ABID-UL-ISLAM versus INDER SAIN DUA
[2022] 2 S.C.R. 1016, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
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SUPREME COURT REPORTS
[2022] 2 S.C.R.
[2022] 2 S.C.R. 1016
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ABID-UL-ISLAM
v.
INDER SAIN DUA
(Civil Appeal No. 9444 of 2016)
APRIL 07, 2022
[SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]
Delhi Rent Control Act, 1958: s.25B(8), proviso – Revisional
Power of the High Court of Delhi – Scope and ambit of – In the
instant case, appellant (landlord) filed eviction petition u/s.14(1)(e)
r/w s.25B of the Act – Respondent (tenant) unsuccessfully filed an
application before Rent Controller for leave to defend u/s.25B(5)
of the Act – Respondent approached High Court by invoking the
revisional power provided under proviso to s.25B(8), which was
allowed on the premise that there are triable issues – On appeal,
held: Proviso to s.25B(8) creates an embargo by not providing an
appeal against the order passed by the Rent Controller over an
application filed u/s.25B(5) – The intent of the legislature is to remove
the appellate remedy and thereafter a second appeal – It gives the
High Court exclusive power of revision against an order of Rent
Controller in the nature of superintendence over an inferior court
on the decision making process – Thus, High Court is not expected
to substitute and supplant its views with that of the trial Court – Its
role is to just satisfy itself on the process adopted – The scope of
interference by the High Court is very restrictive except in cases
where there is an error apparent on the face of the record – In the
instant case, High Court
proceeded to allow the revision by treating
it like an appeal – Approach of High Court not sustainable in the
eye of law.
Delhi Rent Control Act, 1958: s.14(1)(e) – Bona fide
requirement by landlord – U/s.14(1)(e) landlord makes an application
seeking possession of the tenanted premise for his bona fide
requirement when there is no other reasonably suitable
accommodation – There has to be satisfaction on two grounds,
namely, (i) the requirement being bona fide and (ii) the non-
availability of a reasonably suitable residential accommodation –
Such reasonableness along with suitability is to be seen from the
perspective of the landlord and not the tenant.
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Delhi Rent Control Act, 1958: s.14(1)(e) vis-a-vis s.25B(5) –
Scope of – For availing leave to defend u/s.25B(5), a mere assertion
per se would not suffice as s.14(1)(e) creates a presumption subject
to the satisfaction of the Rent Controller qua bona fide need in
favour of the landlord – Before a presumption is drawn, landlord is
duty bound to place prima facie material supported by the adequate
averments – It is only thereafter, the presumption gets attracted and
the onus shifts on the tenant – Further, s.19 of the Act gives a right
to the dispossessed tenant for repossession if there is a non-
compliance on the part of the landlord albeit after eviction – Such
a right is available only to a tenant who stood dispossessed on the
application filed by the landlord invoking s.14(1)(e) being allowed.
Allowing the appeal, the Court
HELD: 1. Section 14(1)(e) carves out an exception to the
regular mode of eviction. Thus, in a case where a landlord makes
an application seeking possession of the tenanted premises for
his bona fide requirement, the Rent Controller may dispense with
the protection prescribed under the Act and then grant an order
of eviction. Requirement is the existence of bona fide need, when
there is no other “reasonably suitable accommodation”. When
the Rent Controller comes to the conclusion that there exists a
bona fide need coupled with the satisfaction that there is no
reasonably suitable residential accommodation, the twin
conditions
mandated under Section 14(1)(e) stand satisfied. [Para
12][1025-D-F]
2. For availing the leave to defend as envisaged under
Section 25B(5), a mere assertion per se would not suffice as
Section 14(1)(e) creates a presumption subject to the satisfaction
of the Rent Controller qua bona fide need in favour of the landlord
which is obviously rebuttable with some material of substance to
the extent of raising a triable issue. The satisfaction of the Rent
Controller in deciding on an application seeking leave to defend
is obviously subjective. The degree of probability is one of
preponderance forming the subjective satisfaction of the Rent
Controller. Thus, the quality of adjudication is between a mere
moonshine and adequate material and evidence meant for the
rejection of a normal application for eviction. [Para 15][1029-A-C]
ABID-UL-ISLAM v. INDER SAIN DUA
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3. Before a presumption is drawn, the landlord is duty bound
to place prima facie material supported by the adequate
averments. It is only thereafter, the presumption gets attracted
and the onus shifts on the tenant. The object ofSection 14(1)(e)
vis a vis Section 25B has to be seen in the light of yet another
provision contained under Section 19. Section 19 gives a right to
the dispossessed tenant for repossession if there is a non-
compliance on the part of the landlord albeit after eviction, to put
the premises to use for the intendedpurpose. Such a right is
available only to a tenant who stood dispossessed on the application
filed by the landlord invoking Section 14(1)(e) being allowed.
Thus, Section 19 inter alia throws more light on the legislative
objective facilitating a speedy possession. The object is also
reflected in the proviso to Section 25B(8), denying a right of
appeal. [Para 16][1029-C-E]
4. The proviso to Section 25B(8) creates a distinct and
unequivocal embargo by not providing an appeal against the order
passed by the Rent Controller over an application filed under
sub-section (5). The intendment of the legislature is very clear,
which is to remove the appellate remedy and thereafter, a further
second appeal. It is a clear omission that is done by the legislature
consciously through a covenant removing the right of two stages
of appeals. Proviso to Section 25B(8) gives the High Court
exclusive
power of revision against an order of the Rent
Controller, being in the nature of superintendence over an inferior
court on the decision making process, inclusive of procedural
compliance. Thus, the High Court is not expected to substitute
and supplant its views with that of the trial Court by exercising
the appellate jurisdiction. Its role is to satisfy itself on the process
adopted. The scope of interference by the High Court is very
restrictive and except in cases where there is an error apparent
on the face of the record, which would only mean that in the
absence of any adjudication per se, the High Court should not
venture to disturb such a decision. There is no need for holding
a roving inquiry in such matters which would otherwise amount
to converting the power of superintendence into that of a regular
first appeal, an act, totally forbidden by the legislature. [Paras 19,
20][1032-D-H]
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5. The High Court proceeded to allow the revision by
treating it like an appeal. It did not even reverse the findings of
the learned Rent Controller, but proceeded to hold that the denials
of the appellant in his reply to the application seeking leave to
defend are vague, qua the plea of alternative accommodation,
notwithstanding the rejection of the contention of the respondent
that he cannot question the title. [Para 24][1038-H; 1039-A-B]
Anil Bajaj and Anr. v. Vinod Ahuja (2014) 15 SCC 610;
Baldev Singh Bajwa v. Monish Saini, (2005) 12 SCC
778 : [2005] 4 Suppl. SCR 26; Ram Krishan Grover v.
