Opinion on the interpretation and determination of procedural requirement provided under Section 25B (4) of the Delhi Rent Control Act 1958, if leave to defend is refused. – By Harshit Thareja

July 6, 2021

Delhi has suffered from shortage of residential as well as commercial premises which has become a permanent problem for the residents of Delhi. It is well known that the legislation of Delhi Rent Control Act, 1958 (‘1958, Act’ is short) regulate & control the letting and rent of accommodations and also contains the provisions restricting the eviction of tenants except on the grounds specified under the 1958, Act. This article is intended to deal with one question concerning the legislation. What procedure is enacted by the legislature under Section 25B of the 1958, Act, special procedure for eviction of tenants of specified categories for landlords on the grounds specified under Section 14(1)(e) or under Section 14A or under 14B or under 14C or under 14D of the 1958 Act, if leave to contest is refused by the Rent Controlling Authority?

The answer to the question depends upon the construction and interpretation of Section 25B of the 1958, Act which has dealt with the procedure to be followed, if an application has been filed for the recovery of possession on the grounds specified in Section 14(1)(e) or under 14A or under 14B or under 14C or under 14D of the 1958 Act. As provided under the special procedure,the tenant on whom the summons is served in the application for recovery of possession on the abovementioned grounds in the 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 within 15 days and obtains leave from the Rent Controlling Authority.

 The proviso clause provided under Section 25B (4) of the 1958, Act has only dealt in cases wherein tenant is (i) in default of his appearance in pursuance of the summons, or (ii) in default of his obtaining such leave, in both the situations the grounds of eviction preferred by the landlord shall be deemed to be admitted by the tenant. The Section as provided in the legislation is reiterated hereinbelow:

25B (4) The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files and 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.

It is a settled principle of interpretation that the court should neither add or delete the words used in the legislation. Where the words of the legislation are not clear and ambiguous, the principles of construction and interpretation can be resorted. The language used in the legislation is the determinant of the legislative intent. The scope of Section 25B (4) of the 1958, Act is restricted to in what form the summons is to be duly served and in what manner the application to contest the eviction be preferred along with a proviso clause which is expressed in word as ‘in default’. The word used in subsection (4) of section 25B of the 1958, Act is ‘in default’ in obtaining which means ‘absence’ in obtaining. The word ‘default’ cannot be construed as ‘refusal’. The legislature while enacting the law, used the word ‘in default of tenant appearance in pursuance of the summons or his obtaining the leave’ which can only be construed by the words expressed as in default of tenant appearance in pursuance of the summons or in default of filing the leave to contest within the period specified. However, the legislature did not contemplate on the procedure to be adopted if leave to contest is refused.

Even if the word ‘default in obtaining’ is considered as ‘refusal’ then the altercations with the procedure will be that the application to contest the eviction has to be decided within 15 days which is contrary to the mechanism being followed by the Rent Controlling Authorities. The Third Schedule as provided in the legislation is reiterated hereinbelow: –

“You are hereby summoned to appear before the Controller within fifteen days of the service hereof and to obtain the leave of the Controller to contest the application for eviction on the ground aforesaid; in default whereof; the applicant will be entitled to any time after the expiry of the said period of fifteen days to obtain an order for your eviction from the said premises”

The words used in the Third Schedule of the 1958 Act if read as suggests than after the expiry of 15 days the landlord is entitled to obtain an order for eviction of the tenant from the said premises meaning thereby only 15 days’ time, from the day the summon is received, is provided to the tenant to file the application for leave to contest and receive the decision in his favor within the timeframe as specified, is practically not possible and neither being followed by the Rent Controlling Authorities. It is not necessary that the words used in the legislation are always clear, explicit and unambiguous. Thus, interpretation of legislation is the process of ascertaining the actual connotation of the words used in the legislation. The words as expressed ‘to obtain the leave of the Controller’ can only be construed as filing of leave to contest in within the period specified.

In Precision Steel & Engineering Works & Anr. Vs. Prem Deva Niranjan Deva Tayal,^[1] the apex court discussed the legal position that emerges out of Section 25B (4) of the 1958, Act and did came close in dealing with the Section, however did not consider that the Section 25B (4) of the 1958, Act include the word ‘default of his appearance in pursuance of the summons or his obtaining such leave’ which can only be interpreted as default in filing of leave to contest within the period specified and the legislation has left the issue if leave to contest is refused, ambiguously. The relevant paragraph of the judgement is reiterated hereinbelow:

