V.S. Deshpande, J.
(1) This revision is preferred under the proviso to sub-section (8) of section 25B of the Delhi Rent Control Act, 1958 as amended in 1976. The power of this Court is to be exercised within the ambit of the said provision which is as below :
'PROVIDED that the High Court may, for the purpose of satisfying itself that an order made by the Controllerunder this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.'
SECTION 25B lays down the procedure for the disposal of applications for eviction of a tenant made by a landlord on either of two grounds, namely :
(A)under clause (c) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act. 1958, or (b) under section 14A introduced in the Act by the amendment of 1976.
THEprincipal part of sub-section ( 1 ) of section 14A would have to he carefully construed in disposing of this revision petition. It is, thereforee. reproduced below: 'RIGHTto recover immediate possession of premises to accrue to certain persons. (1) Where a landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required, by, or in pursuance of, any general or special order made by that Government or authority lo vacate such residential accommodation, or in default, to incur certain obligations, on the ground that he owns, in the Union territory of Delhi, a residential accommodation either in his own name or in the name of his wife or dependent child, there shall accrue, on and from the date of such order, to such landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether express or implied), customs or usage to the contrary, a right to recover immediately possession of any premises let out by him.'
(2) The respondent landlord made an application under section 14A(1) for the eviction of the petitioner tenant. According to the procedure for the disposal of such application laid down in section 25B, the tenant filed an affidavit under sub-section (4) of section 25B to obtain the leave of the Controller to contest the said application of the landlord. Sub-section (5) which governs the discretion of the Controller in granting such leave is as follows .
'THEController 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 (c) of the proviso to sub-section (1) of section 14, or under section 14A.'
(3) The leave to defend was sought by the tenant on curtain grounds which were negatived by the Controller in refusing to grant the leave to defend. The Controller ordered the tenant to deliver possession of the premises of the landlord occupied by him to the landlord under section 14A(1). Hence the present revision by the tenant against the order of the Controller.
(4) Shri Gopal Narain for the petitioner tenant confined his attack on the Controller's order before me only to the following for grounds. He contended that leave to defend ought to have been granted to him by the Controller in view of the following facts disclosed in his application for leave to defend :
(1)The summary procedure laid down by section 25B applies lo an application by landlord turn eviction of a tenant made both under clause (e) of the proviso to sub-section (1) of section 14 and under section 14A(1) of the Act. It is well established that an application under section 14(1)(c) cannot be made unless the contractual tenancy is first terminated by a notice to quit under section 106 of the Transfer of Property Act or under the equitable principles underlying it. The same condition precedent has to be fulfillled by the landlord before filing the application under section 14A(1). The tenancy of the tenant was not terminated by the landlord before filing the application under section 14A(1). For the same reason the respondent landlord was required to abtain the permission of the Competent authority under section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 as the premises occupied by the tenant are situated in a slum area. No such permission was obtained by the landlord. The application under section 14A(1) was not maintainable for failure of the landlord to terminate the tenancy and to obtain the permission of the Competent authority under the Slums Act.
(2)The premises were let out to the tenant for residential-cum-commercial purposes. The application under section 14A(1) was not, thereforee, maintainable.
(3) The summons to the petitioner tenant was issued by the Controller under the ordinary provisions of the Delhi Rent Control Act, 1958 and not in the form specified in the Third Schedule as required by sub-section (2) of section 25B. Hence the summary procedure did not apply to the trial of the application made by the landlord and the tenant was entitled to defend the application in the ordinary way even without obtaining leave to defend from the Controller.
(4)The landlord had been allotted Government accommodation bill he was never in occupation of the same. On the other hand, he continued to occupy along with other members of his family his own house the ground floor of which only is let out to the petitioner tenant. The landlord is not, thereforee, entitled to the benefit of section 14A(1).
(5) The first question for consideration is whether section 14A(1) is independent of the other provisions of the Act and also of any other law for the time being in force or of any contract between the parties or whether it has to be applied subject to the other provisions of the Acl. of other laws and of any contract between the partics. The answer to this question is provided by the following words in the non obstinate clause contained in section 14A(1) :
'....NOTWITHSTANDINGanything contained elsewhere in this Act or any other law for the time being in force or in any contract (whether express or implied), custom or usage to the contrary.'