Union of India, (2020) 12 SCC 506; Inderjeet Kaur v.
Nirpal Singh, (2001) 1 SCC 706 : [2000] 5 Suppl.
SCR 707; Sarla Ahuja v. United India Insurance Co.
Ltd., (1998) 8 SCC 119 : [1998] 2 Suppl. SCR 390;
Mohd. Inam v. Sanjay Kumar Singhal, (2020) 7 SCC
327 – relied on.
Balwant Singh alias Bant Singh and Anr. v. Sudarshan
Kumar and Anr. 2021 SCC OnLine SC 114 10; M.M.
Quasim v. Manohar Lal Sharma and Ors. (1981) 3 SCC
36 : [1981] 3 SCR 367; P.V. Papanna and Ors. v. K.
Padmanabhaiah (1994) 2 SCC 316 : [1994] 1 SCR
642; Amarjit Singh v. Khatoon Quamarain (1986) 4
SCC 736 : [1987] 1 SCR 275; D. Satyanarayana v. P.
Jagadish (1987) 4 SCC424 : [1988] 1 SCR 145;
Precision Steel and Engineering Works v. Prem Deva
(1982) 3 SCC 270 : [1983] 1 SCR 498; Liaq Ahmed
and Ors. v. Habeeb-Ur-Rehman (2000) 5 SCC 708 :
[2000] 3 SCR 800; India Umbrella Manufacturing Co.
and Ors. v.
Bhagabandei Agarwalla (Dead) by LRs and
Ors. (2004) 3 SCC 178 : [2004] 1 SCR 10; Gram
Panchayat v. Ujagar Singh and Ors. (2000) 7 SCC 543
: [2000] 3 Suppl. SCR 457 – referred to.
Case Law Reference
(2014) 15 SCC 610
relied on
Para 10
[1981] 3 SCR 367
referred to
Para 11
ABID-UL-ISLAM v. INDER SAIN DUA
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[1994] 1 SCR 642 
referred to
Para 11
[1987] 1 SCR 275 
referred to
Para 11
[1988] 1 SCR 145
referred to
Para 11
[1983] 1 SCR 498
referred to
Para 11
[2000] 3 SCR 800 
referred to
Para 11
[2004] 1 SCR 10 
referred to
Para 11
[2000] 3 Suppl. SCR 457
referred to
Para 11
[2000] 5 Suppl. SCR 707
relied on
Para 13
[2005] 4 Suppl. SCR 26
relied on
Para 17
(2020) 12 SCC 506
relied on
Para 18
[1998] 2 Suppl. SCR 390
referred to
Para 20
(2020) 7 SCC 327
relied on
Para 21
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9444
of 2022.
From the Judgment and Order dated 07.04.2016 of the High Court
of Delhi at New Delhi in RC. REV. No. 395/2015.
Amit Andlay, P. S. Sudheer, Rishi Maheshwari, Ms. Anne Mathew,
Bharat Sood, Ms. Shruti Jose, Advs. for the Appellant.
Respondent-in-person
The Judgment of the Court was delivered by
M. M. SUNDRESH, J.
1. Focus in this appeal is on the exercise of the revisional power
by the High Court of Delhi in its invocation of proviso to Section 25B(8)
of the Delhi Rent Control Act, 1958 (for short “the Act”).
2. Heard Mr. Amit Andley, learned counsel for the appellant and
the respondent, party-in-person. We have perused all the documents
filed along with written arguments.
BRIEF FACTS:
3. Shri Haji Badrul Islam (since deceased) was the original owner
of the two shops leased out to the respondent orally way back in the
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year 1970. The lease continued for decades. After the demise of the
original landlord, his son Shri Sajid-Ul-Islam became the owner both by
inheritance and by virtue of an award dated 11.03.1980. He too expired
on 21.11.1986 and the appellant, who claims through the award and
inheritance by operation of law, filed the eviction petition under Section
14(1)(e) read with Section 25B of the Act in the year 2014.
4. The respondent filed an application seeking leave to defend,
inter alia, raising three primary contentions, namely, (i) the appellant is
not having title over the property; (ii) the property actually belongs to the
Government of India under the Enemy Property Act, 1968 (hereinafter
referred to as “Enemy Property Act”) and (iii) there are alternative
accommodations by way of other properties available for carrying out
the business of the appellant as such the need of the appellant is not
bona fide.
5. The learned Rent Controller dismissed the application holding
that the title of the appellant cannot be questioned by the respondent, the
averments regarding the suitability of alternative accommodation are
vague and the embargo under the Enemy Property Act would not be
made applicable to the properties in question. Incidentally, the bona fide
need of the appellant has also been discussed by the learned Rent
Controller.
6. The respondent, being dissatisfied with the said decision of the
learned Rent Controller, approached the High Court of Delhi
invoking
the proviso to Section 25B(8) of the Act. Despite holding that the
respondent cannot question the title of the appellant, having filed a suit
acknowledging the said factum, the revision was allowed on the premise
that there are triable issues as the denial of the appellant on the defence
of the appellant qua the issue of alternative accommodation is vague.
7. Assailing the aforesaid decision rendered by the High Court,
the present appeal is before us.
SUBMISSIONS OF THE APPELLANT:
8. Learned counsel for the appellant submitted that the jurisdiction
available to the High Court being limited and restrictive, the decision
made without a specific finding on the reasoning of the learned Rent
Controller would amount to exercising a jurisdiction not vested. The
respondent has not made out a case even on facts. It is not for the
ABID-UL-ISLAM v. INDER SAIN DUA
[M. M. SUNDRESH, J.]
