Anil Kumar Sharma vs Barjinder Singh Mann

Rakesh Kumar Jain, J.—By this common order I shall be disposing of four Civil Revisions namely, CR No. 1313 of 2011 titled as ""Anil

Kumar Sharma v. Barjinder Singh Mann�, CR No. 1314 of 2011 titled as �Joginder Singh v. Barjinder Singh Mann�, CR No. 1326 of

2011 titled as �Amarjit Singh Makkar v. Barjinder Singh Mann� and CR No. 1327 of 2011 titled as �Jasvir Singh v. Barjinder Singh

Mann� as identical questions of law and fact are involved therein.

The brief background of this litigation is that the landlord filed four applications u/s 13-B of the East Punjab Urban Rent Restriction Act, 1949

(for short �the Act�) in order to seek eviction of four tenants occupying four shops allegedly owned by him. The tenants had a right to seek

leave to defend, which was exercised by them by filing applications in the month of November 2009. In all the four cases, the tenants filed an

applications under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short �CPC�) seeking amendment on the ground that the

landlord can get only one shop vacated. This amendment was allowed as it was not contested by the landlord. In other three cases except for CR

No. 1313 of 2011, the tenants filed three applications namely, (i) amendment of the application for leave to contest, (ii) application for admission

and denial, (iii) dismissal of the eviction petition on the ground that the landlord is not the owner. However, in CR No. 1313 of 2011, two

applications were filed by the tenant namely, (i) that the landlord is not NRI as he has not produced Green Card, (ii) that eviction petition be

dismissed as he is not the owner. The learned Rent Controller dismissed all the applications filed in all the four cases by a common order as a result

of which four revision petitions have been filed before this Court in which notice of motion was issued pursuant to which landlord has put in

appearance through his counsel.

The first revision petition, which has been argued by learned Counsel for the tenant/Petitioner is CR No. 1313 of 2011 in which he has made a

statement that he does not press the application to the effect that the landlord/Respondent is not the NRI and has only confined his argument with

regard to the dismissal of his application by the Rent Controller, which was filed to seek dismissal of the eviction petition on the ground that the

Landlord is not the owner. The other revision petitions have been argued in respect of the dismissal of the application for amendment, application

for admission and denial and also dismissal of the eviction petition.

Learned Counsel for the Petitioner has submitted that by virtue of an application filed by the Petitioner to Tehsildar on 30.11.2010, information

was sought as to who is the owner of Khasra No. 165/2 situated at village Hassan Rora, Tehsil and District Ludhiana as the landlord had claimed

himself to be the owner of the same on the basis of a gift deed which is allegedly executed in his favor by his mother Dalip Kaur, which is the

subject matter of the dispute. The said application dated 30.11.2010 was forwarded by Tehsildar, Ludhiana (East) to Halqa Patwari for the

purpose of report. According to the learned Counsel for the Petitioner, Patwari had reported that from the record he has not found Khasra No.

165/2 to be entered anywhere. The said report of Patwari dated 30.11.2010 made the basis of the application which was filed for seeking

dismissal of the eviction petition and has been dismissed by the Rent Controller vide his impugned order dated 10.2.2011. Learned Counsel for the

Petitioner has further submitted that while dismissing the said application, learned Rent Controller has not even adverted to the report of Halqa

Patwari and has only relied upon the mutation produced by the landlord/Respondent which was sanctioned in his name with regard to Khasra No.

165/2. He also submitted that the learned Court below remained under the impression that the landlord has to only prove relationship of landlord

and tenant between the parties but in a case where application is filed u/s 13-B of the Act, landlord has to prove that he is the owner of the

demised property in dispute for the last more than five years.

On the contrary, learned Counsel for the Respondent has submitted that the Petitioner is in the habit of filing frivolous applications which is

apparent from the facts of the present case as he had earlier filed amendment application which was allowed on the statement of landlord as it was

delaying his eviction petition and now he has filed present application just to delay the proceedings as the eviction petition was filed on 4.10.2008

and still the application filed u/s 18-A has not been argued by the tenant. He also submitted that once mutation has been sanctioned in the name of

the landlord, any report obtained thereafter is of no consequence especially when the report is only of 10 years whereas he is in possession of

another report which shows that prior to 10 years landlord is recorded as owner. He has also submitted that the application in the present form is

not maintainable in terms of Order 7 Rule 11 of the CPC to which learned Counsel for the Petitioner has submitted that he has not filed any such

application instead has filed an application for dismissal of the eviction petition on the ground that landlord is not owner.

Be that as it may, I have found that Rent Controller while passing the impugned order has erred in not taking into account documentary evidence

tendered by the tenant specially when he is allowed to contest the application filed u/s 13-B only on the basis of an affidavit. The Rent Controller is

expected to pass a reasoned order after taking into account all the submissions made by both the sides but from the reading of the impugned order

it appears that document submitted by the tenant has not been considered at all and hence the revision petition on this ground deserves to be

allowed and the matter deserves to be remanded back to the learned Rent Controller to decide it afresh by taking into account the evidence led by

both the parties so far and by giving one chance to the landlord to show the report in which he is recorded as the owner prior to the period of 10

years. Hence, revision petition is hereby allowed on this ground.

Now reverting back to the other applications, which were also dismissed by the Rent Controller, namely, application for amendment and

application filed for admission and denial. Insofar as application for amendment is concerned, to my mind there is no error in the order passed by

the Rent Controller because the tenant has not averred in the application for amendment as to when he came to know about the fact which he

wanted to incorporate in his application u/s 18-A of the Act. No doubt that Delhi High Court in the case of �Ved Prakash and Anr. v. Om

Prakash Jain 2009(2) RCR 372 has held that an application can be moved under Order 6 Rule 17 of the CPC to incorporate subsequent events

to contest the application filed u/s 13-B of the Act but it has also held that the application has to be filed immediately without wasting any time as

time granted to the tenant is only 15 days to contest the application filed u/s 13-B of the Act.

In the absence of the material particulars about the time when the Petitioner allegedly came to know about the alleged subsequent event and also

from the photographs attached on record, I am of the view that the amendment is wholly frivolous and has been rightly declined by the Rent

Controller. Insofar as second application i.e. application filed under Order 12 Rule 2 of the CPC seeking admission and denial is concerned that

has also been rightly dismissed by the Rent Controller because the landlord had denied the documents and once it is denied, it is for the tenant to

prove his case and he cannot force him to admit the case set up by him.

In view of the matter, the present revision petition, on the issue of the dismissal of the application for dismissing the eviction petition succeeds

and the case is remanded back to the Rent Controller. The parties are directed to appear on the date already fixed i.e. 31.3.2011. Rent Controller

shall decide the application filed by the tenant with regard to the dismissal of the eviction petition again within a period of 15 days from 31.3.2011

by passing a speaking order and would also take into account the earlier order passed by this Court in CR Nos. 253 to 256 of 2011 on 3.2.2011

wherein the Rent Controller was directed to take into consideration all the applications moved by the tenants, which have been disposed of by him

vide the impugned order now including application for leave to defend but it appears that said order was not communicated to him. Now he is

directed to take into account this order as well as order dated 3.2.2011 and decide the application for leave to defend on the same day when he

decides the application of the Petitioner in the present case.

A photocopy of this order be placed on the file of other connected cases.