S.C. Jain, J.
(1) The facts giving rise to this petition are that K.K.Sarin, petitioner herein, alleging himself to be the owner landlord of the premises S-108, Panchsheel Park, New Delhi filed an eviction petition u/s 14C of the Delhi Rent ''Control Act, as amended against M.s. Pigolt Chapman & Co. through its partners, respondent herein.The grounds taken in the eviction petition are that the premises were let out for residence and that the same arc required by the petitioner for his residence and for the residence of his family members and servants dependent upon him for the purpose of residence. At the time of letting out the premises, the petitioner was in occupation of a government allotted accommodation being the Central Govt. employee. He was going to retire on 30th June, 1991 and he would have to vacate the allotted accommodation after his retirement and that he had no other residential accommodation at Delhi.
(2) Since this petition was filed u/s 14C, summons in Third Schedule of the Act were issued to the respondents who appeared and filed application for leave to defend along with an affidavit. The Rent Controller (Smt. Mamta Sehgal) vide her order dated 16.4.90 granted leave to the respondent.
(3) Aggrieved, this revision petition has been filed. I have heard the counsel for the parties and gone through the record.
(4) A preliminary objection has been taken by the respondent tenant that the revision petition filed against the order granting leave to defend is not maintainable as it has no effect of concluding the proceedings. According to him Section 25B of the Act does not cover interim orders like the grant of leave which do not conclude the proceedings. Reliance has been placed by him on three decisions of single judges of this Court in Devi Singh v. Chaman Lal-1977 Rajdhani Law Reporter 566, Mahavir Singh v. Kamal Narain 1979 Rlr 159 and Bhagwati Parshad v. 0m Parkash 1979 Rlr 26 in support of his contentions.
(5) Learned counsel for the petitioner countered the argument of the counsel for the tenant and drew my attention towards the decision of the Supreme Court in Vinod Kumar Chowdhry v. Narain Devi- 1980 Rajdhani Law Reporter (SC) 159 in support of his contention that Section 25B, proviso is not happily worded as its language speaks of right of revision only against an eviction order. The provision excludes right of appeal under Sections 38 and 39 and to make it equally applicable to both the parties and to prevent it from being branded as discriminatory and constitutionally invalid, the provision deserves to be made applicable to both landlord and tenant. Section 25B is exhaustive of the right of revision about orders made u/s 25B of the Act.
(6) Section 25B and its proviso came for interpretation before the Supreme Court in Vinod Kumar Chowdhry (supra) and their Lordship after considering the decision of this Court in Devi Singh v. Chaman Lal (supra) Mahavir Singh v. Kamal Narain (supra) and Bhagwati Parshad v. 0m Perkash (supra) came to the conclusion that Section 25B proviso is not happily worded as it speaks of right of revision only against an eviction order. The interpretation of sub section (8) of Section 25B and its proviso as made by their Lordships of the Supreme Court leads one to the conclusion that Section 25B is exhaustive of the rights of revision about the orders made u/s 25B of the Act and does not mention one which refuses the relief of eviction to the Indlord. Proviso to Section 25B provides 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. Proviso does not say "an order for the recovery of possession", or even such orders as aforesaid, but instead employs the words "an order made by the Controller under this Section". Sultan Singh, J. in Ram Lubhaya v. Om Parkash 1982 Rlr 35 referred to (he decision of the Supreme Court in Vinod Kumar Chowdhry (supra) but in that case the facts were different. The revision was held to be not maintainable against interlocutory order (like grant of leave to defend on the limited ground).
