Vikramajit Sen, J.
1. This Petition under Article 227 of the Constitution has been filed assailing the Order of the Additional Rent Controller (hereinafter referred to as ARC) Delhi dated 3.11.2000, whereby leave to contest the eviction petition under Section 14(1)(e) read with Section 25-B of the Delhi Rent Control Act (hereinafter referred to as DRC Act) was granted to the Tenant. The ARC has applied the ratio of Precision Steel Engineering vs . Premdev Niranjandev, : [1983]1SCR498 , which judgment was delivered by a Bench of three Learned Judges, to the effect that leave to contest should be granted if the tenants' affidavit disclosed facts which, if proved, would disentitle the landlord from recovering possession of the demised premises. In the partly dissenting judgment of his Lordship A.P. Sen J. it was opined that the whole object of sub-section (5) of Section 25-B is to prevent the taking of frivolous pleas by tenants to protract the trial and that only if the ARC finds that the pleadings are such as would entail a trial, then the tenant should be granted leave to contest. The rigours of the majority judgment have been diluted over the years, and the Apex Court has veered towards to this minority view. In Inder jeet Kaur v. Nirpal Singh, 2000 (3) 397 the Apex Court has recently clarified that if a prima facie case is made out by the Tenant, the ARC should not embark on a pretrial but should grant leave to contest. The following observations should be noted:-
'We are of the considered view that at a stage when the tenant seeks leave to defend, it is enough if he prima facie makes out a case by disclosing such facts as would disentitle the landlord from obtaining an order of eviction. It would not be a right approach to say that unless the tenant at that stage itself establishes a strong case as would non-suit the landlord leave to defend should not be granted when it is not the requirement of Section 25-B(5). A leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter IIIA of the Act. Leave to defend cannot be refused where an eviction petition is filed on a mere design or desire of a landlord to recover possession of the premises from a tenant under Clause (e) of the proviso to Sub-section(1) of Section 14, when as a matter of fact the requirement may not be bona fide. Refusing to grant leave in such a case leads to eviction of a tenant summarily resulting in great hardship to him and his family members, if any, although he could establish if only leave is granted that a landlord would be is entitled for an order of eviction. At the stage of granting leave to defend parties, rely on affidavits in support of the rival contentions. Assertions and counter assertions made in affidavits may not afford safe and acceptable evidence so as to arrive at an affirmative conclusion one way or the other unless there is a strong and acceptable evidence available to show that the facts disclosed in the application filed by the tenant seeking leave to defend were either frivolous, untenable or most unreasonable. Take a case when a possession is sought on the ground of personal requirement, a landlord has to establish his need and not his me desire. The ground under Clause (e) of the proviso to Sub-section(1) of Section 14 enables a landlord to recover possession of the tenanted premises on the ground of his bona fide requirement. This being an enabling provision, essentially the burden is on the landlord to establish his case affirmatively. In short and substance wholly frivolous and totally untenable defense may not entitle a tenant to leave to defend but when a triable issue is raised a duty is placed on the Rent Controller by the statute itself to grant leave. At the stage of granting leave the real test should be whether facts disclosed in the affidavit filed seeking leave to defend prima facie show that the landlord would be disentitled from obtaining an order of eviction and not whether at the end defense may fail. It is well to remember that when a leave to defend is refused, serious consequences of eviction shall follow and the party seeking leave is denied an opportunity to test the truth of the averments made int he eviction petition by cross-examination. It may also be noticed that even in cases where leave is granted provisions are made int his very Chapter for expeditious disposal of eviction petitions. Section 25-B(6) states that where leave is granted to a tenant to contest the eviction application, the Controller shall commence the hearing of the application as early as practicable. Section 25-B(7) speaks of the procedure to be followed in such cases. Section 25-B(8) bars the appeals against an order of recovery of possession except a provision of revision to the High Court. Thus a combined effect of Sections 25B(6), (7) and (8) would lead to expeditious disposal of eviction petitions so that a landlord need not wait and suffer for long time. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defense, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims.'
2. A disturbing trend can be perceived in the manner in which the Controllers are disposing-off applications for 'leave to contest'. Detailed Orders are passed at this stage itself. In doing so, the ARC is essentially finally deciding the disputed questions raised by the Tenant on the Explanationn given by the Landlord in his reply which exercise should be carried out after the trial. This approach is to be deprecated. In a given case the Tenant may deny the ownership of the Landlord but if a copy of the Sale Deed is produced, or if it is the Landlord who had put the Tenant into possession, such grounds could rightly not be construed as having disclosed a prima facie case warranting a trial. But, to expand the illustration further, if the Tenant produces a document to the effect that the Landlord has divested or proposes to divert/transfer his ownership to a third party, and the Landlord puts forward an Explanationn which appears to be plausible, yet leave to contest the petition should be granted to the Tenant, since a prima facie case has been shown to exist which can be conclusively be decided only after considering in evidence on the record. Of course if the Court is of the opinion that such a plea is only a device to delay, he should reject the Tenant's application. The case of Col Surinder Pal v. Rakesh Kumar, 1996 RLR 361 recommends this approach.
