JUDGMENT [ENTITY], J.
(1) This is a revision under [SECTION] of the [ACT], intituled by the petitioner to challenge the eviction order passed by [ENTITY], 4th Additional Rent Controller Delhi under [SECTION] of the said Act. The facts of the case show that the respondent mentioned in the eviction application had applied for leave to defend under deprocedure prescribed by [SECTION] within the time mentioned in the summons, but leave to defend was refused on two grounds.
(2) Firstly, the application was accompanied by the short affidavit stat ing "that the contents of the accompanying application for leave to defend of paras 1 to 5 are true to my knowledge and the same may be read as part of this affidavit", but the learned Additional Rent Controller thought that the paragraphs themselves must be reproduced in the affidavit. Secondly even on the merits and the facts stated in the application, the learned 4th Additional Rent Controller came to the conclusion that no facts were stated which entitled the tenant to leave to defend.
(3) Learned counsel for the respondent has attacked the order of the Additional Rent Control on both points. He says that it has been held in two judgments of this Court reported as [PRECEDENT] and [PRECEDENT] It is now necessary to deal with the second point because even if the application for leave to defend is dealt with on the merits, the learned Additional Rent Controller has found that no facts are disclosed in the application which whould justify the grant of leave to refend. Three points are mentioned as being facts entitling the respondent the leave to defend. Firstly, it was alleged that the original tenant was [ENTITY] whose heirs were the answering respondent [ENTITY] and two daughters Miss [ENTITY] and Miss [ENTITY]. It was claimed that these two were necessary parties to the suit. Secondly, it was claimed that [ENTITY] was the owner of the house and the petitioner's ownership was denied. Thirdly it was claimed that the petitioner did not bona fide require the accommodation because she had ample accomodation in the house she was living. It was stated that she was living with her husband who owned a double storeyed house situated in Mohalla Mantola Paharganj, New Delhi. It was said that the entire house was with the petitioner and her family and the ejectment application was filed mala fide. It was also claimed that the ground floor of the house in which the respondent was living was also with the petitioner.
(5) On these three points, the Rent Controller held that it was not sufficient to claim that Miss [ENTITY] and Miss [ENTITY] were co-tenants. It was also necessary to show that [ENTITY] was a tenant earlier. It was held that the Rent Controller strongly felt that the plea about [ENTITY] being the original tenant and the other heirs being co-tenants was a sham and bogus plea. On the second point about ownership, it was stated that even the petitioner did not dispute that [ENTITY] was the previous owner from whom the petitioner had purchased the property in 1968, which was not disputed. On the question of accommodation, the Rent Controller stated that the actual accommodation with the petitioner was not disputed nor was it disputed that the petitioner had four sons and hence the accommodation was obviously in sufficient for her. The Court relied on [PRECEDENT]* to hold that only a specific and positive plea raised by the tenant would be sufficient to defeat the ejectment petition.
(6) It is quite obvious that the , learned Additional Rent Controller has completely misdirected herself on the questions as to what points have to be taken into account when leave to defend is to be granted. On the first point, the respondent did not at first produce rent receipts in favor of [ENTITY], but did file some shortly before the judgment was delivered and they are even now on record. Assuming that these receipts were filed too late for consideration, it must be kept in view that the Rent Controller has only to find out whether there is a case requiring trial not to decide the case on imaginary evidence to reach the conclusion that it is not friable. The provisions of [SECTION] state that the "Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such fact as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause (a), etc " The words "shall give to the tenant leave to contest" depend on the nature of the facts disclosed. The facts disclosed was that [ENTITY] was the original tenant and the answering respondent, i. e. [ENTITY] was the widow whereas there were two daughters, namely. Miss [ENTITY] and Miss [ENTITY] who were also heirs to the tenancy. It cannot be doubted that if a tenant dies, the tenancy passes to all the natural heirs and if the tenant was [ENTITY] then the tenancy would pass to the widow plus the two daughter. Apparently, the Rent Controller wanted the faet that [ENTITY] was a tenant earlier to be proved before considering the correctness of the question. The principle to be applied in ascertaining whether leave is to be granted is not to require the proof of the fact to be given before the fact is put to trial and to find out if there is a point which requires trial. On this point, there could not be a better illustration than this case. in paragraph No. 14 of the eviction petition under consideration. [ENTITY] is mentioned as a tenant in the property from a time before the purchase by [ENTITY], the petitioning landlady. It is also stated that no rent note is with the petitioner. In the reply to the application for leave to defend the same position is taken up. The landlady stated that [ENTITY] was never a tenant '.of the petitioner in the premises in suit. This is because the said [ENTITY] had died before [ENTITY] came on the scene. So what had to be ascertained was whether [ENTITY] was a tenant under the previous landlord namely [ENTITY]. Even in the reply, it is stated by the landlady that she purchased the house on 4th March, 1968. So, she should have either obtained the information from the previous landlord or she should have some other proof of that [ENTITY] was not a tenant in the premises at any time. This is not even stated in the affidavit opposing the application for leave to defend.
