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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.