Kanwaljit Singh Ahluwalia, J. — Mrs. Kushal Takhar widow of late Ajaib Singh aggrieved against two orders passed by Rent Controller, Chandigarh on the same date i.e 19.7.2008 has filed the present revision petition. On 19.7.2008, Rent Controller declined the application filed by the petitioner-respondent under Section 18-A(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter to be referred as, ‘the Act’) seeking leave to defend the eviction petition preferred by the respondent-landlord, Annexure P-1. After the leave to defend was declined, on the same day, eviction petition was allowed and petitioner-tenant was ordered to be evicted from the tenanted premises i.e entire ground floor of House No. 94, Sector 10-A, Chandigarh. A prayer has been made in the present petition that both orders whereby leave to defend was declined and eviction was ordered, be set aside.
2. All material pleadings necessary for adjudication have been annexed with this petition as Annexures P-1 to P-5 along with another affidavit filed in pursuance to order of this Court dated 12.11.2008 Facts can be gathered from the annexures and the impugned orders and after hearing the parties, the present revision petition can be disposed off.
3. It emerges from the pleadings that application, Annexure P-1 was filed by Gurinder Singh, aged 59 years stating therein that he is owner and landlord of House No. 94, Sector 10-A, Chandigarh, which was purchased by him on 1.2.2005 for a sale consideration of Rs. 46 lacs and house was two and half storey built up. The first floor consist of three bed rooms and second floor consist of one bed room and at the time of filing petition, they were lying vacant. It was further stated therein that petitioner respondent is a tenant on the entire ground floor of House No. 94, Sector 10-A, Chandigarh at a monthly rent of Rs. 6,000/- excluding water and electricity charges and rent was to be paid on or before 7th of each month. Description of the ground floor was also given in the petition. It was stated that the landlord was serving as Special Secretary in the Cabinet Secretariat, Government of India, New Delhi. In 1972 he joined Indian Police Services and was allotted cadre of Gujarat State. He remained posted at Veraval and Porbander in District Junagadh. He has described his various assignments and stated that he rose in the ladder of the career and at present was working on non uniform security related post dealing with National security holding civilian ranks used by Government of India. It was further stated that he was due for retirement on superannuation on 28.2.2009 on attaining age of 60 years. Therefore, he intend to settle permanently in his own House No. 94, Sector 10-A, Chandigarh and occupy for personal use ground floor which is in possession of the petitioner as a tenant. It was further stated that the entire first floor and second floor are neither sufficient nor suitable for the need of family of the landlord which consist of two sons who are settled abroad and intend to migrate back to India. It was said that marriage of elder son is to be performed in December, 2008. It was further stated that due to his growth in career and his position, he has got vast network of friends, many of them stay with him over extended spells at regular intervals. It was further pleaded that landlord and his wife have spent their youth in Chandigarh. They did their studies in Chandigarh, married at Chandigarh and they have got friends and most of the extended families in Chandigarh. It was further stated that the Government accommodation allotted to the landlord consist of four bed rooms, dinning room, kitchen, three toilets, bathroom and lobbies. It has also a garage, two servant quarters, front and rear laws. The covered area is approximately 1066 square meters.
4. To controvert these facts, application under Section 18-A(5) of the Act was filed, in which it was stated that house was purchased on 1.2.2005 by the landlord knowing fully well that petitioner is tenant on the ground floor, only in order to dispossess her. It was stated that he never remained posted in Chandigarh and he has got sufficient property at Noida and other places which has not been d isclosed in the petition. Earlier to purchase of demised premises, landlord bought and sold property in Sector 18, Chandigarh. He has got sufficient accommodation, therefore, leave to contest the petition on merit was sought. Reply to application for leave to defend was filed, in which landlord stated that after selling his ancestral land in village Balongi, District Mohali in March, 2004, he bought House No. 167, Sector 18-A, Chandigarh on 28.3.2004 Lateron it dawned upon the landlord that house is to be demolished and rebuilt because of large scale seepage in the main walls of the house. Therefore, that house was sold on 27.7.2004 and demised house was purchased on 1.2.2005 It was further stated that the accommodation on the first floor and second floor alone is neither suitable nor sufficient. It was further averred therein that the younger son who is a Banker plans to return to India in 2009 to set up his own consultancy in Chandigarh and the elder son who is an Electrical Engineer proposes to return to Chandigarh to set up his own house in next 2 to 3 years. Details of proposed marriage of elder son were also given.
5. Rent Controller, Chandigarh considered the arguments advanced in the light of pleadings which have been narrated above and came to conclusion that the landlord is a specified landlord, his retirement date is due on 28.2.2009 and in that context observed that the Rent Controller is required to examine the averments made in the application filed by the tenant accompanied by affidavit in support thereof and Rent Controller is not called upon to examine the issue from the point of view of the tenant and declined leave to defend and on the basis of the averments, ordered eviction of the tenant.
