PETITIONER:
COL. SURINDER PAL SINGH BHATTAL (RETD.)
Vs.
RESPONDENT:
RAKESH KUMAR JAIN
DATE OF JUDGMENT: 09/04/1996
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
JUDGMENT 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 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 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
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
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. 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.