(7) By the amending Act 57 of 1988 some more classes of landlords have been carved out u/s 14B to 14D. The retired employees of the Central Government of Delhi Administration are covered by Section 14C. They can recover immediate possession of the premises let out by them if the premises are needed for their residence. These classified landlords are given the benefit of summary trial in Chapter Iii A. A glance at the provisions of Chapter Iii A shows that the policy and purpose of the legislature in enacting Section 25A, 25B, and 25C is to introduce a swift and expeditious procedure for trial where the landlord''s application for eviction is filed on the ground of bonafide requirement. A broad scheme of Chapter Iii A of the Act is that if an application is for eviction moved u/s 14 or 14A , 14B or 14C or 14D, Section 25B(4 bars the tenant from contesting the application for eviction unless he obtains leave from the Controller and in default of obtaining leave, the statements made by the landlord in his application for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled for an order of eviction from the said premises. Thus, when the leave is refused an order of eviction follows. If the Rent Controller grants leave to the tenant to contest the eviction petition the proceeding will take time for its conclusion and naturally the landlord, who has been given the benefit of summary trial will be deprived of his right of immediate possession. If we accept the contention of the counsel for the tenant that no right of revision is available to the landlord u/s 25B of the Act against the order for grant of leave to defend the petition that will go counter to the intention of the legislature. The legislature is so keen in the expeditious disposal of such cases that it has even taken away the right of appeal provided u/s 38 and 39 of the Act and has given only a right for revision. It has been held by this Court in S.K-Sehgal v. Prithvi Raj Gupta 1979 R.L.R. 306 that the Section 115 CPC or under Article 227 of the Constitution of India. If we interpret the provision of section 25B of the Act in the way that no revision or appeal lies against the order granting leave to defend to the tenant then the position would be that the order of the Controller in that regard would be Final. It cannot be the intention of the legislature to give unbridled power to the Controller in the matter of grant of leave to defend to the tenant.
(8) Following the reasoning and the decision of the Hon''ble Judge of the Supreme Court in Vinod Kumar Chowdhry v. Narain Devi (supra), I am unable to accept the contention raised by the counsel for the tenant. It is now well settled that the High Court has power to interfere where an order of the Controller is without jurisdiction or contrary to law or does not express an opinion of fact or where he has arrived at finding wholly perverse or passed an order which results in miscarriage of justice.
(9) Section 25B of the Act enjoins a duty on the Rent Controller to grant leave to contest the petition if the facts disclosed in the affidavit are such which if proved would disentitle the landlord from claiming eviction order. However, it would be open to the landlord to contest the application of the tenant seeking leave to contest and for that purpose he can file an affidavit in reply. The landlord is not only entitled to file an affidavit but also entitled to place material which can prima facie show that the plea taken by the tenant are malafide, sham and have been taken only to gain time.
(10) One of the pleas taken by the tenant is that the petitioner landlord has property at Jaipur (Rajasthan) where sufficient accommodation is available for residence of the petitioner and his family members and actually the wife of the petitioner is living there. She is also running a school there and as such the petitioner would shift to Jaipur after his retirement who has no intention to settle at Delhi. It is on the basis of the plea only that leave to defend to the tenant was granted by the Rent Controller. If this plea is taken as correct, it would not disentitle the petitioner landlord from claiming eviction order. Admittedly, the petitioner has no other residential accommodation in the Union territory of Delhi. He has retired as Addl. Secretary to the Govt. of India on 30.6.1991 and has to surrender the Govt. allotted accommodation. He has been living in Delhi throughout his posting here. In his counter affidavit the petitioner has specifically sworn that he will settle at Delhi permanently after his retirement.
(11) His specific assertion that after his retirement he would settle in Delhi cannot be said to be malafide particularly when he has been living in Delhi for the last so many years being in the employment of the Central Government. The observation of the Rent Controller that it is a triable issue which needs evidence is not correct. Due to paucity of accommodation in Delhi the tenants are likely to plead facts and if they are held to be raising triable issues in every Case, hardly any application seeking leave to defend would fail. This certainly is not the idea behind this provision. While deciding the application seeking leave what is required of the Rent Controller is to observe the rules of natural justice and to give opportunity to both the parties to produce the affidavits and material on which they rely. When leave to defend is sought, the tenant must make out a prima facie case raising such pleas that a triable issue would emerge. The petitioner''s contention that he intends to settle in Delhi permanently even after his retirement and that he has been residing in Delhi for the last so many years has not been specifically controverter by filing a rejoinder affidavit. The order passed by the Rent Controller granting leave to defend has resulted in miscarriage of justice and, Therefore, I accept tis revision petition and set aside the order passed by the Rent Controller on 16-4-90 granting leave to defend to the tenant. The Rent Controller is directed to hear the parties on the eviction petition and pans an order in accordance with the provisions of law. The counsel for the parties to appear before the Rent Controller concerned on 14th February, 1992. Record be sent back immediately.
