Judgment:
Mehinder Singh Sullar, J.
1. Petitioner-landlord Lieutenant Colonel Suraj Parkash (hereinafter to be referred as 'the landlord') has directed the present petition against the impugned order dated 12.4.2001, vide which, the Rent Controller granted leave to the tenant to contest the ejectment petition under Section 13-A of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter to be referred as 'the Act').
2. The matrix of the facts culminating in the commencement, relevant for disposal, of present revision petition and emanating from the record is that the landlord indicating himself to be a specified landlord filed an ejectment petition, invoking the special provision under Section 13-A of the Act against the respondent-tenant (hereinafter to be referred as 'the tenant').
3. Having completed all the codal formalities, the Rent Controller summoned the tenant. As soon as, he (tenant) appeared in the Court, in the meantime, he moved an application seeking leave to defend and contest the eviction petition, inter-alia, pleading that as there is no relationship of landlord and tenant between the parties, therefore, the landlord has no locus standi to file the petition under Section 13-A of the Act. No right, title or interest were validly created in favour of the landlord by way of alleged family arrangement, which was stated to be a sham transaction, designed and mala fidely aimed at procuring the eviction of the tenant from the tenanted premises on false, frivolous and technical grounds by overcoming rigors of rent law, which is a social legislature enactment for providing protection to the tenant. According to the tenant, Eviction Petition bearing No. 35 of 1999 titled as 'Inder Mohan etc. v. Bhoop Singh Chaudhary', which was pending in the Court of Rent Controller and in which the present landlord is also one of the parties, falsifies the claim in the present petition and puts indelible question marks on the bona fides of the petitioner. So, according to the tenant, the present petition on the same cause of action is not maintainable. The tenant claimed that as per his own showing, the landlord was not having any status of landlord what to talk of specified landlord at the time of his retirement. 4. As such, the petition is not maintainable. Inder Mohan (co-petitioner of the landlord in the earlier petition) and his wife are running a Fashion Shop and Offset Printing Press in the remaining portion of the property in question, and as such, it was claimed that the tenanted premises being non-residential and commercial are not covered within the scope of Section 13-A of the Act. Major Gurbachan Singh, who actually had rented out the tenanted premises to him, gave him written consent vide writing dated 19.10.1982 and, thus, remained always fully acquiesced into the user, enjoyment and occupation of the tenanted premises for running an educational institution in the name of Minerva Academy, Gurgaon. The landlord is stated to have suppressed the true and material facts and his personal need is not bona fide. There is sufficient accommodation with the landlord to live.
4. Levelling a variety of allegations in all, according to the tenant that the question mentioned in the application sufficiently raised rival issue which cannot be decided and determined without producing evidence by the parties to the petition in accordance with law and, thus, the tenant is entitled the leave to defend and contest the petition on merits. The application is supported by his affidavit.
5. On the basis of the aforesaid allegations, the tenant prayed that leave to defend the main petition be granted to him.
6. The landlord contested the application and filed reply, inter-alia, mentioning that the application and affidavit filed by the tenant do not disclose such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the residential house in question on the ground of his bona fide personal requirement and hence, the tenant is not entitled to contest the prayer for eviction from the house in question. It will not be out of place to mention here that the landlord has stoutly denied all other allegations contained in the application of the tenant and prayed for its dismissal.
7. The Rent Controller accepted the application and granted leave to the tenant to contest the petition vide impugned order dated 12.4.2001.
8. The landlord did not feel satisfied with the impugned order and filed the present revision petition. That is how I am seized of the matter.
9. Having heard the learned Counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, as there is no merit, therefore, the present petition deserves to be dismissed for the reasons mentioned here-in-below.
10. As indicated earlier, the landlord has filed the ejectment petition under Section 13-A of the Act, which postulates that where the application is made by a landlord, who is or was member of the Armed Forces of the Union of India, within one year prior to or after the date of his retirement or discharge or within one year from the date of commencement of the Act, whichever is later, on the grounds mentioned therein, the same shall be dealt with in accordance with the procedure specified in that Section. According to Sub-section (4) of Section 13-A of the Act, the tenant on whom summon is duly served shall not contest the prayer for eviction from the residential building, unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided and in default of his appearance in pursuance of the summons or is obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order of eviction on the grounds aforesaid. Sub-section (5) of Section 13-A further posits that the Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the residential building on the ground specified in Sub-clause (i) of Clause (a) of Sub-section (3) of Section 13 and once leave is granted to the tenant to contest the application, the Controller shall commence the hearing of the application as early as practicable. Thus, aim and object of this section appear to be that in the event of a tenant raising legitimate questions which require adjudication of his rights in ejectment application cannot be decided ex parte and without giving him an opportunity to lead evidence adversely affecting his tenancy rights.
11. Thus, the co-joint reading of these provisions would reveal that permission to defend the petition can only be granted if a tenant discloses such facts and raises legitimate questions as would disentitle the landlord from obtaining an order of eviction.
12. Such, thus being the position on record, now the short and significant question, though important, arises for determination in this petition is whether the application filed by the tenant discloses such facts to enable him to obtain leave to defend the case or not.
13. At the very outset, the celebrated argument of learned Counsel for the petitioner that as requirement of specified landlord was bona fide, therefore, the Rent Controller fell in error in granting leave to the tenant to defend the petition, is neither tenable nor the observation of this Court in case Commodore Harjit Singh Kang v. H. C. Sharma (2001) 129 P.L.R. 627 in which facts are entirely different, is at all applicable to the present case. On the peculiar facts and circumstances of that case, while deciding the main case, it was held that if house is jointly owned by the specified landlord with his brothers and mother, house is not divided by metes and bounds and petition for eviction by a specified landlord is maintainable, if his bona fide personal requirement is proved.
14. Possibly, no one can dispute about the aforesaid observation, but to me, the same would not come to the rescue of the landlord at this stage of deciding the matter granting leave to the tenant to defend the ejectment petition.
15. Having regard to the rival contentions of learned Counsel for the parties and record, it emanates that Inder Mohan and others filed Ejectment Petition bearing No. 35 of 1999 titled as 'Inder Mohan etc. v. Bhoop Singh Chaudhary' in which the present landlord was also co-petitioner, against the present tenant which admittedly was earlier pending before filing the present petition on 7.2.2001. This fact has not been specifically disclosed by the landlord in the ejectment petition. Hence, he appears to be guilty of concealment of facts which can only be proved by producing evidence on record by the tenant.
16. The matter did not rest there. The perusal of the application and affidavit filed by the tenant seeking leave to defend and contest the eviction petition (which have been placed on record of this petition) would reveal that the tenant has disclosed sufficient facts with regard to the subsequent partition between the parties which was stated to be a sham transaction, in order to enable the landlord to recover possession of the demised premises as specified landlord under Section 13-A of the Act. Not only that, the tenant has pleaded that the rented premises being admittedly used for commercial purposes is not covered within the scope of Section 13-A of the Act, he has also raised other legitimate questions, which requires adjudication on the basis of evidence to be brought on record by the parties.
17. There is another aspect of the matter which can be viewed from different angle. Learned Counsel for the tenant has argued that the demised premises were let out to the tenant in the year 1982 by previous owner and the present landlord retired from service on 16.7.2000. The demised premises were stated to have fallen to the share of the present landlord on 20.11.2000, while the present petition was filed on 7.2.2001. This factual position has been acknowledged by the learned Counsel for the landlord. Meaning thereby, even the petitioner was not owner/landlord of the demises premises on the date of his retirement. If that is so, it becomes doubtful that he is entitled to recover the possession from the tenant as a specified landlord under Section 13-A of the Act, in view of the observations of Hon'ble Supreme Court of India in case Dr.D.M.Malhotra v. Kartar Singh (1988)93 P.L.R. 394 (S.C.), wherein it was held that 'a landlord entitled to have the benefit of Section 13-A of the Act must be a specified landlord in respect of the house in question on the date of his retirement from the service of the Union or the State.' These observations mutatus-mutandi are applicable to the facts of the present case and are the complete answer to the problem in hand. Meaning thereby, prima facie legitimate angles indicated by the tenant require adjudication, which cannot be decided without giving opportunity to the tenant in this respect.
18. Thus, seen from any angle, to my mind, the Rent Controller has rightly granted leave to the tenant to defend the case. No other irregularity or patent illegality has been pointed out by learned Counsel for the petitioner, so as to exercise the limited jurisdiction of this Court under Section 15(2) of the Act.
19. In the light of the aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the trial of the main petition, as there is no merit, therefore, this petition is hereby dismissed with no order as to costs in the obtaining circumstances of the case. However, it is made clear that nothing observed here-in-above would reflect on the merits during the trial of the main case as the same has been so recorded for a limited purpose of deciding the present revision petition. Needless to say, the Rent Controller shall commence the hearing of the main petition as early as practicable and decide the matter finally expeditiously as contemplated under Section 13-A (6) of the Act.
20. Parties through their counsel are directed to appear before the Rent Controller on November 10, 2009.