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respondent being a tenant to insist upon a particular property, especially
when a clear statement has been made on possession. The appellant
has specifically denied ownership of any alternate properties mentioned
by the respondent in his application seeking leave to defend.
9. On the additional documents filed by the respondent, it is
submitted that the subsequent proceeding initiated under the Enemy
Property (Amendment and Validation) Act, 2017 (hereinafter referred
to as the “Amended Act”) was one without jurisdiction, especially when
the earlier one was closed after conducting a preliminary inquiry. To
substantiate the same, reliance is made on the report dated 04.11.2015.
The learned counsel has also stated that the proceedings challenging the
subsequent notices are pending before the High Court of Delhi wherein
an order of “no coercive steps should be taken” has been passed. In the
aforesaid proceedings the application filed by the respondent to implead
himself was rejected for want of bona fides, which stood confirmed by
this Court.
10. To buttress the submissions, learned counsel has relied on the
following judgments rendered by this Court:
•
Anil Bajaj and Anr. v. Vinod Ahuja (2014) 15 SCC 610
•
Balwant Singh alias Bant Singh and Anr. v. Sudarshan
Kumar and Anr. 2021 SCC OnLine SC 114
SUBMISSIONS OF THE RESPONDENT:
11. The respondent, who appears as a party-in-person, submitted
that there are triable issues
involved and, therefore, the High Court was
right in allowing the revision. There is a serious cloud over the title of the
appellant as some of the owners of the properties are living in the
neighbouring country of Pakistan. The award obtained on 11.03.1980 is
under cloudand thus liable to be ignored. The authority constituted under
the Amended Act has recognized the status of the respondent as its
tenant. It was further submitted that the appellant is in possession of
alternative accommodations available for running the business. Thus,
while confirming the order of the High Court, the subsequent events
having taken place as evidenced by the documents filed, will have to be
taken note of. The respondent sought the dismissal of the present appeal.
Seeking to strengthen his case further, the respondent took us through
the following judgments of this Court:
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•
M.M. Quasim v. Manohar Lal Sharma and Ors. (1981) 3
SCC 36
•
P.V. Papanna and Ors. v. K. Padmanabhaiah (1994) 2 SCC
316
•
Amarjit Singh v. Khatoon Quamarain (1986) 4 SCC 736
•
D. Satyanarayana v. P. Jagadish (1987) 4 SCC424
•
Precision Steel and Engineering Works v. Prem Deva (1982)
3 SCC 270
•
Liaq Ahmed and Ors. v. Habeeb-Ur-Rehman (2000) 5 SCC
708
•
India Umbrella Manufacturing Co. and Ors. v. Bhagabandei
Agarwalla (Dead) by LRs and Ors. (2004) 3 SCC 178
•
Gram Panchayat v. Ujagar Singh and Ors. (2000) 7 SCC
543
DISCUSSION
Relevant Provisions of the Delhi Rent Control Act, 1958:
Section 14(1)(e):
“14. 
Protection 
of 
tenant 
against 
eviction:
(1)Notwithstanding anything to the contrary contained in any
other law or contract, no order or decree for the recovery of
possession of any premises shall be made by any court or
Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made
to him in the prescribed manner, make an order for the recovery
of possession of the premises on one or more of the following
grounds only, namely:-
xxx
xxx
xxx
(e) that the premises let for residential purposes are required
bona fide by the landlord for occupation as a residence for
himself or for any member of his family dependent on him, if
he is the owner thereof, or for any person for whose benefit
the premises are held and that the landlord or such person has
no other reasonably suitable residential accommodation.
ABID-UL-ISLAM v. INDER SAIN DUA
[M. M. SUNDRESH, J.]
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Explanation.-For the purposes of this clause, “premises let
for residential purposes” include any premises which having
been let for use as a residence are, without the consent of the
landlord, used incidentally for commercial or other purposes;”
SECTION 19:
“19. Recovery of possession for occupation and re-entry:
(1) Where a landlord recovers possession of any premises from
the tenant in pursuance of an order made under clause (c) of
the proviso to sub-section (1) of section 14, Ins. By Act 57 of
1988, sec. 10 (w.e.f.1-12-1988) [or under sections 14A, 14B,
14C, 14D and 21], the landlord shall not, except with the
permission of the Controller obtained in the prescribed manner,
re-let the whole or any part of the premises within three years
from the date of obtaining such possession, and in granting
such permission the Controller may direct the landlord to put
such evicted tenant in possession of the premises.
(2) Where a landlord recovers possession of any premises as
aforesaid and the premises are not occupied by the landlord or
by the person for whose benefit the premises are held, within
two months of obtaining such possession, or the premises having
been so occupied are, at any time within three years from the
date of obtaining possession, re-let to any person other than
the evicted tenant without obtaining the permission of the
Controller under sub-section (1) or the possession of such
premises is transferred to
another person for reasons which
do not appear to the! Controller to be bona fide, the Controller
may, on an application made to him in this behalf by such
evicted tenant within such time as may be prescribed, direct
the landlord to put the tenant in possession of the premises or
to pay him such compensation as the Controller thinks fit.”
Section 25B
 “25B. Special procedure for the disposal of applications
for eviction on the ground of bona fide requirement:
xxx
xxx
xxx
(5) The Controller shall give to the tenant leave to contest the
application if the affidavit filed by the tenant discloses such
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facts as would disentitle the landlord from obtaining an order
for the recovery of possession of the premises on the ground
specified in clause (c) of the proviso to sub-section (1) of section
14, or under section 14A.
xxx
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xxx
(8) No appeal or second appeal shall lie against an order for
the recovery of possession of any premises made by the
Controller in accordance with the procedure specified in this
section:
Provided that the High Court may, for the purpose of satisfying
itself that an order made by the Controller under this section is
according to law, call for the records of the case and pass
such order in respect thereto as it thinks fit.”