THEeffect of these words is as follows ; Firstly, the right to evict the tenant accrues to a landlord who was in occupation of a residential premises allotted to him by the Central Government or any local authority and who has been asked to vacate such residential accommodation and who owns the premises occupied by the tenant If these conditions are fulfillled, a right to recover immediate possession of the premises from the tenant accrues to the landlord. No other conditions are required to be fulfillled by the landlord before filing the application under section 14A(1). Secondly, the words 'notwithstanding anything contained elsewhere in this Act. . . . . .to the contrary' mean that the landlord does not have to fulfill the requirements of any of the clauses of the proviso to section 14(1) of the Act. An independent cause of action under section 14A arises in favor of the landlord if the terms of that section only are fulfillled.
It is immaterial whether the conditions of any of the clauses of the proviso to section 14(1) are fulfillled or not.
(6) Though the substantive right to obtain immediate possession from a tenant is given only to those landlords who have been asked to vacate Government premises by section 14A, in prescribing the summary procedure in section 25B, the Legislature gave the benefit of the said procedure not only to those landlords whose right arose under section 14A but also to those landlords whose cause of action arose under clause (e) of the proviso to section 14(1) of the Act. An inference was tried to be drawn from the fact that the same summary procedure applies to applications under section 14A and under clause (e) of the proviso to section 14(1) that section 14A has to be read along with clause (e) of the proviso to section 14(1) and that even an application under section 14A would have to satisfy not only to the requirements of that section but also those of clause (e) of the proviso to section 14(1). This argument ignores the distinction between a substantive right and procedure. The substantive right in section 14A is independent. It is not dependent on compliance with any conditions such as those prescribed in clause (e) of the proviso to section 14(1). The mere fact that the benefit of summary procedure is made available to an applicant under clause (e) of the proviso to section 14(1) does not lead to the conclusion that the substantive right under section 14A is also subject to the requirements of clause (e) of the proviso to section 14(1).
(7) Reference was also made to section 25C of the Act. Subsection (1) of section 25C making sub-section (6) inapplicable to an application under section 14A seems to be by abundant caution inasmuch as it may not have been quite clear as to whether the non obstinate clause in section 14A(1) overrides not only the ordinary requirements of the proviso to section 14(1) but also sub-section (6) thereof. Sub-section (2) of section 25C was clearly necessary. In its absence a landlord securing an order for eviction under section 14A would have been entitled to immediate possession of the premises. Section 25C, thereforee, also does not support the theory that section 14A is not independent of the other provisions embodied in either section 14 or any other provisions of the Ace.
(8) Thirdly, the words 'notwithstanding anything contained...... in any other law for the time being in force or in any contract (whether express or implied), custom or usage to the contrary' mean that section 14A(1) would prevail over any other law which is contrary to the right given to the landlord by section 14A(1). This squarely raises the question as to whether the requirements that the landlord must terminate the tenancy or that he must obtain the permission of the Competent authority under section 19 of he Slum Areas (Improvement and Clearance) Act, 1956 are contrary to the provisions of section 14A(1). The criterion whether section 14A(1) relieves the landlord from complying with those requirements consists in (hose requirements being contrary to section 14A(1). If those requirements are consistent with section 14A(1), then the non obstinate clause would not relieve the landlord from compliance with them.
(9) A good instance of such conformity of these requirements with the non obstinate clause is to be found in the proviso to section 14(1) of the Act. The non obstinate clause in section 14(1) or in statutory provisions similar to it had to be construed by the Supreme Court on many occasions. The decisions of the Supreme Court disclose two trends. Firstly, there was the view that the rent control legislation enacted to regulate the eviction of a tenant by a landlord is a code in itself and the eviction application of the landlord would be governed solely by it with the result that the requirement of termination of tenancy before the filing of an eviction application would not have to be complied with by the landlord. This view originated in Rai Brij Raj Krishna v. S. K. Shaw, : [1951]2SCR145 . It was reiterated in M/s. Raval and Co. v. K. G. Ramachandran, : [1974]2SCR629 . This decision is, however, distinguishable. It was concerned with an application for the fixation of fair rent. The right to make such an application is given not only to the tenant but also to the landlord. The observations of the Court in respect of the right of the landlord to evict the tenant made in this decision would, thereforee, with respect, appear to be obiter. But the latest decision of the Supreme Court in Puwada Venkateswara Rao v, Chidamana Venkata Ramana, : [1976]3SCR551 , has squarely enunciated the view that when a statute provides for a special summary procedure for eviction of tenants containing all the requirements for those proceedings, then the landlord's application for eviction is governed solely by the Act and the provision or the principle underying section 106 of the Transfer of Property Act did not have to be complied with by the landlord before filing the eviction petition under the rent legislation.
