Udho Ram vs Swaran Kanta

The tenant is in revision against order of ejectment passed by the Rent Controller, Ludhiana dated August 11, 1990 u/S. 13-A of the East Punjab Urban Rent Restriction Act (as amended) hereinafter referred to as ''the Act'') while declining leave to the tenant to contest ejectment application.

House No. B.IX-2 (old)/ B-X. 752 (new) situated at Ludhiana was an evacuee property. It was transferred to Bhagwan Das who was also owner of another house No. 8/ BIX. He left behind a Will dated January 3, 1963. Under the will on his death the present petitioner Swaran Kanta became the exclusive owner of property number B.IX-8, which is in dispute. The other house went to Harnam Das.

Swaran Kanta let out the house in dispute consisting of one shop room on the ground floor and residential house on the first floor to Udho Ram on a monthly rent of Rs. 50/- on January 23, 1974. The ground floor was to be used as a shop and the first floor as a residence. The entire property initially was a residential and the ground floor was a baithak (sitting room). No permission of the Rent Controller was taken to convert the nature of the property to be non-residential. For all intents and purposes the building in dispute remained residential. Swaran Kanta got employment as teacher and remained posted out of Ludhiana. She alleged that she was due to retire on May 31, 1990. She being a specified landlord as defined under the amended Act, she produced a certificate with regard to the date of her retirement. She was residing in village Nagar. After retirement she was to live in Ludhiana in her own house. Thus she bone fide needed the house for personal use and occupation.

Udho Ram tenant contested the petition by filing written statement. However, he did not file the written statement on affidavit duly attested by a competent authority. One affidavit was filed which did not relate to the grounds of contest taken in the written statement but was only to the effect that he was not served in the petition and on coming to know of it he was approaching the Court. Even the alleged notice issued did not bear name of the Court. Apprehending that the requisite time may not lapse, of his own he was approaching the Court. To the written statement filed the landlady put in rejoinder refuting the allegations. It was on these premises that the Rent Controller declined leave to the tenant to contest the application and ordered his ejectment.

Shri M. L. Sarin, Sr. Advocate, appearing on behalf of the tenant-petitioner, has argued that submission of the affidavit was merely as procedural formality and if there was any defect in the form of the affidavit the same could be rectified had there been any objection to that effect in the rejoinder filed by the landlady. In this contest it is further stated that the formality of filing an affidavit was fulfilled as one affidavit was filed. In case it did not contain any averment that the grounds taken in the written statement were also correct and true, the same could be supplemented. On merits he has argued that in view of the three major grounds inter alia taken in the written statement it was incumbent upon the Rent Controller to grant the leave to the tenant to contest the application. Those grounds being:--

i) the building was non-residential, as on the ground floor a shop was being run;

ii) the landlady was already in possession of sufficient accommodation. She did not require more accommodation;

(iii) earlier on the ground of personal necessity, an application filed by the landlady had been dismissed and hence the present application on the same ground was not filed bona fide.

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 u/Ss. 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 u/Ss. 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.

It has been argued by the learned counsel for the landlady-respondent that even the grounds mentioned in the written statement are not available to the tenant. Referring to the rent note as well as averments in the ejectment application, it is stated that when the building was let out partially for commercial purposes and partially for residential purposes it does not lose the character of being a residential building and secondly the accommodation which was available with the landlady is now not available and suitability of accommodation is not a ground to grant leave. With respect to the earlier ejectment application, it is stated that the same was not against the present tenant and can have no bearing on the present application. To straighten the position of law it may be stated that S. 13-A of the Act requires the Rent Controller to consider the grounds put forth by the tenant on affidavit. If such grounds are taken as proved then the question arises as to whether the ejectment application filed by the landlord would be dismissed. If the answer is in the affirmative, leave to contest may be granted, otherwise not. As far as the first ground is concerned, as already stated in the application for ejectment, it was specifically mentioned that room on the ground floor was to be used for shop and the first floor for residence and thus it would be a residential building as it was not solely let out for commercial purposes. On facts this position is not denied in the written statement which was filed.

As far as requirement of suitable accommodation of the landlord is concerned, the matter was considered by a Division Bench of this Court in K.G.P. Pillai Vs. Subhash Chander Pathania, . It was held that it will be a question of fact in each case to be determined by the Rent Controller on the basis of the affidavit filed by the tenant disclosing the necessary facts as would disentitle the specified landlord from obtaining an order of ejectment under S. 13-A. The learned Rent Controller declined the leave to contest the ejectment application on the ground that u/S. 13-A, the Court was not to go into the ''sufficiency'' or ''insufficiency'' of the accommodation avail able to the landlord. The question in that case was not of ''sufficiency'' or ''insufficiency'', but was of additional accommodation as the landlord was already in occupation of the entire ground floor of the building in question. Further reliance has been placed by Shri Sarin, Advocate on behalf of the petitioner, on the judgment of this Court in R.K. Sukhuja Vs. Sh. Chander Parkash, , in support of his contention that the question of sufficiency of accommodation is to be determined after parties are afforded opportunity of leading evidence in detail and leave to contest the application should be granted. That was a case where the landlord was in possession of some premises and he required the premises in dispute as additional accommodation. In my view the ratio of the aforesaid decisions cannot be applied to the case in hand. In the application for ejectment the landlady has specifically stated that after the premises were let out, she joined the post of a teacher outside the town and it is only after her retirement now that she wants to occupy the house in dispute and thus the same is required for her personal use. For the sake of argument, even if it is assumed that earlier she was occupying some building in the urban area and she had filed earlier application for ejectment on the ground of personal necessity and had failed, would be of no consequence in the changed circumstances. The previous application was filed against the previous tenant. At present she is residing outside the urban area and is to shift to the premises in dispute on her retirement. This discussion also covers the third point raised by the tenant.

Learned counsel for the petitioner also placed reliance on the decision of this Court in M/s. Delhi Cloth Mills v. Lachman Das (1990) 1 Ren CJ 490. That was a case where application u/S. 13 of the Act was filed which was subsequently amended and converted u/S. 13-A of the Act. Since no procedure as prescribed u/S. 18-A was followed, it was held that the tenant could be prejudiced on that account for not applying for leave to contest. The tenant failed to move an application for leave to contest within the time prescribed as contemplated u/S. 18-A of the amended Act and his ejectment was ordered by the Rent Controller. The order was set aside by the High Court and the case was remanded to the Rent Controller to consider the question of granting leave to the tenant in accordance with law on the basis of the written statement filed by the tenant to the amended ejectment application. The contention is that the requirement of filing of the affidavit was not insisted upon. I am afraid this is not the correct reading of the judgment. The direction for compliance of the procedure provided u/S. 18-A of the Act contemplates filing of the affidavit containing the grounds for leave to contest. Shri Sarin has further relied upon the decision of this Court in Shivshankar Lal v, Surender Nath (1989) 2 Ren CJ 527. Again ratio of this decision is not applicable to the case in hand. No doubt, petition u/ S. 13-A of the Act was filed but it contained other grounds as well. Summonses were not issued in the prescribed form to enable the tenant to take up the pleas on affidavit. The order of eviction was passed which was set aside by the High Court remanding the case.

For the reasons recorded above, this revision petition is dismissed. No order as to costs. One months'' time is allowed to vacate the building in dispute.

Revision petition dismissed.