On the combined reading of Section 14(1) proviso (e) with Section 25B (1) and (4) the legal position that emerges is that on a proper application being made in the prescribed manner which is required to be supported by an affidavit, unless the tenant obtains leave to defend as contemplated by subsection (4) and (5) of section 25B, the tenant is deemed to have admitted all the averments made in the petition filed by the landlord. The effect of these provisions is that the Controller would act on the admission of the tenant and there is no better proof of fact as admission, ordinary because facts which are admitted need not be proved. But what happens if the tenant appears pursuant to the summons issued under sub-section (2) of Section 25-B, files an affidavit stating the grounds on which he seeks to contest the application. As a corollary it would transpire that the facts pleaded by the landlord are disputed and controverted. How is the Controller thereafter to proceed in the matter. 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 but production and admission and evaluation of documents at that stage has no place. The Controller has to confine himself to the affidavit filed by the tenant under sub-section (4) and the reply, if any. On perusing the affidavit filed by the tenant and the reply if any filed by landlord the Controller has to pose to himself the only question: Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in Clause (e) of the proviso to Section 14(1). The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against other set of affidavits…………. 

However, the apex court in Precision Steel & Engineering Works & Anr. Vs. Prem Deva Niranjan Deva Tayal considered the provision of section 58, i.e. Facts admitted need not be proved, of the Indian Evidence Act, 1872 as provided as ‘deemed to be admitted’ by the legislature in 1958, Act nevertheless failed to consider the concept of onus probandi, the essence of Sections 101 and 102 of the Indian Evidence Act, 1972. It is pertinent to note herein the essential ingredients of chapter VII burden of proof provided under Section 101 of the Indian Evidence Act, 1872 is (i) whenever a person desires that the court should give a decision in his favour (ii) he has to prove the relevant facts and the facts in issue on which his case depends (iii) burden of proof lies on the person who has to prove the existence of any fact. It is the landlord who has to prove the bonafide requirement. The presumption of deemed to be admitted even if the application for recovery of possession is challenged cannot be termed as doctrine of estoppel.

Broadly speaking, the expressed word used is ‘in default’ cannot be construed as ‘refusal’. The expression by words used by the legislature in Section 25B of the 1958, Act, if read in a whole it means default in filing the application for leave within the period specified. Thus, the procedure followed by the Rent Controlling Authorities, if leave to defend is refused is highly improper as is not at all contemplated by the legislature in 1958, Act.

The procedure to be followed if leave is granted is provided under Section 25B (6) of the 1958 Act. Section 25B (6) and Section 25B (7) of the 1958 Act reads as follows:

(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.

The words as expressed in Section 25B (6) is clear that if leave is granted to the tenant to contest the application, hearing shall commence by the Rent Controlling Authority followed by an enquiry in a proceeding as per practise and procedure of a court of Small Causes, including the recording of evidence be conducted as provided in Section 25B (7) of the 1958 Act. The legislation is silent in Section 25B (7) of the 1958 Act, whether the same is applicable where leave is refused?

To answer this question, it is relevant to discuss the principle of beneficial construction. The rule may be beneficial construction. The principle is based upon that the legislation to be fair, accommodating and just. The fundamental principle of statutory interpretation is that the words of the legislation be read in their entire context, the object of the Act and the intention of the Act. The legislation is silent to the question on which this procedure provided under Section 25B (7) of the 1958 Act is to be followed. In my considered opinion, the principle of beneficial construction be followed, if leave to defend is refused the an enquiry as contemplated in section 25B (7) of the 1958 Act to be followed.

 The recording of evidence includes the right to cross examine by the adverse party. The object of cross-examination as provided under Section 138 of the Indian Evidence Act, 1872 is to impeach the accuracy, credibility of the statement, to detect and expose discrepancies in the statement of the party by the adverse party. The tenant shall be provided to cross examine the landlord to testify the facts and to test his veracity, mentioned in the application for eviction and may be at the end the landlord may fail to justify the bonafide requirement. It is pertinent to mention that not providing a fair opportunity to cross-examine, the same cannot be the basis of judicial pronouncement.