(10) The other view expressed in the second set of Supreme Court decisions is that the rent control legislation is for the benefit of the tenants which restricts the right of the landlord to evict the tenants and, thereforee, other laws which place other restrictions on the right of the landlord are not in any way Contrary to the rent legislation. They are not, thereforee, overriden by the rent legislation. The non ob^wife clause contained in the rent legislation does not. thereforee, render them inapplicable to the eviction petition filed by the landlord. On that view, it is necessary for the landlord to first terminate the contractual tenancy before he can apply for the eviction of the tenant. The various Supreme Court decisions expressing this view have been analysed and applied by a Division Bench of this Court in Battoo Mal v. Rameshwar Nath, : AIR1971Delhi98 . Since then the same view has been reaffirmed by the Supreme Court in Rattan lal v. Vardesh Chander, : [1976]2SCR906 . in relation to the Delhi Rent Control Act. The non obstarte clause in the proviso to section 14(1). thereforee, does not render inapplicable the requirement for the termination of the tenancy before a landlord can file an application for the eviction of a tenant under the proviso to section 14(1). But the Court recognised at the beginning of para 7 of the judgment that 'if the rent control legislation specifically provides grounds for eviction in supersession, not in supplementation. of what is contained in theT.P. Act, the situation may conceivably be different'.
(11) The question, thereforee, is whether unlike the proviso to section 14(1), section 14A(1) is in supersession and not in supplementation of the pre-existing contract of tenancy between the parties or the provisions of section 106 of the Transfer of Property Act or those of section 19 of the Slum Areas (Improvement and Clearance) Act. 1956. The answer is provided by the difference between the proviso to section 14(1) and the principal part of section 14A(1) of the Act. The former deals with applications for eviction on which restrictions are imposed by the rent control legislation for the benefit of the tenants. The Transfer of Property Act or the Slum Areas (Improvement and Clearance) Act arc not thereforee contrary to it. For, they also impose restrictions on the right of the landlord to evict the tenant. One set of restrictions imposed by the rent control legislation does not cancel the other set of restrictions imposed by other legislation. All the restrictions have to be considered and the landlord cannot evict the tenant unless he makes his way through all of them. On the contrary, section 14A(1) is the solitary provision in rent control legislation which is for the benefit of the landlords and is not for the benefit of tenants. It dispenses with compliance with the other provisions of the Delhi Rent Control Act. 1958 by the landlord. It gives him an independent cause of action for the eviction of the tenant and for obtaining immediate possession of the premises from him. The provisions of the contract of tenancy between the parties or of section 106 of the Transfer of Property Act requiring termination of the tenancy as also the provisions of section 19 of the Slum Areas (Improvement and Clearance) Act requiring the permission of the Competent authority before the landlord can file a petition for .eviction of the tenant are. thereforee, obviously contrary to the right conferred on the landlord by section 14A(1). The reasoning in Rattan Lal v. Vardesh Chander(5) and the other decisions of the Supreme Court followed therein is not, thereforee, applicable to the construction of section 14A(1). On the contrary, section 14A(1) is an exceptional provision which is in supersession and not in supplementation of the Transfer of Property Act and the Slum Areas (Improvement and Clearance) Act as recognised in para 7 of the decision in Rattan Lal v. Vardesh Chander(5) by the Supreme Court. The provisions of these other statutes restricting the right of the landlord would not, have, thereforee, to be complied with by the landlord before filing the application under section 14A(1).
