Judgment:
K. Kannan, J.
1. The application for grant of leave to defend filed by the tenant was rejected by the Rent Controller in a petition filed by the landlord under Section 13-B of the East Punjab Urban Rent Restriction Act. In the petition for leave to defend, the tenant put several contentions of which predominant ones that galvanised attention before the Rent Controller and before me, by the persuasive arguments of the learned Senior counsel were; (i) The document of lease in favour of the tenant allowed for 20 years period with a right of renewal by the tenant and a liberty given to the tenant for premature determination of tenancy. The petition filed before the expiry of the said period was not tenable; (ii) The landlord was guilty of concealment in that he did not reveal the existence of other properties which he might have owned and which he required a further probe. The Rent Controller rejected both these contentions as not enabling the tenant to have the right of defence and ordered summary ejectment.
2. The learned Senior counsel appearing for the tenant states at the outset that the lease deed provides for 20 years commencing from 1993 and the petition filed before the conclusion of the said period was not maintainable. He points out that the reliance of the Rent Controller to the decision of this Court in Paramjit Kaitr (Smt.) v. Satya Gupta (Smt.) and Ors. : (1996-3) 114 P.L.R. 465, was clearly misplaced since the judgment which relied on a decision of Hon'ble the Supreme Court in Lakshmi Venkateshwara Enterprises (P) Ltd. v. Syeda Vajhiunnissa Begum 1994 (2) R.C.R. 121, dealt with different situation where although the petition was filed prior to the expiry of the period stipulated under the lease, the landlord there was contending that by violation of the term under the contract there had been a premature termination of tenancy which the landlord was entitled to invoice. In this case, according to the learned Senior counsel, no violation of term of lease had been canvassed by the landlord and when the 20 years period had not concluded, the petition was not maintainable. While I will agree with the submission mat a petition for eviction even within the expiry of the period mentioned in a contract would always be possible if a landlord's resort to action under the rent control enactment by reference to an eventuality of premature termination, I would still point out that petition for ejectment could be resisted as not maintainable, if only the right to remain in possession is protected by term of the contract. Such a right could legitimately exist by a term of lease for a certain specified period and when the landlord could be prevented before the expiry of the period by filing a petition.
3. One does not need to grope too far or too long to say that such a right does not exist for a tenant in a case where the entry into possession through an instrument which the law requires shall be registered but which is unregistered. The requirement of registration comes through the provisions of the Transfer of Property Act which states under Section 107 that lease of immovable property from year to year or a term exceeding one year or reserving an early rent could be made only by a registered instrument. Section 17(1)(d) of the Registration Act mandates that the lessee of immovable property from year to yew or for any term exceeding one year or reserving an early rent shall be required to be compulsory registered. The effect of non registration of a document that is compulsorily registerable is contained through Section 49 of the Act that interdicts that it shall not affect any immovable property or confer any power to adopt or be received as evidence of any transaction affecting such property or conferring such power. It is admitted on all fours that an exception provided under Section 49 is not attracted to this case. To state the obvious that an exception which could still be attracted would be a right of a person to prove the character of possession as a collateral purpose to the lease. It would happen in case the status as a tenant itself is denied and then it shall be permissible for the person affected to show that his possession is that of a tenant. In this case, the petition is filed admitting the defendant's status as a tenant. The term of lease prescribed in the lease deed on which the tenant relies on is through an instrument dated 01.07.1992 that prescribes 20 years period commencing from the date of completion of the renovation of the building which the tenant was authorized to do. Admittedly such renovation had been done and the contention of the tenant was that he was entitled to continue in possession for 20 years and that would not -occasion before the completion of 2013.
