MADHUMATI KAUR Vs. HARISH CHANDER KHANNA

JUDGEMENT

(1.) Respondent-landlord an 85 years old man, filed a petition in July,1992 seeking order of eviction against his tenant (petitioner herein) on the ground of bonafide requirement. The tenanted accommodation was required by him for himself, for his 80 years old wife. She is bed ridden. The old couple has to engage the services of a maid servant to lookafter his wife who is incapacitated. His wife has been suffering from diabeties and high blood urea. As a result of this illness she has developed wounds on her ankle, wherefrom pus is oozing out all the times. She has been suffering from this ailment for the last about 7 years. The accommodation with him consisted of two rooms, kitchen, bath, latrine and a courtyard. He has one married son. Son has children, he also have four married daughters. One of his daugher died leaving behind children. The married daughters with their children visit the petitioner. They stay with him. The accommodation with him is not sufficient to accommodate them as well as his son and his family who frequently visit and stay with him. Hence his requirement for additional accommodation. The accommodation with him is not sufficient to accommodate his family. He needs a room for himself, one separate room for the maid servant who looks after his wife and one room for his guests. Moreover, the tenant lives with her daughter at Bombay. She has sub let one room to one Mr.Rama Nand Gupta who happens to be neighbourer. It is in this background that the petition for eviction was filed. Leave to contest sought by the present petitioner was declined. It is against this order of declining the leave to contest that present petitioner Smt.Madhumati Kaul has preferred this petition.

(2.) The leave to contest was sought on two grounds namely (i) that the sub-tenant Mr.Rama Nand Gupta had not been impleaded as a party. The landlord in his petition under section 14(1)(e) himself had pleaded that part of the premises was in occupation of a sub-tenant. In this view of the matter when admittedly there existed a sub- tenant in the premises in question the provisions of Section 25B of the Delhi Rent Control Act (in short the DRC Act) cannot be attracted. The leave to contest can only be sought by a tenant and not by sub-tenant. Sub-tenant being necessay party having not been impleaded, leave ought to have been granted. It raises substantial question of law and needed evidence. Secondly, leave was sought on the ground that the accommodation in possession of the respondent/landlord was sufficient. The landlord had not described the accommodation with him properly. Since there was a dispute with regard to accommodation in possession of the landlord hence this being a disputed question of fact, leave ought to have been granted.

(3.) Repelling these arguments the Additional Rent Controller (in short the ARC) by the impugned order dated 30th October,1995 concluded that since the sub-tenant had not been impleaded, therefore, there was no question of granting leave on that ground. Leave was not sought by a sub-tenant nor sub-tenant was before the Court. Only tenant had been impleaded. It was he who applied for leave hence the provisions of law as envisaged under Section 25-B would apply. In fact the impugned order is well reasoned. The ARC has discussed in details all the aspects of the case and the contentions raised by the parties. The impugned order is based, to my mind, on correct interpretation of law. Reliance by the petitioner on the decision of this Court in the case of Siri Pal Jain V._Brij Kishore reported in 1982 RLR (Note) 50 is misplaced. In that case sub-tenant was impleaded as a party. The said sub-tenant had sought leave hence the Court concluded that since sub-tenant a party to the petition had sought leave it was not permissible under the provisions of Section 25-B of the Act. It is only a tenant who can seek leave and not a sub-tenant. In that case this Court observed that:- @SUBPARA = "As the sub-tenant had been made a party and eviction order is also sought against her, petition cannot be tried under Section 25-B,since a sub-tenant has not been given any right to apply for leave to defend and also allegations against her cannot be deemed to be admitted and no eviction order under Section 25-B can be passed against a person who is not a tenant."