Delhi District Court
Sh. Naurat Mal Begwani vs Sh. R.C. Rathi on 4 April, 2015
In the Court of Mr. Sunil Kumar : Additional Rent Controller of
Central District at Tis Hazari Courts, New Delhi
E. No. 522/14/11
Unique ID No. 02401C0369442011
In the matter of:
Sh. Naurat Mal Begwani,
S/o Late Sh. Mal Chand Begwani,
R/o. 52, Jain Colony,
Veer Nagar, Delhi110 007. ....................Petitioner
VERSUS
Sh. R.C. Rathi,
R/o. 10/11, Ground Floor,
Nangia Park, Shakti Nagar,
New Delhi110 007. ....................Respondent
Date of Institution : 17.08.2011
Date of Arguments: 01.04.2015
Date of Judgment : 04.04.2015
APPLICATION FOR EVICTION OF TENANT UNDER SECTION
14(1)(e) READ WITH SECTION 25B OF THE DELHI RENT
CONTROL ACT, 1958.
ORDER :
This order shall decide the question whether the respondent be granted leave to contest the present application for eviction under clause (e) E. No. 522/14 /11 Page no. 1 of 20 of proviso to subsection (1) of section 14 of the Delhi Rent Control Act, 1958 (Act 59 of 1958)?
Brief facts for the decision on the question are that petitioner has made an application under clause (e) of proviso to subsection (1) of section 14 of Act 59 of 1958 against respondent Sh. R.C. Rathi for recovery of possession of premises namely, 5296/4, Basti Harphool Singh, Sadar Bazar, Delhi110 006 as shown in the site plan attached with the petition; that the tenanted shop in dispute is required by the petitioner for his urgent bonafide and personal requirement as the petitioner who is a senior citizen is presently sitting idle as he is jobless, having no source of income; that the petitioner was earlier working in a paper merchant shop at Chawri Bazar, Delhi from where he was retired and has a vast experience in the paper business but due to nonavailability of any commercial premises, he is unable to run any business; further the demise premises is very much suitable to the petitioner being situated in the center of the wholesale market, Sadar Bazar, Delhi and there are several shops of paper merchants which are running in the same area; that the shop in question was purchased by the petitioner for his personal use i.e. for running a paper business from that shop but the respondent is not handing over the possession of the disputed shop to the petitioner with his malafide intention and ulterior motives; that although the shop in dispute has been sublet, assigned or parted with by the respondent to some other person who is using E. No. 522/14 /11 Page no. 2 of 20 the shop as subtenant and the petition for eviction of the respondent on the ground of subletting and not paying the rent is already in progress in the Court of Ld. ARC, THC, Delhi being suit No. E11/2010; that the petitioner is the owner of the shop in question which is not being used by the respondent and the petitioner has every right to get the same vacated from the respondent on the ground of bonafide requirement; that the tenanted shop is required by the petitioner for his bonafide use for the business of paper and the petitioner has got no other reasonable suitable premises for running the said business and the suit shop is most suitable to the petitioner; that even, Sh. Ajay Begwani, son of the petitioner is ready to help the petitioner in running the said business and the respondent has no bonafide need of the disputed premises as the respondent is not running any business from there; that the petition u/s. 14(1)(a) & (b) of the DRC Act instituted by the petitioner is already under consideration by the court of Sh. Rakesh KumarI, ARC, Delhi. It is further stated in the application that an eviction order be passed against the respondent and in favour of the petitioner in respect of the premises shown in colour red in the site plan.
