Harjit Singh Bedi, J.
1. The respondent claiming to be a specified landlord moved a petition Under Section 13-A of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the 'Act') for the eviction of the tenant-petitioner from a portion of the house belonging to her in Purbian Street Arya Samaj Patiala. From the facts as stated it appears that in June 1989 the property in question was purchased by the respondent landlady along with her sister-in-law Miss Sarla Kumari as she wished to settle down permanently at Patiala on her retirement as Deputy Director, Health Punjab. It was also averred that certain portions of the house were on rent with two tenants the other tenant being Mr. A.R. Sehgal. The dire need of the respondent was sought to be highlighted by stating that her husband was a heart patient, the youngest daughter was studying in the Medieal College patiala and her son-in-law being a doctor was also posted there. The petitioner moved an application for leave to contest Under Section 18-A of the Act on the ground that the respondent was not a specified landlord as provided in the Act; that the certificate of retirement produced was not in accordance with law and that as she was already in possession of eight living rooms in the demised premises it was in fact a case of additional accommodation and recourse to the provisions of Section 13-A of the Act was not justified. It was also asserted that the solitary purpose for seeking the eviction of the petitioner was that the respondent wished to sell the property to certain persons named in the application. The application Under Section 18-A of the Act was contested and in the reply filed by the respondent the averments made by the petitioner were controverted and in particular it was pointed out that the respondent was not in possession of any portion of the property and this was sought to be explained in the course of arguments by stating that the eight rooms which were lying vacant had fallen by partition to the share of Miss Sarla Kumari, the co-owner. The Rent Controller considering the arguments raised by the counsel found that it did not lie with the tenant to challenge the partition of the property between two co-owners and, that even otherwise, the vacant portion allegedly in possession of the respondent had no kitchen or toilet on the ground floor which was not sufficient to meet her requirements. The Rent Controller also found that the plea of the petitioner that the eviction was being sought so as to sell the property to certain named persons could not be believed as no affidavit of the prospective buyers had been placed on the record. The Rent Controller accordingly vide his order dated 8th February, 1993 declined the application Under Section 18-A and ordered the ejectment of the petitioner. Aggrieved thereby the present petition has been filed.
2. Mr. M.L. Sarin, learned Senior advocate, appearing for the petitioner has urged that the case in hand was one of additional accommodation, the so-called partition between the two co-owners was only a sham transaction and did not even find mention in the application filed by the respondent and keeping in view the facts of the case and the provisions of Section 13-A of the Act, the Rent Controller had no option but to come to the conclusion that the application filed by the tenant Under Section 18-A did disclose such facts as would disentitle the landlord from obtaining an order for the recovery of the possession of the building and as such leave to defend ought to have been given. In support of his case Mr. Sarin has also placed reliance on K.G.P. Pillai v. Subhash Chander Pathania, (1990-2) 98 P.L.R. 514 and R.K. Sukhuja v. Chander Parkash, (1991-1) 99 P.L.R. 494.
3. Mr. S.C. Nagpal, learned counsel for the respondent, has however urged that from a reading of the ejectment application as also the reply to the application Under Section 18-A of the Act it was clear that a partition had been effected and that the vacant portion had fallen to the share of the co-owner Miss Sarla Kumari. He has urged in addition that it was not open to the tenant to challenge the validity of the partition and as such the application for leave to contest had been correctly refused.
4. I have considered the arguments of the learned counsel for the parties and find that the petition deserves to succeed. A bare reading of Section 18-A of the Act would indicate that if the application discloses such facts as would disentitle the landlord from seeking eviction of the tenant then leave to contest was to be given. From a reading of the pleadings of the contesting parties, it appears to me that no categoric finding can be recorded in the absence of evidence that the partition between the respondent and her co-owner Miss Sarla Kuamri had infact taken place. In that eventuality it cannot be presumed that it was the respondent herself who was in exclusive possession of that portion of the property that is lying vacant. Mr. Nagpal's assertions that the question of partition was not open to challenge at the hands of the tenant are untenable on the strength of a decision reported in J.D. Mathur v. Smt. Sunita alias Sunita Madhok, 1993 H.R.R. 404 wherein it has been held that the right of a tenant cannot be defeated merely by putting up a sham transaction of partition, and to decide whether or not a partition had in fact taken place, leave to defend needs to be granted.
5. Mr. Sarin's final argument that the application Under Section 13-A of the Act was merely a device for the purpose of getting the petitioner evicted so as to sell the property to certain persons named in the application filed Under Section 18-A may also have substance, but in the absence of evidence no further finding can be recorded. The Rent Controller had declined to accept this plea on the short ground that affidavits of the prospective buyers had not been appended. This on the face of it appears to be an impossibility but a decision could however be taken on this allegation by leading evidence. The order of the Rent Controller is therefore, to my mind, unsustainable on this score as well.
6. For the reasons recorded above, this petition is allowed; the order of the Rent Controller dated 8th February, 1993 is set aside and leave to defend given to the petitioner. The parties are directed to appear before the Rent Controller on 4th March, 1994 who shall dispose of the application keeping in view of provisions of Sub-section (6) of Section 18-A of the Act within a period of three months from today positively. No costs.
7. The office is directed to remit the record of the case of the Court of the Rent Controller Patiala immediately.