Tulip Kanth

New Delhi, April 8, 2022: Referring to the Proviso to Section 25B(8) of the Delhi Rent Control Act, 1958, the Supreme Court has held that the High Court has exclusive power of revision against an order of the Rent Controller, being in the nature of superintendence over an inferior court on the decision making process.

The Division Bench of Justice Sanjay Kishan Kaul and Justice M.M.Sundresh opined that the scope of interference by the High Court is very restrictive and except in cases where there is an error apparent on the face of the record, which would only mean that in the absence of any adjudication per se, the High Court should not venture to disturb such a decision.

In this case, Shri Haji Badrul Islam (since deceased) was the original owner of the two shops leased out to the respondent orally way back in the year 1970. The lease continued for decades. After the demise of the original landlord, his son Shri Sajid-Ul-Islam became the owner both by inheritance and by virtue of an award  but he too expired and the appellant, who claimed through the award and inheritance by operation of law, filed the eviction petition under Section 14(1)(e) read with Section 25B of the Act in the year 2014.

The respondent filed an application seeking leave to defend raising primary contentions that the appellant was not having title over the property,  the property actually belonged to the Government of India under the Enemy Property Act, 1968 and there were alternative accommodations by way of other properties available for carrying out the business of the appellant as such the need of the appellant is not bona fide.

The Rent Controller dismissed the application.The respondent, being dissatisfied approached the High Court of Delhi invoking the proviso to Section 25B(8) of the Act. Despite holding that the respondent couldnot question the title of the appellant, having filed a suit acknowledging the said factum, the revision was allowed on the premise that there were triable issues as the denial of the appellant on the defence of the appellant regaeding  the issue of alternative accommodation was vague. Assailing the aforesaid decision rendered by the High Court, the present appeal was filed.

On the issue of leave to defend, the Division Bench stated that for availing the leave to defend as envisaged under Section 25B(5), a mere assertion per se would not suffice as Section 14(1)(e) creates a presumption subject to the satisfaction of the learned Rent Controller qua bona fide need in favour of the landlord which is obviously rebuttable with some material of substance to the extent of raising a triable issue. The satisfaction of the Rent Controller in deciding on an application seeking leave to defend is obviously subjective. The degree of probability is one of preponderance forming the subjective satisfaction of the Rent Controller, added the Bench.

The Division Bench also referred to the judgment of this Court in Baldev Singh Bajwa v. Monish Saini wherein it was held that the summary procedure prescribed under Section 18-A of the Act of 1949 requires the Controller to take up the matter on day-to-day basis till the conclusion of the hearing of an application.In such a case, the tenant is expected to put in adequate and reasonable materials in support of the facts pleaded in the form of a declaration sufficient to raise a triable issue. One cannot lose sight of the object behind Section 25B in facilitating not only the expeditious but effective remedy for a class of landlords, sans the normal procedural route, the Bench added.

The Top Court said, “Proviso to Section 25B(8) gives the High Court exclusive power of revision against an order of the learned Rent Controller, being in the nature of superintendence over an inferior court on the decision making process, inclusive of procedural compliance. Thus, the High Court is not expected to substitute and supplant its views with that of the trial Court by exercising the appellate jurisdiction. Its role is to satisfy itself on the process adopted.”

As per the Bench, there is no need for holding a roving inquiry in such matters which would otherwise amount to converting the power of superintendence into that of a regular first appeal, an act, totally forbidden by the legislature. 

Coming to the facts of the case, the Rent Controller passed a detailed speaking order and  he found that the the bona fide need was satisfied, the averments of the respondent regarding alternative accommodation were vague, the title of the appellant could not be questioned and the embargo under the Enemy Property Act was not attracted. Thus, having found that the defense set up by the respondent was only a moonshine, the application filed seeking leave to defend was accordingly rejected.

The High Court proceeded to allow the revision by treating it like an appeal, not even reversing the findings of the learned Rent Controller and holding that the denials of the appellant in his reply to the application seeking leave to defend were vague, notwithstanding the rejection of the contention of the respondent that he cannot question the title. This according to the Bench was unsustainable in the eye of law.Also, the very basis upon which the revision was allowed was obviously wrong being contrary to the very provision contained in Section 14(1)(e) and Section 25B(8).

Mentioning that leave to defend cannot be granted on mere asking, the Bench held that the mere existence of the other properties which were, in fact, denied by the appellant would not enure to the benefit of the respondent in the absence of any pleadings and supporting material before the learned Rent Controller to the effect that they are reasonably suitable for accommodation.

Observing that  the proceedings initiated under the Enemy Property Act, as amended, were also stayed by the High Court by a reasoned order, the Apex Court set aside the order of the High Court by restoring the order passed by the Rent Controller.

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