact is gloated over. Whether the rules permit
slich a use; whether there was such rule prohibiting such use, is a.
inatter left to be inferred by a statement that no ru'le or bye-law
c
was . brought to the notice· of the Court that such an use was
permissible. If the landlord· entered into ii contract of leaile
permitting non-residential use and yet if ii is pleaded that such use
cati be made if the rules of the local authority permitted it,
ordinarily one would expect the landlord to show that such use was D
·impermissible. There is no finding to that effecit. ·
'
The .Learned Chief Justice then . proceeded to exall!ine the
second contention, whether the landlord Shti Niranjan Deva Tayal
as Manager of the Hindu Undivide~ Family has other suitable
accommodation · at 32, Anand Lok. The High Court disposed of. E
the content\on by an observation which be speaks of non-examina-
tion of contention assuming that such examination at that stage
. was'< permissible. The High Court observed that the learned
Controller rightly came to the conclusion that the premises belong
not io the respondent but to his brother, This approach is wholly
l unjustified. because- the question was not whether Shri Niranjan .F
)........_ Deva Tayal for whose benefit p(!SSession was sought was the owner
' \. of the premises occupied by him and situated at 32, Anandlok,
but the substantial question was in what right he was occupying
the premises for a period extending over 7 years on the date ·or the
petition before the learned Controller and how it has become
imperative for him to v.acate the premises. No examination of the
G
relevant aspects appeared to have been undertaken and the revision
petition was dismissed. With great respect to the learned Chief
Justice, if such an approach is to be ·upheld, the legislative ·purpose ·
in enacting the· Rent Act stands defeated. Therefore it is not H
possible to accept the conclusiol) ~ecorc;t~d by th~ ·High Court, both
532 SUPllBMB COliRT RBPORTS (1983) 1 S.C.R.

A on account of non-examination of the relevant contentions and
also on account of utterly incorrect approach 8!i to how the matter
has to he examined at the stage of granting or refusing to grant
leave under sub-section 5 of section 25B.

B. We accordingly allow this appeal, set-aside the order of the
learned Controller as well as of the High Court and grant to the
tenant leave to contest. the petition for eviction and remit the cases
to the learned Controller for proceeding according to law .

. As Mr. D.V. Patel. learned counsel almost at the commen-
c cement of the hearing fairly conceded that this is a case in which ·
leave to contest the petition ought to have been granted and the.re-
fore even though we allow the petition, we cannot saddle the
landlord with costs. W~ accordingly direct the parties to bear
their own costs throughout, the proceedings. Costs of future
proceedings shall abide the final outcome of the petition.
D
As we are remitti~g the' case to the learned Controller where
facts on trial a~e to be investigated any observation on the merits
of the contentions made for disposing of this appeal have to be
.wholly ignored in the subsequent proceedings as if they have never
E been made.
•
SEN, J. I agree that this pre-eminently is a fit case where leave
to contest'the application under s. 14 (l) (e) must be granted to the
tenan.t under sub-s. (5) of s. 25B of the Delhi Rent Control
F (Amendment) Act, 1958 ('Act' for short), but I have the misfortune
t
to differ from the construction placed· upon the provisions con-
tained in sub-s. (5) of s. 25B of the Act.
I

. Sub-s. (5) of s. 25B of the Act reads as follows : •
G "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 <>f the
premises on the ground specified in· clause (e) of the
H proviso to sub~secti\lg (1) of section 14, or under
s~ction 141V'
• PRECISION STEEL v. PREM DEVA (Sen, J.) 533

There is a ·definite public purpose behind the enactment of
Chapter IHA introduced 'by the Delhi Rent Control (Amendment) .
AC!, 1976. The words "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 cl. (e} of the proviso to sub·s. (!) of s. 14 or under
s. I 4A" used in sub-s. (5) of s. 25B are to be interpreted in a B
manner which is in consonance with the intention of the Legislature
and must be construed in a sense which would carry out the object
and purpose of the Act.. The construction to be adopted must be
meaningful · ~nd innovative. A mechanical and literal construe·
tion of these words detached from the context of· the either provi-
sions as also the object and purpose_ of the enactment. will reduce c
this beneficial legislation .to futility.