The application for eviction was made on 17.08.2011 and thereafter summons were directed to be issued against the respondent on the form prescribed in the third schedule of Act 59 of 1958. The summons were served upon the respondent and in response to the summons, served upon the respondent, an application purporting to be under subsection (5) E. No. 522/14 /11 Page no. 3 of 20 of section 25B of Act 59 of 1958 for grant of leave to defend/contest the eviction application was made on behalf of the respondent on 02.01.2012. The application made on behalf of the respondent has been accompanied by a document purporting to be affidavit comprising of one page containing two paragraphs. It has been stated in the application purporting to be under subsection (5) of section 25B of Act 59 of 1958 that the present eviction petition is malafide as the petitioner is aged about 7273 years and he is totally unable to do any business because of his ill health, therefore it is totally impossible for the petitioner to start a new business or start a new office or to do any other extension office old business. Further, the petitioner and his son having a shop of an area of about 2 ½ times the area of the present shop under the tenancy of the applicant and they have having a godown alongwith a shop in Chawri Bazar and the petitioner also has his own house, part of which is suit premises and which can be used by him for his alleged bonafide requirement. Further, the petitioner is already running a paper business for the last 40 years alongwith his son at Chawri Bazar and therefore he is not jobless or unemployed. Further, the petitioner does not require the suit premises bonafidely for his own personal need or the need of his son. Therefore, the applicant be given leave to defend in the present petition.
The application of the respondent is contested by the applicant by way of reply of the applicant. In the reply, it has been stated that the E. No. 522/14 /11 Page no. 4 of 20 application for leave to contest is not maintainable and liable to be dismissed because the application has not been filed as per the procedure defined in section 25B (4) and (5) of Act 59 of 1958; that the respondent has failed to file the mandatory affidavit disclosing the ground on which the applicant is not entitled for grant of relief claimed under section 14(1)(e) of Act 59 of 1958; that section 25 of Act 59 of 1958 is complete code for disposal of the application under section 14(1)(e) of Act 59 of 1958 and as per section 25B(4) and (5) of Act 59 of 1958 it is mandatory for the tenant to file an affidavit disclosing the ground for grant of leave to defend; that the application for leave to contest is not maintainable and liable to be dismissed as the respondent has failed to disclose any cogent or valid ground on the basis of which he should be allowed to defend the present application for eviction. In the counter affidavit of applicant the defence taken by the respondent in his application for leave to contest are disputed and denied and it is reiterated that the premises are required bona fide by the applicant for himself and his son who is dependent on him.
I have heard counsel for the petitioner and gone through the material on record carefully.
Having drawn my attention on the contents of the application for eviction, the application to contest the eviction application, affidavit filed alongwith the application of the respondent, counter affidavit of the applicant and the law laid down in judgment dated 26.07.2010 rendered by E. No. 522/14 /11 Page no. 5 of 20 the Hon'ble Delhi High Court in Civil Miscellaneous (Main) Appeal No. 6014 of 2010 entitled Vinod Sharma. v.Smt. Kasturi Devi, it is submitted by counsel for the applicant that the applicant is entitled to an order of eviction in his favour and against the respondent as the respondent has not filed any affidavit, as required under section 25B of Act 59 of 1958, for seeking leave to contest and to satisfy the court that their are triable points between the parties. It is further submitted by counsel for the applicant that since the respondent has failed to file the mandatory affidavit under section 25B of Act 59 of 1958, therefore, on the basis of the application for leave to contest, which is otherwise not contemplated under section 25B of Act 59 of 1958, no leave to contest the application for eviction can be granted in favour of the respondent. It is also submitted by counsel for the applicant that the son of the applicant is unemployed and dependent on the applicant. It is also submitted by counsel for the applicant that the premises are required bona fide by the applicant for himself and for his son who is dependent on him and the applicant has no other reasonably suitable accommodation to answer their necessity. It is further submitted by counsel for the applicant that since the respondent has failed to raise any triable issue, therefore, the request of the respondent for granting leave to contest the application for eviction be declined and an eviction order be passed.
I have given my thoughtful consideration to the submissions made on behalf of the petitioner.
E. No. 522/14 /11 Page no. 6 of 20 As already mentioned the present application for eviction has been made under clause (e) of proviso to subsection (1) of section 14 of Act 59 of 1958 which enables a landlord, who is also owner of a premises, to recover the possession of the premises on the ground that the premises are required bona fide by such landlord for himself or for any member of his family dependent on him having no other reasonably suitable accommodation.