Requirement Under Section 14(1)(e):
12. Section 14(1)(e) carves out an exception to the regular mode
of eviction. Thus, in a case where a landlord makes an application seeking
possession of the tenanted premises for his bona fide requirement, the
learned Rent Controller may dispense with the protection prescribed
under the Act and then grant an order of eviction. Requirement is the
existence of bona fide need, when there is no other “reasonably suitable
accommodation”. Therefore, there has to be satisfaction on two grounds,
namely, (i) the requirement being bona fide and (ii) the non-availability
of a reasonably suitable residential accommodation. Such reasonableness
along with suitability is to be seen from the perspective of the landlord
and not the tenant. When the learned Rent Controller comes to the
conclusion that there exists a bona fide need coupled with the satisfaction
that there is no reasonably suitable residential accommodation, the twin
conditions mandated under Section 14(1)(e) stand satisfied.
13. We may usefully refer to the decision of this Court in Inderjeet
Kaur v. Nirpal Singh, (2001) 1 SCC 706:
“9. Chapter III-A deals with summary trial of certain applications
expressly stating that every application by a landlord for recovery
of possession on the ground specified in clause (e) of the proviso
to sub-section (1) of Section 14 of the Act, or under Section 14-A
or 14-B or 14-C or 14-D shall be dealt with in accordance with
the special provisions prescribed in Section 25-B of the Act. As
ABID-UL-ISLAM v. INDER SAIN DUA
[M. M. SUNDRESH, J.]
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per the broad scheme of this Chapter a tenant is precluded from
contesting an application filed for eviction on the grounds mentioned
in the aforementioned provisions unless he obtains leave from the
Controller to contest the eviction petition. In default of obtaining
leave to defend or leave is refused to him an order of eviction
follows. It appears recourse to summary trial is adopted having
due regard to nature of the grounds on which the eviction is sought
with a view to avoid delay so that the landlord should not be
deprived or denied of his right to immediate possession of premises
for his bona fide use.
10. At the same time, it is well settled and accepted position in
law that no one shall be subjected to suffer a civil consequence
like eviction from a premises resulting in hardship to him without
providing adequate and effective opportunity to disprove the case
against him and establish his case as pleaded.
11. As is evident from Sections 25-B(4) and (5) of the Act, burden
placed on a tenant is light and limited in that if the affidavit filed by
him discloses such facts as would disentitle the landlord from
obtaining an order for the recovery of the possession of the
premises on the ground specified in clause (e) of the proviso to
Section 14(1) of the Act, with which we are concerned in this
case, are good enough to grant leave to defend.
12. A landlord, who bonafidely requires a premises for his residence
and occupation should not suffer for long, waiting for eviction of a
tenant. At the same time a tenant cannot be thrown out from a
premises summarily, even though prima facie he is able to say
that the claim of the landlord is not bona fide or untenable and as
such not entitled to obtain an order of eviction. Hence the approach
has to be cautious and judicious in granting or refusing leave to
defend to a tenant to contest an eviction petition within the broad
scheme of Chapter III-A and in particular having regard to the
clear terms and language of Section 25-B(5).
13. We are of the considered view that at a stage when the tenant
seeks leave to defend, it is enough if he prima facie makes out a
case by disclosing such facts as would disentitle the landlord from
obtaining an order of eviction. It would not be a right approach to
say that unless the tenant at that stage itself establishes a strong
case as would non-suit the landlord, leave to defend should not be
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granted when it is not the requirement of Section 25-B(5). A leave
to defend sought for cannot also be granted for mere asking or in
a routine manner which will defeat the very object of the special
provisions contained in Chapter III-A of the Act. Leave to defend
cannot be refused where an eviction petition is filed on a mere
design or desire of a landlord to recover possession of the premises
from a tenant under clause (e) of the proviso to sub-section (1) of
Section 14, when as a matter of fact the requirement may not be
bona fide. Refusing to grant leave in such a case leads to eviction
of a tenant summarily resulting in great hardship to him and his
family members, if any, although he could establish if only leave is
granted that a landlord would be disentitled for an order of eviction.
At the stage of granting leave to defend, parties rely on affidavits
in support of the rival contentions. Assertions and counter-
assertions made in affidavits may not afford safe and acceptable
evidence so as to arrive at an affirmative conclusion one way or
the other unless there is a strong and acceptable evidence available
to show that the facts disclosed in the application filed by the
tenant seeking leave to defend were either frivolous, untenable or
most unreasonable. Take a case when possession is sought on
the ground of personal requirement, a landlord has to establish his
need and not his mere desire. The ground under clause (e) of the
proviso to
sub-section (1) of Section 14 enables a landlord to
recover possession of the tenanted premises on the ground of his
bona fide requirement. This being an enabling provision, essentially
the burden is on the landlord to establish his case affirmatively. In
short and substance, a wholly frivolous and totally untenable
defence may not entitle a tenant to leave to defend, but when a
triable issue is raised a duty is placed on the Rent Controller by
the statute itself to grant leave. At the stage of granting leave the
real test should be whether facts disclosed in the affidavit filed
seeking leave to defend prima facie show that the landlord would
be disentitled from obtaining an order of eviction and not whether
at the end defence may fail. It is well to remember that when
leave to defend is refused, serious consequences of eviction shall
follow and the party seeking leave is denied an opportunity to test
the truth of the averments made in the eviction petition by cross-
examination. It may also be noticed that even in cases where
leave is granted provisions are made in this very Chapter for
expeditious disposal of eviction petitions. Section 25-B(6) states
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[M. M. SUNDRESH, J.]
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that where leave is granted to a tenant to contest the eviction
application, the Controller shall commence the hearing of the
application as early as practicable. Section 25-B(7) speaks of the
procedure to be followed in such cases. Section 25-B(8) bars the
appeals against an order of recovery of possession except a
provision of revision to the High Court. Thus a combined effect
of Sections 25-B(6), (7) and (8) would lead to expeditious disposal
of eviction petitions so that a landlord need not wait and suffer for
a long time. On the other hand, when a tenant is denied leave to
defend although he had fair chance to prove his defence, will
suffer great hardship. In this view a balanced view is to be taken
having regard to competing claims.”
