PETITIONER:
KEWAL SINGH
Vs.
RESPONDENT:
LAJWANTI
DATE OF JUDGMENT04/10/1979
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
SHINGAL, P.N.
SEN, A.P. (J)
CITATION:
1980 AIR 161 1980 SCR (1) 854
1980 SCC (1) 290
CITATOR INFO :
C 1980 SC 315 (3)
R 1982 SC1518 (9)
R 1984 SC 967 (7,10)
D 1990 SC 560 (32)
ACT:
Frame of Suit-Whether earlier giving up a cause of
action by deletion from the plaint and later on again re for
inclusion of the same cause is barred by the principle of
Order II of Rule 2 C.P.C.
Doctrine of constructive Res-judicata-When it applies-
Whether deletion of a cause of action from the plaint and
again a request for inclusion would amount to a bar of Res-
judicata.
Delhi Rent Control Act, Section 25B-Whether violative
of Art. 14 of the Constitution.
HEADNOTE:
The appellant was the tenant of respondent in Quarter
No. IV-H/46 Lajpat Nagar from 1-7-1967. On 2-6-1976, the
respondent filed an application under sections 14A(1),
14(1)(e) and 14(1)(f) of the Delhi Rent Control Act, for
eviction of the appellant firstly on the ground that as her
husband was required by the Government to vacate the
Government quarters or pay the penal rent, the husband of
the respondent had to shift to the house of his wife which
was in the tenancy of the defendant. A prayer was also made
that even otherwise the premises were required for a
bonafide necessity of the landlord and also as the premises
had become unfit for human habitation the respondent
required the same for carrying out repairs which could not
be done unless the premises were vacated. On 3-6-76 the
respondent filed an application withdrawing the cause of
action mentioned by her regarding bonafide necessity and
repairs as contemplated by Section 14(1)(e) and 14(1)(f) of
the Act. The Rent Controller accordingly allowed the
plaintiff to withdraw the two causes of action mentioned in
the application since no notice was served at this time on
the appellant. Thereafter notice was served on the
appellant. On 4-6-1976, the plaintiff again sought to amend
her petition by deleting the cause of action mentioned under
section 14A(1) of the Act i.e. requirement of the respondent
because her husband had been directed to vacate the
Government Quarter. On 13-8-1976 the appellant appeared
before the Rent Controller and filed an application under
section 25B, sub sections 4 and 5 requesting the Rent
Controller to give him permission to defend the suit, on the
ground that as the landlady was not a Government servant she
was not entitled to maintain the eviction petition under
Section 14A(1) of the Act. On 6-10-76 the husband of the
respondent filed an application for being impleaded as a
party, but this application was rejected on 22-11-76. The
respondent thereafter again filed another application on
27-1-77 praying for amendment of her eviction application by
re-inserting the cause of action contained in section
14(1)(e) of the Act and sought to claim eviction on the
ground of bonafide requirement. This application was
contested by the appellant but was allowed by the Rent
Controller by his order dated 19-2-77 leaving open to the
appellant to file his objection by a fresh application if he
wanted to defend the suit. The appellant accordingly filed
an application on 9-3-77 for permission to defend the suit
on the ground that the amendment sought for by the plaintiff
was uncalled for and illegal and could not be allowed.
Ultimately, the Rent
855
controller by his order dated 27-7-77 rejected the
application for leave to appear and defend the suit and
passed an order evicting the appellant from the premises.
The revision petition filed by the appellant under Section
25B(8) in the Delhi High Court was dismissed on 6-4-1978 and
hence the appeal by special leave of the Court.
It was contended: (a) that the second application given
by the respondent for re-amending her plaint by inserting
the relief under section 14(1)(e) which she had given up at
a prior occasion when she had based her suit under section
14A(1) was barred by the principles of Order II Rule 2
C.P.C. (b) that even if order II Rule 2 C.P.C., had no
application, the second application filed by the respondent
was barred by the doctrine of constructive res-judicata and
(c) Section 25B which lays down the procedure for disposing
of the applications filed by the landlord under the
provisions of Section 14A and 14(1)(e) are violative of
Article 14 of the Constitution in as much as the provisions
are arbitrary and discriminatory in nature, and seek to
provide two different procedures for tenants similarly
situated.
Dismissing the appeal by special leave, the Court
^
HELD: 1. A perusal of order II Rule 2 C.P.C. would
clearly reveal that this provision applies to cases where a
plaintiff omits to sue a portion of the cause of action on
which the suit is based either by relinquishing, the cause
of action or by omitting a part of it. The provision has,
therefore, no application to cases where the plaintiff has
based his suit on separate and distinct causes of action and
chooses to relinquish one or the other of them. In such
cases, it is always open to the plaintiff to file a fresh
suit on the basis of a distinct cause of action [860 E-F]
In the instant case, the second amendment application
was rot barred by the principles of order II, Rule 2 C.P.C.
