Manmohan Sarin, J. - (1.) This revision petition has been filed assailing the order dated 16.8.1996, passed by the learned Additional Rent Controller refusing leave to defend to the petitioner tenant.
(2.) The facts giving rise to the present petition may be briefly noted : (i) Respondent landlord had filed an eviction petition against the petitioner tenant under Section 14(l)(e) read with Section 25-B of the Delhi Rent Control Act for eviction from premises bearing No. 161, State Bank of India Colony, Rana Pratap Bagh, New Delhi. (ii) Petitioner tenant filed the application seeking leave to contest the suit on the ground that the premises in question had been let out to M/s. Laghu Ispat Udhyog in the year 1972 at a monthly rent of Rs. 200.00 for residential-cum-commercial purposes. Subsequently, the tenancy was changed in the name of M/s. Jain Laghu Udyog and the rent was increased to Rs. 350.00 per month. The user was stated to have continued as residential-cum-commercial. Petitioner's case was that she had been carrying on the business of ready-made garments and knitwear at the premises under the name and style of M/s. ESS-Sonu. Petitioner also disputed the residential nature of the premises in suit and contended that the same was commercial and that even prior to 1972, when M/s. Kirpal Brush Factory were the tenants, the user of the premises had been commercial. (iii) It was further contended the application seeking leave to defend that respondent landlord had filed the eviction petition malafide and was seeking to have the rent increased to Rs. 4,000/ - per month. It was further contended that respondent had agreed to sell the property to Shri Suresh Chander Bhargava his brother-in-law. (iv) Other grounds taken by the petitioner were that the respondents was permanently settled in Lucknow and had no intention to settle in Delhi; his one son had his own flat in Delhi and his other sons were in service outside Delhi and could not be expected to leave their job and join the respondent for living in Delhi. It was also contended that the petitioner was for partial eviction since the respondent had not included the first floor premises. (v) As noted earlier, the learned Additional Rent Controller dismissed the application of the petitioner tenant vide the impugned order dated 16.8.1996 and, hence, this revision petition.
(3.) I have heard learned Counsel for the parties. The main submission of learned Counsel for the petitioner is that the learned Additional Rent Controller has acted with material irregularity in passing the impugned order which amounts to adjudicating upon the defences raised, which could only be done after trial. The submission of the petitioner is well founded. With regard to the plea for partial eviction, the learned Additional Rent Controller appointed a Local Commissioner, who went to the site and reported the existence of certain structures, described as 'mumty', and the learned Rent Controller then proceeded to hold that the structures on the first floor could not be regarded as permanent and from the very nature of the structure it could be taken to be a part of the ground floor. This was not the stage for appointment of Local Commissioner to gather evidence and then determine whether petition was for partial eviction or not. Even with regard to the letting purpose the learned Additional Rent Controller adjudicating upon the documents that were produced and determined the creditibility and effect of the assessment order, which referred to the sole proprietary concern M/s. Ess-Sonu, which was engaged in the export of readymade garments.;