(7) Learned counsel for the petitioner has referred to 9 Division Bench judgment of this Court in [PRECEDENT], showing the consequences that arise when a case of ejectment is brought against only one of the contestents. In that case also, [ENTITY] was the tenant and his heirs were [ENTITY] and his three sons and three daughters. But afterwards the landlord brough a petition for ejectment only against [ENTITY] leaving the widow and other sons and daughters. After the eviction order had been obtained, the other co-tenants raised a plea that they were entitled to remain in the property and were not bound by the eviction decree. This case was accepted by the Division Bench and the eviction was not permitted to continue. In the present case if [ENTITY] was the tenant, it does not matter if the rent receipt was issued in favor or [ENTITY], because it would appear that at the time of [ENTITY]'s death, these two daughters were or must have been quite young. It is a bit surprising that the Rent Controller should have given the judgment holding that the defense is sham and bogus when before the order was passed the rent receipts in favor of [ENTITY] had been filed and they are now on record and show that [ENTITY] was receiving rent from [ENTITY] for the very property for a considerable period and that period seems to be up to the year of 1962, or so. The later receipts are in favor of Mrs. [ENTITY]. It cannot bs said that these receipts have to be disregarded because they are filed later. As a matter of fact, it is very necessary to focus attention on the fact that evidence is led after a friable issue is disclosed and not before. Once the leave has been granted, then all these facts would have come on record. In the judgment of Supreme Court [PRECEDENT] the great danger involved in refusing leave to defend merely because proof is not on record has been pointed out. There, the Supreme Court said:-
"BUTit cannot reach the conclusion that the defense is not bona fide arbitrary. It is as much bound by judicial rules and judicial procedure in reaching a conclusion of this kind as in any other matter "
Then, later in the same judgment, it is stated as follows :-
"THATat once raised as issue of fact. the truth and good faith of which could only be tested by going into the evidence and as we have pointed out, the learned trial Judge held that the defense did raise a friable issue. But he held that it was not enough for the defendants to back up their assertions with an affidavit ; they should also have produced writings and documents which they said were in their possession and which they asserted would prove that the cheques and payments reffered to in their defense were given in payment of the cheque in suit "
Refusing this line of reasoning, the Supreme Court observed as follows, -
"THElearned Judge has failed to see that the state of proof can only come alter the defendant has been allowed to enter all appearance and defend the suit, and that the nature of the defense has to be determined at the time when the affidavit is put in. At that stage all that the Court has to determine is whether if the facts alleged by the defendant are duly proved" they will afford a good, or even a plausible, answer to the plaintiff's claim. Once the Court is statisfied about that a leave cannot be withheld and no question about imposing conditions can arise, and once leave is granted,the normal procedure of a suit, so far as evidence and proof go, obtains"
These observations show the way in which these questions have to be approached. The Court has not to decide the falsehood cr correctness of what is stated, but has to see that if these facts are on record what would happen. Of course, there may be some completely outrageous defenses raised which may be summarily rejected by the Controller. But, if there is a plausible defense, it is the duty of the Controller to put the matter to trial and allow leave to defend. I may here point out that in the case decided by the Supreme Court I have just referred to leave was refused by the trial Court, it was also refused on revision by the Circuit Bench of the Punjab High Court at Delhi and was only allowed by the Supreme Court on special leave by the defendant. The observations are indicative of the fact that it is very easy for a Controller or Tribunal to non-suit a party by merely following a summary procedure without going into the merits or demerits of the actual facts. Here, we have a case where a positive plen had been taken by the respondent that she was not the only tenant, but her two daughters were also co-tenants. It was based on a plea that her deceased husband was the original tanant. The The Rent Controller thought that it was a far-fetched or imaginary or a made up plea. However, the petitioner did produce, though very late, receipts in favor of [ENTITY]. This would have been sufficient to warn the Controller that she was making a mistake and so she should have granted leave.