The respondent had first based her suit on three distinct
causes of action, but later confined the suit only to the
first cause of action, namely the one mentioned in Section
14A(1) of the Act and gave up the cause of action relating
to section 14(1) (e) and (f). Subsequently by virtue of an
amendment she relinquished the first cause of action arising
out of section 14A(1) and sought to revive her cause of
action based on section 14(1)(e). At the time when the
respondent relinquished the cause of action arising out of
Section 14(1)(e), the applicant was not in the picture at
all. Therefore it was not open to the appellant to raise any
objection to the amount sought by the respondent. 1861 G-H.
862 A-C]
Mohammed Khalil Khan and Ors. v. Mahbub Alikhan and
Ors. 75 I.A 121 P.C.; applied.
2. One of the essential conditions of res judicata is
that there must be a normal adjudication between the parties
after full hearing. In other words, the matter must be
finally decided between the parties. [862 C]
In the instant case, the doctrine of constructive res-
judicata has no application whatsoever, since at the time
when the respondent relinquished her first cause of action,
the appellant was no where in the picture and there was no
adjudication between the parties. The second amendment
application was made in the same proceedings on a case of
action that she was allowed to insert with the permission of
the Court. Although both the parties went to the Court on
the basis of
856
these facts, neither the bar of res judicata nor that of
Order II Rule 2 C.P.C. was raised before the Rent
Controller. [862 C, E]
3. It is well settled that what Article 14 forbids is
hostile discrimination and not reasonable classification.
Discrimination may take place in many ways and what Article
14 requires is that equals must be treated alike. If equals
and unequals one also treated alike then also Article 14 is
clearly attracted and discrimination results. [862 F-G]
(b) A reasonable classification based on grounds having
a clear nexus with the objective to be achieved and grouping
certain persons in a separate category in view of their
special peculiarities is undoubtedly permissible. Of course,
classification should not be purely a class legislation.
[862 G-H]
(c) It is also well settled that there is always a
presumption in favour of tho constitutionality of a statute
and any party who seeks to challenge the legislation on the
ground of applicability of Article 14 must plead and prove
tho necessary facts. In making a classification, the Court
must presume matters of common knowledge, common report,
history of the time and every other relevant fact. [862 H,
863 A]
Chiranjit Lal Chowdhari v. Union of India and Ors.
[1950] S.C.R. 869, State of West Bengal v. Anwar Ali Sarkar
[1952] S.C.R. 284; Sri Ramkrishna Dalmia v. Shri Justice
S.R. Tandolkar and Ors. [1959] S.C.R. 279 Mahant Moti Das v.
S. P. Sahi the Special Officer in charoe of Hindu Religious
Trust and Ors., [1959] 2 Supp. S.C.R. 563, A. C. Aggarwal
Sub Divisional Magistrate Delhi and Anr. v. Mst. Ram Kali
etc. [1968] 1 S.C.R. 205; referred to.
4. The Rent Control Act is a piece of social
legislation and is meant mainly to protect the tenants from
frivolous evictions. At the same time, in order to do
justice to the landlords and to avoid such restrictions on
their right to evict the tenant so as to destroy their legal
right to property certain salutary provisions have been made
by the legislature which give relief to the landlord. In the
absence of such a legislation a landlord has a common law
right to evict the tenant either on the determination of the
tenancy by efflux of time or for default in payment cf rent
or other grounds after giving notice under the Transfer of
Property Act. Their broad right has been curtailed by the
Rent Control Legislation with a view to give protection to
the tenants having regard to their genuine and dire needs.
[864 C-E]
While the rent control legislation has given a number
of facilities to the tenants, it should not be construed so
as to destroy the limited relief which it seeks to give to
the landlord also, like the question of landlord's bonafide
personal necessity. The concept of bonafide necessity should
be meaningfully construed so as to make the relief granted
to the landlord real and practical. [864 E-G]
Bega Begum and Ors. v. Abdul Ahmed Khan (dead) by 1. rs
and Ors. [1979] 2 S.C.R. 1; referred to.
Section 25B of the Delhi Rent Control Act was inserted
in the statute by Act 18 of 5976 and was given retrospective
effect from 1-12-75, with the sole object of simplifying the
procedure for eviction of tenants in case the landlord
requires the premises bonafide for his personal occupation.
The Legislature in its wisdom thought that a short and
simple procedure should be provided
857
for those landlords who generally want the premises for
their bonafide necessity so that they may be able to get
quick and expeditious relief. [865 G-H, 866 A-B]
Section 25B does not govern all grounds open to a
landlord for evicting the tenant but it is confined only to
the ground in section 14A and proviso to section 14(1)(e).