Broadly speaking, the doctrine of audi alteram partem, a fair opportunity be provided to the tenant to test the veracity of the bonafide need of the landlord. The same has been considered in Charan Dass Duggal Vs. Brahma Nand,^[2] the apex court considered the requirement of granting leave to defend, and expressed its anguish by using the words as reiterated hereinbelow:

4. What should be the approach when leave to defend is sought? There appears to be a mistaken belief that unless the tenant at that stage makes out such a strong case as would non-suit the landlord, leave to defend cannot be granted. This approach is wholly improper. When leave to defend is sought, the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that in our opinion should be sufficient to grant leave. The test is the test of a triable issue and not the final success in the action (see Santosh Kumar v. Bhai Mool Singh, 1958 S. C. R. 1211). At the stage of granting the leave parties rely in support of their rival contentions on affidavits and assertions and counter-assertions on affidavits may not afford such incontrovertible evidence to lead to an affirmative conclusion one way or the other. Conceding that when possession is sought on the ground of personal requirement, an absolute need is not to be satisfied but a mere desire equally is not sufficient. It has to be something more than a mere desire. And being an enabling provision, the burden is on the landlord to establish his case affirmatively……

5. Recently in a good number of cases from Delhi we have noticed that long contested judgments are written refusing leave as if the trial has been concluded after recording evidence and a final decision is being reached. That is certainly not apposite at the stage of granting leave.

6. The genesis of our procedural laws is to be traced to principles of natural justice. The principles amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and prove his own case. Summary procedure does not clothe an authority with power to enjoy summary dismissal. Undoubtedly wholly frivolous defence may not entitle a person leave to defend. But equally a triable issue raised, enjoins a duty to grant leave. May be in the end the defence may fail. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party by cross-examination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refuse to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through cross-examination of witnesses who have filed their affidavits. Burden is on the landlord to prove his requirements and his assertion is required to be tested more……….

In the alternative, the Madhya Pradesh Accommodation Control Act, 1961 squarely covers the procedure to be followed if leave is refused. The Madhya Pradesh Accommodation Control Act, 1961 came into force after 1958, Act. It is relevant to reproduce Section 23C of the Madhya Pradesh Accommodation Control Act, 1961 which has appropriately dealt with the issue if leave to contest is refused.

23C. Tenant not entitled to contest except under certain circumstances. – (1) The tenant on whom the summons is served in the form specified in the Second Schedule shall not contest the prayer for eviction from the accommodation unless he files within fifteen days from the date of service of the summons, an application supported by an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Rent Controlling Authority as hereinafter provided, and in default of his appearance in pursuance of the summons or in default of his obtaining such leave, or if such leave is refused, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant………  

The proviso clause provided under Section 23C (1) of the Madhya Pradesh Accommodation Control Act, 1961 has dealt in cases wherein tenant is (i) in default of his appearance in pursuance of the summons, or (ii) in default of his obtaining such leave or (iii) if such leave is refused, in all the situations the grounds of eviction preferred by the landlord shall be deemed to be admitted by the tenant. The words used by the legislature in Madhya Pradesh Accommodation Control Act, 1961 is the same as in 1958 Act, with an additional proviso if leave to defend is refused.

In B Johnson Bernard Vs. C.S. Naidu,^[3] the Hon’ble Madhya Pradesh High Court observed the words expressed by the legislature on M.P. Accommodation Control Act, 1961 ‘in default in obtaining such leave’ as failure of the tenant to make such an application within the period specified, the statement made by the landlord in his application for eviction shall be deemed to be admitted. The same is reiterated herein below:

Section 23C lays down that the tenant is not entitled to contest the landlord’s application, unless he applies for grant of leave to contest within 15 days from the date of service, by an application supported by an affidavit, stating the grounds on which he seeks leave to contest. It also provides that on failure of tenant to make such an application within the period specified, the statement made by the landlord in his application for eviction shall be deemed to be admitted and the same result ensures where leave to contest is refused to the tenant.     

It is significant from the 1958, Act in corroboration with the Madhya Pradesh Accommodation Control Act, 1961 that the proviso provided under Section 25B (4) of the 1958, Act has never dealt with the issue if the leave to contest is refused.

Therefore, in view of the words used in the 1958 Act, the writer would venture to make suggestion for an amendment of the provision in the 1958, Act relating to the procedure to be followed if leave to contest is refused the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant or, on the principles of beneficial construction, an enquiry to be conducted as provided under Section 25B (7) of the 1958 Act. A fair opportunity be provided in accordance with law by the Rent Controlling Authority to the tenant, before tenant is deprived of his liberty or property, as provided in the legislation. The tenant shall be allowed to cross-examine the bonafide need of the landlord and test the veracity of the relevant facts and the facts in issue.

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Harshit Thareja practises as an independent legal practitioner in Delhi. He has been rendering assistance to Mr. G.P. Thareja who retired as an Additional District Judge and now actively practises in Delhi. Experience with Mr. G.P. Thareja provides additional exposure in matters pertaining to Arbitration, Criminal law, Civil law including Delhi Rent Control Act.

[1] (1982) 3 SCC 270

[2] (1983) 1 SCC 301

[3] 1985 M.P.L.J. 675

Disclaimer: The views or opinions expressed are solely of the author.