4. The learned Senior counsel for the petitioner relies on the decision of this Court in Basant Lal and Ors. v. Ramji Dass (Deceased) through L.R's and Ors. 1990 CCC 377 (P&H;), that an unregistered deed of partition would not bar a person from ascertaining the nature of possession. I have already pointed out that the character of possession is the most outstanding example to the exception provided under Section 49 of the Registration Act. I have also held that the respondent's status as a tenant itself is not denied and that is the reason why the landlord has invoked the provisions of the Rent Act. If the term of lease for a period in excess of one year would require registration and as in this case, the documents spells out a lease period of 20 years, it is not admittedly registered then the inescapable consequence is that it will not operate affect the immovable property, which he seeks to transfer by lease. Any more than permissibility of the character of possession of the respondent as a tenant, the right of lease shall be seen only in the context of the tenant having tendered the rent to the landlord and the landlord having received the rent from the tenant. In such a situation, the receipt of rent itself constitutes the creation of lease and the possession held by such a tenant shall be a tenant from month to month. Here it is not the tenure of lease that protects possession but it is a statutory right of a tenant to stay in possession under the East Punjab Urban Rent Restriction Act that comes into operation. If the provisions of the Act could be invoked by either party, it only means that such a right is available not under the contract of lease itself, but it is a right that is invoked under the Act and the trappings of all the provisions will come into full sway. The landlord's right to invoke Section 13-B could not in such a situation be defeated. The defence to the petition as not maintainable by the reliance on a document which is inadmissible is under such circumstances not tenable at all.
5. The other defence that the tenant took up was that the landlord was guilty of suppression of not disclosing other properties which he was possessed of. According to the learned Senior counsel, the averment in the petition was only that the landlord was not possessed of any other similar building. The averments in the petition, inter alia, are 'that the petitioner is not in possession of any other similar premises at Jalandhar city nor he has vacated any such building within the limits of Municipal Corporation, Jalandhar after the coming into force of East Punjab Urban Rent Restrict Act.' The qualifying expression found in the petition of the petitioner not owning 'any other similar premises', according to learned Counsel assumes significance that it would only mean that the landlord concedes that he has other buildings also but denies availability of similar buildings. If the tenant had in his application for leave contended that the landlord indeed owns some other premises, it would obtain some credibility to his defence. On the other hand, the tenant has adopted a defence that in my view is only a moonshine. His response to the averments referred to above as contained in paragraph 4 of his petition seeking for leave is that the ownership particulars of the landlord of other building would require further probe. A landlord cannot say anything more than the non-availability of any other premises. A negative fact could be shown to be false only by a positive assertion of existence of some property which would disentitle the landlord to invoke the said provisions. In my view, the attribute of a malafide intent of a landlord could be made if only he is shown to have any other building. The inference from the statement of the landlord that he does not own any other similar premises as meaning that he owns premises but not only similar to the same as in the occupation of the tenant is an attempt to bring in a needless obfuscation in language and an attempt to split hair on a matter of syntax in a language that is still foreign to us. With all its normal understanding that the sentence would admit of, the landlord must be understood as saying that he has no other building. The word 'similar' is merely an expression in superfluity in the context that cannot be stretched out beyond logic and beyond what the sentence normally means.
6. The learned Senior counsel points out to the reasoning adored by the Rent Controller that since the landlord was stated to be a NRI and he has enclosed by an averment in the petition his need and further that he came with a qualification of 'specified landlord' by being an owner of the building for more than five years prior to the filing of the petition, the bona fides shall have to be immediately inferred. Again, I have no difficulty in accepting the contention of the learned Senior counsel that the decision of Hon'ble the Supreme Court in Baldev Singh Bejwa v. Monish Saini : 2006 A.I.R. (S.C.) 59, puts it up beyond any pale of controversy that by a proper reading of Section 18(5) that requires the Rent Controller to exercise his power whether to grant a leave or not, the Court shall be satisfied that the need of the landlord clearly existed. The Rent Controller that examines a petition for leave himself has to be first satisfied that the petitioner has stated in the petition what entitled him to invoke Section 13-B and that nothing in the Section that enables the landlord to invoke the said Section is lacking in the petition in the necessary averments. The Court shall then see whenever it falls within its ken, any defence that would require an adjudication by permitting the tenant to file his written statement exists, it shall go through a process of trial before rendering an adjudication. The crucial time when the Court would do that exercise is when the Rent Controller finds that the leave to defend petition discloses that element of doubt in the contentions of the landlord that would merit consideration through a full-fledged trial. In this context, the need of the landlord is not merely to be presumed at all times but if the issue whether the requirement of the accommodation of the landlord or his dependent is genuine or not it shall be examined in the context of what is stated in the written statement. The need could be shown as such, but not merely a desire or a mere wish to secure eviction if it was pointed out that the landlord did in fact own other premises and there was no justification for applying for eviction. I have already extracted the defence in relation to the need in paragraph 4 of the written statement that merely states that it could require a probe without setting out any tangible information that could even excite the minimal suspicion about the need. If in such a situation, the tenant is unable to give any credible information that could make the Court believe the landlord's need was not at least prima facie shown then the decision of this Court and of the Hon'ble Supreme Court in relation to the presumption that is available comes into operation. If on the bare statement of the landlord that he requires the premises, the Court cannot presume the need to be genuine. Such a presumption becomes available immediately after examining the defence that nothing is disclosed about the availability of other property or other circumstances which could rise a cloud of doubt over such a presumption.