In other words, the bonafide necessity of the landlord has
been put in a separate class or category having regard to
the peculiar incidents of his right. Section 14A also
relates to a special situation where the landlord under the
Government Rules is asked to shift to his own house, if he
has one or in a house that belongs to his spouse, failing
which he has to pay a penal rent which almost takes away a
major part of his salary. Thus, such a landlord becomes a
class by himself. The statute thus puts personal necessity
of the landlord as a special class requiring special
treatment for quick eviction of the tenant and cuts out
delays and plugs all the loopholes, which may cause delay in
getting the relief by the landlord. The classification made
by the legislature is in public interest and is in complete
consonance with the objectives sought to be achieved. The
landlords having personal necessity have been brought
together as a separate class because of their special needs
and such a classification cannot be said to be unreasonable
particularly where the legislature in its obvious wisdom
feels that the Landlords should get this relief as quickly
as possible. [868 A-E]
Even though a summary procedure has been evolved the
tenant has been afforded full opportunity to defend the
application provided he can disclose good grounds for
negating the case of the landlord. No litigant has a right
to protract the legal proceedings by taking frivolous,
irrelevant, irrational or uncalled for pleas. This is what
Section 25B seeks to prevent. [869 E-F]
An appeal is purely a creature of the statute and this
right has not been given in order to cut out unnecessary
delay. Indeed the highest Court of the state has been given
a wide power of revision where the said Court can examine
the case of the tenant and the landlord and the validity of
the order passed by the Controller. The right of the tenant,
therefore, is sufficiently safeguarded by the proviso to
sub- section 8 of Section 25B of the Act. In order to give
the relief to the tenant against any apparent error of law
or fact where no revision has been filed in the High Court,
the statute confers power of review on the Controller. [869
G-H, 870 A]
Thus, taking an overall picture of the situation, the
circumstances under which the landlord's needs have been
classified and the safeguards given by the statute it cannot
be said by any stretch of imagination that Section 25B and
its sub sections are violative of Article 14 of the
Constitution. In fact, Section 25B contains valuable and
sufficient guidelines which completely exclude the exercise
of uncanalised or arbitrary powers of the Rent Controller.
[870 A-B]
Section 25B is constitutionally valid. The legislature
has not taken, away the right of the tenant at all but has
merely simplified the procedure for eviction of the tenant
in cases falling within the ambit of sections 14A and
14(1)(e) of the Act. A tenant cannot challenge the validity
of such a provision enacted by the legislature from which
the tenant itself derive such rights. If the legislature
considered in its wisdom to confer certain rights or
facilities on that tenants, it could due to changed
circumstances curtail, modify, alter or even take away such
rights or the procedure enacted for the purpose of eviction
and leave the tenants to seek their remedy under the common
law. [870 G-H, 871 A, B-C]
858
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1291 of
1970.
Appeal by Special Leave from the Judgment and Order
dated 6-4-1978 of the Delhi High Court in Civil Revision No.
822/77.
Madan Mohan, V.J. Francis and D.K. Garg for the,
Appellant.
R.P.H. Parekh, C.B. Singh, M. Mudgal and B.L. Verma for
the Respondent,
The Judgment of the Court was delivered by
FAZAL ALI, J. This appeal by special leave is directed
against the judgment and order of The Delhi High Court dated
the 6th April, 1978 dismissing the revision petition filed
by the appellant against an order of the Rent Controller.
For the purpose of brevity and to avoid confusion the
appellant shall hereafter be referred to as the defendant
and the respondent as the Plaintiff.
The defendant appellant was inducted as a tenant by the
plaintiff in Quarter No. IV-H/46, Lajpat Nagar, New Delhi on
1-7-1967. On 2nd June, 1976 the plaintiff filed an
application under sections 14A(1) 14(1)(e) and 14(j)(l) of
the Delhi Rent Control Act, hereinafter referred to as the
Act, for eviction of the tenant firstly on the ground that
as the husband of the plaintiff was required by the
Government to vacate the Government quarter or pay the penal
rent the husband of the plaintiff had to shift to the house
of his wife which was in the tenancy of the defendant. A
prayer was also made by the plaintiff that even otherwise
the premises were required for a bonafide necessity of the
land-lady and also as the premises had become unfit for
human habitation the plaintiff required the same for
carrying out repairs which could not be done unless the
premises were vacated. On the next date, that is on 3rd
June, 1976 the plaintiff filed an application with drawing
the cause of action mentioned by her regarding bonafide
necessity and repairs as contemplated by sections 14(1)(e)
and 14(1) (f) of the Act. The defendant appellant at this
time was nowhere in the picture and no notice had yet been
served on him. The Rent Controller accordingly allowed the
plaintiff to withdraw the two causes of action mentioned in
the application. Thereafter notice was issued to the
defendant. On the 4th June, 1976 the plaintiff again sought
to amend her petition by deleting the cause of action
mentioned under section 14-A(l) of the Act, that is to say
requirement of the plaintiff because her husband had been
directed to vacate the Government quarter. This was perhaps
necessitated because there were some amendments in the
Government Rules on the subject. On the 13th August, 1976
the defendant appeared before the Rent Controller
859
and filed an application under section 25B sub-sections 4
and 5 requesting the Rent Controller to give the defendant
permission to defend the suit, on the ground that as the
land-lady was not a Government servant she was not entitled
to maintain the eviction petition under section 14A(1) of
the Act. The defendant also raised some other contentions.