(12) Shri Gopal Narain, however, points out that section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 also begins with a non obstinate ensuring that section 19 prevails over any other Jaw to the contrary. We have, thereforee, to consider which of the two non obstinate clauses, namely, one in section 14A(1) of the Delhi Rent Control Act, 1958 and the other in section 19 of the ' Slum Areas (Improvement and Clearance) Act, 1956 prevails over the othere. A similar situation was faced by the Supreme Court in Shri Ram Narain v. The Simla Banking & Industrial Co. Ltd., : [1956]1SCR603 . The Court took notice of the principle that in case of such a conflict the later Act would override the earlier one. The Court also made it clear that even a statutory provision which is. later in point of time because it amends an Act would be regarded as a later statute even though the principal Act amended by it may not be later in point of time than the conflicting statutes. Lor, an u amendment, if not retrospective, must be deemed to be enacted when it was actually enacted. Even though, after enactment, it becomes a part of the original statute, it does not operate from the date of the original statute. Not only the Delhi Rent Control Act, 1958 is later than the Slum Areas (Improvement and Clearance) Act, 1956, but section 14A(1) which is introduced by an amendment which is not retrospective has come into force in 1976. As a later enactment inconsistent with an earlier one, it prevail over section 106 of the Transfer of Property Act, 1882 as also the principle underlying it and section 19 of the Slum Areas (Improvement and Clearance) Act, 1956.
(13) Two more riddles in statutory construction have to be resolved :
(1)Both section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 and section 14A of the Delhi Rent Control Act, 1958 contain non obstinate clauses declaring that these respective provisions will prevail over any other law 'for the time being in force'.
(2)Section 54 of the Delhi Rent Control Act, 1958 specifically states that 'nothing in this Act shall effect the provisions of .... the Slum Areas (Improvement and Clearance) Act, 1956' and of two other statutes which are not relevant.
(14) In Shri Ram Narain v. The Simla Banking & Industrial Co. Ltd. at page 615 (6) of the report, the Supreme Court observed as follows :
'WHATthe connotation of the phrase 'for the time being' is and which is to prevail when there are two provisions like the above each containing the same phrase, are questions which are not free from difficulty. It is, thereforee, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein.'
(15) The purpose and policy of the Slum Areas (Improvement and Clearance) Act, 1956, as stated by the Supreme Court in Jyoti Pershad v. Union Territory of Delhi, : [1962]2SCR125 , was to prevent the eviction of such tenants in slum areas who cannot find alternative accommodation within their means and whose eviction would, thereforee, create further slums. Whether the permission for the eviction will be granted by the Competent authority would depend on whether the tenant concerned has the means to find alternative accommodation. The object of the enactment of section 14A and the whole of Chapter Iiia by the amending Act of 1976 was to give to a person who was asked to vacate Government accommodation ' a right to recover immediately possession of any premises let out by him'. In construing section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 and section 14A of the Delhi Rent Control Act, 1958 as amended in 1976 we have to take care that as for as possible the construction does not defeat the respective objects of the two provisions. If section 14A of the later Act is to be construed as subject to section 19 of the earlier Act, then the object of section 14A is directly frustrated. For, section 14A expressly states that where a landlord who being a person in occupation of any residential premises allotted to him by the Government is asked to vacate such residential accommodation, 'there shall accrue, on and from the date of such order, to such landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract, custom or usage to the contrary, a right to recover immediately possession of any premises let out by him'. This means that the legislature gave the landlord a right to recover immediate possession of his premises from the tenant as soon as the right accrued to him. The expressions 'on and from the dale of such order' and- 'a right to recover immediately possession of any premises let out by him' are very strong. They obviously mean that no restriction is to be placed on the right of the landlord which would delay the recovery of possession by him. Obviously the recovery of possession would be delayed if the landlord were required to obtain the permission of the Competent authority under section 19 of the Slum Areas (Improvement and Clearance) Act before making an application under section 14A. Requiring the landlord to do so would be directly contrary to the words 'there shall accrue, on and from the date of such order to such landlord . . . . a right to recover immediately possession of any premises let out by him'. If section 19 of the Slum Areas (Improvement and Clearance) Act is construed to defer the right of the landlord, then the object of specifying a date from which the right arises and giving the right to recover immediate possession as is done by section 14A is frustrated.
