Dharam Pal vs Malkiat Singh Gill

D.V. Sehgal, J.—This revision petition is directed against the judgment dated Feb.21, 1987 passed by the Id. Rent Controller, Jalandhar, whereby he declined leave to the tenant-Petitioner to contest the eviction application filed by the land-lord Respondent u/s 13-A of the East Punjab Urban Rent Restriction Act, 1949, as amended by Punjab Act No. 2 of 1985 (for short ''the Act''), and further allowing the said eviction application directed the Petitioner to vacate the demised premises and hand over its vacant possession to the Respondent.

The Respondent claiming himself to be a specified landlord within the meaning of Section 2(hh) of the Act filed the eviction application on Jan.3, 1987. He stated therein that he is holding the post of Superintendent in the office of the District Education Officer and was thus holding an appointment in a public service in connection with the affairs of the State of Punjab The Petitioner is a tenant under him on the first floor of the house in dispute in the portion shown in pink colour in the plan attached with the application. The Respondent further stated that the accommodation in his possession in the said house on the ground floor shown in green colour in the said plan is insufficient for his use and for the use of his family members, He has two married sons and a daughter who are living in Canada and England and visit India from time to time and as such on their arrival at Jalandhar the Respondent finds it difficult to provide accommodation to his sons, their wives and children, Even his other rejatipns who live in India and abroad including his daughter and her husband visit him from time to time. All these relations are financially quite well to do. He has no accommodation to provide to them on their visits. The house in dispute owned by the Respondent bears No. 155 and is situate in Ranjit Nagar, Jalandhar. He further averred that he is due to retire from service on attaining the age of superannuation on Nov.30, 1987. The application was accompanied by an affidavit as also a certificate from his employer.

The Id. Rent Controller issued summons of this application to the Petitioner who on receipt of the same filed an application accompanied by an affidavit stating the grounds on which he sought leave to contest the application for eviction. He Stated therein, inter alia, that the sons of the Respondent are settled abroad permanently and are citizens of foreign countries and so are their wives and children. They have never visited the Respondent ever since the first floor of the house in dispute was rented out to him. It was, thus pleaded that since the sons/daughter of the Respondent are not living with him nor were they dependant on him, he could not seek eviction on account of necessity of the premises for their accommodation. He denied that the sons of the Respondent visit him from time to time. The averment in the application that the accommodation on the ground floor shown in green colour already in possession of the Respondent is insufficient was also disputed. The Petitioner averred that there are six living rooms besides drawing-cum-dining room, a kitchen, a store and toilets to accommodate the Respondent and his family members. It was also stated that at present the Respondent, his wife and a small child of 2-1/2 years live in this specious accommodation. A plan showing the extent of accommodation in possession of the Respondent was also enclosed with the affidavit to counter the plan submitted with the eviction application.

The Respondent filed a reply to the application for leave to contest the eviction application moved by the Respondent wherein he controverted the pleas raised by the Petitioner.

On the basis of the averments contained in the eviction application filed by the Respondent, the application for leave to contest the same filed by the Petitioner and a reply there to submitted by the Respondent, the ld. Rent Controller through the judgment under revision has reached the conclusion that the grounds put forward by the Petitioner for contesting the eviction application are not tenable. As a result leave to contest the same has been declined and the other of eviction has been passed against the Petitioner.

I have heard the ld. Counsel for the parties. It has been contended by the ld. Counsel for the Petitioner that he had put forward a plausible case to contest the claim for his eviction made by the Respondent in the application u/s 13-A of the Act. The grounds were specifically set out in the application for leave to contest. He had also submitted a detailed plan depicting the accommodation already in possession of the Respondent in the house in dispute on the ground floor and that plan shows that there are as many as six living rooms besides drawing-cum-dining room, a kitchen, a store and toilets. He had also specifically stated that the sons and daughter of the Respondent who are living abroad and are citizens of foreign countries have never visited him since the Petitioner was inducted as a tenant on the first floor of the house. Even if they occasionally choose to visit him, all of them will never come together. The Respondent with his wife and a small kid is living on the entire ground floor, the accommodation of which has been detailed in the plan. So, the visiting son/daughter or any other relation with family can be easily accommodated on the ground floor. His submission is that he had made out valid grounds for contesting the eviction application and leave ought to have been granted for contesting the same. The ld. Rent Controller by rejecting the application on taking into account the reply filed by the Respondent to the application for leave to contest the eviction application has seriously erred and by believing the averments made in that reply has denied opportunity to the Petitioner to contest the eviction application in accordance with the procedure provided in Section 18-A of the Act.

The above contentions have been countered by the ld. Counsel for the Respondent. He submits that the plan showing the accommodation in possession of the Respondent on the ground floor in green colour and the accommodation is possession of the Petitioner on the first floor in pink colour is a detailed one. It clearly mentions that there are only two bed rooms on the ground floor. The other accommodation which is styled as rooms in the plan submitted by the Petitioner are in fact a verandah, a husk store and a cattle shed, besides a proch over which there is a miani. He further submits that the Id. Rent Controller has rightly believed the averments of the Respondent in his reply to the application filed by the Petitioner for leave to contest the eviction application that sons and daughter of the Respondent have visited him on different dates mentioned therein. He, therefore, submits that the Id. Rent Controller has rightly found that no valid ground to contest the eviction application had been made out and that is why he declined leave to the Petitioner and passed the order directing the Petitioner to vacate the premises in dispute.

To appreciate the rival submissions of the ld. Counsel, it is necessary to mention that Section 13-A before giving right to the specified landlord to recover immediate possession of the residential or scheduled building postulates a condition that he does not own and possess any other suitable accommodation in the local area in which he intends to reside. No doubt the tenant has no right to contest the prayer for eviction from such premises made by the specified landlord unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller. The Controller may give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the specified landlord from obtaining an order for recovery of possession of the premises in dispute u/s 13-A of the Act. It is educative to reproduce here Sub-section (4) and (5) of Section 18-A of the Act which have a bearing on the controversy before me:

18-A(4) The tenant on whom the service of summons has been declared to have been validly made under Sub-section (3), shall have no right to contest the prayer for eviction from the residential building or scheduled building, as the case may be, unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtain 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 specified landlord or, as the case may be, the widower, child, grandchild or the widowed daughter-in-law of such specified 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 of the tenant.

(5) The Controller may give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the specified landlord or, as the case may be, the widow, widower, child, grandchild or widowed daughter-in-law of such specified landlord from obtaining an order for the recovery of possession of the residential building or scheduled building as the case may be, u/s 13-A.

An analogous provision is contained in Sub-sections (4) and (5) of Section 25-B of the Delhi Rent Control Act, 1958, which came up for consideration, before the Supreme Court in Precision Steel and Engineering Works and Anr. v. Prem Dava Niranjan Deva Tayal 1982 (2) A I RCJ 643. It was held that the jurisdiction to grant leave to contest or refuse the same is to be exercised by I the Controller on the basis of the affidavit filed by the tenant. That affidavit alone at that stage is the relevant document and one must confine to the averments made 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. The Controller has to confine himself indisputably to the condition prescribed for exercise of jurisdiction in Sub-section (5) of Section 25-B. In other words, hi must confine himself to the affidavit filed by the tenant. If the affidavit discloses such facts no proof is needed at the stage, which would disentitle the landlord from seeking possession, the mere disclosure of such facts must be held sufficient to grant leave as according to the statute if the affidavit filed by the tenant discloses such facts, the Controller may give leave to the tenant to contest the eviction application.

Similar View has been'' taken by S.P. Goyal J. in C.R. No. 2500 of 1986 (Mohinder Singh v. Sh. Krishan Kishore Kapur) decided on Dec.9, 1986. It has been observed therein that the specified landlord has to satisfy two conditions for seeking ejectment of the tenant i.e. that he is a specified landlord and that he does not own and possess any other suitable accommodation in the local area in which he intends to reside. It would be, therefore, open to the tenant to seek leave to contest the petition oil either of the grounds, namely, that the Petitioner is not a specified landlord, or that he owns or possesses other suitable accommodation in the concerned area. It was further held that the tenant had pleaded that the specified landlord had sufficient accommodation in his possession in that very house a portion of which is in the possession of the former. His plea, if upheld, would certainly result in the dismissal of the petition for ejectment.

Reliance on the other hand has been placed by the ld. Counsel for the Respondent on Kissan Machines Stores (Pvt.) Ltd., and Anr. v. Bhavneshwar Dayal. 1986 (2) CLJ 456. An order passed by the Id. Rent Controller declining leave to the Petitioner to contest the eviction application u/s 13-A of the Act was upheld. On going through Kissan Machines'' case, I find that the tenant in fact did not disclose a plausible defence. He had averred in the first instance that the premises in dispute was not a ''residential building. This was negatived on the ground that the building being residential in character the mere fact that it had been let out for commercial purposes did not change it into a non-residential building and as such the landlord treating it as a residential building could seek eviction of the tenant on the ground of personal necessity. Full Bench judgment of this Court in Hari Mittal v. B.M. Sikka 1986 PLR 1, was relied upon. The other ground to contest the ejectment application as disclosed in the affidavit of the tenant was that the landlord owned another house within the same municipal limits. However, no particular of that house were given. Neither its municipal number nor the extent of accommodation therein was disclosed in the affidavit. This ground was, therefore, considered to be vague and flippant. The order passed by the Rent Controller declining leave was, therefore, upheld; If find that on facts Kissan Machines case is clearly distinguishable.

In the case in hand the tenant has filed a counter plan which shows that besides six rooms, the Specified landlord has in his occupation on the ground floor drawing-cum-dining room a store, a kitchen and toilets. No doubt the landlord in the plan filed by him with the application has described as verandah, husk room and cattle shed-the three rooms depicted and described as such in the plan submitted by the tenant, but then it is a matter of proof as to what is the character of these rooms. The Id, counsel for the Petitioner pointed out that neither there is any cattle shed in the house nor any cattle or husk room. He also emphasised that what is described as a verandah is in fact a room. It has two doors besides glazing in its walls. For adjudicating on this question undoubtedly one has to enter the field of evidence and proof. Again, the tenant has categorically stated that the sons and daughter of the Respondent are citizens of foreign countries and they seldom visit him with their spouses and children.

No doubt the grounds set in the affidavit of the Petitioner to contest the eviction application have been countered by the Respondent by filing a reply, but as held by the Supreme Court in Precision Steel and Engineering Works'' case, at the stage of granting or declining to grant leave the Controller has to take into consideration the grounds disclosed by the tenant in his affidavit. If grounds are found to be plausible leave ought to be granted. The fact that these grounds have been countered in his reply by the landlord should not weigh with the Rent Controller. To take into consideration the reply so filed by the landlord, the Rent Controller enters the arena of proof which is a stage to be reached at after the leave is granted.

On going through the judgment of the Id. Rent Controller, I find that while negativing the ground set out in the affidavit of the tenant to contest the ejectment application, he has heavily banked upon the detailed reply to the same filed by the landlord. This clearly amounts to an error in the exercise of jurisdiction by the Id. Rent Controller while exercising his power under Sub-section (5) of Section 18-A of the Act. I find that the grounds disclosed in the affidavit by the tenant to contest the ejectment application taken by themselves are quite plausible and it is a fit case where leave ought to have been granted to him and the application u/s 13-A should have been adjudicated upon and decided in accordance with the procedure provided for in Sub-sections (6) and (7) of Section 18-A of the Act.

Consequently, I allow this revision petition and set aside the judgment of the Id. Rent Controller under revision. I grant leave to the Petitioner to contest the eviction application filed by the Respondent and direct the Id. Rent Controller to take further proceedings on the eviction application in accordance with law. The parties through their ld. Counsel are directed to appear before the Id. Rent Controller on Sept.1, 1987.

There shall be no order as to costs.