Tara Singh Jassal vs Gurdial Singh Brar

N.K. Kapoor, J.—This is tenant''s revision petition against order of Rent Controller dated 14.5.1991, whereby permission sought by him to contest the petition filed by the landlord u/s 13-A of the East Punjab Urban Rent Restriction Act, has been declined.

Briefly put, Gurdial Singh filed a petition for the eviction of the present petitioner on the ground that he is a ''specified landlord'' having retired as an Executive Engineer with effect from 31st December 1990, and does not own and possess any suitable and sufficient accommodation within the local area of Chandigarh, where he intends to reside. Notice of this application was served upon the respondent, who put in appearance through his general attorney. The petitioner contested the claim of the landlord to seek eviction on the ground that he is a ''specified landlord''. In addition to this, petitioner contended that premises in dispute comprised of only one room on the ground floor, facing the market which was given on rent in the year 1980 for imparting training to students for Television and Refrigeration and since then the petitioner is running the said Institute in the name and style of Institute of Electronics. This way, the petitioner urged that the building having been let out for a non-residential/commercial. purpose, same cannot come within the ambit of Section 13-A of the Act, The petitioner further averred that the landlord is residing in house No. 19, Sector 15-A of which the demised premises is an integral part and is in occupation of two rooms, common bath and latrine on the first floor of the house. In addition to this, he has author one room in his occupation on the ground floor which is being used as his drawing room. Landlord also got telephone connection No 22162 installed in the name of his wife Smt. Praam Kaur Brar at this house The petitioner further averred that in fact, the landlord alone is living in the portion of the house which consists of three rooms and so accommodation with him is sufficient as his wife and children have already settled in Canada. The petitioner challenged the averments made by the landlord to the effect that he is residing presently in home No. 3053, Sector 39-D, Chandigarh. The petitioner also raised a plea that it is only five month''s before the filing of the present eviction application, two rooms, a kitchen, common bath, latrine and a verandah of the disputed house fell vacant and the same had been let out by the landlord to one Ashok Bhardwaj at an enhanced rate of rent. In this way, the present application is nothing but a ruse to seek eviction of the ''petitioner and thereafter to let out the same at an enhanced rate of rent.

The landlord by way of reply averred that he is one of the landlords and is thus entitled to maintain the present application for eviction of the petitioner. It was denied that the accommodation in possession of the petitioner was let out for a commercial purpose and in the alternative it was alleged that the petitioner cannot change the user of the building, the same being admittedly a residential building. Respondent denied that he has any accommodation as alleged as two rooms, common bath, latrine on the first floor or ha is in possession of the room on the ground floor in the demised premises. It was also denied that his wife and children have acquired Canadian citizenship and that he is a green card holder. It was also denied that he is not presently residing in house No. 3053-A, Sector 39-D. Chandigarh. As regards the averment that some portion of the premises in dispute had been let out after having got it vacated it was admitted to the extent that only one room and kitchen fell vacant and same was rented out as he could not reside in one room which otherwise was also on the first floor of the building. The Rent Controller on perusal of the averments made by the petitioner as well as by the respondent, in support of their respective contentions, came to the conclusion that respondent is a ''specified landlord'' and the petition has been filed within the stipulated period, i.e within one year from the date of retirement As regards the plea of the present petitioner, that in fact the landlord is in possession of two rooms, common bath, and latrine on the first floor and another room on the ground floor in his occupation, the same was not accepted as correct as the Rent Controller relied upon the statement of the landlord to the effect that he does not live in any part of house No. 19, Sector 15-A, Chandigarh. Resultantly, order of eviction was passed against the petitioner directing him to deliver back the possession within one month from the date of the order.

Learned counsel for the petitioner has challenged this finding of the Rent Controller on the ground that the approach of the Rent Controller is wholly erroneous on facts as well as law. The Rent Controller has simply glossed over the admitted facts. i.e.(i) factum of respondent''s holding a ration card at the house, No. 19, Sector 15-A; (ii) telephone bearing No. 22162 in the name of Smt. Pritam Kaur Brar-has wife installed in the one of room on the ground floor of the house in dispute; (iii) voters'' list for the year 1983 showing the respondent and his wife as voters in the disputed house and (iv) falsity of the stand of the respondent that he is residing presently in House No. 3053, Sector 39-D Chandigarh, as the same, as per official record, is shown to have been allotted to one Ralla Singh Gill, working as Assistant in the office of Rural Development and Panchayat, Depart merit, Punjab Sector 17, Chandigarh Not only this, in voters'' list of the year 1988 in respect of House No-. 3053, Sector 39-D, Chandigarh, names of Ralla Singh Gill, and his wife Smt. Kashmir Kaur find mention.

Non-consideration of these material aspects have resulted in passing of the impugned order and in this way, the order of the Rent Controller stands vitiated.

Learned counsel for the respondent has challenged the various assertions made by the learned counsel for the petitioner on facts as well as on law.

The first submission of the learned counsel for the respondent is that (here has been a non compliance of Section 18-A (v) of the act as the tenant while filing the application to seek permission to contest the application has not filed affidavit in support of his assertions. Since Section 18-A(v) envisages filing of an affidavit by the tenant, affidavit filed by general attorney cannot be deemed to the compliance of the above provision. Counsel further challenged the assertion made by the petitioner that he is presently in occupation of three rooms, besides kitchen, courtyard and latrine of the house in dispute and in support of his assertion made mention of his gas connection at the address of House No. 3053-A Sector 39-D, Chandigarh, as well as his affidavit wherein he has clearly declared that he does not own and possess any other suitable accommodation except House No. 19, Sector (5-A, Chandigarh, where he intends to reside,

After hearing the learned counsel for the parties. I am of the view that this petition merits acceptance.

Petitioner''s application for leave to contest along with affidavit, clearly brings out a triable issue. There is prima. facie ample evidence on record which needs close examination. The fact that portion of the building was vacated by another tenant and was Jet out after respondent''s retirement is in fact, not in dispute between the parties, whereas according to the petitioner, the portion let out by the respondent consisted of two rooms, a kitchen, common bath, latrine and a varandah which was let out to one Ashok Bhardwaj barely five months before filing of the present application for eviction whereof according to the landlord, the same consisted of one room and a kitchen etc The Rent Controller has, in fact, has not cared to examine this contentious issue and appears to have relied on the averments made by the petitioner in this regard only. Similarly, there is do plausible explanation with regard to the telephone which admittedly is installed at the "disputed house. In case, petitioner''s version is accepted to be correct, that he is residing at house No. 3053-A, Sector 39-D, Chandigarh, then the telephone connection would have been at the place of his residence. Whether Ralla Singh Gill, in whose name this house No. 3053-A, Sector 39-D, Chandigarh, is allotted'' as per Government record resides and whether Gurdial Singh and family members also resides at the same place are some of the matters which need examination. Net only this, there is serious contest between the parties as to whether the present petition is by way of additional accommodation or eviction is being sought on the ground that respondent does not possess any accommodation in the disputed house.

For the reasons stated above, I accept the revision petition, set aside order passed by the Rent Controller and remit the case back to the Rent Controller for fresh adjudication. Since the eviction is being sought by the respondent on the ground that he is a ''specified landlord, the Rent Controller is directed to expeditiously dispose of the same. Rent Controller will commence hearing within one month from the receipt of this order and hear the application from day to day till the hearing is concluded and application decided. Parties to appear before the Rent Controller on 30.9.1992. No costs.