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15. The matter came up for hearing when Mr. J.P. Sengh, learned Senior counsel appeared on behalf of the petitioner and Mr. Sandeep Sethi and Mr. Neeraj Kishan Kaul, learned Senior counsel appeared on behalf of the respondent No. 1 and made their respective submissions.

16. Mr. Sengh, learned Senior counsel for the petitioner has made his submissions which can be outlined in the following manner:

 Firstly, Mr. Sengh, learned Senior counsel for the petitioner has argued that the learned controller fell in grave error while not granting the leave to defend in the instant case when it was the case of the respondent no. 1 before the rent controller that the property No. 10, Sundar Nagar Market, Sundar Nagar which has been sought to be evicted by the respondent No. 1 is subject to alleged sub-tenancy rights created in favour of the third party and to this effect a separate eviction proceedings under Section 14 (1) (b) of the Act bearing No 14/2009 are pending before Shri Manoj Kumar, Rent Controller, South, New Delhi. It has been argued by Mr. Sengh that once it was a case of the respondent No. 1 that there exists an alleged sub-tenancy, then till the time, the issue as to existence of the sub-tenancy is decided by the learned rent controller before whom the separate eviction petition is pending, the leave to defend ought to have granted as there exists a triable issue as to whether the eviction order if at all passed from the instant eviction proceedings under Section 14 (1) (e) of the Act would be binding on the other tenants or not. This is due to the reason that it is the landlord who has to prove that the other petitioner Nos.3, 4 and 5 and respondent No.9 are the tenants under him and for the same, there exists a triable issue as the summary procedure as envisaged under the provisions of Section 25 B of the Act cannot predetermine the lis qua subtenancy which is pending between the parties already before the Rent Controller separately.

In order to support his submission, Mr. Sengh, learned Senior counsel for the petitioner relied upon the judgment passed by the learned single judge of this court in the case of Siri Pal Jain v. Brij Kishore and Others, reported in 22 (1982) Delhi Law Times, 137 wherein it has been held that in the case of eviction filed against the subtenants, the controller has to grant the leave to defend as it is upon the landlord to prove in the trial as to whether the said eviction order which has been sought against the tenant shall also be binding upon the other subtenants or not. Mr. Sengh also stated that the eviction petition is subsequently filed as an afterthought as there the proceedings are summary proceedings and under the earlier proceedings under Section 14 (1) (b) initiated by the respondent No.1 the trial is mandatory. Thus, there was ill motive on the part of respondent No.1 to initiate summary proceedings against the same parties  Secondly, Mr. Sengh argued that there exists a reasonably suitable alternative accommodation with the respondent No. 1 which is the first floor of 10 Sundar Nagar market as the respondent No. 1 already is the owner of the said property and the same is in possession of him besides 9A Sundar Nagar which means that the respondent‟s need is merely a desire and not the felt need but is a fanciful one. It has been argued that the said first floor is a commercial premise and can be used for commercial purposes. Mr. Sengh relied upon the plan which has been filed with the petition and also the records of MCD which show that the property is non residential one. Thus, as per Mr. Sengh, the controller in such a case ought to have granted the leave to defend as there exists a triable issue as to the sufficiency or reasonableness of the alternative accommodation.

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

In the same judgment, in para 7 it is further observed:-

"7. The genesis of our procedural laws is to be traced to principles of natural justice, the principal amongst them being that no one shall suffer civil or evil or pecuniary consequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and provide his own case. Summary procedure does not clothe an authority with power to enjoy summary dismissal. Undoubtedly wholly frivolous defence may not entitle a person leave to defend. But equally a triable issue raised, enjoins a duty to grant leave. Maybe in the end the defence may fail. It is necessary to bear in mind that when leave to defend is refused the party seeking leave is denied an opportunity to test the truth of the averments of the opposite party by cross- examination and rival affidavits may not furnish reliable evidence for concluding the point one way or the other. It is not for a moment suggested that leave to defend must be granted on mere asking but it is equally improper to refuse to grant leave though triable issues are raised and the controversy can be properly adjudicated after ascertainment of truth through cross- examination of witnesses who have filed their affidavits. Burden is on the landlord to prove his requirements and his assertion is required to be tested more so when it is shown that for long he is staying outside Delhi, that he has a building albeit standing in the names of his sons and daughters where he is staying and at which place he receives his normal correspondence. If in such a situation one can say that a triable issue is not raised, one is at a loss to find out where, when and in what circumstances such an issue would arise. We are, therefore, satisfied that this is a case in which triable issues were raised and both the learned Rent Controller and the High Court were in error in refusing to grant the leave." (Emphasis Supplied)