GOPAL SHANKAR SAHAI Vs. THAKUR SAHAB SINGH

JUDGEMENT

(1.) TENANT 's application for leave to defend was refused under the Madhya Pradesh Accommodation Control Act, 1961. He is, therefore, before me in this revision.

(2.) ON 7.3.1984, the tenant-petitioner was served with summons in terms of sub-section (1) of Section 23-C of the aforesaid Act and within fifteen days, namely, on 15.3.1984, he did file his application expressing his intention to defend landlord's application for eviction. The only lacuna by which he was hit by the trial Court was absence of the affidavit. The Rent Controlling Authority did not allow any opportunity to the tenant to file up the lacuna and dismissed the application summarily on the ground that the application was not accompanied by an affidavit.

(3.) THE question, therefore, is, was reasonable opportunity given to the tenant ? The formal requirement of the application being supported by an affidavit was not fulfilled, but that defeat was curable and was not fatal to the application. The application could have been dismissed only after the Authority had recorded a clear and cogent finding that the application did not disclose a bonafide defence. In the instant case, that is not the position. Because there was no affidavit, the Court took the view that the tenant cannot enter the portal of the Court and seek justice. The requirement of affidavit is also mandatory, but it was not necessary that the affidavit must have also been filed within fifteen days, it could have been filed later and cause could have been shown for belated filing of the affidavit. The only requirement of sub-section (1) of Section 23-C is that the application must be "supported" by an affidavit. The requirement is not that it must be accompanied by an affidavit which the Authority could insist before considering the application. True an affidavit was a pre-requisite as is indicated by the use of the word "supported". Section 23-C does not imply, however, penalty for an affidavit not accompanying tenant's application and its rejection summarily, without being considered on merits. It was the duty of the Authority to allow the tenant an opportunity to make amends and remove formal defect in the application by filing of the affidavit, which would have merely lent weight or "support" to the bonafide of tenant's plea set out in the application.