EDWIN BRAVE Vs. HARI CHAND

JUDGEMENT

(1.) This revision petition under Section 25B of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') is directed against the judgment and order of the Additional Controller dated 21st April, 1980 refusing the petitioner-tenant leave to defend and passing an order of eviction against him. A portion of the premises on the first floor of the property at 41, National Park, Lajpat Nagar IV, New Delhi was let to the petitioner on 1st December, 1967 on a monthly rent at Rs. 215.00 . The respondent filed the eviction application under Section 14(l)(e) read with Sections 25A and 25B of the Act on 11th October, 1979 alleging that he was owner of the premises in dispute, that he required the premises for the residence of himself and for members of his family dependent upon him and that he had no other reasonably suitable residential accommodation. He further pleaded that his family consisted of himself and five other members, and that be was in cupation of only two rooms on the first floor. It is pertinent to note that there is no allegation in any portion of the eviction application that the premises were let for residential purposes. The petitioner- tenant on 20th November, 1979 filed an application for leave to defend. He alleges that the respondent-landlord has been in the habit of filing eviction applications against his tenants on the ground of alleged fictitious ground of bona fide and after getting the eviction order, he has been letting out the premises on higher rents. He alleges that the entire property consists of five portions, two on the ground floor, two on the first floor and a barsati on the second floor, that one portion of the ground floor was let out about 16 months prior to the institution of the present eviction application. In other words, it is alleged that the ground floor portion was let out in June, 1978. He then contends that the respondent-landlord was in occupation of barsati floor, that he filed an eviction petition against Brij Mohan, a tenant of a portion on the first floor, on the alleged ground of bona fide requirement wherein the respondent had pleaded that he desired to occupy the portion on the first floor as well as continue to occupy the barsati floor already in his possession. The portion of the first floor premises in occupation of Brij Mohan was vacated and occupied by the respondent-landlord but in July, 1979 he let out the barsati floor premises to C. Padmanabhan, Senior Engineer B.H.E.L. at an exorbitant rent of Rs. 650.00 per month. The petitioner further alleges that the respondent has always been demanding enhancement of rent, that the accommodation with the respondent has been sufficient for his requirement. There are various other allegations in the application for leave to defend and it is not necessary to reproduce all of them. The respondent in reply submitted that the ground floor portion was not suitable for his occupation and that he required the suit premises on the first floor for his occupation as the same was adjacent to the premises already in his occupation. As regards the barsati floor it is alleged that the same was not suitable for him. He denied the other allegations of the petitioner-tenant. The allegations contained in the application for leave to defend and the reply filed by the respondent leads one to assume that the respondent got the first floor portion vacated and occupied the same and that he let out the barsati floor in July, 1979 and filed the present eviction application in October, 1979 although he had undertaken in the eviction petition against the tenant Brij Mohan on the first floor that he would retain the barsati floor with him. Further the respondent let out near about June 1978 the portion on the ground floor. These two acts appear to be sufficient at this stage for the grant of leave to defend to the petitioner-tenant. The question for decision is Whether the requirement of the respondent-landlord is bona fide in view of the allegations of letting of the ground floor portion and the barsati floor in June, 1978 and July, 1979 respectively when according to the allegations of the respondent he was in need of additional accommodation for the residence of himself and his family members. The family of the respondent besides himself and his wife consists of two daughters aged 22 and 20 years respectively and two sons aged 18 and 16 years. When the ground floor portion was lying vacant there was no reason for him to let out the same. Further there was no reason for him to let out the barsati floor in July, 1979 especially when he stated in the earlier eviction case against the tenant on the first floor that he would retain the barsati floor. These are the questions which cannot be decided on affidavits and therefore I am of the view that the judgment of the Additional Controller refusing leave to defend is not according to law. It has been held repeatedly by this court that if disputed questions of fact are raised and their decision is necessary to grant relief to the landlord, then those questions should not be decided on affidavits and leave to contest should be granted. (See Mool Chand v Ganda Ram, 1977 Raj. Law Reporter 240, Kalyan Singh v. J.P. Gupta, 1977 Raj. Law Reporter 242, Fateh Singh v. Hukam Chand, 197 7 Raj. Law Reporter 244, RC. Jain v. S.K. Gupta etc, 1979 Raj. Law Reporter 560, Wing Comm. R.P. Jaiswal-v. Huns Raj, 1979 Raj. Law Reporter 17). There is no allegation taat the allegations made by the petitioner-tenant for leave to defend are sham or frivblous. On the other hand these allegations require investigation for determination whether the respondent-landlord is entitled to an order of eviction under clause (e) of the proviso to Section 14(1) of the Act. I am therefore of the view that the petitioner-tenant is entitled to leave to defend in the present circumstances.