On 6-10-1976 the husband of the plaintiff filed an
application for being impleaded as a party, but this
application was rejected on 22-11-1976. The plaintiff
thereafter again filed another application on 27-1-1977
praying for amendment of her eviction application by re-
inserting the cause of action contained in section 14(1)(e)
of the Act and sought to claim eviction on the ground of
bonafide requirement. This application was contested by the
defendant but was allowed by the Rent Controller by his
order dated 19-2-1977. The Rent Controller however left it
open to the defendant to file his objection by a fresh
application if he wanted to defend the suit. The defendant
accordingly filed an application on the 9th March, 1977 for
permission to defend the suit on the ground that the
amendment sought for by the plaintiff was uncalled for and
illegal and could not be allowed. Ultimately the Rent
Controller by his order dated 27th July, 1977 rejected the
application of the defendant for leave to appear and defend
the suit and passed an order evicting the defendant from the
premises. Being aggrieved by this order the defendant went
up in revision to the Delhi High Court as no appeal or
second appeal against the order passed by the Rent
Controller was maintainable under sub-section 8 of section
25B of the Act. The revision petition was heard by Justice
Prakash Narain of the Delhi High Court who by his order
dated 6th April, 1978 dismissed the revision petition with
costs. Thereafter, the petitioner approached this Court and
obtained special leave. Hence this appeal.
On a perusal of the judgment of the Rent Controller and
that of the High Court prima facie it seems to us that the
appeal was clearly concluded by findings of fact in as much
as both the Courts had found that the plaintiff had proved
that she required the premises for her bonafide necessity.
Learned counsel for the appellant, however, raised three
points of law before us. In the first place, it was argued
that the second application given by the plaintiff for re-
amending her plaint by inserting the relief under section
14(1)(c) which she had given up at a prior occasion when she
had based her suit under section 14A(1) was barred by the
principles of order 2 Rule 2 of the Code of Civil Procedure.
It was next contended that even if order 2 Rule 2
C.P.C. had no application, the second application for
amendment filed by the plaintiff 20-625 SCI/79
860
was barred by the doctrine of constructive res judicata.
Finally, it was argued that section 25B which lays down the
procedure for disposing of applications filed by the
landlord under the provisions of sections 14A and 14(1)(e)
are violative of Article 14 of the Constitution in as much
as the provisions are arbitrary and discriminatory in
nature, and seek to provide two different procedures for
tenant similarly situate.
So far as the first two contentions are concerned, we
are of the opinion that do not merit any serious
consideration. Regarding the question of the applicability
of order 2 Rule 2, C.P.C. the argument of the learned
counsel for the appellant is based on serious misconception
of law. Order 2 Rule 2 C.P.C. runs thus:-
“2 (1) Every suit shall include the whole of the
claim which the plaintiff is entitled to make
in respect of the cause of action but a
plaintiff may relinquish any portion of his
claim in order to bring the suit within the
jurisdiction of any Court.
(2) Where a plaintiff omits to sue in respect of,
or intentionally relinquishes, any portion of
his claim, he shall not afterwards sue in
respect of the portion so omitted or
relinquished”.
A perusal of Order 2 Rule 2 would clearly reveal that this
provision applies to cases where a plaintiff omits to sue a
portion of the cause of action on which the suit is based
either by relinquishing the cause of action or by omitting a
part of it. The provision has, therefore, no application to
cases where the plaintiff basis his suit on separate and
distinct causes of action and chooses to relinquish one or
the other of them. In such cases, it is always open to the
plaintiff to file a fresh suit on the basis of a distinct
cause of action which he may have relinquished.
In the case of Mohammad Khalil Khan & Ors. v. Mahabub
Ali Mian & Ors. the Privy Council observed as follows:-
“That the right and its infringement, and not the
ground or origin of the right and its infringement,
constitute the cause of action, buy the cause of action
for the Oudh suit (No. 8 of 1928) so far as the Mahbub
brothers are concerned was only a denial of title by
them as that suit was mainly against Abadi Begum for
possession of the Oudh property; whilst in the present
suit the cause, of action was wrongful
861
possession by the Mahbub brothers of the Shahjahanpur
property, and that the two causes of action were thus
different.”
“Their Lordships are satisfied that there is no
force in the contention that the plaintiffs in the
present suit could not reasonably commence an action in
respect of the Shahjahanpur property while their right
to mutation in the Revenue registers was the subject of
an appeal to the Commissioner which had not been
decided, or, in other words, that it was not open to
them to sue the defendants in respect of the
Shahjahanpur property at a date earlier than October
29, 1928 and to include the Shahjahanpur property in
the earlier suit No. 8 instituted on September 14,
1928”.
“The principles laid down in the cases thus far
discussed may be thus summarized; (1) the correct test
in cases falling under O. 2. r. 2 is “whether the claim
in the new suit is, in fact, founded on a cause of
action distinct from that which was the foundation for
the former suit. Moonshee Buzloor Ruheem v.
