JUDGMENT
Sanjay Kishan Kaul, J.
CM (M) No. 1159/2004
1. The petitioner is aggrieved by the impugned order dated 17.07.2004 passed by the Additional Rent Controller where leave has been granted to the petitioner but limited to the extent set out in the said order.
2. The respondent/landlord filed an eviction petition under Section 14(1)(e) r/w Section 25B of the Delhi Rent Control Act, 1958 (herein-after referred to as the ‘said Act’).The petitioner filed an application for leave to defend which has been disposed of in terms of the impugned order. The Additional Rent Controller found that the question of the bona fide requirement of the petitioner would be liable to be gone into but did not permit the other aspects to be raised.
3. In order to appreciate the dispute, it is necessary to reproduce the necessary provisions which read as under:
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 favor of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make any order for the recovery of possession of the premises on one or more of the following grounds only, namely:
a)…
b)…
c)…
d)…
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 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;
25B. Special procedure for the disposal of applications for eviction on the ground of bona fide requirement
1)…
2)…
3)…
4)…
5) The Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would dies entitle 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) or under Section 14A.
4. Section 14(1)(e) of the said Act requires various parameters to be satisfied before an eviction order can be passed. The dispute in the present case relates to the plea of the learned Counsel for the petitioner that the respondent is not the owner of the property and thus that question also ought to have been left open to be determined at the stage of evidence.
5. The question as to what is meant by the word ‘owner’ in Section 14(1)(e) of the said Act has been discussed in a number of judgments of this Court as well as of the Apex Court. In a recent judgment of this Court in CRP No. 153/2001 Gayties Manufacturing Company v. Sh. Kanwaljit Singh, decided on 03.08.2006, relying upon the judgment of the Apex Court in Smt. Shanti Sharma and Ors. v. Smt. Ved Prabha and Ors. it has been held that the word ‘owner’ is not used by the Legislature in the context of an absolute owner but something more than a tenant. It has been observed in para 14 as under: ? 14. A perusal of the aforesaid shows that the word ‘owner’ is not used by the Legislature in the context of an absolute owner. The Act is a protection for tenants and landlords are entitled to eviction in certain circumstances including for bona fide requirement. The Supreme Court thus observed that the phrase ‘owner’ appears to be used vis-a-vis a tenant and this would imply that the owner should be something more than the tenant. Once this test is satisfied a person claiming eviction has to only show his bona fide requirement. The Supreme Court has referred with approval to the observations of this Court in T.C. Rekhi v. Smt.Usha Gujaral 1971 Ren CJ 322 where it had been observed that the word ‘owner’ in the clause seems to have been inspired by the definition of the word ‘landlord’ as contained in Section 2(e) of the said Act which is wide enough to include a person receiving or entitled to receive the rent of any premises on account or on behalf or for the benefit of any other person. Thus the idea of ownership was held to be one of better right to be in possession than the tenant and to obtain it….
6. Section 25B prescribes a special procedure for disposal of an application for eviction on grounds of bona fide requirement. The tenant is entitled to leave to contest if the affidavit discloses such facts as to what dis-entitled the landlord from obtaining an order for recovery of possession. While granting leave it is permissible for the Additional Rent Controller to leave all aspects open or to confine the trial to a particular aspect.
7. In the present case the title of the respondent is stated to be derived from the plea that an agreement to sell was executed and thereafter a suit for specific performance was filed. The suit for specific performance was decreed but the property being leasehold property certain permissions were stated to be required from the perpetual Lesser for perfection of title. Learned Counsel for the petitioner pleads that it should be permissible for the petitioner to summon the witnesses and to find out whether decree, which is really in the nature of conditional decree, has become executable.
8. In my considered view these aspects cannot be gone into in the present proceedings where the status of the respondent is not to be determined in respect of perfection of title but to only see that the has respondent has a better right than the petitioner herein. The word ‘owner’ has to be understood in that context. The petitioner has paid rent to the respondent, of course, without prejudice to any legal objections.
9. In view of the aforesaid, I am of the considered view that the impugned order granting conditional leave cannot be faulted and cannot be said to suffer from any patent error or erroneous exercise of jurisdiction by the trial court.
10. At request of learned Counsel for the petitioner, it is clarified that in view of the impugned order all aspects in respect of the bona fide requirement and non availability of alternative accommodation can be gone into at the stage of trial.
11. Trial be expedited by the Additional Rent Controller.
12. Dismissed with the aforesaid observations.