Parmod Kumar Tandon vs Desh Paul

Alok Singh, J.—Present petition is filed u/s 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the 1949 Act) challenging the order passed by the Rent Controller, Ludhiana, dated 4.3.2010 whereby application of the defendant/revisionist moved u/s 18A of the 1949 Act for seeking permission to defend, was refused.

Brief facts of the present case are that the landlord - owner preferred petition u/s 13A of the 1949 Act for ejectment of the revisionist from the property in question on the ground that the petitioner is specified landlord as defined u/s 2(hh) of the 1949 Act and retired on 30.9.2008 as General Manager from the Steel Authority of India Ltd, a Public Sector Undertaking of the Government of India. The landlord is in need of the tenanted portion under the tenancy of the revisionist on account of paucity of accommodation available in the building. Landlord has pleaded in the eviction petition that while in service, he was having accommodation of about 3000 sq. feet consisting of three bed rooms, drawing rooms, dining rooms, kitchen, store, servant quarter and garage and now the portion available with the landlord in the same building is not sufficient for his need as per his status.

Tenant - revisionist moved an application u/s 18A of the 1949 Act seeking liberty to defend. The Rent Controller vide impugned Judgment has rejected the application of the revisionist seeking leave to defend on the ground that undisputedly plaintiff is specified landlord as defined u/s 2(hh) of the 1949 Act and stood retired as General Manager from the Steel Authority of India Ltd. The Rent Controller further observed that the revisionist - tenant has not pointed out that any other accommodation is available in the possession and occupation of the landlord to deny the benefit of Section 13A of the 1949 Act.

Learned Counsel for the petitioner vehemently argued that to maintain the petition u/s 13A of the 1949 Act, the landlord is required to fulfil three conditions, namely, (1) application seeking eviction should be filed within one year before retirement of the landlord (2) a certificate from the authority competent to indicate date of retirement should be filed (3) an affidavit should be filed by the landlord himself to the effect that he does not own any other suitable accommodation in the local area.

As per learned Counsel for the petitioner, landlord has not filed his own affidavit that he does not own and possess any other suitable accommodation in the local area. Hence, petition u/s 13A of the 1949 Act is not maintainable and leave to defend on this ground should be granted to the revisionist.

Learned Counsel for the revisionist has placed reliance on the Judgment of learned Single Judge of this Court in the case of Udho Ram Vs. Swaran Kanta, . As per learned Counsel for the revisionist, non-filing of affidavit alongwith petition u/s 13A of the Act is fatal and not mere procedural irregularity. Learned Single Judge in the case of Udho Ram (supra) has observed in para 6 as under:

If the scheme of the Act which was amended in 1985 is taken into consideration, it would show that the Legislature intended that the Government servants retiring or having retired should be able to get their houses vacated from the tenants if they wanted to settle therein in a summary manner. A speedy procedure was prescribed under Sections 13-A and 18-A of the Act, that is, a tenant cannot contest the application without permission of the Court and such permission can be granted if grounds of contest are submitted on affidavit, proof of which would result in dismissal of the application. The filing of the affidavit containing such grounds itself indicates that at the initial stage prima facie evidence was required to be submitted on the basis of which the Court could act otherwise merely on the pleas in the written statement the court could not act or take any decision. The averments of the landlord were to be taken as correct. Filing of the affidavit as required under Sections 13-A and 18-A of the Act is not merely a procedural formality. As a matter of fact this provision of law requires the party to produce the evidence though prima facie at the initial stage of the filing of the written statement. If there had been formal defect in the affidavit such as defect in the manner of attestation of the affidavit, the same could be rectified if objection had been taken but in the affidavit filed there is no averment regarding the grounds of contest. It would be taken that such grounds mentioned in the written statement were merely in the form of pleadings and in the absence of any affidavit containing such grounds, it would be a case of lack of evidence. It is not expected of the Court to call upon the parties to produce evidence in support of their allegations. Evidence is to be led by the parties themselves at the relevant stage provided in the procedure. The contention of Shri M.L. Sarin with regard to non-filing of the affidavit containing the grounds of contest or that filing of an affidavit without containing such grounds which could be supplemented at a later stage, cannot be accepted. The very purpose of the amendment of the Act made for summary eviction of the tenant at the instance of the specified landlord for personal requirement of the landlord would stand frustrated.