3. With this prefatory note let us now consider the grounds raised by the Tenant, as are discernable from the impugned order. The Landlord ha asserted that his family comprised seven members and that his bona fide requirement was for twenty-seven rooms whereas he is in possession of only six. The ARC found it difficult to accept that in a huge covered area 400 square feet only one small room and one pantry existed. I am in entire agreement with the ARC's conclusion. It is often submitted by Counsel for the landlords that this Court has held that the 'barasati' should not be taken as a habitable unit. In the present times, if such a large area is not utilised to its maximum or optimum, the alleged insufficiency of accommodation must raise eyebrows. Alternatively, if such an area is left fallow and undeveloped, then there appears not to be a pressing need for more residential space. In either case, a prima facie case warranting that leave to contest should be granted to the Tenant, must be held to have been established. Considerable argument was generated on the dimensions of a mezzanine in the garage block. All that needs to be observed is that where acute paucity of accommodation is being asserted, and nonetheless this room/space is considered inadequate or inappropriate for the use of the medical attendant of the eighty years old Petitioner, the inference at this stage can only be that bona fides are suspect. It has also been contended by the Tenant that one of the two sons of the Petitioner namely M.P.S. Suri resides with his wife and son in the USA, and has no plans to return to Indian. Undisputedly, the wife and son of M.P.S. Suri are residing in the USA and this person has, on his own showing, been visiting his family in the USA. The ARC has very rightly held that a triable issue has arisen. Furthermore, on the basis of the Site Plan filed before the ARC, the ARC rather has arrived at the conclusion that it did not depict the construction existing at the site. None of these findings are perverse or could not have been returned on the basis of the material available on the files and thereforee the Petition under Article 227 is wholly without any merit.
4. The aspect of whether Article 227 of the Constitution can be invoked in the facts of the present case also falls for consideration. In the course of dismissing C.M.(M) 539/2001 this aspect has also been considered and needs to be reiterated once again. 'Consequent on the amendments to the Delhi Rent Control Act carried out in 1988 an appeal now lies under Section 38 only on questions of law. thereforee now the Tribunal is precluded from entering upon the fractural arena. The legislature intended to restrict the ambit of the appeal and thus render the ARC as the master of the facts. In the course of the same amending exercise carried out in 1988, Section 39 was omitted and thenceforward no appeal is maintainable to this Court. Invoking the extraordinary jurisdiction of the High Court runs counter to and frustrates the wisdom of the Legislature and infact renders the amendment nugatory. The employment of this Constitutional provision has become rampant. It would be well to bear in mind that under Article 227 the High Court is not expected to correct all hardships or wrong decisions made by Courts exercising their jurisdiction properly. The High Court should adjure an appellate exercise, and restrict its intervention to those instances where a flagrant abuse of fundamental legal principles have been occasioned. It should certainly eschew substituting its own judgment with that of the lower Courts, and venture forth only where the findings are perverse, or are a consequence of the incorrect exercise of jurisdiction. There is a plethora of precedents on these well settled proposition of law and hence reference to them would be a needless and a wasteful spending of time. In rent matters, where a Second Appeal to the High Court has been taken away by Parliament, invoking these powers must be confined to very rare cases where it is apparent on the face of the record that there was no ground for the lower Court to return the particular finding and conclusion that is under challenge. If there is any reasonable ground for the lower Court to have acted int he challenged manner, the High Court should not interfere. In Nagendra Nath Bora and Anr. v. The Commissioner of Hills Division and Appeals, Assam, and Ors., : [1958]1SCR1240 , it has been observed that the High Court should not interfere simply because the Courts below had viewed the matter in a light which is not acceptable to it. In Babhutmal Raichand Oswal v. Laxamibai R. Tarte and Anr., : AIR1975SC1297 the Apex Court deprecated the exercise of powers under Article 227 by the High Court even where the latter was of the opinion that the Lower Court had misread the evidence. In Mahan Amba Prasad Agnihotri and Ors. v. Bhaskar Balwant Aher (D) Through LRs. : AIR2000SC931 and in Shama Prashant Raje v. Ganpatroa and Ors., : AIR2000SC3094 the Apex Court has again opined that the jurisdiction under Article 227 is not appellate but supervisory and it cannot interfere with a finding of fact unless there is no evidence to support the finding or the finding is perverse. This is not the position in the present case.'
5. In the present case the Petition has been filed against the order granting to the Tenant leave to contest the eviction petition. A Civil Revision has been held not to be maintainable in these circumstances. Reference is drawn to Shri Devi Singh v. Shri Chaman Lal, 1977 R L R 566, where it was observed as follows:
'Legislature is so keen on expeditious disposal that it has taken away the rights of appeal under this chapter. It has only given a limited right of revision under proviso to section 25-B(8). No doubt the wording permits the High Court to call for the record of an order passed by the ARC. But the very setting of proviso suggests that revision would lie only against order allowing or dismissing an application for eviction because it is well settled that proviso is an exception to main part i.e. Sub section (8) which talks of final disposal of application for eviction. It would be anomalous to hold that the revision should be against all orders. That would defeat the very object of expeditious disposal. Power of revision would cover only cases under sub section (4) not really against the order refusing leave, but because as a consequence of refusal to give leave, the application for eviction is allowed. But if it only permits the proceedings to continue, ultimately resulting under sub section (7) in either allowing or dismissing the application for eviction. In either case the matter is finally disposed of by the trial court. I cannot agree that proviso to S. 25B(8) can compass interim orders (like the granting of leave) which do not conclude the proceedings. As such the petition has to be dismissed as incompetent and being not maintainable.'
6. This very question came up before the Hon'ble Supreme Court in Major D.N. Sood and Anr. v. Shanti Devi, (1977) 10 SCC 428 . A Single Judge of this Court had entertained a Revision Petition filed against the similar order. The Apex Court had opined that the Order granting Leave to Contest is an interlocutory order, against which a Revision does not lie. If this is so, a fortiori a writ petition under Article 227 would also not be maintainable. This is essentially so since the Legislature has progressively intended the Additional Rent Controller to be the master of the facts.
7. The Additional Rent Controller has correctly exercised the jurisdiction which is vested in him. The Order does not suffer from any perversity. I see no ground to interfere with the impugned order.
8. Dismissed with costs quantified at Rs.5000/-.