7. For the sake of completion of all the points urged by the learned Senior counsel, it has to be seen that even the decisions which he relies on in Mrs. Kushal Takhar v. Gurinder Singh : (2009-1) 153 P.L.R. 344, where the Court held that a leave to defend shall be granted to a tenant if the landlord was found in occupation of other accommodation. It is one thing for a tenant to prove or contend that the landlord owns another property or when the landlord himself admitted that he had owned another property but quite another for a tenant to say that whether the landlord owns any other property would require a probe to merit a chance for filing his statement after the grant of leave. I have no doubt in my mind that the statement gives no clue to the Court that die landlord has any other property to disentitle him to apply under Section 13B or doubt his requirement. The decision of Hon'ble the Supreme Court in Modern Hotel, Gudur, represented by M.N. Narayanan v. K. Radhakrishnaiah and Ors. : A.I.R. 1989 Supreme Court 1510, refers to a situation when a contractual tenancy cannot be put an end to by resort to Rent Control Act even before the tenure of lease has run itself out. This is not a proposition that would find its application in this case since the tenure of lease beyond a period of one year through an unregistered instrument cannot be operative and hence can not outstrip the requirement of the landlord to apply under Section 13-B for the reasons that I have enumerated above. The inadmissibility of the document would render the defence vulnerable and take away the right of the tenant to contend that his right of lease existed till the completion of 20 years period. The decision of Hon'ble the Supreme Court in Firm Sardari Lal Vishwa Nath and Ors. v. Pritam Singh : A.I.R. 1978 Supreme Court 1518, laying down the law that in the event of violation of the term of a contract relating to lease, there is a requirement to issue a notice under Section 106 is not again a decision that could support the contention of the tenant for the Hon'ble Supreme Court dealt with a situation of the primacy of a contractual tenant to hold his tenement till the lease period is completed but it shall not avail to the tenant in this case here, since the tenant is only a statutory tenant and being a amenable to the provisions of Section 13-B.
8. The length of discussion in the judgment shall not be taken to infer that the tenant's defence was formidable which could not be thrown over board and it required to be examined in depth after leave to defend is granted to the tenant for a full-fledged trial. The elaboration has been occasioned by elaborate arguments of the learned Senior counsel. The order of the Rent Controller would require a modification in that it has ordered eviction summarily by rejecting the leave to defend petition filed by the tenant. Section 18(4) mandates that the Court on examination of the affidavit stating the ground on which the tenant seems to contest the application, while still disallowing the leave, is bound to obtain the statement made by the 'specified landlord' in the application for eviction and then pass an order if ground exists for evicting the tenant. That is an additional duty of the Court to see all the requirements under Section 13-B are fully satisfied. The order of the Rent Controller rejecting the leave to defend is upheld and the matter is remitted to the Rent Controller only for recording the statement of the landlord and appraise the petition on its merits as disclosed through the documents and then pass appropriate orders. The Court shall in such an eventuality consider the fact that the tenant is purported to have effected substantial improvements and that he has been running the business for more than 18 years. A plea for consideration of time for eviction which is placed before me by the learned Counsel for the petitioner does not require to be addressed in the light of the matter being remitted to Rent Controller for consideration of the issue of the order of eviction.
9. The Civil Revision is disposed of in the above terms.