(8) Taking the next part of the case about the ownership, this has not been seriously pressed, because theie is a photostat copy of a sale-deed. The mere production of the sale deed in such circumstances should be sufficient to establish the landlord's ownership. So I say nothing on this point.
(9) I now come to the third point which raises an equally interesting points The landlady had come to the Court claiming ejectment for personal need and the need of her dependant family members. She admitted that at present the family was living in a house belonging to her husband. She also admitted that there was a separate house, but whose dimensions were very small. She claimed that her four sons two of whom were married her two daughters-in law and two grand children were all living together in that small house belonging to the landlady's husband and the accommodation was sufficient. She said she wanted the property in dispute for the accommodation of herself and her dependant family members. This was denied by the present petitioner claiming that the accommodation was quite ample and it was a double storeyed house which was fully in possession of the landlady and her family, It was further claimed that the second floor of the said house, i. e., the one from which eviction was sought from the upper floor was in possession of the landlady This raised, ipso facto, a question as to whether the existing accommodation was sufficient or insufficient for the landlady. There was no question of refusing leave to the respondent in such circumstances. Learned counsel for the petitioner landlady contends that in such a case it is for the tenant to prove the fact concerning the size of the rooms and their insufficiency and such other circumstances as would disentitle the landlady from getting an eviction order. I cannot accept this submission for the simple reason that here the ground on which eviction is claimed is quite different.
(10) [SECTION] of the Act requires that eviction will be granted if the landlord personally requires the premises for his own use or the use of his family members dependant on him, provided that he has no other reasonably suitable accommodation. The question as to whether the present accommodation is reasonably suitable raises questions as to who are the dependant, members and whether the existing accommodation is sufficient which are questions of fact which cannot be possibly decided in the manner suggested by the counsel for the landlord or landlady. The reasonableness of the accommodation depends on the financial status ofthe family. It also depends on what the other family members are doing. It may be that the sons are reasonably employed and not dependant on the mother. It cannot be said that the husband is dependant on the wife when he himself owns a house. It is not so simple a question as to be abstractively decided without atrial. The section is generally worded to cover all sorts of cases indifferent situations. There may be a case in which the landlord has not a large house, then the question of his requirement cannot be settled without trial. Then, there may be a case in which the landlord has a comparatively small house which is insufficient for him. But here is a case of a landlady whose husband owns a house in which the family members are living. The fact that the ownership of the two houses is of different persons and the question as to who is dependant on whom and what are their requirement cannot be decided without trial. It is obviously a novel point which requires leave to be given. Furthermore, it cannot bs assumed that the plan given by the landlady discloses the correct size of all the accommodation or discloses all the correct accommodation. There may be other rooms in the house which are not disclosed in the plan. Lastly it is the case of the petitioner that the landlady has an accommodation on the ground floor of the house which eviction is prayed for. The size and dimensions of that accommodation have also to be taken into consideration. It was, therefore, not a case in which leave should have been refused.
(11) I would according accept this Revision Petition, set aside the order of ejectment and remand the case back to the Additional Rent Controller for trial after giving leave to defend. The marks made in this judgment will be disregarded in the decision which must be based en the actual facts ascertained in the course of the trial. I leave the parties to bear their own costs. The parties to appear before the Rent Controller (Shri [ENTITY]) on 9th May 1980.