S K SEHGAL Vs. PRITHVI RAJ GUPTA

JUDGEMENT

(1.) This is a petition for revision against the order of the Rent Controller dated 18.9.1978 granting leave under section 25 B (5) of the Rent control Act but limited to one ground only.

(2.) The respondent/landlord filed an application claiming eviction on the ground of bona fide need. The petitioner/tenant sought leave to defend on various grounds namely about the lack of ownership of the landlord, lack of bonafide need and also denied the relationship of landlord and tenant and also claiming that no notice of termination had been validly served. The Rent Controller found no merit in all the grounds excepting the ground relating to termination of tenancy and granted leave with respect to that ground only. The tenant has come up to this court in revision against that order.

(3.) In restricting the leave to one ground the trial court relied on a decision given by me which is reported as Jiteiidre Verma v. Manohar Lal Aggarwal (1978) (1) RCR 203). At the time of admission Mr. Sahai had referred to Smt. Kundan Kaur v. K.P. Verma (1978) (2) R.C.R. 282) and contended that this authority seems to take a contrary view. I have gone through this authority. In that case leave to contest had been refused. The tenant had come up in revision and the learned Judge had come to a finding that leave should be granted, on a restricted point. The further question that was decided was that leave to defend should not be allowed on the ground of purpose of letting or about the ownership of the landlord as the same had not been dispute in the application for leave to defend. The learned judge accepted this contention and held that the leave will not be granted on this question which had not been raised in the leave application. Referring to M/s. Viraj Lal Muni Lal and Co.'s case decided by me in (1978 (1) RCR 231), the learned judge accepted that this court in revision could restrict the leave application to certain grounds and it was not mandatory that the leave must be given on all the grounds raised by the tenant. No doubt there is small observation to the effect that there can be no doubt that so far as the Controller is concerned once leave to defend eviction petition is granted by him the tenant cannot be restricted to a particular pleas, but it appears to me with respect that this is more in the nature of obiter because this point was not before the learned judge. Moreover even the counsel for the petitioner did not seriously urge that if this court, is to be held to have power to restrict the leave application to certain grounds there can not be any distinction with respect to the powers of the Rent Controller. That is why he sought to contend that neither the Rent Controller nor this court can restrict the grounds on which the leave can be granted. Mr. Sahai's argument was that Section 25 B (5) provides for leave to be granted to the tenant and therefore once the court has come to a finding that the case is such where the leave should be granted it is not within the province of the court to restrict the leave application to a particular ground. He seeks to invoke the principle of Order 37 Civil Procedure Code and urges that it cannot be accepted that under October 37 Civil Procedure Code when leave to defend is granted the same can be restricted to a particular item. In that connection he relied on Lachman Singh v. C.D. Taneja etc. (1974 Rajdhani Law Reporter 80). In that case a suit had been brought on the basis of a pronote claiming Rs. 4,000.00. The defendant had alleged that he had made various payment and the trial court accepted that plea of payment of Rs. 1625.00. The court was satisfied with regard to the payment of Rs. 550.00 and not with the rest of the amount and therefore decreed the suit to the extent of Rs. 2375.00 and granted leave to defend in respect of the balance of the amount This course was disapproved by Misra J. who held that the jurisdiction of the court consisted in refusing leave or granting it unconditionally or subject to the terms as to giving of security etc. as it thought fit, and it is not open to the court to split up the defence as well as the suit and pass a decree in the first instance to the extent of the plea which had been accepted by defendant. The analogy, I am afraid is not applicable. The suit is brought for a particular amount and various defences are raised. What was held in that case was that even if the court was inclined to accept that a part of the payment had not been made it could not restrict the suit to that particular amount because the whole of the suit had yet to be decided. Under Section 25B(4) the tenant shall not constest the prayer for eviction unless he files an affidavit stating the ground on which he seeks to contest the application for eviction. Sub section (5) provides that the Controller shall give to the tenant leave to contest if an affidavit filed 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 clause (e) of the proviso to sub-section (1) of Section 14. Evidently therefore when the Controller is to pass the order under sub-section (5) he has to examine all the various facts whether they disclose and are such as would disentitle the landlord from obtaining an order for recovery of possession. Various facts and grounds may have been mentioned by the tenant claiming why the landlord would be disentitled to claim recovery of possession. It would be strange that even if the Rent Controller was not satisfied with regard to a number of grounds and was even of the view that they are completely baseless he should nevertheless be forced to give leave with regard to those grounds also and not to restrict leave to only those grounds about which he feels that the facts are such for which leave should be granted Mr. Sahai would have it that as the cause of action is for eviction, so if out of the various grounds of defence which may be mentioned even if one ground is considered sufficient'to enable the tenant to be given leave, the rent controller has no option but to give leave with regard to all the grounds even if he was of the view that the rest of the grounds were without substance. 1 am afraid that this would defeat the very object of Chapter III A which was introduced for the summary disposal of such like cases. The whole purpose was not to follow in these types of cases the normal dilatory procedure and thus to disallow all sorts of defences to be raised which were without substance. The object of providing for obtaining leave was for the Rent Controller to look into the matter and only grant leave if the affidavit discloses such facts which would disentitle the landlord from claiming possession. This has now been held by the Supreme Court in 'Buching Schmitz Private Ltd. v. P. T. Menghani and other (A. I. R. 1977 S. C. 1969) where the court observed that "we make it plain even at this stage that it is fallacious to approximate S. 25 B (5) with Order 37 R. 3 Civil Procedure Code ., 'and held :- 'The social setting demanding summary proceedings the nature of the subject-matter and above all, the legislative diction which has been deliberately designed, differ in the two provisions. The legal ambit and judicial discretion are wider in the latter while, in the former with which we are concerned, the scope for opening the door to defence is narrowed down by the strict words used. The Controller'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 specified in Cl. (e) of the proviso to sub-section 14A." Invoking therefore the principle of Order 37 Rule 3 Civil Procedure Code is of no avail to the petitioner. I am, therefore not persuaded that the view taken by me in Jitendra Verma's Case and M/s. Viraj Go. (supra) requires reconsideration.