(16) On the other hand, if section 14A of the later Act is construed to prevail over section 19 of the earlier Act, the object of section 19 would not be totally defeated. For, even under section 19 only those tenants were entitled to protection who could not find alternative accommodation within their means. The experience of litigation in Delhi shows that many tenants, perhaps the majority of them, living in the slums have been held to be in possession of means to find alternative accommodation. Further, the language of the non obstinate clause in section 19 is quite general. This has to be contrasted with the very particular language of he non obstinate clause in section 14A.
(17) The same approach would be helpful in considering section 54 of the Delhi Rent Control Act, 1958 vis-a-vis section 14A thereof introduced by the amendment of 1976. When section 54 was enacted in 1958, the provisions of the Delhi Rent Control Act, 1958 were intended for the benefit of the tenant. It was quite in order, thereforee, for section 54 to say that the then provisions of the Delhi Areas Rent Control Act would not affect the provisions of the Slum Areas (Improvement and Clearance) Act. In 1976, however, for the first time, section 14A was enacted for the benefit of certain landlords. Section 14A further states that it is to prevail over 'anything contained elsewhere in this Act'. This means that it would prevail against section 54 also. Which of the following is more natural construction On the one hand, if section 54 is to prevail over section 14A we have to follow the principle that after the amendment section 14A becomes as much a part of the Act as any other provisions of it. (Shamarao v. Parulekar v. The District Magistrate, Thana, : 1952CriLJ1503 . thereforee, section 54 would prevail over it just as it prevails over the other provisions of the Act. On the other hand. in fact the legislature in 1958 in enacting section 54 could have intended to prevail only over the then existing provisions of the Act. It could not anticipate that later in 1976 it would enact section 14A. Had section 14A existed in the original Act in the language in which it is couched, it would be highly improbable that section 54 could have been enacted as a flat provision and without taking notice of the non obstinate clause in section 14A. Two such conflicting provisions would not have been enacted by the Legislature simultaneously but the Legislature could enact a conflicting provision later in point of time in accordance with the principle that an inconsistent later enactment prevails over an earlier one. When the Legislature said in 1976 in enacting section 14A that section 14A was to prevail over anything contained elsewhere in the Act it must have in mind section 54 along with the other existing provisions of the Act. On the other hand, as stated above, the Legislature could not have in mind section 14A when it enacted section 54. The object of the Legislature, thereforee, in enacting section 54 was to make it prevail only over these provisions of the Act which existed in 1958 while the object in enacting section 14A in 1976 was to make it prevail over the other provisions which were enacted in 1958.
(18) Section 39 of the Slum Areas (Improvement and Clearance) Act simply states that the provisions of that Act and the Rules made there under shall have effect notwithstanding anything inconsistent therewith contained in any other 'law'. It docs not use the expression ' for the time being in force' to qualify the word 'law'. It has. to be construed, thereforee, as referring only to the laws which existed in 1956, By enacting section 39 Parliament could not have restricted its competence to enact laws inconsistent with section 39 thereafter. Having considered the question from all aspects, thereforee, the conclusion which fairly emerges is that section 14A of the Delhi Rent Control Act, 1958 as amended in 1976 prevails over section 19 of the Slum Areas (Improvement and Clearance) Act, 1956.