S. 14A ofthe Ac.t was enacted to confer the right to recover
immediate posse.ssion, upon persons who being in occupation of any
residential premises .allotted to them by the Central Government or D
any local authority, were required, in pursuance of any general or
special order made by that Government o~ authority to vacat.e su.ch
residential accommodation, or in default, to incur the liability to
pay penal rent.. The whole object in s. 14A was to:· ensure that all
Government .servants to whom residential aecqmmodation had been
allotted by the Government or any local authority; should vacate _ .E
their Government ac«oinmodation, if they have any house of their
own in the Union Territory of Delhi.
\·

Further, experience in the past showed that landlords who
were in bona fide requirement of their accommodation for residential
purposes under cl. (e) of the proviso to Sl!b-s. (I) of s. 14 were being ·F
put to· great hardship due to the dilatory procedure of the suit. It
"'··'- was felt in the public interest that such landlords who were in bona
· fide requirement of their residential premises for their own occupa·
tion or for.the occupation of any member of their family dependent
on them, should not be subjected to protracted trial of a civil suit G
with concomitant rights of appeals. .

The underlying object behind the enactment of [Chapter IIIA
was that these classes of-landlords i.e. a landlord who was i~ 'bona
fide re'l_uirement of his residential premises for his own occupation H·
or for the occupation of any memb~r Qf his family <lepondent on
.534 ·SUPREME cOURT REPORTS [ 1983) I s.c.a.

A hini under cl. (e) of the proviso to sub-s. (1) of s. 14, or a landlord.
seeking to enforce the right to recover immediate· possession under
s. 14A of the Act, should not be at the marcy of law's delays ·but
there should be quick and expeditious remedy against his own -
tenant.

B Apart from conferring rights under.s. 14A to recover· imme-
diate possession, a summary procedure for trial of applications made'
uµder s. ·14 (I) (e), or under s. 14A, was provided for by Chapter
IHA. S. 25A provides that the provisions of Chapter IIIA which co'!-
tains ss. 25A, 25B and 25C and any rule made thereunder shall have
effect "notwithstanding anything inconsistent therewith 'contained
c elsewhere in the Act or in any law for the time being in force." By
sub"s. (1) ofs. 25B, every application by a landlord for recovery of
possession of any premises on the ground specified in cl. (e) of the
proviso to sub-s. (I) of s. 14, or under s. 14A, has to· be dealt with
hraccordance with the procedure specified in 'Chapter lIIA. The
conferral of'the right to recover immediate possession ·under~- 14A
D on a person in occupation of .any residential premises allotted by the
Central Government or ·any local authority necessitated a con-
sequential change.in the law ..-Such a person, before.the enactment
of s. l 4A, could not evict his own tenant because so lqng as he was
in'occupation of the residential accommodation allotted to him, he
could not satisfy the ,requirement of cl. (e) of the proviso to
sub-s. ·(I) of s. 14 that he should not have any other. reasonably
suitable accommodation. In order that. the object of s. 14A .may
not be frustrated, s. 25C provides that noihiilg contained in sub·s (6)
of s. 14 shall apply to a landlord who is in 'occupation of any pre-
mises allotted to him by the · Central Government or any local
authority is required to vacate that residential accommodation.
F, There was also a similar change brought .about· with respect to a
claim by a landlord under cl. (e) of the proviso to sub-s. (1) of s. 14.'
Sub-s. (7) of s. 14· provides that where an order for recovery of
'possession is made on the ground specified in cl. (ei of the proviso
'
to sub-s. (I) of s. 14; the landlord shall not be entilled to obtain '

Jmmediate possession thereof before the expiration of a period of six
G months from the date of the order. Sub-s. (2) of s. 25C reduces the
period of.six months to two months.' ·

One of tlJ,e dominant objects with which the legislation was
introduced was to mitigate the hardship of landlords who were in
. - .
bonafide requireOJ<;Q\ of \hier resiq~q\ial premises·an4 h~c! made an
. ~)
, l'Rl!CISION STEEL v: PREM DEVA (Sen, J.)

A
applicaiion for eviction under s. 14 (I) (e), or under s. 14A, and to
obtain immediate possessipn of such premises without well-known
travails of our procedural ·1aws ..· The whole. object was to confine
the trial only to such cases where the tenant had such a defence as
would disentitle the landlord from obtaining an· order for eviction
· · under s. 14 (I) (e), or under s. 14A, and to provide for a summary
procedure of trial of trial of such applications. The ,words '.'if the
affidavit filed by the tenant discloses such facts" used in sub-s. (5)
of s. 25B of the Act must therefore'take their colour from the con·
text in which they appear.