14. We further wish to place reliance on the judgment of this
Court in Anil Bajaj and Anr. v. Vinod Ahuja, (2014) 15 SCC 610:
“6. In the present case it is clear that while the landlord (Appellant
1) is carrying on his business from a shop premise located in a
narrow lane, the tenant is in occupation of the premises located
on the main road which the landlord considers to be more suitable
for his own business. The materials on record, in fact, disclose
that the landlord had offered to the tenant the premises located in
the narrow lane in exchange for the tenanted premises which
offer was declined by the tenant. It is not the tenant’s case that
the landlord, Appellant 1, does not
propose to utilise the tenanted
premises from which eviction is sought for the purposes of his
business. It is also not the tenant’s case that the landlord proposes
to rent out/keep vacant the tenanted premises after obtaining
possession thereof or to use the same is any way inconsistent
with the need of the landlord. What the tenant contends is that the
landlord has several other shop houses from which he is carrying
on different businesses and further that the landlord has other
premises from where the business proposed from the tenanted
premises can be effectively carried out. It would hardly require
any reiteration of the settled principle of law that it is not for the
tenant to dictate to the landlord as to how the property belonging
to the landlord should be utilised by him for the purpose of his
business. Also, the fact that the landlord is doing business from
various other premises cannot foreclose his right to seek eviction
from the tenanted premises so long as he intends to use the said
tenanted premises for his own business.”
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15. For availing the leave to defend as envisaged under Section
25B(5), a mere assertion per se would not suffice as Section 14(1)(e)
creates a presumption subject to the satisfaction of the learned Rent
Controller qua bona fide needin favour of the landlord which is obviously
rebuttable with some material of substance to the extent of raising a
triable issue. The satisfaction of the Rent Controller in deciding on an
application seeking leave to defend is obviously subjective. The degree
of probability is one of preponderance forming the subjective satisfaction
of the Rent Controller. Thus, the quality of adjudication is between a
mere moonshine and adequate material and evidence meant for the
rejection of a normal application for eviction.
16. Before a presumption is drawn, the landlord is duty bound to
place prima facie material supported by the adequate averments. It is
only thereafter, the presumption gets attracted and the onus shifts on the
tenant. The object of Section 14(1)(e) vis a vis Section 25B has to be
seen in the light of yet another provision contained under Section 19.
Section 19 gives a right to the dispossessed tenant for repossession if
there is a non-compliance on the part of the landlord albeit after eviction,
to put the premises to use for the intended purpose. Such a right is
available only to a tenant who stood dispossessed on the application filed
by the landlord invoking Section 14(1)(e) being allowed. Thus, Section
19 inter
alia throws more light on the legislative objective facilitating a
speedy possession. The object is also reflected in the proviso to Section
25B(8), denying a right of appeal.
17. Dealing with a pari materia provision, this Court in Baldev
Singh Bajwa v. Monish Saini, (2005) 12 SCC 778, was pleased to
clarify the aforesaid position holding the procedure as summary. In such
a case, the tenant is expected to put in adequate and reasonable materials
in support of the facts pleaded in the form of a declaration sufficient to
raise a triable issue. One cannot lose sight of the object behind Section
25B in facilitating not only the expeditious but effective remedy for a
class of landlords, sans the normal procedural route. In this regard, we
wish to quote the decision of this court in Baldev Singh (supra):
“14. The phrase “bona fide requirement” or “bona fide need” or
“required reasonably in good faith” or “required”, occurs in almost
all Rent Control Acts with the underlying legislative intent which
has been considered and demonstrated innumerable times by
various High Courts as also by this Court, some of which we
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would like to refer to. In Ram Dass v. Ishwar Chander [(1988) 3
SCC 131] it is said that the bona fide need should be genuine and
honest, conceived in good faith. It was also indicated that the
landlord’s desire for possession, however honest it might otherwise
be, has inevitably a subjective element in it, and that desire, to
become a “requirement” in law must have the objective element
of a “need”, which can be decided only by taking all the relevant
circumstances into consideration so that the protection afforded
to a tenant is not rendered illusory or whittled down.
15. In Bega Begum v. Abdul Ahad Khan [(1979) 1 SCC 273] it
was held by this Court that the words “reasonable requirement”
undoubtedly postulate that there must be an element of need as
opposed to a mere desire or wish. The distinction between desire
and need should doubtless be kept in mind but not so as to make
even the genuine need as nothing but a desire.
16. In Surjit Singh Kalra v. Union of India [(1991) 2 SCC 87] a
three-Judge Bench of this Court has held as under: (SCC p. 99,
para 20)
“20. The tenant of course is entitled to raise all relevant
contentions as against the claim of the classified landlords.
The fact that there is no reference to the words bona fide
requirement in Sections 14-B to 14-D does not absolve the
landlord from proving that his requirement is bona fide or the
tenant from showing that it is not bona fide. In fact every
claim
for eviction against a tenant must be a bona fide one. There is
also enough indication in support of this construction from the
title of Section 25-B which states ‘special procedure for the
disposal of applications for eviction on the ground of bona fide
requirement’.”
17. In Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta [(1999) 6
SCC 222] this Court while dealing with the aspect of bona fide
requirement has said that the sense of felt need which is an outcome
of a sincere, honest desire, in contradistinction with a mere pretence
or pretext to evict a tenant, refers to a state of mind prevailing
with the landlord. The only way of peeping into the mind of the
landlord is an exercise undertaken by the judge of facts by placing
himself in the armchair of the landlord and then posing a question
to himself — whether in the given facts, substantiated by the
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landlord, the need to occupy the premises can be said to be natural,
real, sincere and honest.
xxx
xxx
xxx
19. … In our view there are inbuilt protections in the relevant
provisions for the tenants that whenever the landlord would
approach the court he would approach when his need is genuine
and bona fide. It is, of course, subject to the tenant’s right to rebut
it but with strong and cogent evidence. In our view, in the
proceeding taken up under Section 13-B by the NRI landlords for
the ejectment of the tenant, the court shall presume that the
landlord’s need pleaded in the petition is genuine and bona fide.