(19) The second reason why section 14A(1) of the Delhi Rent Control Act, 1958 would override other laws is this. Section 14A and the summary procedure for the trial of an application under it were enacted in 1976 under special circumstances. The Central Government decided that allottees of Government premises who own houses should not be allowed to continue to occupy the Government premises. It was realised, however, that great hardship would be caused if these allottees arc made to vacate the Government premises if the tenants occupying their houses were to be protected from eviction by the rent control legislation and other laws. It was thought expedient, thereforee, that these persons who arc made to vacate the Government accommodation should not be subject to the provisions of the rent control legislation and other laws which protect the tenant from eviction. Tins special consideration underlies the non obstinate clause contained in section 14A(1). As observed by the Supreme Court in Shri Ram Narain's case, referred to above, at page 615 of the report, the overriding effect of a statute over another may be determined on broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions. The Transfer of Property Act and the principles underlying it as also the Slum Areas (Improvement and Clearance) Act were enacted to give effect to certain general purposes, the former to give a due notice to the tenant so that he may find alternative accommodation before he is evicted and the latter to prevent a resident of a slum area from creating further slum on eviction if he does not possess means to find alternative accommodation. In a sense, the latter Act is a special statute dealing with only slum areas. But the provision for the protection of the tenants in slum areas is a general provision protecting the tenants in slum areas against all the landlords. Section 14A(1), however, picks out only a handful of landlords who are made to vacate Government accommodation. It is, thereforee, more entitled to be regarded as a special provision as against section 19 of the Slum Areas (Improvement and Clearance) Act. For, it applies only to some (very few) out of the general body of landlords having premises in slum areas who are governed by the Slum Areas (Improvement and Clearance) Act. In this sense, thereforee, section 14A(1) is a special statutory provision which prevails over section 19 of the Slum Areas (Improvement and Clearance) Act which is relatively speaking a less special statutory provision. The object and the policy underlying section 14A(1) show a clear legislative intendment to make an exception of those landlords who are made to vacate Government premises whether in relation to the Transfer of Property Act or in relation to the Slum Areas (Improvement and Clearance) Act. The latter lay down the rule governing all the landlords while the former lays down the exception governing only a few landlords leaving the rest of the landlords to be governed by the general provisions of the law.
(20) The first contention of the petitioner, thereforee, fails inasmuch as section 14A(1) is not subject to the other provisions of the Act or of any contract between the parties or of any other laws such as the Transfer of Property Act or the Slum Areas (Improvement and Clearance) Act. Meaning Of Residential Accommodation
(21) The second contention that the premises were let to the tenant for residential-cum-commercial purposes is irrelevant event if it is assumed that the letting was for both these purposes. For, all that is required by section 14A(1) is that the landlord should own ''a residential accommodation' other than the Government residential accommodation which he is asked to vacate. The phrase 'a residential accommodation' means that the accommodation should be capable of being used as a residence or should have been built as a residence. It is not disputed that the premises occupied by the tenant are capable of being used as residence as they are a part of the residential house. It may be that the front room of the premises is used by the tenant as a shop. This means that the tenant is using it for a purpose other than residential. This would have been relevant in considering clause (e) of the proviso to section 14(1) where the test is whether the premises are let for residential purposes and not whether the nature of the premises is residential. It is not, however, relevant in section 14A(1). This contention also, thereforee, fails. Third Schedule To The Act.
(22) The petition by the landlord for the eviction of the tenant was field on 19th December 1975 after the Ordinance inserting section 25B in the Act had come into force. Sub-section (2) of section 25B required the Controller to issue summons in relation to the application in the form specified in the Third Schedule. The controller was bound to issue the summons in the form specified in the Third Schedule. His failure to do so was apparently due to a mistake. Such a mistake cannot confer a right on the tenant to defend the petition of the landlord filed under section 14A which was also inserted by the same amendment in the Act from 1st December 1975. Subsection (4) of section 25B which applies the summary procedure only to those tenants on whom the summons is duly served in the form specified in the Third Schedule is intended to save from the summary procedure only those cases in which the summons was rightly issued and served in the ordinary course even though the Ordinance thereafter came into force immediately and before the court had decided whether the tenant had the right to defend the landlord's petition filed under section 14A. Sub-section (4) does not apply when the failure to serve the tenant in the form specified in the Third Schedule was due to a mistake. It is well known that a mistake committed by the court does not prejudice the right of a party nor does it confer a right on the opposite party. The right of the landlord to have his petition tried by the new procedure was not prejudiced by the mistake of the Controller in acting contrary to sub-section (2) of section 25B of the Act. Meaning of Section 255(5) :