. It is to mitigat~ the rigour of the law that Parliament in its c
wisdom introduced Chapter IHA and made the summary procedure
applicable to the trial of applications. under s. 14 (I) (e), or under
s. 14A. It seeks to strike a balance betweeen the_ competing needs of
a landlord and tenant and has therefore provided that the tenant
shall have a right to apply for leave 'to contest. Sub-s. (4) of s. 25B
provides that the tenant shall· not contest the prayer of eviction D
from the premises uriless he has filed an . affidavit stating the grounds
on which he seeks to contest the application for_eviction and obtains
leave from the Controller. Under sub-s. (5) of s. 25B, the Controller
is enjoined t<i give the tenant leave to contest the application only if
the affidavit -filed' by the tenant disC!oses such facts as would ·disen-
. title a landlord from obtaining an order for the recovery of posses- E
· sion of the premises on the ground specified in cl. (e) of the proviso
-tO'sub-s. {I) of s. 14, or under
,•. s. 13, or
, under s. 14A.

' In Sarwan Singh & Anr. v:
Kasturi Lal,(') Chandrachud, J.
(as he then was) after stating that the object of s. 14A was to
confer on a class of landlords the right to recover "immediate · - F
-~ possession of the premises" observes :

"Whatever be the merits of that philosophy, the theory
is that an allottee from the Central Government or a ·local
authority should not be at the mercy- bf law's delays while
being faced with instant eviction by his landlord ·save on
G
payment of what· in practice is penal rent. Faced with a
Hobson's choice, to quit the,official residence or pay the
market rent for it, the.allottee had in turn to be afforded a
quick and expeditious .remedy against .his o)Vn tenant. H
(1) (lm] 2 S.C.R. 421_.
536 SUPllBMB COURT 11.BPOll.TS (1983] I s.c.11..
A With that end in view it was provided that nothing, not
even the Slum Clearance Act, shall stand in the way of the
allottee from evicting his tenant by resorting to the sum-
mary procedure ·prescribed by Chapter IIIA. The tenant
is even deprived of the elementary right of a defendant
to defend a proceeding brought against him,- save· on
B obtaining leave of the Rent Controller. If the leave is
refused, by s. 25B (4) the statement made by the landlord
in the application for eviction shall be deemed to be J

admitted by the tenant and the landlord is entitled to an
order for eviction. No appeal or second appeal lies against
that order. Section 25B (8) denies that right and provides
c instead for a revision to the High Court whose jurisdic-
tion is limited io finding out whether the order complained
of is according to law."

" The provisions of Chap.ter IIIA have been enacted with· the
D object, in the words of Chandrachud, J.,., "to confer a real, effective
and immediate right on a class of landlords to obtain possession
of premises let out by tliem to their tenants." The same considera.
tions are applicable to the disposal of applications nuder Cl. (e)
of the proviso to sub-s.(1) of s. 14. The right to recover immediate
possession which accrues under s. 14A. of the Act is equated by
E Parliament with the landlord's bona fide requirement of residential
premises for his own occupation or for the occupation of the
members of his family under s. 14(1)(e). Sub-s. (5) of 8. 25B gove,rns
the disposal of both an_d therefore must be interpreted in a manner
which will carry out the legislative mandate.

F
Under the scheme of the Act, the grant or refusal of leave
under sub-s. (5)°of s. 25B of the Act, is the most crucial stage of
the proceedings initiated ·on. an application for eviction ·by the
landlord under s. 14(1 )(e), or under s. l 4A, at which stage the
Controller has to decide whether the application should proceed
G to trial, The Controller obviously cannot. come to a decision as
to whether or not leave to contest should be granted under
s.
sub-s. (5) of :25B without affording the parties an opportunity
9f a hearing. The Controller is not a Court but be has the trappings
of a Court, and be must conform to the rules of natural justice. It.
H must 1therefore follow as a necessary corollary that the Controller
has the duty to hear the parties on the question whether leave to
l>RliCISION STilEt•v. PREM DEVA (Sen, J.) S31
contest should or should not be granted under sub-s; (5) of s. 25B .A

. '
of the Act .