But this would not disentitle the tenant from proving that in fact
and in law the requirement of the landlord is not genuine. A heavy
burden would lie on the tenant to prove that the requirement of
the landlord is not genuine. To prove this fact the tenant will be
called upon to give all the necessary facts and particulars supported
by documentary evidence, if available, to support his plea in the
affidavit itself so that the Controller will be in a position to adjudicate
and decide the question of genuine or bona fide requirement of
the landlord. A mere assertion on the part of the tenant would not
be sufficient to rebut the strong presumption in the landlord’s favour
that his requirement of occupation of the premises is real and
genuine.”
18. We further wish to place reliance upon a recent decision of
this Court in Ram Krishan Grover v. Union of
India, (2020) 12 SCC
506, wherein this Court considered the aforesaid decisions in Inderjeet
Kaur (supra) and Baldev Singh (supra)andinterpreted the burden on
the tenant to be rebutted at the stage of leave to defend and observed:
“39. The requirement of a “strong case” for obtaining leave to
defend means a good case that brings to fore reasonable and
well-grounded basis on which the tenant seeks leave to contest
the eviction proceedings. It does not mean setting up and
establishing at that stage a case beyond any scintilla of doubt and
debate. The grounds and pleas raised should reflect clear and
strong defence and relate to the grounds mentioned in para 25
in Baldev Singh Bajwa [Baldev Singh Bajwa v. Monish Saini,
(2005) 12 SCC 778] . The standard applied is similar to parameters
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elucidated in Inderjeet Kaur v. Nirpal Singh [(2001) 1 SCC 706],
in which this Court had held that the leave to defend should not be
granted on mere asking but when the pleas and contentions raise
triable issues and the dispute on facts demands that the matter be
properly adjudicated after ascertaining the truth of affidavits filed
by the witnesses in their cross-examination. Each case has to be
decided on its merits and not on the basis of any preconceived
suppositions and presumptions. By providing for a simplified
procedure of eviction by the Non-Resident Indians, Section 13-B
does not dilute the rights of tenants. It gives a chance to the tenants
on merits to establish their case and when justified and necessary
to take the matter to trial. By no means, therefore, Section 13-B
can be held to be arbitrary and unreasonable.”
SCOPE OF REVISION
19. We are, in fact, more concerned with the scope and ambit of
the proviso to Section 25B(8). The proviso creates a distinct and
unequivocal embargo by not providing an appeal against the order passed
by the learned Rent Controller over an application filed under sub-section
(5). The intendment of the legislature is very clear, which is to remove
the appellate remedy and thereafter, a further second appeal. It is a
clear omission that is done by the legislature consciously through a
covenant removing the right of two stages of appeals.
20. Proviso to Section 25B(8) gives the
High Court exclusive power
of revision against an order of the learned Rent Controller, being in the
nature of superintendence over an inferior court on the decision making
process, inclusive of procedural compliance. Thus, the High Court is not
expected to substitute and supplant its views with that of the trial Court
by exercising the appellate jurisdiction. Its role is to satisfy itself on the
process adopted. The scope of interference by the High Court is very
restrictive and except in cases where there is an error apparent on the
face of the record, which would only mean that in the absence of any
adjudication per se, the High Court should not venture to disturb such a
decision. There is no need for holding a roving inquiry in such matters
which would otherwise amount to converting the power of
superintendence into that of a regular first appeal, an act, totally forbidden
by the legislature. We do not wish to go further on this settled proposition
of law, except by quoting the decision of this Court in Sarla Ahuja v.
United India Insurance Co. Ltd., (1998) 8 SCC 119:
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“5. Section 25-B of the Act lays down “special procedure for the
disposal of application for eviction on the ground of bona fide
requirement”. Sub-section (1) says that every application for
recovery of possession on the ground specified in Section 14(1)(e)
of the Act shall be dealt with in accordance with the procedure
specified in Section 25-B. Sub-section (8) says that no appeal or
second appeal shall lie against an order for the recovery of
possession of any premises made by the Rent Controller in
accordance with the procedure specified in this section. The
proviso to that sub-section reads thus:
“Provided that the High Court may, for the purpose of satisfying
itself that an order made by the Controller under this section is
according to law, call for the records of the case and pass
such order in respect thereto as it thinks fit.”
6. The above proviso indicates that power of the High Court is
supervisory in nature and it is intended to ensure that the Rent
Controller conforms to law when he passes the order. The
satisfaction of the High Court when perusing the records of the
case must be confined to the limited sphere that the order of the
Rent Controller is “according to the law”. In other words, the
High Court shall scrutinize the records to ascertain whether any
illegality has been committed by the Rent Controller in passing
the order under Section 25-B. It is not permissible for the High
Court in that exercise to come to a different fact finding
unless
the finding arrived at by the Rent Controller on the facts is so
unreasonable that no Rent Controller should have reached such a
finding on the materials available.
7. Although, the word “revision” is not employed in the proviso to
Section 25-B(8) of the Act, it is evident from the language used
therein that the power conferred is revisional power. In legal
parlance, distinction between appellate and revisional jurisdiction
is well understood. Ordinarily, appellate jurisdiction is wide enough
to afford a rehearing of the whole case for enabling the appellate
forum to arrive at fresh conclusions untrammelled by the
conclusions reached in the order challenged before it. Of course,
the statute which provides appeal provision can circumscribe or
limit the width of such appellate powers. Revisional power, on the
contrary, is ordinarily a power of supervision keeping subordinate
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tribunals within the bounds of law. Expansion or constriction of
such revisional power would depend upon how the statute has
couched such power therein. In some legislations, revisional
jurisdiction is meant for satisfying itself as to the regularity, legality
or propriety of proceedings or decisions of the subordinate court.
In Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar
[(1980) 4 SCC 259] this Court considered the scope of the words
(“the High Court may call for and examine the records … to
satisfy itself as to the regularity of such proceedings or the
correctness, legality or propriety of any decision or order …”) by
which power of revision has been conferred by a particular statute.
Dealing with the contention that the above words indicated
conferment of a very wide power on the revisional authority, this
Court has observed thus in the said decision: (SCC p. 262, para 3)
“The dominant idea conveyed by the incorporation of the words
‘to satisfy itself’ under Section 25 appears to be that the power
conferred on the High Court under Section 25 is essentially a
power of superintendence. Therefore, despite the wide language
employed in Section 25 the High Court quite obviously should
not interfere with findings of fact merely because it does not
agree with the finding of the subordinate authority.”
