Punjab-Haryana High Court
Delhi Cloth Mills And Ors. vs Lachhman Dass on 17 May, 1990
Equivalent citations: (1990)98PLR301
JUDGMENT M.S. Liberhan, J.
1. The respondent sought ejectment of the petitioners, inter alia contending that the demised premises is a scheduled building and is a part of the residential house and since he has retired from the office of Improvement Trust, Rajpura he is a specified landlord and is entitled to the possession of the demised premises measuring 10' x 20' described in the petition, in order to start his business.
2. The petitioners sought permission to defend the application and to file an affidavit inter atia, contending that the demised premises is a shop and was leased out to the petitioners as such. It was averred that the respondent sought the ejectment on an earlier occasion also on the some ground but on enhancement of the rent, the application was dismissed as withdrawn.
3. In the written statement filed alongwith the application, it was poined out that the shop in question was leaped out as far back as 1976 and is situated in Shastri Market, Rajpura where there are more than three hundred shops. Apart from this various other defences were taken.
4. It would be apposite to refer to a fact that the petitioners had preferred Civil Revision No. 1760 of 1987 (M/s Dehli Cloth Mills etc. Lachham Dass) in which this Court vide order, dated January 25, 1989, observed as under:
"...As a matter of fact the original application was filed under Section 13 of the Act. It was later on that the same was allowed to be amended and converted under Section 13-A of the Act. Time, keeping in view the facts and circumstances of the case, no eviction order as such could be passed under Section 13-A of the Action the ground that the tenant had failed to move an application for leave to contest within the prescribed period Consequently, this petition succeeds; the impugned order is set aside and the parties are directed to appear before the Rent Controller on 15th February, 1989. The records of the case be sent back forthwith.
The Rent Controller will 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 application."
From a perusal of the order passed, it is evident that the operative part of the judgment was a direction to the Rent Controller to consider the quest on of grouting leave to the tenants to contest on the basis of the written statement filed by the tenants to the amended application.
5. The Rent Controller, vide impugned order, found that since the respondent is a specified landlord and the demised premises is part of the residential house (No. 2104, Rajpura Town), the tenants roust be held to have failed to prove any plausible ground to contest the application.
6. The learned counsel for the petitioners assailed the findings of the Rent Controller, inter alia, contending that in view of the statutory provisions as envisaged by Section 18-A of the Amended Rent Act, the Rant Controller at the state of grant/rejection of leave to defend had no jurisdiction to appraise the evidence or see the plausibility of the defence. The only factor which the Rent Controller was authorised to look into, while considering grant of the permission to defend, was whether the facts disclosed in the affidavit if taken to be correct, could result in rejection of the application for ejectment under Section 13-A?. If the Rent Controller comes to the conclusion that in view of the facts stated in the affidavit the ejectment application could not be allowed, he had no jurisdiction to decline the permission to defend, though after granting permission to defend the procedure prescribed for proceedings is that of a Small Cause Court. The above observations of mine find support from a judgment in Civil Revision No. 829 of 1987 (Mahajan Cloth House and Anr. v. Tara Singh,1 decided on May 11, 1990) which are reproduced hereunder :
"A bare reading of Section 18-A Sub-section (5) of the Act shows that it has been enjoined on the Rent Controller to grant leave 'o a tenant to contest the application if the affidavit filed by the tenant disclosed such facts as would disentitle the specified landlord from obtaining the recovery of possession of the residential building or scheduled building. It is obvious from the reading of the provisions of the Act that the Rent Controller whether to grant or decline the leave to contest shall take into consideration only the affidavit filed by the tenant and no other material. Thus the facts disclosed in the affidavit filed by the tenant alone would form the relevant consideration for coming to a conclusion whether those facts, if unrebutted would disentitle a specified landlord from obtaining the possession or not, i e. if those facts disentitle the specified landlord from taking the possession, the Rent Controller is bound to grant leave to defend the ejectment application filed under Section 13 A, of the Act It is only after the leave has been granted to contest the application that the Act further provides the procedure for hearing and holding an inquiry into the facts stated by the landlord or the tenant Section 18-A (6) and (7) provide that within a month from the date of granting the leave to contest, the Rent Controller shall hear the application from day to day till the disposal of the application. The Rent Controller has been empowered to follow the procedure and practice for recording evidence and holding of enquiry as is done by Court of Small Causes.
It was further observed "I am of the considered opinion that the Rent Controller has to take into consideration only the affidavit filed by the tenant for seeking the leave to contest and the Rent Controller cannot embark upon finding out the truthfulness or falsity of the affidavit filed at the stage of granting leave to contest."
7. There is no gainsaying that herein the tenants did file an affidavit that the demised premises is a shop and is not a residential building or a scheduled building. It is a business premises. The right to eject has been conferred on the specified landlords with respect to the residential and scheduled buildings alone and if after granting the leave to contest on enquiry the Rent Controller himself comes to the conclusion that the demised premises is neither a residential building nor a scheduled building, he has no jurisdiction to order ejectment forthwith in terms of Section 13-A of the Act. Apart from this, his, earlier eviction application having been dismissed as withdrawn on the same cause of action also raises a reasonable defence which can result in declining the relief of eviction, though the strict provisions of res judicata may or may not be applicable.
8. The Rent Controller has committed an error in exercise of his jurisdiction in embarking on deciding the petition on merits at this preliminary stage of consideration of grant/rejection of the permission to contest. The Kent Controller had no jurisdiction at this stage to come to a conclusion on a matter of facts, particularly without holding an enquiry envisaged by the Amended Act. There is no evidence on the records to come to the conclusion arrived at by the Rent Controller.
9. It is also clear that the Rent Controller has failed to take into consideration the effect of withdrawal of an earlier application for ejectment on enhancement of the rent Even otherwise, the Rent Controller has nowhere returned any finding that the landlord is not in occupation of a suitable accommodation and owns it.
10. For the foregoing reasons the Revision petition is allowed, the impugned order is set aside and the case is remanded to the learned Rent Controller to proceed in accordance with law after granting permission to defend the ejectment application.