Shamsoonnissa Begum. (2) The cause of action means
every fact which will be necessary for the plaintiff to
prove, if traversed, in order to support his right to
the judgment Read v. Brown. (3) If the evidence to
support the two claims is different then the causes of
action are also different Brunsden v. Humphery. (4) The
causes of action in the two suits may be considered to
be the same if in substance they arc identical.
(Brunsden v. Humphery). (5) The cause of action has no
relation whatsoever to the defence that may be set up
by the defendant, nor does it depend on the character
of the relief prayed of by the plaintiff. It refers “to
the media upon which the plaintiff asks the court to
arrive at a conclusion in his favour.” Muss. Chand Kour
v. Partab Singh. This observation was made by Lord
Watson in a case under s. 43 of the Act of 1882
(corresponding to 0.2.r.2) where plaintiff made various
claims in the same suit”.
Applying the aforesaid principles laid down by the
Privy Council we find that none of the conditions mentioned
by the Privy Council are applicable in this case. The
plaintiff had first based her suit on
862
three distinct causes of action but later confined the suit
only to the first cause of action, namely, the one mentioned
in section 14A(1) of the Act and gave up the cause of action
relating to section 14(1) (e) and (f). Subsequently, by
virtue of an amendment she relinquished the first cause of
action arising out of section 14A(1) and sought to revive
her cause of action based on section 14(1)(e). At the time
when the plaintiff relinquished the cause of action arising
out of section 31 14(1)(e) the defendant was not in the
picture at all. Therefore, it was not open to the defendant
to raise any objection to the amendment sought by the
plaintiff. For these reasons, we are satisfied that the
second amendment application was not barred by the
principles of 0.2 r.2 C.P.C. and the contention of the
learned counsel for the appellant must fail.
Secondly, as regards the question of constructive res
judicata it has no application whatsoever in the instant
case. It is well settled that one of the essential
conditions of res judicata is that there must be a formal
adjudication between the parties after full hearing. In
other words, the matter must be finally decided between the
parties. Here also at a time when the plaintiff relinquished
her first cause of action the defendant was no where in the
picture, and there being no adjudication between the parties
the doctrine of res judicata does not apply. The second
amendment application was made in the same proceedings on a
cause of action that she was allowed to insert with the
permission of the court. Although both the parties went to
the court on the basis of these facts, neither the bar of
res judicata nor that 0.2 r.2 appear to have been raised
before the Rent Controller. For these reasons, therefore,
the second plank of the argument put forward by counsel for
the appellant also must be rejected.
Lastly, we come to the question of the application of
Article 14 to the provisions of the Act. This is undoubtedly
a question which merits serious consideration. Before
approaching this question we might observe that it is well
settled that what Article 14 forbids is hostile
discrimination and not reasonable classification.
Discrimination may take place in many ways, and what Article
14 requires is that equals must be treated alike. If equals
and unequals are also treated alike then also Article 14 is
clearly attracted and discrimination results. A reasonable
classification based on grounds having a clear nexus with
the objective to be achieved and grouping certain persons in
a separate category in view of their special peculiarities
is undoubtedly permissible. Of course, classification should
not be purely a class legislation. It is also well settled
that there is always a presumption in favour of the
constitutionality of a statute and any
863
party who seeks to challenge the legislation on the ground
of applicability of Article 14 must plead and prove the
necessary facts. In making a classification the court must
presumed matters of common knowledge, common report, history
of the time and every other relevant fact.
In the case of Chiranjit Lal Chowdhuri v. The Union of
India & Ors. this Court observed as follows:-
“The legislature undoubtedly has a wide field of
choice in determining and classifying the subject of
its laws, and if the law deals alike with all of a
certain class, it is normally not obnoxious to the
charge of denial of equal protection, but the
classification should never be arbitrary. It must
always rest upon some real and substantial distinction
bearing a reasonable and just relation to the things in
respect to which the classification is made; and
classification made without any substantial basis
should be regarded as invalid”.
Same view was taken in the case of The State of West Bengal
v. Anwar Ali Sarkar.
In the case of Shri Ram Krishna Dalmia v. Shri Justice
S.R. Tendolkar & Ors. it was held that in determining
whether there is any intelligible differential on the basis
of which the petitioners and their companies could have been
grouped together it is permissible to look to the facts
appearing in the notification as also those brought to the
notice of the court.
In the case of Mahant Moti Das v. S. P. Sahi, The
Special Officer in charge of Hindu Religious Trusts & Ors.
this Court held that apart from there being a presumption in
favour of the constitutionality of all enactment the burden
is upon the party who alleges that there has been a clear
transgression of the constitutional guarantee. It was
further pointed out that the legislature correctly
appreciated the needs of its own people and that its laws
are directed to problems made manifest by experience and
that any discrimination made are based on adequate grounds
as the legislature is free to recognise degrees of harm and
may confine its restrictions to those cases where the need
is deemed to be the clearest.
These observations clearly justify the classification
made by the legislature in enacting the Delhi Rent Control
Act as we shall show later.
