HARGUN DAS Vs. REWA CHAND
HIGH COURT OF DELHI
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J.D.Jain, J. -
(1.)Respdt. sued petitioner for eviction u/s 14 (1) (e) on the plea that with passage of time his children (sons-23 & 20, daughter 17 & 13) have become old enough so as to need separate rooms and his married daughter keeps on visiting and his present accommodation had become inadequate. Petitioner's brother and attorney who is living in the premises filed affidavit for leave to contest alleging that respdt. does not bona fide needs more space. Respdt. replied this by filing counter-affidavit. The Controller refused to give leave and petitioner moved High Court.] After giving above, judgment proceeds :
(2.)Section 25-B (5) enjoins a duty on the Rent Controller to grant leave to contest the petition if facts disclosed in the affidavit of the tenant are such as would disentitle the landlord to obtain an order of eviction. Therefore, while examining the application for leave to contest the Rent Controller has ordinarily to confine to the facts disclosed in the affidavit and it is not permissible to him to look to other documents which are on the record but which are not admitted and which are still to be proved for coming to any prima facie decision as if it be a stage for a fulfledged trial of the issues arising from the facts stated in the affidavit. The Supreme Court has enunciated the legal position in Precision Steel & Engg. v. Prem Deva Niranjan Deva Tayal, AIR 1982 SC 1518, as below :
"It would be open to landlord to contest application of the tenant seeking leave to contest and for that purpose he can file an affidavit in reply but production and admission and evaluation of documents at that stage has no place. The Controller has to confine himself to the affidavit filed the tenant under sub-section (4) and the reply, if any. On perusing the affidavit filed by the tenant and the reply if any filed by landlord the Controller has to pose to himself the only question, 'Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in cl. (e) of the proviso to Section 14(1)?' The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against the other set of affidavits."
(3.)The only document relevant for consideration at this stage is the affidavit filed by the tenant and the only precondition for grant of leave is 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 mentioned in section 14 (1) (e). Such being the legal position it is now to be seen whether the affidavit of the petitioner in the instant case discloses such facts as would dis- entitle the respondent landlord to have an order of eviction against him.
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