As per section 25B of Act 59 of 1958 an application by a landlord for the recovery of possession of any premises on the ground specified in clause (e) of the proviso to subsection (1) of section 14 of Act 59 of 1958 shall be dealt with in accordance with the procedure specified in the said section. Section 25B of Act 59 of 1958 reads as follows:
25B. Special procedure for the disposal of applications for eviction on the ground of bona fide requirement.--(1) Every application by a landlord for the recovery of possession of any premises on the ground specified in clause (e) of the proviso to subsection (1) of section 14, or under section 14A or under section 14B or under section 14C or under section 14D, shall be dealt with in accordance with the procedure specified in this section.
(2) The Controller shall issue summons, in relation to every application referred to in subsection (1), in the form specified in the Third Schedule. (3) (a) The Controller shall, in addition to, and simultaneously with, the issue of summons for service on the tenant, also direct the summons to be served by registered post, acknowledgment due, addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works for gain and may, if the circumstances of the case so require, also direct the publication of the summons in a newspaper circulating in the locality in which the tenant is last known to have resided or carried on business or personally worked for gain.
E. No. 522/14 /11 Page no. 7 of 20
(b) When an acknowledgement purporting to be signed by the tenant or his agent is received by the Controller or the registered article containing the summons is received back with an endorsement purporting to have been made by a postal employee to the effect that the tenant or his agent had refused to take delivery of the registered article, the Controller may declare that there has been a valid service of summons.
(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. (5) The Controller 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 subsection (1) of section 14, or under section 14A.
(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 subsection (2) of section 37, the Controller shall, while holding and 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.
(8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section:
Provided 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.
(9) Where no application has been made to the High Court on revision, the Controller may exercise the powers of review in accordance with the provisions of Order XLVII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908).
(10) Save as otherwise provided in this Chapter, the procedure for the disposal of an application for eviction on the ground specified in clause (e) E. No. 522/14 /11 Page no. 8 of 20 of the proviso to subsection (1) of section 14, or under section 14A, shall be the same as the procedure for the disposal of applications by Controllers.
In Prithipal Singh v. Satpal Singh (Dead) through its LRs, (2010) 2 SCC 15 it has been held by the Hon'ble Supreme Court that while dealing with an application for eviction of a tenant on the ground of bona fide requirement, the Rent Controller has to follow strictly in compliance with section 25B of Act 59 of 1958. Further the Hon'ble Supreme Court in Prithipal Singh's case (supra) has categorically held that in dealing with an application under section 14(1)(e) of Act 59 of 1958 section 25B of Act 59 of 1958 is a Code in itself and the provisions of Rule 23 of the Delhi Rent Control Rules, 1959 have no application.
The law laid down by the Hon'ble Supreme Court in Prithipal Singh's case (supra) has been reiterated in Ms. Madhu Gupta's case wherein the Hon'ble Delhi High Court has held that while deciding an application for leave to defend under Act 59 of 1958 the Controller must go strictly as per section 25B of Act 59 of 1958.
In Precision Steel and Engineering Works v. Prem Deva Niranjan Deva Tayal, AIR 1982 SC 1518 the Hon'ble Supreme Court having discussed the relevant provisions of Act 59 of 1958 held as follows:
The Controller has to confine himself to the affidavit filed by the tenant under subsec. (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 E. No. 522/14 /11 Page no. 9 of 20 from obtaining an order for the recovery of possession on the ground specified in cl. (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 the other set of affidavits. That is not the jurisdiction conferred on the Controller by subsec. (5) because the Controller while examining the question whether there is a proper case for granting leave to contest the application has to confine himself to the affidavit filed by the tenant disclosing such facts as would prima facie and not on contest disentitle the landlord from obtaining an order for recovery of possession. At the stage when affidavit is filed under subsec. (4) by the tenant and the same is being examined for the purpose of subsec. (5) the Controller has to confine himself only to the averments in the affidavit and the reply if any and that become manifestly clear from the language of sub sec. (5) that the Controller 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 recovering possession etc. The jurisdiction to grant leave to contest or refuse the same is to be exercised on the basis of the affidavit filed by the tenant. That alone at that stage is the relevant document and one must confine to the averments in the affidavit. If the averments in the affidavit disclose such facts which, if ultimately proved to the satisfaction of the Court, would disentitle the landlord from recovering possession, that by itself makes it obligatory upon the Controller to grant leave. It is immaterial that facts alleged and disclosed are controverted by the landlord because the stage of proof is yet to come. It is distinctly possible that a tenant may fail to make good the defence raised by him. Plausibility of the defence raised and proof of the same are materially different from each other and one cannot bring in the concept of proof at the stage when plausibility has to be shown.
From the provision of section 25B of Act 59 of 1958 and the law laid down by the Hon'ble Supreme Court it can be discerned that while deciding the question of the grant of leave to defend under the provisions of section 25B of the Act 59 of 1958, the Rent Controller should see only the affidavit filed by the tenant and the counter affidavit, if any, filed by the E. No. 522/14 /11 Page no. 10 of 20 landlord.
In respect of the affidavits rules have been framed by the Hon'ble Delhi High Court and there are provisions in Order IX of the Code of Civil Procedure, 1908 (CPC).
Paragraphs no. 9 and 10 of Chapter 12 Part B of the Rules framed by the Hon'ble High Court, which pertain to Oaths, Affirmations and Affidavits, read as follows:
9. Contents of affidavits--(i) Every affidavit containing any statement of facts shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and, as nearly as may be, shall be confined to a distinct portion of the subject. (ii) Every person, other than a plaintiff or defendant in a suit in which the application is made, making any affidavit, shall be described in such manner as will serve to identify him clearly : that is to say, by the statement of his full name, the name of his father, his profession or trade, and the place of his residence. (iii) When the declarant in any affidavit speaks to any facts within his own knowledge, he must do so directly and positively, using the words „I affirm‟ or „I make oath any say‟. (iv) When the particular fact is not within the declarant‟s own knowledge, but is stated from information obtained from others, the declarant must use the expression „I am informed‟,--and, if such be the case, should add „and verily believe it to be true'--or he may state the source from which he received such information. When the statement rests on facts disclosed in documents, or copies of documents procured from any Court of Justice or other source, the declarant shall specify the source from which they were procured, and state his information or belief as to the truth of the facts disclosed in such documents.
10. Affidavits generally to be confined to facts which are within defendant's knowledge--(i) Attention is drawn to Order XIX, Rule 3, which lays down that affidavits shall be confined to such facts, as the deponent is able of his own knowledge to prove, except interlocutory applications (See Order XXXIX, Rules 6 to 10), on which statements of his belief may be admitted : provided that the grounds thereof are stated. (ii) All interlineations, alterations or erasures in an affidavit shall be initialled by the person swearing it and the person before whom it is sworn. Such E. No. 522/14 /11 Page no. 11 of 20 interlineations, alterations or erasures shall be made in such manner as not to obliterate or render it impossible or difficult to read the original matter. In case such matter has been obliterated so as to make it impossible or difficult to read it, it shall be rewritten on the margin and initialled by the person before whom the affidavit is sworn.
Further Rule 3 of Order XIX of CPC reads as follows:
R. 3 Matters to which affidavits shall be confined.-- (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted:
Provided that the grounds thereof are stated.
(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the Court otherwise directs) be paid by the party filing the same.
Recently the Hon'ble Supreme Court in judgment dated 11.5.2011 rendered in Writ Petition (Civil) No. 39 of 2006 entitled Amar Singh v. Union of India and others reiterated the requirement of filing proper affidavits, as per law, in the courts and deprecated the practice of filing affidavits in court proceedings in casual manner. In Amar Singh's case (supra) the Hon'ble Supreme Court observed as follows, namely:
11. Here we may point out the casual manner in which the petitioner approached the Court. The affidavit filed by the petitioner in support of his petition, and relying on which this Court issued notice on 24th January, 2006, is not at all modelled either on order XIX Rule 3 of the Code of Civil Procedure, or Order XI of the Supreme Court Rules, 1966. The relevant portion of the petitioner's affidavit runs as under:
"1.That I am the Petitioner in the above Writ Petition and am conversant with the facts and circumstances of the case. As such, I am competent to swear this affidavit.
