JUDGMENT
Usha Mehra, J.
(1) Dina Nath Sharma, respondent herein (petitioner before Trial Court) sought eviction of his premises under the tenancy of the petitioner herein under Section 14(1)(e) of the Delhi Rent Control Act (in short the Act). Leave to defend was sought, inter alia, on the ground that the respondent herein was not the landlord/owner of the premises in question nor he let out the premises, that the premises was let out for residential-cum-commercial purpose, that the landlord had sufficient accommodation in his possession. By the impugned order dated 25th September, 1996 the learned Additional Rent Controller declined to grant the leave to defend, hence this petition.
(2) The landlord in the eviction petition had pleaded that the property in question was in the name of his mother. His mother made a ‘Will’ and bequeathed this property in his name. That by virtue of the ‘Will’ dated 12th January, 1991 he succeeded to the estate of his mother Smt. Ram Wati. That the tenanted premises formed part of the estate left behind by his mother. He thus became owner of this property. The petitioner herein in the leave to defend application specifically pleaded that the probate obtained by the present respondent had already been challenged by other legal heirs of late Smt. Ram Wati. It was further specified that the execution and operation of that probate had been stayed by the Court concerned. In this view of the matter the ownership right of the present respondent (petitioner before the Trial Court) was under challenge. Until that was decided he could not call himself the owner of this premises. Since his ownership was disputed, therefore, petition under Section 14(1)(e) of the Act was not maintainable.
(3) In the reply affidavit, this respondent admitted that after the grant of probate by the Court of the District Judge, Delhi some persons challenged the grant of probate in his favour. He, however, took the plea that the said challenge was not made by any legal heir of late Smt. Ram Wati. He admitted that the proceedings regarding that probate were pending before the District Judge, Delhi. He asserted that his right over the property was not violated because he inherited the property by virtue of the ‘Will’.
(4) I have heard Mr. S.P. Jain for the petitioner and Mr. Manmohan Singh for the respondent. From the admitted fact it is clear that the probate granted in favour of the respondent is under challenge. His ownership pursuance to that is under challenge. Hence I find force in the contention of the petitioner that since ownership right was acquired by the respondent herein on the basis of the ‘Will’ (probate granted in his favour) are under challenge, the ownership is in dispute. Since other legal heirs have challenged the ‘Will’ and the grant of probate and the District Judge, Delhi has already stayed the operation of the probate, it amounts to a triable issue. Since the ownership is under dispute and if it is proved that respondent is not the owner then he would get disentitled to the order of possession. Thus to my mind, the petitioner has raised a triable issue which requires adjudication. The contention of Mr. Manmohan Singh that the tenant has no right to challenge the grant of probate or the letter of administration there cannot any be quarrel with this proposition of law. But that plea has no applicability to the facts of this case. Since it was admitted by the respondent herein that the probate granted in his favour is under challenge and the operation of the same has been stayed by the Court of competent jurisdiction then that fact can be taken advantage of by the petitioner herein to prove that the ownership of the respondent is under dispute. If that be so then, to my mind, the petitioner had raised triable issue which could be disposed of on merits by adducing evidence.
(5) So far as other objections taken up by the petitioner i.e. regarding letting purpose that is only a mere assertion. No specific commercial purpose for which purpose the premises is being used has been given in the petition, hence being a vague plea no leave on this count could be granted. As regards the accommodation in possession of the respondent that is also not in dispute.
(6) For the reasons stated above, the impugned order is set aside and the leave to contest as discussed above is hereby granted to the petitioner to contest. Parties are directed to appear before the Trial Court on 1st June, 1997 and the learned Arc will thereafter proceed with the case in accordance with law.