Once it is conceded that the landlord has a right to be· heard
· on the question of grant of leave to contest under sub-s. (5) ·or
s. 25B, it must follow as a necessary implication that he has a B
·right to refute the. facts ~lleg~d by the tenant in his affidavit filed

- under sub-s. (4) of s. 25B and to· show that' the affidavit fileil under
under sub-s. (4) of s. 25B .by the tenant does not represent true
facts. The Controller is therefore bound toe give the landlord an
opportunity to meet the allegations made by the tenant. The
Controller-must apply. his l)lind not only to the averments made by c
the landlord in his application for eviction, but also to the facts
alleged by ihe tenant in his affidavit for leave to contes_t as well as
the facts disclosed by the landlord in his affidavit in rejoinder,
besides the other material on record i.e. the documents filed by the
parties in support of their respective claims in order to come to a D
conclusion whether the requirements' of sub-s. (I) of s. 25B are
fulfilled. .It is difficult to lay down any rule of universal application
for each case must depend on its own facts.. To ask the Controller ·
to confine only to the affidavit filed by the tenant is to ask him
not to apply his mind in a judicial manner even if he feels that the·
· justice of the case so demands. The Controller must endeavour E
to resolve. the competing claims of landlord and tenant. to the
grant or refusal of leave under sub-s. (5) of s. 25B of the Act, by
·finding.a solutfon which is just and fair t~ both the parties.

It is not suggested for a moment that the proceedings initiated F
on an application by the landlord under s. l4(l)(e), or under
"-<. . s. 14A, must undergo trial at iwo stages, Under sub-s. (5) of
s. · 25B, the Controller must prima facie be satisfied on a perusaI of
I.he affidavits ·of the parties to the proceedings and the other
· material on record that the facts alleged by the tenant are such as
would diseniitle' the landlord from obtaining an order for recovery G
of possession of the premises on the ground specified in Cl. (e) of
the proviso to sub-s. (I) of s. 14, .or under s~ 14A. The word
'disentitle' is a strong word, and the Controller must he satisfied
that the tenant has such a defence as would defeat the claim of the
landlord under· Cl. (e) of the proviso. of sub-s. (I) of s. 14, or
8
. .
under s. I 4A. It cannot be that the Controller would set down
538 SUPREME COURT REPORTS · [1983) 1. S.C.R.

A the application for trial merely on perusal. of the affidavit filed by
the tenant without applying his mind to the pleadings of the parties
and the material on · record. If he finds that the pleadings are
s~cb. as would entail a trial, then the Controller must grant the
·-
tenant leave to contest as the words "shall grant to the tenant
J~a've to contest" in sub's. (5) of s. 25B. make 'the gr1111t of leave
B obligatory ..

It is also necessary to emphasize that the scope of sub-s. (5)
of s. 25B_ is ·rc:.stricted- and the test of "triable issues" u~der order
XXXVII, r. 3(5) of the Code of Civil Procedure, 1908 is not
a applicable, as the language of the two provisions is different. The
use of the word 'such' in sub-s. (5) or" s. 25B implies that the
Controller_ bas the power to limit the grant of leave to a particular
ground. A tenant may ta:ke all kinds of pleas in defence. The
whole object of sub,s. (5) of s. 25B was to prevent' the ta1'ing of. ·
frivolous pleas by tenants to protract the trial. · Where' the tenant
seeks leave to contest the application for eviction under s. !4(1)(e),
or under s. 14A, be must file an affidavit under sub-s. (4) of s. 25B
raising his defence which must be clear, specific and positive. The
defence must also be bona fide and if true, . must result in the
dismissal of landlord's application. Defences of negative character
which are intended to put the landlord to _proof or are vague, or
E are raised mala fide only to gain time and protract the proceedings,
are not of the kind which will entitle the tenant to the grant of
·the leave.· The Controller cannot set down the application for
hearing· without making an order in terms of sub-s. (5) of s. 25B.
The trial must be confined only to such grounds as would disentitle
the landlord to any relief. Such an order for the grant or refusal
F of leave to contest under sub-s. (5) of s. 25 of the Act cannot be
made without affording to the parties an opportunity of a hearing
/-·.
which, as we all know, does not only mean the right io address the
Controlle_r but also consid.eration of the material placed before him
· by both the parties..

I would therefore, for my part, refrain from placing a literal
and mechanical construction of sub-s. (5) of s. 25B of the Act as it
conflicts with the essential requirements 'of fajr play and natural
justice which the Legislature never intended·· to throw overboard.
In my view, the landlord has-a right to be afforded an opportunity
·ff

•
l>RBCISION STBEt v. PREM DBVA (Sen, !.) 539

to meet the allegations made by the tenant in the affidavit for leave A
to contest. and filed under sub-s. (4) of s. 25B and there is a corres-
polldiog duty· imposed on the Controller to hear the parties on the
question whether such leave should· or should not be granted und~r
sub-s. (5) thereof and apply his mind to the pleadings of the· parties
and the material OD record. ' .
B
H.L.C. Appeal allowed.

, /

•

. /