JUDGMENT
Devinder Gupta, J.
(1) The tenant has come up in revision under Section 25B(8) of the Delhi Rent Control Act, (hereinafter referred to as “the Act) challenging the order passed on 25/04/1994 by Shri P.D.Gupta, Additional RentController, Delhi rejecting his application for leave to contest the eviction petition and simultaneously allowing the application of the owner/landlord filed under Section 14(l)(e) of the Act ordering the tenant’s eviction.
(2) The tenant’s eviction was sought by the respondents from the premises comprising one room, latrine, bath room, as shown in red colour in the plan attached with the petition being a part of property known as C-84, Jitar Nagar, Delhi.
(3) The respondents alleged that the tenant was let out the premises, which are owned by respondent No. 1, Amar Singh. The same are now required by respondent No. 1 for himself and the other members of his family who are dependent upon him. The accommodation in his occupation as shown in blue in the plan attached was highly insufficient for his requirements. The family of respondent No. 1 consists of himself, his wife, three married sons one of whom is respondent No. 2. Respondent No. 1 along with his family and respondent No. 2 stays in the accommodation shown in blue in the plan. Thus the requirement of the accommodation in tenant’s possession is bona fide.
(4) The tenant contested the petition by filing an affidavit. He alleged that the property in occupation of the respondents was not a part of property bearing No. C 84, Jitar Nagar, Delhi but the same was a separate and distinct property known asA-39, Jitar Nagar, Delhi. Moreover, eviction had not been sought from the entire tenanted premises. He was a tenant with respect to the entire plot bearing No. C 84, Jitar Nagar, Delhi. In addition, it was alleged that the ground of bona fide requirement was concocted one. Neither respondent No. 1 nor any other member of his family had been residing in premises A-39, Jitar Nagar, Delhi. The premises was also not required for any bona fide purpose.
(5) The respondents contested the tenant’s stand by filing their respectiveaffidavits. The Controller through the impugned order, after considering thetenant’s affidavit held that the same does not disclose such facts which would disentitle the respondents from claiming eviction. No friable issue arises for determination and as such petitioner was not entitled for leave to contest. It is this order which is under challenge.
(6) I have heard learned Counsel for the parties and also gone through therecord.
(7) Learned Counsel for the petitioner has by placing reliance on the decision in Precision Steel & Engineering Works and Another v. Prem Deva Niranjan DavaTayal, urged that the jurisdiction to grant leave to contest or refuse the same is to be exercised on the basis of affidavit filed by the tenant. That alone at this stage is the relevant document and if averments made in the affidavit disclosed such facts, which if ultimately proved to the satisfaction of the Court would disentitle the landlord from recovering possession, that by itself would make it obligatory upon the Controller to grant leave. It is immaterial that the facts alleged and disclosed are controvert by the landlord because the stage of proof is yet tocome. It was contended that the Controller thus erred in rejecting the application since the facts in the affidavit did disclose a friable issue.
(8) Learned Counsel for the respondent on the other hand by placing reliance on another decision of Supreme Court in Charan Dass Duggal v. Brahma Nand, 21(1982) Delhi Law Times 378 urged that the Additional Rent Controller was justified in rejecting the application, since the tenant had failed to make out a prima facie case for grant of leave to contest.
(9) Considering the aforementioned submissions, I do not find that there is any error in the approach which the Controller adopted in this case, which is perfectly in consonance with the requirements laid down in Precision Steel & EngineeringWorks’s case (Supra) and the conclusions arrived at by the Controller are supported on the basis of the material on record.
