Full Judgment Text
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PETITIONER:
COL. SURINDER PAL SINGH BHATTAL (RETD.)
Vs.
RESPONDENT:
RAKESH KUMAR JAIN
DATE OF JUDGMENT: 09/04/1996
BENCH:
FAIZAN UDDIN (J)
BENCH:
FAIZAN UDDIN (J)
KULDIP SINGH (J)
CITATION:
1996 AIR 1907 1996 SCC (4) 275
JT 1996 (4) 289 1996 SCALE (3)511
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
Faizan Uddin, J.
1. Leave granted.
2. This appeal by the landlord has been directed against
the order dated November 28, 1995 passed by the High Court
of Punjab & Haryana at Chandigarh in Civil Revision No.
3638/1995 setting aside the order dated September 30, 1995
passed by the Rent Controller, Chandigarh rejecting the
application of the tenant-respondent herein filed under
Section 18-A(4) of the East Punjab Urban Land Restriction
Act, 1949 (hereinafter the Act) seeking leave to defend the
eviction proceedings initiated by the appellant-landlord.
3. The appellant is the owner of House No. 1013 Sector 27-
B, Chandigarh which is occupied by the respondent on a
monthly rent of Rs. 7,000/-. The appellant was in the
service of Indian Army and retired as a Col. on 21.2.1995.
While in service the appellant was allotted Government
accommodation House No. 960, Sector-2, Panchkula. He was,
however, granted permission to retain the Government
accommodation temporarily after his retirement.
Consequently, the appellant-landlord, after his retirement,
presented a petition on March 28, 1995 before the Rent
Controller, Chandigarh supported by an affidavit for
eviction of the respondent-tenant by contending that after
his retirement from the Indian Army he bona fide requires
the premises let out to the respondent for residential
purposes as he wanted to settle down at Chandigarh
permanently alongwith his widowed mother and other family
members. He pleaded that he has to vacate the Government
accommodation and has no other suitable accommodation of his
won the local area of Union Territory where he could reside
with his family. The appellant had placed on record the
original certificate of discharge from service dated March
18, 1995 issued by the Big. Commanding Officer, HQ, 98 Army
Brigade indicating that the appellant had retired from Army
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on February 21, 1995. He also placed on record original
order dated February 28, 1995 granting him permission to
retain the Government accommodation temporarily. He also
placed on record a letter dated June 20, 1995 issued by the
Station HQ, Chandimandir/Chandigarh stating that he was
declared unauthorised occupant of the said Government
accommodation with effect from May 22, 1995.
4. After the aforementioned petition was presented by the
appellant, the respondent-tenant appeared in response to the
summons and on April 7, 1995 and made an application under
Section 18-A(4) of the Act supported by an affidavit praying
for grant of leave to contest the eviction petition
presented by the appellant-landlord. In the said application
seeking leave to contest the eviction petition, the
respondent-tenant stated that the certificate of retirement
produced by the appellant was bogus and Fabricated as he
continued to be in service and, therefore, he did not fall
in the category of a specified landlord within the meaning
of Section 2 (hh) so as to entitle him to make an
application for eviction under Section 18-A of the Act. The
respondent has further stated that in fact the appellant
wanted to enhance the rent to Rs. 15,000/- per a month which
was not acceded to by him and that the appellant had
entered into an agreement with one Mohit Nanda resident of
House No. 2208, Sector 15-D, Chandigarh for sale of the
house in question for a sum of Rs. 15 lacs and had agreed to
deliver vacant possession of the house in question after
getting it vacated from the respondent-tenant. The
appellant-landlord refuting the allegation of agreement for
sale of the house and stated that no such agreement has been
executed by him for sale of the house in question to Mohit
Nanda as alleged by the respondent.
5. After hearing counsel for the parties and on perusal of
the affidavits and the documents produced on record, the
Rent Controller disbelieved the allegation with regard to
the agreement for sale of the house and rejected the
application of the respondent-tenant under Section 18-A(4)
of the Act seeking leave to contest the eviction petition
filed by the appellant-landlord by holding that on ground
for granting the leave to defend was made out. The
respondent-tenant went up in revision before the High Court
challenging the aforementioned order of the Rent Controller.
