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17. It was held that the judgments relied upon by the respondent are of no help to it considering the factual matrix of the petition and that the respondent has failed to make out a prima facie case by disclosing any fact that would disentitle the landlord from obtaining order of eviction.

18. With these observations, application for leave to defend was dismissed and eviction order was passed.

19. The present application under consideration for review of the eviction order has been filed on the ground that the decisions of the Hon'ble Supreme Court in the cases of Charan Dass Duggal Vs. Brahma Nand (1983) 1 SCC 301 and Precision Steel & Engineering Works & Anr. Vs. Prem Deva Niranjan Deva Tayal 1982 AIR 1518, which lay down the law for deciding application for leave to defend have not been followed. By relying on a decision of the Full Bench of the Hon'ble High Court of Himachal Pradesh in the case of Nalagarh Dehati Cooperative Vs. Beli Ram AIR 1981 HP 1, it has been submitted that since there was a failure of the Court to take into consideration an existing decision of the Hon'ble Supreme Court taking a different or contrary view on a point covered by its judgment would amount to a mistake or error apparent on the fact of the record.

(ii) Order dated 23.10.2020 obtained by fraud, concealment and by misleading the Court - Indian Bank Vs. M/s Satyam Fibres India Pvt.

Ltd. 1996 (5) SCC 550.

30. The respondent had relied upon the judgment passed in the case of Charan Dass Duggal Vs. Brahma Nand 1983 (1) SCC 30. This judgment was quoted by it in its rejoinder. This judgment was relied upon by the Full Bench of the Hon'ble Supreme Court in the case of Precision Steel & Engineering Works Vs. Prem Deva Niranjan Deva Tayal (1982) 3 SCC 270. It has been held by the Hon'ble Supreme Court in these cases that while deciding the application for leave to defend, the Controller shall not be evaluating documents and is not to record finding on disputed questions of facts or his preference over one set of affidavit against the other. These judgments of the Hon'ble Supreme Court hold the field and has been repeatedly followed in several decisions of the Hon'ble Supreme Court and Hon'ble Delhi High Court while analyzing the jurisdiction of the Rent Controller to give findings on disputed questions of facts at the stage of deciding application for leave to defend. The following was held in the case of Precision Steel and Engineering Works:

34. Also, the judgments of the petitioner referred to in order dated 23.10.2020 while holding that the Controller is competent to decide the issues raised in the case on the basis of the affidavits of the parties are per incuriam the decisions of the Hon'ble Supreme Court in the cases of Precisions Steel & Engineering Works and Charan Dass Duggal, except for the decision in the case of Swaran Dass Benerjee Vs. Ram Prakash 167 (2010) DLT 80. However, even in this decision, a view contrary to what has been held by the Hon'ble Supreme Court in the aforementioned two decisions was not taken. This decision of the Hon'ble High Court was based on the decision of the Hon'ble Supreme Court in the case of Baldev Singh Bajwa Vs. Monish Saini (2005) 12 SCC 778. The case of Baldev Singh Bajwa was not in the context of Delhi Rent Control Act. It was passed in view of the peculiar provisions of the East Punjab Rent Restriction Act which provides for a jail term if the landlord does not use the property for a purpose for which eviction was sought. In this context, the Hon'ble Supreme Court held that the conditions and restrictions imposed on landlord make it improbable for the landlord to seek ejectment unless the need is indeed bonafide. It was held that no unscrupulous landlord in all probability, under this section, will approach the Court for ejectment of tenant considering the onerous conditions imposed on him. It was in these circumstances that the Hon'ble Supreme Court held that a heavy burden lies on the tenant to prove that the requirement is not genuine. On the other hand, the judgment in the case of Precision Steel and Engineering Works was passed in the context of Delhi Rent Control Act and it was held by the Hon'ble Supreme Court that the burden is on the landlord to satisfy the Controller that the premises of which possession is sought is required by him bonafide and that there is no alternative suitable accommodation available. It was held that this burden, the landlord is required to discharge before the Controller gets jurisdiction to pass an eviction order. It was observed that this initial burden on the landlord is in no way diluted or discharged or shifted to the tenant merely because of a different procedure prescribed under Chapter III A of the Act.

49. Despite there been several disputed questions of facts as has been illustrated hereinabove, without giving reasoning, the Ld. Predecessor of this Court held that the questions raised by the respondent can be decided without the necessity of leading evidence and only on the basis of affidavits and documents. In paragraph no. 26 of the order, it is stated that "In view of the above documentary evidence on record", it seems that Mr. Kanav Khanna and his father do not have any other alternate accommodation for re-location of Mr. Kanav Khanna. It is pertinent to mention here that "the above documentary evidence" are only the documents of the petitioner, authenticity of which has been disputed. The respondent may not have filed documents in support of its each and every averment. However, the revelations made by the respondent about the several properties and businesses of the petitioner's family have been admitted by the petitioner and therefore, it cannot be said that the respondent has been making allegations baselessly. What is more glaring is that the Court proceeded to analyze the documents and assertions of both the parties to decide which of the two are correct, which per se is not permissible in view of the decision of the Full Bench of the Hon'ble Supreme Court in the case of Precision Steel & Engineering and of the Hon'ble Supreme Court in the case of Charan Dass Duggal. Whether the requirement for tenanted premises is indeed bonafide and whether the petitioner does not have alternative suitable accommodation for the stated purpose can be determined only after an opportunity is granted to the respondent for leading evidence. At the stage when the application for leave to defend is to be decided, the Court is not required to check proof of the defence raised by the tenant. As has been observed by the Full Bench of the Hon'ble Supreme Court in the case of Precision Steel and Engineering Works, wisdom, sagacity and the consequences of refusal to grant leave coupled with limited scope of enquiry being confined to facts disclosed in affidavits of the tenant should guide the approach of the Controller. Since the decision dated 23.10.2020 was not confined only to the affidavits of the parties and case was decided at the threshold despite there being disputed questions of facts, it is apparent on the face of record that principle of natural justice and decisions of Hon'ble Supreme Court was not followed. As such, in view of the decision in the case of Nalagarh Dehati Cooperative Vs. Beli Ram, since there was failure of the Court to take into consideration the existing decision of the Hon'ble Supreme Court, there is a mistake and error apparent on the face of the record. The decision of the Hon'ble Supreme Court in the case of Anil Kumar Jain Vs. Union of India referred to in the case of Dalmia Industries Limited Vs. Jagmohan Gupta 139 (2007) DLT 165 relied upon by the petitioner, does not apply to the facts of this case, since in the present case, the respondent has relied upon the Hon'ble Supreme Court decision in the case of Charan Dass Duggal which was quoted in the rejoinder. Therefore, it cannot be said that the judgments unnoticed in the order dated 23.10.2020 were not referred to before the Court which passed the eviction order.