864
To the same effect is the decision in the case of Shri
A.C. Aggarwal, Sub-Divisional Magistrate, Delhi & Anr. v.
Mst. Ram Kali etc.
In the light of the principles enunciated by the
decisions of this Court we would now briefly approach the
relevant provisions of the Delhi Rent Control Act which have
been applied to the facts of the present case.
To begin with, it is not necessary for us to deal with
section 14A(1) because the cause of action contained in this
section has been given up by the plaintiff-respondent. We
would, therefore, confine ourselves to the validity of
section 14(1) (e) and the procedure prescribed to give
relief mentioned in the aforesaid section in section 25B.
Before discussing the relevant provisions of the Act it may
be necessary to observe that the Rent Control Act is a piece
of social legislation and is meant mainly to protect the
tenants from frivolous evictions. At the same time in order
to do justice to the landlords and to avoid placing such
restrictions on their right to evict the tenant as to
destroy their legal right to property certain salutary
provisions have been made by the legislature which give
relief to the landlord. In the absence of such a legislation
a landlord has a common law right to evict the tenant other
in the determination of the tenancy by efflux of time or for
default in payment of rent or other grounds after giving
notice under the Transfer of Property Act. This broad right
has been curtailed by The Rent Control Legislation with a
view to give protection to the tenants having regard to
their genuine and dire needs. While the rent control
legislation has given a number of facilities to the tenants
it should, not be construed so as to destroy the limited
relief which it seeks to give to the landlord also. For
instance one of the grounds for eviction which is contained
in almost all the Rent Control Acts in the country is the
question of landlord’s bonafide personal necessity. The
concept of bonafide necessity should be meaningfully
construed so as to make the relief granted to the landlord
real and practical. In the case of Bega Begum & Ors. v.
Abdul Ahmed Khan (dead) by L.Rs and Ors. this Court to which
one of us (Fazal Ali, J.) was a party and spoke for the
Court observed as follows :-
“Moreover, section 11(h) of the Act uses the
words’ reasonable requirement’ which undoubtedly
postulate that
865
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 as the
High Court has done in this case. It seems to us that
the connotation of the term ‘need’ or ‘requirement’
should not be artificially extended nor its language so
unduly stretched or strained as to make it impossible
or extremely difficult for the landlord to get a decree
for eviction. Such a course would defeat the very
purpose of the Act which affords the facility of
eviction of the tenant to the landlord on certain
specified grounds. This appears to us to be the general
scheme of all the Rent Control Acts prevalent in other
States in the country. This Court has considered the
import of the word ‘requirement’ and pointed out that
it merely connotes that there should be an element of
need”.
Coming back to the Delhi Rent Control Act it appears
that section 25B was inserted in the statute by Act 18 of
1976 and was given retrospective effect from 1-12-1975. The
statement of objects and reasons which formed part of the
Delhi Rent Control Act run thus:
“There has been a persistent demand for amendments
to the Delhi Rent Control Act, 1958 with a view to
conferring a right of tenancy on certain heirs
successors of a deceased statutory tenant so that they
may be protected from eviction by landlords and also
for simplifying the procedure for eviction of tenants
in case the landlord requires the premises bona fide
for his personal occupation. Further, Government
decided on the 9th September, 1975 that a person who
owns his own house in his place of work should vacate
the Government accommodation allotted to him before the
31 st December, 1975. Government considered that in the
circumstances, the Act requires to be amended urgently.
As the Parliament was not in session the Delhi
Rent Control (Amendment) Ordinance 1975 was promulgated
on the 1st December, 1975. The Bill seeks to replace
the said Ordinance”.
(Emphasis ours)
This Act actually replaced the ordinance which was
promulgated on 1st December, 1975. The objects and reasons
clearly reveal that the amendment has been made for
simplifying the procedure for eviction of tenants in case
the landlord requires the premises bona fide for
866
his personal occupation. It is a matter of common knowledge
that even though the landlord may have an immediate and
imperative necessity for vacating the house given to a
tenant he is compelled to resort to the time consuming any
dilatory procedure of a suit which takes years before the
landlord is able to obtain the decree and in most cases by
the time the decree is passed either the landlord dies or
the need disappears and the landlord is completely deprived
of getting any relief. It appears to us that it was for
these reasons that the legislature in its wisdom thought
that a short and simple procedure should be provided for
those landlords who generally want the premises for their
bona fide necessity so that they may be able to get quick
and expeditious relief. Section 25B of the Act runs thus:-
“25.B (1) Every application by a landlord for the
recovery of possession of any premises on the ground
specified in clause (e) of the proviso to sub-section
(1) of section 14, or under section 14A, shall be dealt
with in accordance with the procedure specified in this
section.
(2) The Controller shall, issue summons, in
relation to every application referred in sub-section
(1) in the form specified in the Third Schedule.
(3)(a) The Controller shall, in addition to, and
simultaneously with, the issue of summons for service
on the tenant, also direct the summons to be served by
registered post, acknowledgement due. addressed to the
tenant or his agent empowered to accept the service at
the place where the tenant or his agent actually and
voluntarily resides or carries on business or
personally works for gain and may, if the circumstances
of the case so require, also direct the publication of
the summons in a newspaper circulating in the locality
in which the tenant is last known to have resided or
carried on business or personally worked for gain.