The High Court took the view that the Rent Controller was
not justified in declining to go into the question of
alleged agreement of sale by the appellant-landlord to Mohit
Nanda and that the same should have been considered by the
Rent Controller because if the said allegation is proved it
would surely indicate that the landlord did not require the
premises in question for his residence but wanted to dispose
of the same for a high price and that the same would lead to
the conclusion that the landlord had failed to make out the
basic ingredient of Section 18-A of the Act so as to entitle
him to seek eviction by summary proceedings. It is this
order of the High Court which has been challenged in this
appeal by grant of leave.
6. Learned counsel for the appellant submitted with great
force that the allegation of the respondent-tenant with
regard to the alleged agreement by the appellant-landlord
for sale of the house in question is wholly unfounded, false
and based on a conspiracy hatched by the respondent-tenant
to subvert the course of justice and to defeat the rightful
claim of the appellant by causing a false suit for specific
performance to be filed through Mohit Nanda against the
appellant and the fact that it is a false allegation is
borne out from the very fact that the suit which was filed
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for specific performance on October 16, 1995 was withdrawn
on 11.11.1995 within 25 days of its institution. It may be
pointed out here that the fact that the withdrawal of the
said suit for specific performance of agreement for sale has
not been disputed before us. On the contrary the appellant
has filed an affidavit before this court, paragraph 2 to 4
of which read as under:-
"2. I say that I never intended to and do not intend to
sell the suit property, namely House No. 1013, Sector 27-B,
Chandigarh, which is the only residential house owned by me.
J never entered into any Agreement to sell the same to
anyone. The alleged Agreement to sell dated 31.3.1995 relied
on by the Respondent/tenant is a fabricated document.
3. I say that I require the said house for my personal
residence and that of my dependent family members.
4. I solemnly undertake that in the event of the said
house being vacated by the Respondent, I shall use the same
for my personal bona fide residence and I further undertake
that I shall not sell or relet the same to anyone for at
least a period of five years from obtaining possession
thereof."
7. It is settled law that in proceedings like the one in
question when an application for leave to defend is made by
the tenant supported by an affidavit for grant of leave to
contest the eviction petition filed by landlord under
Section 13-A of the Act, the rent controller is not required
to examine the issue from the point of view of the ultimate
proof which the tenant may produce but the only thing which
the Controller is required to examine is to look into the
averments made in the application by the tenant and the
affidavit in support thereof to see whether the tenant has
made out a case which, if proved, would disentitle the
landlord from claiming the eviction of the tenant from the
premises occupied by him in summary proceedings. In this
connection it would be appropriate to refer to the view
expressed by this Court in Precision Steel and Engineering
Works Vs. Prem Deva [AIR 1982 SC 1518 =1982 (3) SCC 270]
wherein the principles with regard to leave to defend or
contest any eviction proceedings have been laid down while
interpreting similar provisions contained in Delhi Rent
Control Act. The relevant observations read as under:-
"On a combined reading of S. 14 (1)
proviso (e) with S. 25B (1) and (4)
the legal position that emerges is
that on a proper application being
made in the prescribed manner which
is required to be supported by an
affidavit, unless the tenant
obtains leave to defend as
contemplated by sub-secs. (4) and
(5) of S.25B, the tenant is deemed
to have admitted all the averments
made in the petition filed by the
landlord. The effect of these
provisions is that the Controller
would act on the admission of the
tenant and there is no better proof
of fact as admission, ordinarily
because facts which are admitted
need not be proved. But what
happens if the tenant appears
pursuant to the summons issued
under sub-sec. (2) of S. 25B, files
an affidavit stating the grounds on
which he seeks to contest the
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application. As a corollary it
would transpire that the facts
pleaded by the landlord are
disputed and controverted. How is
the Controller thereafter to
proceed in the matter. It would be
open to the landlord to contest the
application of the tenant seeking
leave to contest and for that
purpose he can file an affidavit in
reply but production and admission
and evaluation of documents at that
stage has no place. The Controller
has to confine himself to the
affidavit filed by the tenant under
sub-sec. (4) and the reply if any.