2.That I have read the contents of paras 1 to 9 on pages 1 to 24 of the accompanying Writ Petition and have understood the same. I state that what is stated therein is true to my knowledge and belief.
E. No. 522/14 /11 Page no. 12 of 20
3.That I have read the accompanying List of Dates and Events from pages B to D and have understood the same. I state that what is stated therein, is true to my knowledge and belief."
12. The provision of Order XIX of Code of Civil Procedure, deals with affidavit. Rule 3 (1) of Order XIX which deals with matters to which the affidavit shall be confined provides as follows:
"Matters to which affidavits shall be confined. - (1) affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated."
13. Order XI of the Supreme Court Rules 1966 deals with affidavits. Rule 5 of Order XI is a virtual replica of Order XIX Rule 3 (1). Order XI Rule 5 of the Supreme Court Rules is therefore set out:
"Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated."
14. In this connection Rule 13 of Order XI of the aforesaid Rules are also relevant and is set out below:
"13. In this Order, 'affidavit' includes a petition or other document required to be sworn or verified; and 'sworn' includes affirmed. In the verification of petitions, pleadings or other proceedings, statements based on personal knowledge shall be distinguished from statements based on information and belief. In the case of statements based on information, the deponent shall disclose the source of this information."
15. The importance of affidavits strictly conforming to the requirements of Order XIX Rule 3 of the Code has been laid down by the Calcutta High Court as early as in 1910 in the case of Padmabati Dasi v. Rasik Lal Dhar [(1910) Indian Law Reporter 37 Calcutta 259]. An erudite Bench, comprising Chief Justice Lawrence H. Jenkins and Woodroffe, J. laid down:
"We desire to impress on those who propose to rely on affidavits that, in future, the provisions of Order XIX, Rule 3, must be strictly observed, and every affidavit should clearly express how much is a statement of the deponent's knowledge and how much is a statement of his belief, and the grounds of belief must be stated with sufficient particularity to enable the Court to judge whether it would be sage to act on the deponent's belief."
16. This position was subsequently affirmed by Constitution Bench E. No. 522/14 /11 Page no. 13 of 20 of this Court in State of Bombay v. Purushottam Jog Naik, AIR 1952 SC
317. Vivian Bose, J. speaking for the Court, held:
"We wish, however, to observe that the verification of the affidavits produced here is defective. The body of the affidavit discloses that certain matters were known to the Secretary who made the affidavit personally. The verification however states that everything was true to the best of his information and belief. We point this out as slipshod verifications of this type might well in a given case lead to a rejection of the affidavit. Verification should invariably be modelled on the lines of Order 19, Rule 3, of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the sources of information should be clearly disclosed. We draw attention to the remarks of Jenkins, C. J. and Woodroffe, J. in Padmabati Dasi vs. Rasik Lal Dhar 37 Cal 259 and endorse the learned Judges' observations."
17. In Barium Chemicals Limited and another v. Company Law Board and others, AIR 1967 SC 295, another Constitution Bench of this Court upheld the same principle:
"The question then is: What were the materials placed by the appellants in support of this case which the respondents had to answer? According to Paragraph 27 of the petition, the proximate cause for the issuance of the order was the discussion that the two friends of the 2nd respondent had with him, the petition which they filed at his instance and the direction which the 2nd respondent gave to respondent No. 7. But these allegations are not grounded on any knowledge but only on reasons to believe. Even for their reasons to believe, the appellants do not disclose any information on which they were founded. No particulars as to the alleged discussion with the 2nd respondent, or of the petition which the said two friends were said to have made, such as its contents, its time or to which authority it was made are forthcoming. It is true that in a case of this kind it would be difficult for a petitioner to have personal knowledge in regard to an averment of mala fides, but then were such knowledge is wanting he has to disclose his source of information so that the other side gets a fair chance to verify it and make an effective answer. In such a situation, this Court had to observe in 1952 SCR 674: AIR 1952 SC 317, that as slipshod verifications of affidavits might lead to their rejection, they should be modelled on the lines of O. XIX, R. 3 of the Civil Procedure E. No. 522/14 /11 Page no. 14 of 20 Code and that where an averment is not based on personal knowledge, the source of information should be clearly deposed. In making these observations this Court endorse the remarks as regards verification made in the Calcutta decision in Padmabati Dasi v. Rasik Lal Dhar, (1910) ILR 37 Cal 259."