8. Dealing with Section 32, the Delhi and Ajmer Rent (Control)
Act, 1952, which is almost identically worded as
in the proviso to
Section 25-B(8) of the Act, a three-Judge Bench of this Court
has stated thus in Hari Shankar v. Rao Girdhari Lal Chowdhury
[AIR 1963 SC 698 : 1962 Supp (1) SCR 933] :
“The section is thus framed to confer larger powers than the
power to correct error of jurisdiction to which Section 115 is
limited. But it must not be overlooked that the section — in
spite of its apparent width of language where it confers a power
on the High Court to pass such order as the High Court might
think fit, — is controlled by the opening words, where it says
that the High Court may send for the record of the case to
satisfy itself that the decision is ‘according to law’. It stands to
reason that if it was considered necessary that there should be
a rehearing, a right of appeal would be a more appropriate
remedy, but the Act says that there is to be no further appeal.”
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9. In Malini Ayyappa Naicker v. Seth Manghraj Udhavadas
[(1969) 1 SCC 688] another three-Judge Bench of this Court was
considering a similarly worded proviso in Section 75(1) of the
Provincial Insolvency Act, 1920. Though, learned Judges did not
give an exhaustive definition of the expression “according to law”,
a catalogue of instance in which the High Court may interfere
under the said proviso was given in the decision as the following
[Ed.: The passage quoted is an extract from Beaumont, C.J.’s
judgment in Bell & Co. Ltd. v. Wamen Hemrai, (1938) 40 Bom
LR 125 which was approved by the Supreme Court in the case
cited.]: (SCC p. 691, para 7)
“They are cases in which the Court which made the order had
no jurisdiction or in which the Court has based its decision on
evidence which should not have been admitted, or cases where
the unsuccessful party has not been given a proper opportunity
of being heard, or the burden of proof has been placed on the
wrong shoulders. Wherever the Court comes to the conclusion
that the unsuccessful party has not had a proper trial according
to law, then the Court can interfere.”
10. The Bench has, however, cautioned that the High Court should
not interfere merely because it considered that “possibly the Judge
who heard the case may have arrived at a conclusion which the
High Court would not have arrived at”.
11. Learned Single Judge of the High Court in the present case
has reassessed and reappraised the evidence afresh to
reach a
different finding as though it was exercising appellate jurisdiction.
No doubt even while exercising revisional jurisdiction, a reappraisal
of evidence can be made, but that should be for the limited purpose
to ascertain whether the conclusion arrived at by the fact-finding
court is wholly unreasonable. A reading of the impugned order
shows that the High Court has overstepped the limit of its power
as a revisional court. The order impugned on that score is hence
vitiated by jurisdictional deficiency.
12. Clause (e) of the proviso to Section 14(1) of the Act affords
one of the grounds to the landlord to seek recovery of possession
of the building leased. The said clause reads thus:
ABID-UL-ISLAM v. INDER SAIN DUA
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“14. (1)(e) that the premises let for residential purposes are
required bona fide by the landlord for occupation as a residence
for himself or for any member of his family dependent on him,
if he is the owner thereof, or for any person for whose benefit
the premises are held and that the landlord or such person has
no other reasonably suitable residential accommodation;
Explanation.—For the purposes of this clause, ‘premises let
for residential purposes’ include any premises which having
been let for use as a residence are, without the consent of the
landlord, used incidentally for commercial or other purposes;”
13. If the landlord has another residential accommodation which
is reasonably suitable, he is not permitted to avail himself of the
benefit afforded in the ground set out in the clause. Learned Single
Judge of the High Court has noted that the landlord in this case
has “admitted in her deposition that the house in Calcutta was a
3-bedroom house with drawing/dining room and one of the
bedrooms was used by her, another by her son with his wife and
another bedroom was kept for her daughter who used to come
and stay”. This was one of the reasons which persuaded the learned
Single Judge to interfere with the order of eviction. To deprive a
landlord of the benefit of the ground mentioned in Section 14(1)(e)
on account of availability of alternative residential accommodation,
it is not enough that such alternative
accommodation is in a far
different State. Such accommodation must be available in the same
city or town, or at least within reasonable proximity thereof if it is
outside the limits of the city. The said limb of clause (e) cannot be
interpreted as to mean that if the landlord has another house
anywhere in the world, he cannot seek recovery of possession of
his building under clause (e). The High Court therefore went wrong
in observing that since the landlord has possession of another flat
at Calcutta she is disentitled to seek recovery of possession of the
tenanted premises situated at Delhi.
14. The crux of the ground envisaged in clause (e) of Section
14(1) of the Act is that the requirement of the landlord for
occupation of the tenanted premises must be bona fide. When a
landlord asserts that he requires his building for his own occupation,
the Rent Controller shall not proceed on the presumption that the
requirement is not bona fide. When other conditions of the clause
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are satisfied and when the landlord shows a prima facie case, it is
open to the Rent Controller to draw a presumption that the
requirement of the landlord is bona fide. It is often said by courts
that it is not for the tenant to dictate terms to the landlord as to
how else he can adjust himself without getting possession of the
tenanted premises. While deciding the question of bona fides of
the requirement of the landlord, it is quite unnecessary to make an
endeavour as to how else the landlord could have adjusted himself.”
21. The aforesaid decision has been recently considered and
approved by this Court in the case of Mohd. Inam v. Sanjay Kumar
Singhal, (2020) 7 SCC 327:
“22. This Court in Sarla Ahuja v. United India Insurance Co.
Ltd. [(1998) 8 SCC 119] had an occasion to consider the scope of
proviso to Section 25-B(8) of the Delhi Rent Control Act, 1958.
This Court found, that though the word “revision” was not
employed in the said proviso, from the language used therein, the
legislative intent was clear that the power conferred was revisional
power. This Court observed thus: (SCC p. 124, para 11)
“11. The learned Single Judge of the High Court in the present
case has reassessed and reappraised the evidence afresh to
reach a different finding as though it was exercising appellate
jurisdiction. No doubt even while exercising revisional
jurisdiction, a reappraisal of evidence can be made, but that
should be for the limited purpose to ascertain whether
the
conclusion arrived at by the fact-finding court is wholly
unreasonable.”
