Punjab-Haryana High Court
N.N. Jain vs Ved Parkash Sharma on 29 November, 1994
Equivalent citations: (1995)109PLR734
JUDGMENT G.C. Garg, J.
1. This order will dispose of Civil Revision Nos. 2112 and 2132 of 1993.
2. Civil Revision 2113 of 1993 is directed against the order dated June 15, 1993 of the learned Rent Controller declining leave to defend and Civil Revision 2112 of 1993 is directed against the order dated June 15, 1993 whereby ejectment of the petitioner has been ordered.
3. Ved Parkash Sharma sought ejectment of N.N. Jain tenant from a portion of property No. 107-C, Kitchlu Nagar, Ludhiana shown red in the plan, under section 13-A of the East Punjab Urban Rent Restriction Act (for short 'the Act') on the allegations that he was due to retire from government service as Lecturer in Government Secondary School, Taiwan w.e.f. November 30,1993. Rate of rent was alleged to be Rs. 1500/- per month. It was averred that he intended to reside in his house after retirement and required the same for his own use and occupation as also his family members.
4. Tenant sought permission to defend the ejectment application. He filed the necessary affidavit in that behalf within the period of limitation. The tenant while seeking leave to defend alleged that Ved Parkash was not a specified landlord and the certificate to employment produced by him on the record was a forged and fictitious document and that another ejectment application under Section 13 of the Act was pending in the Court of Rent Controller Phillaur wherein ejectment has been sought on the ground of personal necessity. Ejectment has been sought only from a part of tenanted premises. It was also alleged that the property in question was a non residential building and was being used for running an office.
5. Allegations levelled by the tenant in the affidavit seeking leave to defend were controverted by the landlord by filing a reply.
6. On a consideration of the matter, learned Rent Controller came to the conclusion that the Tenant was not entitled to the grant of leave to defend and that the building in question was a residential building. Ejectment application was allowed by order dated June 15, 1993 and the tenant was ordered to be evicted from the property in question.
7. Aggrieved by the order passed by the learned Rent Controller, the tenant has filed these revision petitions assailing the findings of the Rent Controller by contending that the building in question was a non residential building and has been let out as such and that the same being not a residential building, his ejectment could not be ordered. It was also contended that the landlord sought ejectment from a part of the property and that is was a case of additional accommodation as the landlord was in possession of a part of the premises. In the circumstances, it was contended that leave to defend could not be declined as a plausible defence had been raised. According to the learned counsel, learned Rent Controller was required to take into consideration only the affidavit filed by the tenant and no other material and if the facts disclosed in the affidavit warranted rejection of the application seeking leave to defend, learned Rent Controller would have been well within his right to decline the relief and order ejectment but once a plausible defence had been raised. It was incumbent on the Rent Controller to grant leave to defend and thereafter dispose of the ejectment application on its own merits by allowing the parties to lead evidence.
8. After hearing learned counsel for the parties I am of the opinion that these petitions deserve to succeed. In the ejectment application, the landlord has described the premises in question not as residential building but as property No. 107-C, Kitchlu Nagar Ludhiana. Again admittedly, a part of the premises is in possession of the landlord. The petitioner, as already noticed, has raised a specific defence in his affidavit that the property in question was a non-residential building. Once that is so, a case was already made out for grant of leave to defend as the question as to whether the property is residential or non residential can be decided only by leading evidence and having regard to the facts and circumstances of each case. In Sudarshan Kumar Bhatia v. Dharampal Sharma, (1994-3) 108 P.L.R. 122, it was held by this Court that in a case under Section 13-A of the Act when a tenant raises a defence that what was let out to him is a shop and not a residential building leave to defend to show that the premises were not residential premises sought to be granted to the tenant. It is again the view of this Court that the Rent Controller while granting or refusing to grant permission to defend the ejectment petition is not required to go into evidence or see plausibility of defence and he is only required to take into consideration the affidavit filed by the tenant and no other material. Reference in that behalf may be made to M/s Delhi Cloth Mills and Ors. v. Lachhman Dass, (1990-2) 98 P.L.R. 301. In the present case as already noticed above, the affidavit filed by the tenant goes to show that a plausible defence has been raised by him and the merits of the defence could only be determined after the parties are afforded an opportunity to lead evidence.
9. In the present case, in addition, to the above, it is on the face of it a case of additional accommodation. As already noticed, the landlord has averred that he is in possession of a part of the premises in question and wanted possession of two rooms in possession of the tenant as indicated in the plan attached. In K.G.P. Pillai v. Subhash Chander Pathania, (1990-2)98 P.L.R. 514, it was observed that if landlord living in the same building, seeks ejectment of the tenant from one room and Barsati for his additional accommodation, question of suitability of accommodation has to be determined and this question can only be decided when the tenant is allowed leave to contest the ejectment petition and that leave to contest could not be declined on a mere ground that the court cannot go into the question of sufficiency or insufficiency of the accommodation of the landlord. In the case in hand, though it is not alleged that the landlord is living in a part of the accommodation in his possession, yet the facts as pleaded to lead prima facie to the conclusion that it is a case of additional accommodation.
10. From what has been discussed above, it seems apparent that the tenant had raised a plausible defence entitling him to the grant of leave to defend. Accordingly these revisions are allowed, the impugned orders are set aside and the tenant petitioner is allowed to defend the ejectment application and to show that the property in question is not residential building as claimed by the landlord as also to show whether the landlord was in need of an additional accommodation or not. The parties through their counsel have been directed to appear before the learned Rent Controller on 12.12.1994. A copy of this order to be given dasti on payment. However, having regard to the fact that the landlord has already retired, learned Rent Controller is directed to dispose of the ejectment applications as expeditiously as possible preferably within six months after affording at least two effective opportunities to each of the parties for their evidence. There will, however, be no order as to costs.