KHUSHI RAM SOOD Vs. MUNESHWAR LAL KAUSHAL

JUDGEMENT

(1.) THIS revision petition is directed against order dated 12.5.1994 of the Rent Controller whereby he had dismissed the application of the tenant for leave to defend and has ordered his eviction on an application filed by the landlord under Section 13-A of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as 1949 Act).

(2.) THE premises in dispute were previously owned by one Sh. Amrit Lal Gupta from whom landlord Muneshwar Lal Kaushal (respondent herein) purchased the same for Rs. 70,000/- vide sale-deed dated 27.9.1993. At the time of purchase, the house in dispute was already in possession of the petitioner as tenant. After the purchase, respondent got issued registered notice dated 6.10.1993 to the petitioner intimating the fact that he has purchased the premises from the original landlord and requested to attorn to him. Application for ejectment of the petitioner under Section 13 of the 1949 Act was filed on 23.12.1993 on the averments that respondent who was an employee of Jammu and Kashmir Minerals Limited (J&K Government Undertaking) Precast Concrete Factory, Industrial Complex, Bari Brahmana (Jammu) has retired on 30.11.1993 and therefore, has a right to recover immediate possession of the house. The respondent averred in his petition that he does not own and possess any other suitable accommodation in the local area of Municipal Committee, Kharar other than the house for which petition has been filed. Tenant after service of the summons, filed an application seeking leave to defend the ejectment petition inter-alia on the grounds; that the sale-deed executed by Amrit Lal Gupta in favour of the petitioner is sham transaction and has been prepared just to make a ground for ejectment; and that the landlord is permanent resident of Rupnagar and he has no concern at Kharar and he is conniving with Amrit Lal Gupta just to harass the respondent. On 7.5.1994 when the application for leave to defend was fixed for arguments, petitioner filed an affidavit dated 6.5.1994 in support of his application for leave to defend. On consideration of the application the Rent Controller found that the application for leave to defend moved by the petitioner does not disclose the facts that would disentitle the landlord to obtain an order for recovery of possession of the demised premises and accordingly, the application for leave to defend was dismissed. In consequence, order of ejectment was passed against the petitioner giving him three months to vacate the premises. In this revision petition tenant is impugning this order of the Rent Controller.

(3.) HAVING heard the learned counsel for the parties at some length and on perusal of the record, I am of the view that there is no merit in the revision petition. As far as the first contention is concerned, the matter is squarely covered by a decision of this Court in Udho Ram v. Swaran Kanta, 1991(2) RCR 558 : 1991(2) P.L.R. 458. It was held therein that if the scheme of the Act which was amended in 1985 is taken into consideration, it would show that the Legislature intended that the government servants retiring or having retired should be able to get their houses vacated from the tenants if they wanted to settle therein in a summary manner. A speedy procedure was prescribed under Sections 13-A and 18-A of the Act i.e. a tenant cannot contest the application without permission of the Court and such permission can be granted if grounds of contest are submitted on affidavit, proof of which would result in dismissal of the application. It was held "The filing of the affidavit containing such grounds itself indicates that at the initial stage prima-facie evidence was required to be submitted on the basis of which the Court could act otherwise merely on the pleas in the written statement the Court could not act or take any decision. The averments of the landlord were to be taken as correct. Filing of the affidavit as required under Sections 13-A and 18-A of the Act is not merely procedural formality. As a matter of fact this provision of law requires the party to produce the evidence though prima-facie at the initial stage of the filing of the written statement. If there had been formal defect in the affidavit such as defect in the manner of attestation of the affidavit, the same could be rectified if objection had been taken but in the affidavit filed there is no averment regarding the grounds of contest. It would be taken that such grounds mentioned in the written statement were merely in the form of pleadings and in the absence of any affidavit containing such grounds, it would be a case of lack of evidence. It is not expected of the Court to call upon the parties to produce evidence in support of their allegations. Evidence is to be led by the parties themselves at the relevant stage provided in the procedure." The contention now raised by the counsel that the affidavit could be filed subsequently, was specifically rejected. The judgment cited by counsel for the petitioner has no application to the facts of the present case. In the case cited by the counsel, the affidavit subsequently filed was taken on record because this Court found that the affidavit was prepared and got attested on the day when application for leave to defend was filed in Court, but because of mistake on the part of Clerk the application was filed without the said affidavit. In these circumstances, the mistake in not filing the affidavit was found bona-fide. However, the affidavit in this case was filed only on the day when the case was argued and probably when an objection must have been taken by the counsel for the landlord. Thus, I am of the view that the tenant has no right to contest the prayer for eviction unless on service of summons of the petition he files an affidavit, on the date mentioned in the summons or within such time as the Court may allow, disclosing the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller.