Iqbal Singh Kalkat vs Faquir Singh Kashyap

Kanwaljit Singh Ahluwalia, J.—The present revision petition has been filed by Iqbal Singh Kalkat, landlord, through his attorney Lt. Col.. Kuldeep Singh Gill (Retd.) assailing the order dated 12.5.2010 (Annexure P1), passed by the Rent Controller, Chandigarh, whereby leave to defend was granted to the respondent/tenant to contest the petition u/s 13B of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as "1949 Act").

Petitioner/landlord Iqbal Singh Kalkat, who claimed himself to be 74 years of age, instituted a petition u/s 13B of the 1949 Act stating therein that he was a Non-Resident Indian for more than five years and he required the demised premises for his own use. However, the Rent Controller, Chandigarh, while granting leave to defend, took the following reasons into consideration:

1) The eviction petition has been filed through attorney.

2) It was stated in the petition that the landlord is suffering from Osteoarthritis and, therefore, he intended to migrate to India and this assertion was not supported by any medical evidence.

3) Lastly, no proof was furnished as to when the landlord had earlier visited India.

The above said reasons were held to be sufficient grounds to grant leave to defend in favour of the respondent/tenant.

In the present revision petition, it is stated that earlier also the landlord had instituted an eviction petition u/s 13 of the 1949 Act against the tenant, wherein the landlord himself appeared and placed on record medical evidence.

What is sought to be placed before this Court, was not brought to the notice of the Rent Controller, Chandigarh.

Learned Counsel for the petitioner, during the course of arguments, has submitted that the Rent Controller ought to have recorded the statement of landlord, at first instance and then could have proceeded with the decision of the application for leave to defend. This argument is to be rejected at the very outset being untenable. After the landlord was to be examined, necessarily the tenant has to cross-examine him also. No statement without cross-examination is admissible in evidence. If such a course is to be adopted then the right is also vested in the tenant to lead his evidence to counter and rebut the evidence of the landlord. If this is to be done, then the entire trial has to proceed, therefore, the right procedure has been adopted by the Rent Controller.

Learned Counsel has relied upon a judgment rendered in Shri Sita Ram v. Smt. Malwinder Kaur 2008 (4) RCR 548 to say that the petition by the landlord, who is a Non Resident Indian, for eviction of the tenant, can be maintained through power of attorney. To fortify this submission, further reliance has been placed upon a judgment rendered in Baldev Singh Bajwa v. Monish Saini 2005 (2) R.C.R. (Rents) 470. There is no quarrel with the submission that the petitioner can always file a petition through power of attorney. But the filing of petition by the Non Resident Indian through power of attorney, coupled with other circumstances, gives reason for the Rent Controller to look into the plea of personal necessity, pleaded by the landlord. Thus, a leave to defend can be granted to the tenant.

At this stage, learned Counsel for the petitioner submits that he has cited some judgments before the Rent Controller, Chandigarh, which due to lack of preparation, he has not bought before this Court. Such an approach is not appreciable.

Hence, no infirmity in the order dated 12.5.2010 (Annexure P1), passed by the Rent Controller, Chandigarh, is discernible and thus, the present revision petition is hereby dismissed, in limine.