18. Another Constitution Bench of this Court in A.K. K. Nambiar v. Union of India and another, AIR 1970 SC 652, held as follows:
"The appellant filed an affidavit in support of the petition. Neither the petition nor the affidavit was verified. The affidavits which were filed in answer to the appellant's petition were also not verified. The reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In the present case, the affidavits of all the parties suffer from the mischief of lack of proper verification with the result that the affidavits should not be admissible in evidence."
19. In the case of Virendra Kumar Saklecha v. Jagjiwan and others, [(1972) 1 SCC 826], this Court while dealing with an election petition dealt with the importance of disclosure of source of information in an affidavit. This Court held that nondisclosure will indicate that the election petitioner did not come forward with the source of information at the first opportunity. The importance of disclosing such source is to give the other side notice of the same and also to give an opportunity to the other side to test the veracity and genuineness of the source of information. The same principle also applies to the petitioner in this petition under Article 32 which is based on allegations of political motivation against some political parties in causing alleged interception of his telephone. The absence of such disclosure in the affidavit, which was filed along with the petition, raises a prima facie impression that the writ petition was based on unreliable facts.
20. In case of M/s Sukhwinder Pal Bipan Kumar and others v. State of Punjab and others, [(1982) 1 SCC 31], a three Judge Bench of this Court in dealing with petitions under Article 32 of the Constitution held that under E. No. 522/14 /11 Page no. 15 of 20 Order XIX Rule 3 of the Code it was incumbent upon the deponent to disclose the nature and source of his knowledge with sufficient particulars. In a case where allegations in the petition are not affirmed, as aforesaid, it cannot be treated as supported by an affidavit as required by law. (See para 12 page 38)
21. The purpose of Rules 5 and 13 of the Supreme Court Rules, set out above, has been explained by this Court in the case of Smt. Savitramma v. Cicil Naronha and another, AIR 1988 SCC 1987. This Court held, in para 2 at page 1988, as follows:
"...In the case of statements based on information the deponent shall disclose the source of his information. Similar provisions are contained in Order 19, Rule 3 of the Code of Civil Procedure. Affidavit is a mode of placing evidence before the Court. A party may prove a fact or facts by means of affidavit before this Court but such affidavit should be in accordance with Order XI, Rules 5 and 13 of the Supreme Court Rules. The purpose underlying Rules 5 and 13 of Order XI of the Supreme Court Rules is to enable the Court to find out as to whether it would be safe to act on such evidence and to enable the court to know as to what facts are based in the affidavit on the basis of personal knowledge, information and belief as this is relevant for the purpose of appreciating the evidence placed before the Court, in the form of affidavit...."
22. In the same paragraph it has also been stated as follows:
"...If the statement of facts is based on information the source of information must be disclosed in the affidavit. An affidavit which does not comply with the provisions of Order XI of the Supreme Court Rules, has no probative value and it is liable to be rejected..."
23. In laying down the aforesaid principles, this Court in Smt. Savitramma (supra) relied on a full Bench judgment in Purushottam Jog Naik (supra).
24. In the instant case, the petitioner invoked the extraordinary writ jurisdiction of this Court under Article 32, without filing a proper affidavit as required in terms of Order XIX Rule 3 of the Code. Apart from the fact that the petitioner invoked Article 32, the nature of the challenge in his petition is very serious in the sense that he is alleging an attempt by the government of intercepting his phone and he is further alleging that in making this attempt the government is acting on extraneous considerations, and is virtually acting in furtherance of the design of the ruling party. It is, therefore, imperative that before making such an allegation the petitioner E. No. 522/14 /11 Page no. 16 of 20 should be careful, circumspect and file a proper affidavit in support of his averment in the petition.