(2.) This is however another objection to the effect that the eviction application does not disclose any cause of action and as such the same is liable to be rejected under Order 7 rule 11 of the Code of Civil Procedure. Rule 23 of the Delhi Rent Control Rules, 1959 provides that in deciding any question relating to procedure not specially provided by the Act and the Rules, the Controller and the Tribunal shall be guided by the provisions contained in the Code of Civil Procedure. In short rule provides that the provisions contained in the Code of Civil Procedure are applicable to the proceedings under the Rent Control Act. Under Order 7 rule 11 of the Code of Civil Procedure it has been provided that the plaint shall be rejected where it does not disclose a cause of action. In the eviction application under Section 14(1) (e) of the Act one of the essential ingredients for claiming eviction against the tenant required to be pleaded is that the premises were let for residential purpose. This fact, as already stated, was never pleaded by the respondent in the eviction application. In other words, the application for eviction does not contain all the essential ingredient, ie. the cause of action under Section 14(l)(e)of the Act. The provisions of Order 7 rule 11 (a) of the Code are mandatory. Further Order 7 rule I of the Code provides that the facts constituting the cause of action and when it arose shall be pleaded in the plaint. As the petition for eviction does not disclose a cause of action the eviction application is liable to be rejected under rule 11 of Order 7 of the Code. Learned counsel for the respondent-landlord has filed an application (C.M. No. 4095 of 1981) under Order 6 rule 17 of the Code seeking leave to amend the eviction application to add the words, "the premises in suit were let for residential purposes". Learned counsel for the petitioner however submits that the eviction application does not disclose a cause of action and as the provision of Order 7 rule 11 of the Code are mandatory, leave to amend cannot be granted. Learned counsel for the respondent however submits that the eviction application contains necessary allegations to show that the premises in suit were let for residential purposes. He refers to paragraphs 4 and 5 of the eviction petition These paras form a part of the Form 'A' prescribed under the said Rules. In para 4 of the form the petitioner is required to state, "Whether the premises are residential or non-residential". The respondent-landlord in reply has stated the word 'Residential', This will only mean that the premises in suit are residential. Again in para 5 the form requires the landlord to state, "In case of residential premises, the number of persons occupying the same and in the case of non-residential premises the purposes for which these are used and the number of employees, if any, working therein". The respondent in reply to this para 5 states, "the respondent abovenamed along with his wife and one son is residing in the premises in suit". Reading these questions and answers contained in paras 4 and 5 of the application, I find that there is no allegation that the premises were let for residential purposes. Para 4 shows the nature of the premises i.e. whether they are residential or non-residential. The premises which are residential may be let for business purposes. Similarly in para 5 if the premises are residential, the landlord is required to state the number of the persons occupying the same. It is only in the case of non-residential premises that the purposes for which these were used is required to be stated. According to the respondent the premises are residential and therefore he stated that the respondent and his family has been residing in the premises. Thus I do not find any allegation in the eviction petition to the effect that the premises were let for residential purposes.

(3.) Learned counsel for the respondent next contends that in the form prescribed under the rules no elaborate pleadings are necessary. This may be correct. But the question is whether the ground of eviction constituting the cause of action has been pleaded or not. As already stated, the ground of eviction as contained in Section 14(l)(e) of the Act has not been pleaded. Learned counsel relies upon Rattan Lalv.VardeshChander and others, AIR 1976 Supreme Court 588 in support of his plea that the Rent Act contemplates no elaborate pleadings but filing out of particulars in a proforma which takes the place of a plaint. This is so as observed by the Supreme Court but it does not mean that necessary allegations of facts constituting the cause of action are not to be pleaded. Learned counsel then relies upon Dr. Hans Raj Dawar and another v. Shrl Shyam Kifhore, 1977(2) Rent Law Reporter 253 wherein the learned single Judge of this court has observed that inadequacy of the pleadings was not fatal to the case. In that case the ground of eviction pleaded under clause (h) of the proviso to Section 14(1) of the Act read, "the tenant has whether before or after commencement of this Act built, acquired, vacant possession of, or being allotted a residence". This pleading in that case is a reproduction of Section 14(l)(h) of the Act. The eviction application did not contain any further particulars and therefore the learned single Judge held that failure to give particulars was not fatal. In the instant case the ground of eviction under Section 14(l)(e) of the Act has not been made out at all but in the case of Dr. Hans Raj Dawar and another (Supra) the ground of eviction under Section 14(l)(h) was properly pleaded and it lacked only particulars. This judgment does not help the respondent. Learned counsel next contends that the respondent should be allowed to amend the eviction application. It is true that the amendment should be allowed liberally and should not be refused on techdical grounds. Learned counsel refers to Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, A.I.R. 1969 Supreme Court 1267 wherein it has been held that the amendment of plaint should not be refused on technical grounds, in that case the suit was brought in the name of the firm under Order 30 rule I of the Code. An objection was raised that the firm was unregistered. The plantiff applied for amendment of the plaint on the ground that Manohar Lal was carrying on business as a Manager of the joint family under business name and that he had filed the suit on behalf of the family in the businrss name. The Supreme Court allowed Monohar Lal Proprietor-Manager of the firm to be substituted besides other amendments. Learned counsel further refers to Provabati Kunwar v. Kaiser Kunwar and others, A.I. R. 1959 Calcutta 642 wherein the plaintiff was allowed to amend the plaint making out an alternative case after it was held by the court that the suit as framed was not maintainable. In Smt. Batni and others v. Shri Tej Singh, 1966 Himachal Pradesh I it has been observed that amendment of the plaint seeking alternative relief of possession can be allowed even if it deprives the defendant from taking the plea that the suit was not maintainable. Maintainability of the suit and the disclosing of a cause of action in a plaint are two different things. These authorities are, therefore, not applicable to the facts of the present case.