(23) The last contention of Shri Gopal Narain is, however, more serious, namely, that the respondent landlord was not occupying at all the Government accommodation which he has been asked to vacate. Section 14A(1) requires that the landlord must be a person 'in occupation of any residential premises allotted to him by the Central Government'. The phrase 'in occupation' means that he must be actually occupying such premises. The fact that he was merely allotted such premises by the Central Government would not be sufficient Judicial notice may be taken of the notorious fact that the allottee of Government accommodation in Delhi is in a greatly privileged position. He gets decent accommodation for a very reasonable rent thereby when persons who are not able to secure such Government accommodation have to pay much higher rents for such accommodation. It is also well known that some allottees of Government accommodation have made money by allowing the non-allottees to use the said accommodation and by charging them much more than the rent which the Government recovers from the allottees. The landlord is a member of a family who has been in continuous occupation of their own house. He was residing with the family before the Government accommodation was allotted to him. The Government accommodation was allotted to him only from 1972 to 1975. That is a comparatively brief period. The application of the tenant for leave to defend is supported by documents which show that the landlord was occupying his own family residence during the years 1972 to 1975. Firstly, his ration-card bears that address and not [lie address of the Government accommodation. The ration shop keeper has sworn an affidavit that the landlord continued to reside in the family house. Secondly, the Voters' Lists from 1971 to 1975 prepared under Representation of the People Act, 1950 show that the landlord was residing in his family house and not in the Government accommodation. They also show that one T. C. Purohit resided in the Government accommodation in Sarojini Nagar from 1971 to 1975. Thirdly, the list of members of Vaish Panchayat for 1971 as well as 1975 shows the landlord as a member residing in the family house and not in the Government accommodation. Lastly, there is the affidavit by a neighbour that the landlord continued to reside in the family house. As. against this, the landlord has filed some letters received by him from the Life Insurance Corporation and one letter from a private person on the address of the Government accommodation. It is argued by Shri Sultan Singh for the landlord that the landlord could have reasonably allowed his ration-card to be on the shop near the family house and could not have bothered to change it to the ration shop near the Government accommodation. This would, however, mean that the landlord would have to come to buy ration far away from the Government accommodation. Even though he may be visiting his family, it would nevertheless be more troublesome for him to buy ration at the ration shop near the family house if he was really residing in the Government accommodation which is far away.
(24) The Voters' Lists arc prepared under a statute and the rules framed there under. Rule 25 of the Registration of Electors Rules. 1950 and Form No. Iv appended to the said Rules would show that the occupant of every house in the constituency is addressed by the Electoral Registration Officer of the said constituency to complete the statement annexed to the letter and hand it over to his assistant. The statement to be filled in by the occupant requires the names of all the occupants of the particular premises to be described fully. This would show that there is a personal enquiry by public officials recording the names and other particulars of the occupants of all the premises situated in a particular constituency. Section 20 of the Representation of the People Act, 1950 states that a person shall not be deemed to be ordinarily resident in a constituency on the ground only that he owns or he is in possession of a dwelling house therein. This would show that unless a person actually resides in a constituency, his name would not be included in the Electoral Roll. The inclusion of the name of the landlord in the Electoral Roll, thereforee. tends to show not that he owns a house in the constituency but that he actually resides there. Then there arc the affidavits of the ration shop keeper and the neighbour and also the lists of members of the Vaish Panchayat.
(25) The language of sub-section (5) of section 25B uses the same words, namely, 'discloses such facts' as arc used in Order 37 rule 3 of the Code of Civil Procedure. Under the latter provision, the Court has a discretion to give to the defendant leave to defend if his affidavit discloses certain facts. The disclosure of facts in an affidavit must raise a triable issue. In Santosh Kumar v. Bhai Mool Singh. : [1958]1SCR1211 , the Court pointed out at page 1216 that 'the test is to see whether the defense raises a real issue and not a sham one, in the sense that, if the facts alleged by the defendant are established, there would be a good, or even a plausible, defense on those facts.' In that case, the trial court imposed conditions on the grant of leave to defend because in the absence of documents the court thought the defense to be vague. The Supreme Court disagreed with the trial court and made the following observation at page 1217:
'THISis a surprising conclusion. The facts given in the affidavit are clear and precise, the defense could hardly have been clearer. We find it difficult to see how a defense that. on the face of it, is clear becomes vague simply beca.usc the evidence by which it is to be proved is not brought on file at the time the defense is put in.'
In the present case, the tenant has not only pleaded the defense but has even tried to adduce some evidence in support of the defense which also is very clearly stated.