(10) The tenant in his affidavit, on the face of it, has tried to confuse the issue as regards the identity of the property, namely, tenanted premises and premises inoccupation of landlord. According to him, the premises A-39 and C-84 are two separate and distinct properties located at two different places. He has not placed on record any plan and in his affidavit has nowhere disputed the correctness of the plan filed by the landlord, along with the petition for eviction, which was duly served upon him. Measurements in detail and the accommodation in occupation of the petitioner and respondents are separately and distinctly shown. The tenant has also not disputed the fact that respondent No. 2 is in occupation of the accommodation at A-39, Jitar Nagar, Delhi. The plan describes premises A-39 juxtaposed to premises C-84. It in fact further shows that it is the same property. It is so disclosed on the top of the plan. The premises at A-39 consists of a room with small kitchen,bath and latrine attached to it. It is a part of property C-84, which is a plot of land measuring 20′ x 44′. This accommodation shown in red is in occupation of the tenant.There is also a tent pitched on one side of this plot. It is not disputed by the tenant that respondent Karan Singh, who is the son of respondent, Amar Singh is an Assistant Commandant in C.R.P.F. and is presently posted in Delhi. According to the petitioner’s own affidavit he at the time of filing of the affidavit was posted atRampur, U.P., but after the respondents filed their affidavits they disclosed that Karan Singh was posted back to New Delhi in Head Quarter. It is also stated that Amar Singh, respondent No. 1 had been getting treatment from G.B.Plant Hospital and had been residing in the premises along with his son Karan Singh who was posted back to Delhi and intends to being his family to Delhi since he had not been allotted any family accommodation. The tenant/petitioner in rejoinder stated that the posting back of Karan Singh in the C.R.P.F. Head quarters, C.G.O.Complex,Lodhi Colony, New Delhi is immaterial since at the time of filing of the petition he was not posted at Delhi.
(11) The Controller noticed that the ownership of respondent Amar Singh to the premises was not in dispute. It was also not in dispute that the premises had been let out to the tenant for residential purpose and thus the only controversy which was sought to be raked up was as to whether the premises were required bona fide by the respondents for their residence and that whether the respondents had any other reasonably suitable accommodation available for them for their bona fide requirement. From the affidavit of the tenant, the Controller found that the affidavit did not disclose any friable issue. The other two married sons of respondent Amar Singh admittedly are not been residing in Delhi and are posted in Himachal Pradesh. The allegation that respondent No. 1 Amar Singh is residing in the premises has half heartedly been opposed by the petitioner. In his rejoinder the tenant stated that getting treatment from G.B.Plant Hospital by respondent Amar Singh is immaterial.The other fact that respondent No. 2 had been posted in Head quarters C.R.P.F.,C.G.O.Complex, Lodhi Road, New Delhi and had not been allotted any family accommodation was also half heartedly opposed in the affidavit filed in rejoinder.When these allegations are not being seriously contested by the tenant, it cannot be said that a friable issue arises for consideration, thereby entitling the tenant leave todefend. The entire purpose of trying such petitions summarily will be frustrated incase on vague allegations leave to defend is granted. In Charan Dass Duggal’s case(Supra), it is held that wholly frivolous contentions does not entitle a tenant leave to defend. When leave to defend is sought the tenant must make out such a prima fade case raising such pleas that a friable issue would emerge.
(12) Having considered the tenants affidavit in the light of above facts, the Controller cannot be said to have committed any illegality or irregularity in declining leave. No fault can be found in the impugned order in rejecting thetenant’s application for leave to defend on the ground that the tenant had failed to make out a prima fade case. The Controller also rightly came to the conclusion that on leave being declined, the respondents were entitled to an order of eviction against the petitioner. Consequently, the revision which has no force is dismissed in liming.
(13) In the impugned order it was provided that the eviction order shall not be executable for a period of six months, which period has since expired on 2 5/10/1994. Accordingly, it is ordered that in case the tenant/petitioner, within a period of one week from today, would place on record a usual affidavit, with advance copy to the respondents, to be served through their Counsel, agreeing and undertaking to hand over and deliver vacant and peaceful possession of the premises in question to the respondents on or before 31/03/1995 and also undertaking that he will not allow any other person to use the premises or part with the possession, the order of eviction shall not be executed till 31/03/1995. This of course will be on the tenant’s paying/depositing all arrears within a week and continuing to pay/deposit use and occupation charges month by month on or before the 10th day of each month at the rate at which rent was payable. On failure of the tenant/petitioner to place on record an affidavit within one week, will entitle the respondents to execute the order of eviction forthwith. No costs.