(b) When an acknowledgement purporting to be
signed by the tenant or his agent is received by the
Controller or the registered article containing the
summons is received back with an endorsement purporting
to have been made by a postal employee to the effect
that the tenant or his agent had refused to take
delivery of the registered article, the Controller may
declare that there has been a valid service of summons.
(4) The tenant on whom the summons is duly served,
(whether in the ordinary way or by registered post) in
the
867
form specified in the Third Schedule shall not contest
the prayer for eviction from the premises unless he
files an affidavit stating the grounds on which he
seeks to contest the application for eviction and
obtains leave from the Controller as hereinafter
provided; and in default of his appearance in pursuance
of the summons or his obtaining such leave, the
statement made by the landlord in the application for
eviction shall be deemed to be admitted by the tenant
and the applicant shall be entitled to an order for
eviction on the ground aforesaid.
(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 disentitle the
landlord from obtaining an order for the recovery of
possession of the premises on the ground specified in
clause (e) of the proviso to sub section (1) of section
14 or under section 14A.
(6) Where leave is granted to the tenant to
contest the application, the Controller shall commence
the hearing of the application as early as practicable.
(7) Notwithstanding anything contained in sub-
section (2) of section 37, the Controller shall, while
holding an inquiry in a proceeding to which this
Chapter applies, follow the practice and procedure of a
Court of Small Causes, including the recording of
evidence.
(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 an(l pass such order in
respect thereto as it thinks fit
(9) Where no application has been made to the High
Court on revision, the Controller may exercise the
powers of review in accordance with the provisions of
order XLVII of the First Schedule to the Code of Civil
Procedure, 1908.
(10) Save as otherwise provided in this Chapter,
the procedure for the disposal of an application for
eviction on the ground specified in clause (e) of the
proviso to sub-section (1) of section 14, or under
section 14A, shall be the same
868
as the procedure for the disposal of applications by
Controllers”.
It is obvious that this section does not govern all grounds
open to a landlord for evicting the tenant but is confined
only to the ground in section 14A and proviso to section
14(1)(e). In other words, the bona fide necessity of the
landlord has been put in a separate class or category having
regard to the peculiar incidents of this right. Section 14A
with which we are not concerned in this case also relates to
a special situation where the landlord under the Government
Rules is asked to shift to his own house if he has one or in
a house that belongs to his spouse failing which he has to
pay a penal rent which almost takes away a major part of his
salary. Thus, such a landlord be comes a class by himself.
The statute thus puts personal necessity of the landlord as
a special class requiring special treatment for quick
eviction of the tenant and cuts out all delays and plugs all
the loopholes which may cause delay in getting the relief by
the landlord. It is obvious, therefore, that the
classification made by the legislature is in public interest
and is in complete consonance with the objectives sought to
be achieved. The landlords having personal necessity have
been brought together as a separate class because of their
special needs and such a classification cannot be said to be
unreasonable particularly when the legislature in its wisdom
feels that the landlords should get this relief as quickly
as possible. Sub-section (2) of section 25B enjoins on the
Controller to issue summons as soon as an application for
eviction has been filed before the Rent Controller. Sub-
section 3(a) further provides that along with the issue of
summons in the ordinary way summons should also be served by
registered post acknowledgement due addressed to the tenant
or his agent empowered to accept the service. Sub-section
3(b) provides that when the acknowledgement due purporting
to be signed by the tenant or his agent is received by the
Controller with an endorsement made by a postal employee
that the tenant or his agent has refused to take delivery of
the registered article the Controller may declare that there
has been a valid service of summons. This provision is
designed to cut out delays by the conduct of the defendant
in trying to evade service of summons in a variety of ways.
Sub-section (4) provides that the tenant on whom the summons
is served shall not be allowed to contest an application for
eviction unless he files ah affidavit stating the grounds on
which he seeks to contest the application for eviction and
he has to obtain leave from the Controller to contest the
application. In case the tenant does not appear the
Controller can presume that the application for eviction
shall be deemed to have been admitted by the tenant. Sub-
section (5) provides that the Controller shall give
869
to the tenant leave to contest the application if the tenant
discloses such facts as would disentitle the landlord from
obtaining an order for the recovery of possession of the
premises. This is also a very salutary provision in order to
prevent frivolous pleas taken by the tenants to avoid
eviction. Sub-section (6) provides that where leave to
defend is granted to the tenant the Controller shall proceed
to hear the application and in order to ensure a quick
decision sub-section (7) enjoins that the Controller shall
follow the practice and procedure of the Court of Small
Causes including recording of evidence. Subsection (8) bars
appeal or second appeal against an order passed by the
Controller for recovery of possession of the premises.
Nevertheless the proviso to sub-section (8) confers on the
High Court a power of revision for satisfying itself whether
or not the order made by the Controller is according to law.