Perusal of Judgment in the case of Udho Ram (supra) would reveal that learned Single Judge was dealing with the question of non-maintainability of application moved by the tenant u/s 18A(5) of the Act, seeking leave to defend. Learned Single Judge was neither called nor decided the question of maintainability of eviction petition u/s 13A of the Act in the absence of affidavit with petition u/s 13A seeking eviction of the tenant.

In the opinion of this Court, purpose to file affidavit under Sections 13A and 18A(5) of the Act is different. In the latter case, tenant has to rebut presumption of need of landlord, who has retired from the government service and after retirement needs accommodation for his personal use and occupation. To rebut the presumption, strong evidence is required, hence filing of affidavit with application seeking leave to defend is not procedural irregularity, as held by learned Single Judge in the case of Udho Ram (supra). However, purpose of filing of affidavit with application u/s 13A of the Act, seeking eviction cannot be equated with the purpose of filing affidavit with application u/s 18A(5) of the Act, seeking leave to defend.

Object to introduce Section 13A of the Act is to give special right to government servant, who is retiring or has retired from the government service to apply to the Rent Controller for recovery of immediate possession of building within one year preceding his retirement or within one year after his retirement so that landlord may not come to street or live at the mercy of the tenant after his retirement. In the opinion of this Court, if fact of retirement of landlord from government service is not in dispute, fact that application u/s 13A of the Act is moved within one year before or after retirement is also not in dispute and that landlord is having only building in which or in the part of which tenant is in occupation is also not in dispute, then filing of affidavit with the application u/s 13A of the Act is mere procedural irregularity, which can be cured at any stage.

I have carefully perused the record. In paragraphs 1 and 2 of the petition filed u/s 13A of the 1949 Act, landlord has specifically pleaded that he is the owner of house No. B-XIX-631, Malerkotla House, Ludhiana, shown in the site plan and the revisionist - tenant was inducted as tenant in the portion shown in red in the site plan at monthly rent of Rs. 2000/- per month plus house tax, electricity, water supply and sewerage charges. Remaining portion of the building remained in possession of the mother of the landlord and after her death, in the possession of the landlord. It is also pleaded in paragraph 4(b) that the accommodation available with the petitioner in the same building is not sufficient to cater his need of the accommodation. It has further been pleaded in paragraph 4(c) that while in service, petitioner was having accommodation of about 3000 sq. feet. It is further pleaded by the landlord that his in-laws due to old age shall also be living with him in the building in question.

Filing of an affidavit, of course, is one of the requirements seeking eviction u/s 13A of the 1949 Act. However, in view of the specific averment made in the petition u/s 13A of the 1949 Act, non-filing of the affidavit along with the petition u/s 13A of the 1949 Act, stating that he does not own and possess any other suitable accommodation in the local area, seems to be mere irregularity. Petition u/s 13A of the 1949 Act is duly verified and the purpose of filing the affidavit seems to be that the statement of the landlord should be duly verified.

In view of the pleadings as noticed hereinbefore, non-filing of the affidavit is mere irregularity for which petition u/s 13A of the 1949 Act cannot be thrown out if the Court is satisfied that the petitioner is specified landlord and he stood retired and the application u/s 13A of the 1949 act is moved within one year before or after his retirement. The revisionist has nowhere stated that the landlord is owning or possessing any other suitable accommodation in the local area. While landlord has specifically averred in the petition that the accommodation, owned by his mother, and now in the hands of the landlord, is not sufficient to cater his need. I am of the view that before passing the eviction order, the Rent Controller can ask the landlord to furnish an affidavit to the effect that he does not own and possess any other suitable accommodation in the local area.

In view of the above, I do not find any reason to interfere with the order passed by the Rent Controller to grant leave to the revisionist to defend.

Petition is devoid of merit and hence is dismissed.