Sudarshan Kumar Bhatia vs Dharam Pal Sharma

Ashok Bhan, J.—Respondent-landlord (hereinafter referred to as the landlord) filed a petition for the ejectment of the tenant-petitioner (hereinafter referred to as the petitioner) u/s 13-A of the East Punjab Rent Urban Rent Restriction (Amendment) Act, 1985 (hereinafter referred to as the Act) on the ground that he was a specified landlord being an employee of the Punjab Govt. and having retired on 30.6.1991 and was thus en-titled to evict the tenant from the demised premises in accordance with the provisions of Section 13-A of the Act, that the building was required by him for his bona fide personal use.

Tenant filed an application for permission to defend the case on the ground that no valid notice was served upon him as required u/s 18-A of the Act and that the demised premises is neither a scheduled building nor a residential building to which the provisions of Section 13-A of the Act were applicable. It was averred that the landlord himself was running a factory/shop in a part of the building; that the building was let out to him for non residential purposes; it was further stated that the landlord was not a specified landlord.

Application filed by the tenant for leave to defend was dismissed. It was held by the Rent Controller that the tenant had been duly served; that the landlord was a specified landlord. Regarding as to whether the building was residential, without taking any evidence Rent Controller concluded that although the building was rented out to the tenant for running a shop but the same was a part of the residential building and, therefore, the landlord was entitled to evict the tenant from the premises in dispute: Application filed by the tenant for leave to defend was thus dismissed. Being aggrieved, tenant has come to this court.

Mr. M.L. Sarin, Senior Advocate, appearing for the tenant argued that the building was let out to the tenant for running a shop and in the absence of any evidence that the premises in dispute was a residential building, no eviction order could be passed u/s 13-A of the Act; that the Rent Controller should have granted permission to the tenant to defend as a prima facie case had been made out by him for grant of permission to defend the suit For this proposition he has placed reliance upon a judgment of this Court in Joginder Paul v. Gurdial Singh (1989) 95 P.L.R. 441 where under similar circumstances, it was held as under:-

"2. 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 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.''

The facts of Joginder Paul''s case (supra) are almost similar to the facts of the present case. I respectfully agree with the observations made by the learned Judge and taking the same view hold that the Rent Controller erred in refusing to grant permission to the tenant-petitioner to defend the ejectment application.

Accordingly, this revision petition is allowed, the impugned order is set aside and the is allowed to contest the ejectment petition to show that the demised premises are not residential building as claimed by the landlord. The case is remitted back to the Rent Controller for re-decision keeping in view the observations made above.

Parties through their counsel are directed to appear before the Rent Controller on 29.7.1994. Records be sent forthwith. Landlord retired in June 1991 and as such three years have elapsed from that date. The present revision petition has been pending for the last 2-1/2 years in this Court. Keeping these facts in view, Rent Controller is directed to decide the petition for ejectment within four months from 29.7.1994. No costs.