Subsection (9) confers a power of review on the Controller
where no application for revision has been filed before the
High Court. Sub-section (10) provides that procedure
mentioned above shall apply also to an application for
eviction on the ground as specified in clause (e) of the
proviso to section 14(1); That is to say bona fide
requirement of the landlord in respect of the tenanted
premises.
The comments by the learned counsel for the appellant
are first that there was no reason to discriminate the
landlord suing for personal necessity by trying his
application in a summary fashion. We have already pointed
out that the classification made by section 25B is a
reasonable classification and cannot be said to be in any
way discriminatory or arbitrary. Even though a summary
procedure has been evolved the tenant has been afforded full
opportunity to defend the application provided he can
disclose good grounds for negativing the case of the
landlord. No litigant has a right to protract the legal
proceedings by taking frivolous, irrelevant, irrational or
uncalled for pleas. This is what the section seeks to
prevent.
It was then argued by counsel for the appellant that
where an application has been allowed for eviction of the
tenant, no appeal or second appeal is provided by the Act.
An appeal is purely a creature of the statute and this right
has not been given in order to cut out unnecessary delay.
Instead the highest Court of the State has been given a wide
power of revision where the said Court can examine the case
of the tenant and the landlord and the validity of the order
passed by the Controller. The right of the tenant,
therefore, is sufficiently safeguarded by the proviso to
sub-section (8) of section 25B of the Act referred to above.
In order to give relief to the tenant
870
against any apparent error of law or fact where no revision
has been filed in the High Court the statute confers power
of review on the Controller.
Thus taking an overall picture of the situation, the
circumstances under which the landlord’s needs have been
classified and the safeguards given by the statute it cannot
be said by any stretch of imagination that section 25B and
its sub-sections are violative of Article 14 of the
Constitution of India, or that section 25B suffers from the
vice of excessive delegation of powers. In fact section 25B
contains valuable and sufficient guidelines which completely
exclude the exercise of uncanalised or arbitrary powers by
the Rent Controller. As discussed above the rights of the
tenants are sufficiently protected. For instance if the
tenant presents a plausible defence the plaintiff can be non
suited if the defence is accepted by the Controller. The
tenant however cannot claim a legal right to take all sorts
of frivolous, baseless or irrelevant pleas which alone the
statute bars. We have already indicated that summary
procedure relates only to a particular ground on the basis
of which the landlord can seek eviction and does not apply
to other grounds on which the tenant can be evicted.
There is yet another important aspect of the matter
which may be mentioned here. Prior to the enactment of the
Rent Control legislation in our country, the relationship of
landlord and tenant was governed by our common law viz. the
Transfer of Property Act (Sections 107 to 111). The tenant
was inducted with this tacit agreement to be regulated by
the conditions embodied in the contract and could not be
allowed to repudiate the agreement reached between him and
the landlord during that period. The tenant was, therefore,
bound in law to vacate the premises either voluntarily or
through a suit after he was given a notice as required by
the Transfer of Property Act under the terms and conditions
of the lease. However, as a piece of social reform in order
to protect the tenants from capricious and frivolous
eviction, the legislature stepped in and afforded special
protection to the tenant by conferring on him the status of
a statutory tenant who could not be evicted except under the
conditions specified and the procedure prescribed by the
Rent Control Acts. Thus to this extent. the agreement of
lease and the provisions of the Transfer of Property Act
stood superseded. At the same time, the Rent Control Acts
provided the facilities of eviction to the landlord on
certain specified grounds like bona fide personal necessity
or default in payment of rent etc. Thus any right that the
tenant possessed after the expiry of the lease was conferred
on him only by virtue of the Rent Control Act. It is,
therefore, manifest that if the legislature considered in
its wisdom to confer certain rights or facilities on the
tenants,
871
it could due to changed circumstances curtail, modify, alter
or even take away such rights or the procedure enacted for
the purpose of eviction and leave the tenants to seek their
remedy under the common law.
Thus, we do not see how can the tenant challenge the
validity of such a provision enacted by the legislature from
which the tenant itself derived such rights.
In the instant case, the legislature has not taken away
the right of the tenant at all but has merely simplified the
procedure for eviction of the tenant in cases falling within
the ambit of Sections 14A & 14(1) (e) of the Act as
discussed in the judgment. In these circumstances,
therefore, any challenge by the tenant to the
constitutionality of the Act must necessarily fail and hence
Section 25B is constitutionally valid.
For these reasons, therefore, all the contentions
raised by the appellant fail and the appeal is dismissed.
But in the peculiar circumstances of the case there will be
no order as to costs. Time till 31-5-1980 is given to the
tenant to hand over peaceful and vacant possession to the
landlord on filing an undertaking to this Court within a
month accompanied by an affidavit that he would do so on the
date fixed and shall not induct any other person on the
premises. The tenant will, during this period, continue to
pay the compensation for wrongful use of the premises
equivalent to the amount of the rent and clear all arrears.
V.D.K. Appeal dismissed.
872