It could thus be seen, that this Court has held, that the High Court
while exercising the revisional powers under the Delhi Rent Control
Act, 1958 though could not reassess and reappraise the evidence,
as if it was exercising appellate jurisdiction, however, it was
empowered to reappraise the evidence for the limited purpose so
as to ascertain whether the conclusion arrived at by the fact-
finding court is wholly unreasonable.
23. Again in Ram Narain Arora v. Asha Rani [(1999) 1 SCC 141],
this Court had an occasion to consider the aforesaid powers under
the Delhi Rent Control Act, 1958. This Court observed thus: (SCC
p. 148, para 12)
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“12. It is no doubt true that the scope of a revision petition
under Section 25-B(8) proviso of the Delhi Rent Control Act is
a very limited one, but even so in examining the legality or
propriety of the proceedings before the Rent Controller, the
High Court could examine the facts available in order to find
out whether he had correctly or on a firm legal basis approached
the matters on record to decide the case. Pure findings of fact
may not be open to be interfered with, but (sic if) in a given
case, the finding of fact is given on a wrong premise of law,
certainly it would be open to the Revisional Court to interfere
with such a matter.”
It was thus held, that though the scope of revisional powers of the
High Court was very limited one, but even so in examining the
legality or propriety of the proceedings before the Rent Controller,
the High Court could examine the facts available in order, to find
out whether he had correctly or on a firm legal basis approached
the matters on record to decide the case. It has also been held,
that pure findings of fact may not be open to be interfered with,
but in a given case, if the finding of fact is given on a wrong
premise of law, it would be open to the Revisional Court to interfere
with the same.”
ON MERITS:
22. Learned Rent Controller passed a detailed speaking order.
On undertaking such an exercise, he found that the bona fide need is
satisfied; the averments of the
respondent regarding alternative
accommodation are vague; the title of the appellant cannot be questioned;
and the embargo under the Enemy Property Act does not get attracted.
Thus, having found that the defense set up by the respondent is only a
moonshine, the application filed seeking leave to defend was accordingly
rejected.
23. After completing the aforesaid process, the Court made certain
observations in addition to the order on merits, giving its indictment on
the conduct of the respondent, who dropped the names of not only a
District Judge but also a High Court Judge, certainly not germane to the
case.
24. The High Court, while ignoring the aforesaid conduct of the
respondent, as noted by the learned Rent Controller, proceeded to allow
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the revision by treating it like an appeal. It did not even reverse the
findings of the learned Rent Controller, but proceeded to hold that the
denials of the appellant in his reply to the application seeking leave to
defend are vague, qua the plea of alternative accommodation,
notwithstanding the rejection of the contention of the respondent that he
cannot question the title. This approach, in our considered view, cannot
be sustained in the eye of law.
25. Section 14(1)(e) deals with only the requirement of a bona
fide purpose. The contention regarding alternative accommodation can
at best be only an incidental one. Such a requirement has not been found
to be incorrect by the High Court, though it is not even open to it to do so,
in view of the limited jurisdiction which it was supposed to exercise.
Therefore, the very basis upon which the revision was allowed is obviously
wrong being contrary to the very provision contained in Section 14(1)(e)
and Section 25B(8).
26. We have already discussed the scope of Section 14(1)(e) vis
a vis Section 25B(8) of the Act. Therefore, the mere existence of the
other properties which are, in fact, denied by the appellant would not
enure to the benefit of the respondent in the absence of any pleadings
and supporting material before the learned Rent Controller to the effect
that they are reasonably suitable for accommodation.
27. The respondent made substantial claims on the judgment of
this Court in Precision Steel
(supra). We do not find the said decision
helping the case of the respondent, in the light of the discussion made on
the scope of the relevant provisions, as leave to defend cannot be granted
on mere asking. We can only reiterate that we do not find any perversity
in the decision rendered by the learned Rent Controller and the High
Court has not only certainly abdicated its jurisdiction, but also exceeded
in a way.
28. We are constrained to note that the respondent continued to
drop the names of persons holding high offices even before us. He proudly
proclaimed during his argument that the proceedings under the Enemy
Property Act, as amended, were initiated only at his instance on his
personally meeting with an Hon’ble Union Minister. We can only adopt
the process undertaken by the learned Rent Controller by not letting the
said statement come in the way of deciding the matter on merits, despite
it being unconscionable and shockingly brazen.
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29. Much reliance has been made on the documents indicating
the re-creation of tenancy right in favour of the respondent by the authority
constituted under the Amended Act. We do not wish to state anything on
that, nor the said communication would have an impact on our order.
Neither the said Authority is before us, nor its existence or viability can
be gone into in these proceedings. The scope of the Enemy Property
Act, as amended, vis a vis the proceedings for eviction was already
dealt with by the learned Rent Controller, though not touched upon by
the High Court. Further, the attempt of the respondent to implead himself
in a pending case before the High Court of Delhi on a challenge made to
the notices passed under the Amended Act got miserably failed with an
observation by the High Court that it smacked of mala fides. We may
further note, notwithstanding the earlier conclusion by way of a report
dated 04.11.2015 wherein the Assistant Custodian of Enemy Property
under the Enemy Property Act has observed that the predecessors of
the appellant are non-evacuees and that the properties owned by them
by no stretch of imagination can be termed as enemy property, there is
another action initiated on which we don’t wish to express any view.
The decision of the High Court rejecting the respondent’s impleadment
was not only confirmed by the dismissal of the intra-court appeal, but
also that of the rejection of the special
leave petition by this Court. On
fact, the proceedings initiated under the Enemy Property Act, as amended,
are also stayed by the High Court having considered the report dated
04.11.2015, by a reasoned order.
30. On the aforesaid analysis, we have no hesitation in setting
aside the order of the High Court by restoring the order passed by the
learned Rent Controller. The appeal stands allowed. No costs.
Devika Gujral
Appeal allowed.