Joginder Paul vs Gurdial Singh

J.V. Gupta, J.—This order will also dispose of Civil Revision No. 2146 of 1987 as the question involved is common in both the cases.

The landlord Gurdial Singh filed two separate applications u/s 13-A of the East Punjab Uaban Rent Restriction Act, 1949 (hereinafter referred to as ''Act'') against his two tenants-Joginder Pal and Vijay Kumar for their ejectment. According to the landlord he is the owner of House No. B-XVIII 3659. Out of that house he rented out a room shown red in the plan to Joginder Pal whereas the other room was rented out to other tenant Vijay Kumar on a monthly rent of Rs. 250/- According to the landlord, he was a specified landlord as he retired from the Army as Subedar. Since the premises in question formed part of the residential Zone, the premises in dispute could not be converted into a non rssidentral use or purpose under the Act. Though the same were let out as shops but since they formed part of residential building; the landlord is entitled to seek their ejectment Both the applications for ejectment were filed on 18th August, 1986. Necessary summons were issued to the tenants for appearing within 15 days of the service thereof and to obtain leave of the Controller to contest the application for eviction u/s 13-A of the said Act. Services were effected on the tenants on September 2, 1986 They have filed the application for leave to contest on October 8, 1986. However, on the corner of the summons date was given "Peshi 6th October, 196(sic)" The application filed by the tenants for leave to contest was opposed by the landlord primarily on the ground being barred by time as it was not filed within 15 days of service of the notice. The learned Rent Controller found that the tenant has failed to give any plausible explanation for the delay and, therefore, the same could not be condoned Consequently, he passed the eviction order against the tenant.

Learned Counsel for the tenant-Petitioner submitted that since Peshi date was given as 6th October, 1988, on the summons he was misled on that account and he moved the necessary application for leave to contest on October 8, 1986. Thus, argued the learned Counsel, the application was within time, and in any case in such circumstances delay, if any, should have been condoned. He further contended that there was no compliance of Sub-Section 3(a)(b) of Section 18-A of the Act as the Rent Controller did not declare that there has been valid service of the summons on the tenant According to the learned Counsel, the premises in dispute were non-residential as the same were let out as shops and therefore, no eviction could be passed u/s 13-A of the Act. In support of this contention, he referred to the notice dated May 5, 1986 issued on behalf of the Petitioner-landlord through his counsel in which it was staled that "you have taken shop No. 4 forming part of property unit'' No. XVIII 3659, South Model Gram; near Green Fields; Ludhiana on rent from my client and the rate of rent Rs. 300/- per month. The rent is payable in advance." On the other hand, learned Counsel for the land lord-Respondent submitted that the application for leave to contest was filed after a long delay and there was no cogent explanation for the same. In any case, no cause for condonation was made out nor the Rent-Controller had the jurisdiction to condone the delay. He further submitted, that, once the application for leave to contest was dismissed, the landlord was entitled to the eviction order against his tenant.

After hearing the learned Counsel for the parties and going through the records of the case, I am of the considered view that in the absence of any evidence on record that the premises in dispute was a residential building, no eviction order could be passed u/s 13-A of the Act. Surprisingly enough, there was no evidence on the record to this effect Even the landlord did not appear in the witness-box to state that the premises in dispute are residential building. In the copy of the notice filed by the tenant before the Rent Controller, it was clearly stated that it was rented out as a shop. Even in this Court the Petitioner moved an application under Order 41, Rule 27 of the CPC to place, on record certain photographs to show that the the premises in dispute are regular, shops, having shutters and were rented out as such and that being so, no eviction order could be passed u/s 13-A in respect of the premises in dispute.

It could not be disputed that even u/s 13-A, eviction could be sought from the residential building or the scheduled building only and not from the non-residential building Whether the demised premises fell within the definition of residential building or not was a matter to be decided by the Rent Controller before the eviction order could be passed against the tenant. No such finding has been given by the Rent Controller nor there is any evidence on the record to support this assertion of the landlord that the premises in dispute falls within the definition of residential building. That being so, no eviction order could be passed straightway u/s 13-A simply on the ground that the application for leave to contest was rejected. It is the duty of the Rent Controller to find as to whether the demised premises is a residential building or not before an eviction order could be passed, u/s 13-A since it relates to its jurisdiction.

Since the ejectment application u/s 13-A was filed in August, 1986, and a period of more than two years have already passed, hence it will be appropriate on the facts and circumstances of the case that tenant is allowed to contest the same in order to show that the demised premises are not residential building as claimed by the landlord Consequently, both the petitions succeed. The impugned order is set aside and the case is sent back to the Rent Controller for deciding the matter afresh keeping in view the observations made earlier. The parties have been directed to appear in the Court of the Rent Controller on January 27, 1989. Records be sent back forthwith.