(26) The Controller has purported to assess the comparative weight of the documentary evidence produced by the landlord and the tenant and reached a conclusion in favor of the landlord. According to the view expressed by the Supreme Court regarding the parallel provision in Order 37 rule 3 Civil Procedure Code in Santosh Kumar v. Bhai Mool Singh (9) which was reiterated later in Milkhiram (India) Pvt. Ltd. v. Chamanlal Bros., : AIR1965SC1698 , the question whether a triable issue is raised is to be judged by assuming that the avermcnts made in the affidavit for leave to defend are true. Before these averments are proved or disproved by evidence it cannot be said that they are true or untrue. Even if the court entertains a genuine doubt as to whether the defense is true or false, in other words, whether it raises a triable issue or not, on the existing language of Order 37 rules 2 and 3 Civil Procedure Code the court would not be able to disbelieve averments of fact. To enable the court to cast doubt on the truth of such averments and impose conditions in granting leave to defend, the Bombay High Court had to amend Order 37 rule 2. The discretion of the court would be enlarged by such amendment. The provisions of sub-section (5) of section 25B, however, correspond to the provisions of rules 2 and 3 of Order 37 without any such amendment as is made by the Bombey High Court. The discretion of the court in granting or refusing leave has, thereforee, lo be exercised on the pleadings made by the parties and the admitted documents which are on record (Ghasita Ram Bajaj v. Raj Kamal Radio Electronic, 1973 D.L.T. 471, a decision under Order 37 rule 3 Civil Procedure Code .). Judicial notice can be taken of the abuse of Government accommodation by some of the allottees in letting it out to non-entitled persons. The averment made by the tenant that the landlord never resided in the Government accommodation is clear and is also supported by documents. It must be said, thereforee, that the tenant has complied with the requirement of sub-section (5) of section 25B in disclosing facts which would disentitle the landlord from making an application under section 14A(1). The Controller has purported to assess the strength of documentary evidence adduced by each party. Strictly speaking, such a course is not permissible to the Controller. The stage for the assessment of evidence was not reached. The decision of the Controller had to be made on the pleadings and the admitted documents only. What the Controller had to see was whether the tenant had clearly stated the fads as would disentitle the landlord from making an application under section 14A(1). Even the Controller could not say that this was not done. What the Controller did was to hold that even though the facts were disclosed by the tenant, they were not believed by him. In doing so, the Controller clearly acted contrary to the provisions of sub-section (5) of section 25B. The Controller's opinion was vitiated by his premature attempt to assess the evidence. The Supreme Court decision cited above would show that assessment of evidence at this stage is not contemplated at all. On the other hand, the disclosure of facts made by the tenant in his affidavit and documents was such as would disentitle the landlord from obtaining the order under section 14A(1) if the tenant later on is able to prove these facts. The refusal of the leave to defend by the Controller was thus contrary to sub-section (5) of section 25B and was, thereforee, 'contrary to law' within the meaning of the proviso to sub-section (8) of section 25B. Scope Of Revision under the Proviso to Section 25B(8)
(27) The ambit of the proviso to sub-section (8) is similar to that of section 25 of the Provincial Small Cause Courts Act, 1887 or to the first proviso to section 75(1) of the Provincial Insolvency Act 1920. The ambit is thus wider than that of section 115 of the Code of Civil Procedure (Angoori Devi v. Chameli Devi, Civil Revision 396 of 1973 decided on 16th July 1976(12). The order of the trial court does not have to be vitiated by a jurisdictional defect before the Court can interfere with il under the proviso to subsection (8). Alternatively, the decision of the Controller being contrary to the express provision of sub-section (5) of section 25B may also be said to be without jurisdiction (Dhulabhai v. State of Madhya Pradesh, : [1968]3SCR662 . The Contravention of subsection (5) of section 25B by the Controller has resulted in the decision as a whole being perverse. This Court has, thereforee, jurisdiction to interfere with such decision.
(28) The order of the Controller is, thereforee, set aside. Leave is granted to the defendant to defend the petition filed by the landlord only on the ground set forth by the learned counsel for the tenant in the fourth contention set out above. The case is remanded to the Controller for consideration only of this contention of the tenant, namely, that the landlord did not actually occupy the residential accommodation which he was asked to vacate by the Government.
(29) The revision is allowed in the above terms with no order as to costs. The parties are directed to appear before the Controller on 16th August 1976.