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Judgment
J.V. Gupta, J.—This is tenants'' petition against whom eviction order has been passed u/s 13(A) of the East Punjab Urban Rent Restriction Act, as amended by Punjab Act No. 2 of 1985.
The landlord/Respondent filed petition u/s 13-A of the Act on 10th January, 1986, for the ejectment of his tenants from the building in dispute alleging that he was the "specified landlord" as defined u/s 2(hh) of the Act which was added by virtue of Punjab Act No. 2 of the 1985, i.e., the Amending Act. It was pleaded that he got constructed the building in dispute when he was an employee in the Pepsu State and has been residing there. After merger of the Pepsu with Punjab, he shifted from Patiala to Chandigarh and has been residing there since then. The premises in dispute were given on rent to the tenant Gian Chand for Rs. 250/- p. m. The landlord retired from Government service of the Punjab Government in the year 1966. The necessary certificate to this effect issued by his employer stating that he retired from service w.e.f. 28th November, 1966 was duly field. According to the landlord, the premises were let out to Gian Chand (Respondent here) who described himself to be the sole owner of Kissan Commercial Corporation, Patiala, for his residence and office. The landlord previously also filed ejectment application but the same was later on got dismissed in default The landlord also pleaded that he did not possess or own any other residential accommodation within the limits of Patiala Municipal Committee, and he required the premises in dispute for his own use and occupation, that after his retirement he had been living with his son at Chandigarh and now he wanted to reside in his own house in dispute, i.e., at Patiala, along with his wife and unmarried daughter. He also stated that he had got no residential house of his own in the country except the house in dispute. Thus, under the provisions of Section 13-A of the Act he sought the eviction of the tenant.
When served, the tenant filed an application seeking permission to contest the eviction petition, as provided under Sub-section (4) of Section 18-A of the said Act. In the affidavit filed by him, he stated (i) that the aforesaid premises were "non-residential building" and the same had been used as such not only by the tenant-company but earlier to it the same were on rent with Messers Kissan Commercial Corporation for commercial use; (ii) that prior to the present tenants, the said premises were being used for housing the office of the Executive Engineer Tubewell Division No. 2, Punjab State Electricity Board, Patiala, and the same were let out to it for commercial use, and (iii) that the applicant owned another residential house within the limits of Patiala Municipality. On the basis of these averments in the affidavit, the tenant sought leave of the Rent Controller to contest the ejectment application. The learned Rent Controller, after contesting the whole matter, came to the conclusion that there was no need of granting permission to the tenant for contesting the application as no such case had been made out as contemplated by Sub-section (4) of Section 18A of the Act Consequently, eviction order was passed on 3rd March, 1986.
Under the amended Act, under Sub-section (8) of Section 18-A, the High Court can, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, can call for the records of the case and pass such order in respect thereto as it may think fine. Thus, the only question to be determined in this petition is as to whether a case has been made out by the tenant in his affidavit for granting him leave to contest the ejectment application or not.
Learned Counsel for the Petitioner/tenant contended that the landlord retired from Government service in the year 1966 whereas the premises in dispute were rented on 8th September, 1970, and as the same had been let out after his retirement, the provisions of the amending Act were not available to him. It was further contended that from the reasons given in the affidavit filed by the tenant, a case had been made out for leave to contest the ejectment application. According to the learned Counsel, the approach of the learned Rent Controller in this behalf was wholly erroneous. It was further argued that since the premises were let out for commercial use, the same would fall within the definition of "non-residential building", and, therefore, no eviction order could be passed on the basis that the landlord bona fids required the same for his own use and occupation.
I have heard the learned Counsel for the parties and also gone through the pleadings and the affidavit filed by the tenant before the Rent Controller. Two reasons were given by the tenant in the affidavit filed by him dated 3rd February 1986, one being that the premises were a "non-residential building" as the same had been used as such by the tenant and earlier also the same rented out for housing the office of the Executive Engineer, and, second, that the landlord owned another house within the limits of Patiala Municipality. From the affidavit, the learned Rent Controller found that no case had been made out for granting leave to contest the ejectment application. The scope of interference with such a discretion is very limited as provided under Sub-section (8) of Section 18-A of the Act which reads as under ;-
No appeal or second appeal shall lie against an order for recovery of possession of any residential building or scheduled building made by the Controller in accordance with the procedure specified in this section:
Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.
Sub-section (4) may also be noticed, which is to the following effect:
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 content the application for eviction and obtains 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 widow, 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.
Sub-section (5) provides that the Controller may give to the tenant leave to contest the application if the affidavit filed by him discloses such facts as would disentitle the ''specified landlord'' etc. Thus, a direction has been given to the Rent Controller to grant leave to contest the ejectment application if a case is made out from the affidavit filed by the tenant.
It could not be disputed in view of the Rent note that the building in dispute is a ''residential building". The argument raised on behalf of the tenant is that since it had been let out for commercial purposes it was a ''non-residential building.'' That argument is no more available to the tenant in view of the Full Bench judgment of this Court in Hart Mittal v. B.M. Sikka (1986) 89 P.L.R. 1. The mere fact that the premises which was a residential building for all intents and purposes, is let out for commercial purposes, does not make the building a ''non-residential building'' unless the necessary permission of the Rent Controller as provided by Section 11 of the East Punjab Urban Rent Restriction Act is obtained. In the affidavit filed by the tenant-Petitioner, no such case has been made out by him. Reliance was also placed by the learned Counsel for the Petitioners on the Supreme Court judgment in Precision Steel and Engineering Works v. Prem Daya Niranjan Deva Tayal 2 1982 (2) R.L.R. 352, to contend that the Rent Controller was Under an obligation to grant leave to contest and he was not entitled to go into any other evidence produced by the landlord In this case, the Supreme Court was interpreting Section 25-B(5) of the Delhi Rent Control Act which provides that "the Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the grounds specified in Clause (a) of proviso to Sub-section (1) of Section 14 or u/s 14-A". It was under these circumstances that it was held that "the language of Sub-section (5) of Section 25-B casts a statutory duty on the Rent Controller to give to the tenant have to contest the application, the only pre-condition for exercise of jurisdiction being that the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the grounds mentioned in Section 14(l)(e).
As regards the language of Sub-section (5) of Section 18-A of the Act in the present case, under which the permission could be granted by the Rent Controller the same has already been noticed above. From affidavit filed by the tenant, it could not be successfully argued that the facts disclosed therein disentitled the specified landlord to seek the ejectment of his tenant. In the affidavit filed, the tenant-Petitioner did not give the number of the house alleged to be owned by the landlord in the urban area concerned, nor the fact that necessary permission u/s 11 of the East Punjab Urban Rent Restriction Act was obtained by the parties before the premises were let out for commercial purposes because the building in dispute is a residential building for all intents and purposes, a fact which could not be and was not, disputed in the affidavit. In this view of the matter, no interference is called for. The petition fails and is dismissed with costs. However, in view of the earlier orders passed by this Court staying dispossession of the tenant-Petitioner, two months'' time is allowed to vacate the premises provided all the arrears of rent, if any, are deposited with the Rent Controller within a fortnight from today, with a further undertaking in writing that after the expiry of the said period of two months vacant possession will be handed over to the landlord/Respondent, and rent for the said period would be paid in advance by the 10th of every month.