25. In our judgment, this is the primary duty of a petitioner who invokes the extraordinary jurisdiction of this Court under Article 32.
In the present case after receiving the summons of this court the respondent has filed an application purporting to be under section 25B(4) and (5) of Act 59 of 1958 although the said section does not contemplate any application. Indeed the summons prescribed in the third schedule of Act 59 of 1958 contemplates an application but it also says that the application must be supported by an affidavit of a particular kind, that is, the affidavit contemplated under subsection (5) of section 25B of Act 59 of 1958. Alongwith the said application an affidavit, apparently in compliance of section 25B of Act 59 of 1958, has also been filed. The affidavit is brief and reads as follows:
AFFIDAVIT I, R.C. Rathi, Proprietor M/s. Rathi Sales Corporation, 5296/4, Basti Harphool Singh, Sadar Thana, Delhi110 006, do hereby solemnly affirm and declare as under:
1. That I am the respondent in the matter and I am competent to swear this affidavit.
2. That the accompanying application u/s. 25B for leave to defend has been drafted by my counsel under my instructions. I have read over the contents of the said application, which are correct to my knowledge and the same may be read as part of this affidavit.
Deponent VERIFICATION:
Verified at Delhi on this 24th day of December, 2011, that the contents of the above affidavit are true and correct to our knowledge and nothing has been concealed therefrom.
Deponent
E. No. 522/14 /11 Page no. 17 of 20
From a reading of the affidavit of the respondent it can be discerned that the same is not answering the requirements of Rules prescribed in Order XIX of CPC, paragraphs no. 9 and 10 of the rules prescribed by the Hon'ble Delhi High Court in Chapter 12 Part B and the law laid down by the Hon'ble Supreme Court in Amar Singh's case and the other judgments cited in the last mentioned judgment.
As I have already observed, as per the provisions of section 25B of Act 59 of 1958 as interpreted by the Hon'ble Supreme Court in Precision Steel and Engineering Works's case (supra) while deciding the question of grant of leave to contest the application for eviction this court has to see only the affidavit of the respondent and counter affidavit, if any, filed by the applicant.
In the present case as the affidavit filed by the respondent is cryptic and vague and does not answer the requirements of the law, therefore, on the basis of the said affidavit this court is of the considered view that the respondent has not stated any ground in his affidavit on which he seeks to contest the application for eviction . In the affidavit of the respondent no facts have been disclosed as would disentitle the applicant from obtaining an order for the recovery of possession of the premises on the ground specified in clause (e) of proviso to subsection (1) of section 14 E. No. 522/14 /11 Page no. 18 of 20 of Act 59 of 1958.
The result of the above discussion is that the status of the applicant herein, who claim to be the owner and landlord of the premises, remains unchallenged by the respondent. The relationship of landlord and tenant between the applicant and the respondent also remains undisputed.
The identity of the premises in question also remains undisputed. The respondent, by filing an appropriate affidavit under section 25B (4) of Act 59 of 1958, has not challenged the fact that the premises in question are not required bona fide by the applicant for the business purpose of himself and his son who is dependent upon him.
In view of my above discussion, the respondent is found not entitled to obtain the leave to contest the present application for eviction of tenant. The application for leave to contest the application for eviction is dismissed. As an off shoot of the dismissal of the application for leave to contest made by the respondent, the applicant is found entitled to recover the possession of the premises bearing no. 5296/4, Basti Harphool Singh, Sadar Bazar, Delhi110 006 as shown in colour red in the site plan annexed with the application for eviction. The application for eviction is allowed. In the facts and circumstances of the case there shall be no order as to costs. File be sent to records.
E. No. 522/14 /11 Page no. 19 of 20 In view of the provisions of subsection (7) of section 14 of Act 59 of 1958 this order for recovery of possession of premises shall not be executed before the expiration of a period of six months from this date.
Announced in the open court (Sunil Kumar)
on this 4th day of April, 2015 Additional Rent Controller02
Central/Tis Hazari Courts
E. No. 522/14 /11 Page no. 20 of 20