HARMOHAN DAS BAGAI Vs. TARSERN PERKASH

JUDGEMENT

(1.) This is the tenant's revision application against the order passed by Additional Rent Controller, Delhi (J.D Kapoor) dated December 15, 1977, refusing leave to defend under section 25B of the Delhi Rent Control Act, 1958. Through the said order the learned Additional Rent Controller further decided the matter on merits and directed the petitioner-tenant to deliver vacant possession of the suit premises, within 6 months of the date of the order. Various benches of this Court have by now considered the true scope of the section 25B of the Delhi Rent Control Act (introduced as a part of Chapter III-A by amending Act of 1976). Broadly speaking the said decisions have laid down that if the application of the landlord under section 14(l)(e) and the affidavit of the tenant in support of his application for leave raise triable issues and disclose that there is a real and bona fide controversy, the tenant should be given an opportunity to defend his case. This Court has also laid down that the enquiry is only a prima-facie enquiry and the appraisal of the dispute being summary in nature, no evidence except the lease deed and landlord's notice (the tenant's reply) should be gone into. It has also been held in some decisions that the past conduct of the parties and the history of litigation may also be considered in deciding whether there is a bona fide dis-agreement between the parties on the matters directly germane for section 14(1) (e) of the Act.

(2.) The petition was argued before me for four hours. Counsel for both sides tools me through all the applications on record in the present litigation and the past litigation between the parties and cited a number of authorities . This journey of the litigation keeps one bemusing as to the efficacy of the summary remedy created by section 25B by the Amending Act of 1976. The impugned order passed by the learned Judge was far as back as I5th of December 1977. Even if the learned trial Judge would have granted leave to defend to the tenant, probably by now, the suit would have been heard and disposed of. The history of the litigation shows that the earlier petition made by the landlord on the grounds of bona fide requirement under section 14(1) (e) was compromised in 1973. As an effect of the compromise the rent of the premises was raised from Rs. 120 to Rs. 200. Departing from earlier practice the landlord started giving one rent receipt instead of 2 rent receipts for the different parts of the premises. Unlike the earlier receipts, the receipts after the compromise were given in the name of 'Mohan Bagai, The landlord has admitted in the earlier suit that 'Mohan Bagai is a trade name and that the tenant was carrying on the business in the suit premises under the said trade name. These developments in 1973 have created legal problems on which the landlord and tenant are at serious dispute and controversy. The questions that are raised are (i) after 1973 whether there are two tenancies or there is only one tenancy, (ii) whether the tenancy is created in the name of commercial entity or the tenancy is an old tenancy in the name of natural individual Harmohan Dass Bagai ; (iii) thirdly the question is whether the lease in question is a lease for commercial purpose or for residential purpose or for a composite purpose. I find from the tenant's application for leave that there are sufficient averments raising these issues. These issues go to the route of the matter and if proved, would seriously disentitle the landlord claiming the possession of the suit premises' The Additional Rent Controller has committed material irregularity in not appreciating the pleadings of the parties and further not appreciating the genuineness of the controversy between the parties. The learned trial Judge is not right in merely dismissing these controversies by describing them as negative pleas of the tenant. The observations made above only illustrate the likely issues and should not be treated as findings on merits one way or the other.

(3.) It would have been possible for the tenant to substantiate his averments and to bring out serious controversy between the par- 381 ties to the satisfaction of the trial Judge if he was given an opportunity to produce the record of the earlier proceedings between the parties and to cross examine the landlord so as to elicit from him the circumstances under which the earlier suit was compromised and withdrawn. Denial of this opportunity, on the facts of this case amounts to material irregularity resulting in miscarriage of justice. I, therefore, set aside the order dated December 15,1977 passed by the Additional Rent Controller. Revision allowed.