On perusal of the affidavit filed
by the tenant and the reply if any
filed by landlord the Controller
has to pose to himself the only
question, ‘Does the affidavit
disclose, not prove, facts as would
disentitle the landlord from
obtaining an order for the recovery
of possession on the ground
specified in cl.(e) of the proviso
to Section 14(1)? The Controller is
not to record a finding on disputed
questions of facts or his
preference of one set of
affidavits. That is not the
jurisdiction conferred on the
Controller by sub-set. (5) because
the Controller while examining the
question whether there is a proper
case for granting leave to contest
the application has to confine
himself to the affidavit filed by
the tenant disclosing such facts as
would prime facie and not on
contest disentitle the landlord
from obtaining an order for
recovery of possession. At the
stage when affidavit is filed under
sub-sec. (4) by the tenant and the
same is being examined for the
purposes of sub-sec. (5) the
Controller has to confine himself
only to the averments in the
affidavit and the reply if any and
that becomes manifestly clear from
the language of sub-sec. (5) 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 recovering possession etc. The
jurisdiction to grant leave to
contest or refuse the same is to be
exercised on the basis of the
affidavit filed by the tenant. That
alone at that stage is the relevant
document and one must confine to
the averments in the affidavit. If
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the averments in the affidavit
disclose such facts which if
ultimately proved to the
satisfaction of the Court would
disentitle the landlord from
recovering possession that by
itself makes it obligatory upon the
Controller to grant leave. It is
immateria that facts alleged and
disclosed are controverted by the
landlord because the stage of proof
is yet to come. It is distinctly
possible that a tenant may fail to
make good the defence raised by
him. Plausibility of the defence
raised and proof of the same are
materially different from each
other and one cannot bring in the
concept of proof at the stage when
plausibility has to be shown. A
speedy trial not conforming to the
well-recognised principle of
arriving at truth by testing
evidence on the touchstone of
cross-examination, should not be
easily read into the provision at a
stage not contemplated by the
provision unless the statute
positively by a specific provision
introduces the same. The scheme of
Sec. 25B does not introduce a trial
for arriving at the truth at the
stage of proceeding contemplated by
sub-sec. (4) of S. 25B. In this
connection it cannot be said that
the scope for granting leave under
sub-sec. (5) of Section 25B is
narrower than the one under O. 37,
R. 3 of Civil P.C. nor can it be
said that the jurisdiction under S.
25B (5) is very very limited."
8. In the present case the essential requirements of
Section 18-A of the Act have been clearly set out in the
eviction petition supported by an affidavit. It cannot be
disputed that the appellant-landlord falls within the
category of specified landlord within the meaning of Section
2 (hh) of the Act and that the petition for eviction has
been filed within the period mentioned in Section 13-A of
the Act. The original certificate of discharge from service
has also been produced on record and the facts are supported
by an affidavit. The alleged suit for specific performance
had been withdrawn on 11.11.1995 indicating that the alleged
agreement for sale was device to avoid the passing of an
order of eviction against the respondent under Section 13-A
of the Act. A further affidavit has been filed by the
appellant-landlord as indicated above wherein he has
specifically stated on oath that he never entered into the
alleged agreement for sale and he does not intend to
transfer the house in question and that the same is required
bona fide by him for his residence and that of his family.
In these facts and circumstances no case for grant of leave
to contest the eviction petition is made out in favour of
the respondent-tenant and his application for grant of leave
to contest the eviction petition was rightly rejected by the
Rent Controller.
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9. In the facts and circumstances stated above the appeal
succeeds and is hereby allowed with costs. Courts quantified
at Rs. 2,500/-. The impugned order of the High Court is set
aside and that of the Rent Controller is restored. The Rent
Controller shall proceed further with the eviction petition
of the appellant-landlord and dispose of the same in
accordance with law at the earliest.