6. I have heard Mr. Arun Palli, learned senior counsel appearing for the tenant-petitioner and Mr. M.L Sarin, learned senior counsel appearing for the caveator (landlord)—Respondent.
7. Mr. Palli has formulated following arguments to say that prima facie case was made out to grant leave to defend :—
(a) That the landlord has got re-employment as Security Adviser with the Government of Mauritius and has been transferred by the Indian Government to Mauritius from September, 2008. His tenure as a Security Adviser to the Government of Mauritius is for a minimum period of two years which can be extended on the discretion of the Mauritius Government. Therefore, because of re-employment date of superannuation stand extended and in view of that the landlord is not entitled to invoke Section 13-A of the Act;
(b) That landlord knew that he is going to retire in February, 2009 and to take benefit of provisions of Section 13-A of the Act, he purchased the demised house on 1.2.2005 knowing fully well that petitioner is a tenant on the ground floor. Therefore, purchase was not for bonafide need but to evict the petitioner and enhance the value of the property. This has been termed in Ground No. 2(viii) as oblique motive to dispossess the petitioner tenant;
(c) That description of accommodation on the first floor has not been correctly given as the first floor of the house in question consist of four bed rooms, one servant quarter, drawing dinning room, kitchen and two toilets and accommodation at second floor consist of two bedrooms, drawing dinning room and one toilet. Therefore, this accommodation being sufficient, ground floor is not required by the landlord;
(d) That landlord purchased the house in Sector 18, Chandigarh on 28.3.2004, had sold the same on 27.7.2004 and bought the present house on 1.2.2005 after over four months of selling the house situated in Sector 18, Chandigarh. This according to Mr. Palli was nothing but an exercise to garner profit from sale and purchase. Therefore, the conduct of the landlord dis-entitle him from evicting the tenant. It has been further stated that an excuse has been coined that house in Sector 18 was sold as same required demolition and reconstruction, as this fact was evident at the time of purchase of the house in Sector 18, Chandigarh;
(e) That the sons of the landlord are not likely to reside at Chandigarh because of their education, brought up and there being better growth prospectus abroad;
(f) That petitioner is a 68 years old lady, widow and has no other residential property, therefore, it is a case of extreme hardship.
8. Mr. Palli to fortify his arguments has placed reliance upon N.N Jain, Advocate… v. Ved Parkash Sharma…., 1995 (1) RCR 455 to say that when a part of the premises is already in possession of the landlord, the question of suitability of accommodation is to be determined by the Rent Controller by affording an opportunity to lead evidence, therefore, leave to contest should be granted. A further reliance has been placed upon R.K Sakhuja v. Shri Chander Parkash, 1991 (2) RCR 351 to say that at the time when leave to contest is to be granted and refused, tenant is not required to prove plea of sufficiency of accommodation of landlord. He has to only raise such a plea and same will not entitle the landlord to have possession of the premises in a summary manner in case it is admitted that portion of the demised house is in possession of the landlord. He has also cited Prit Prit Pal Kaur… v. B.S Ahuja…, 1996 (1) RCR 630; Ravinder Nath Khanna v. T.R Lakhanpal and anr., 1990 (2) RCR 73; and a Division Bench judgment of this Court in K.G.P Pillai v. Subhash Chander Pathania, 1990 (2) RCR 386. Mr. Palli has stated that in such a situation when the landlord is in occupation of such an accommodation in the urban area concerned, it will be a case of additional accommodation and the suitability of the same could be decided only if the tenant was allowed leave to contest the ejectment application. To similar effect is another judgment of this Court rendered in Jagdish Puri v. Kundan Lal Thaper, 1994 (1) RCR 245.
9. Mr. Palli has laid much emphasis on the judgment rendered by Hon'ble Apex Court in Inderjeet Kaur v. Nirpal Singh, 2001 (1) RCR 33 to say that Hon'ble Court has laid the test of prima facie. The following observations of the Hon'ble Apex Court have been read before me :—
“…….At the stage of granting leave the real test should be whether facts disclosed in the affidavit filed seeking leave to defend prima facie show that the landlord would be disentitled from obtaining an order of eviction and not whether at the end defence may fail. It is well to remember that when a leave to defend is refused, serious consequences of eviction shall follow and the party seeking leave is denied an opportunity to test the truth of the averments made in the eviction petition by cross examination. It may also be noticed that even in cases where leave is granted provisions are made in this very Chapter for expeditious disposal of eviction petitions. Section 25B(6) states that where leave is granted to a tenant to contest the eviction application, the Controller shall commence the hearing of the application as early as practicable. Section 25B (7) speaks of the procedure to be followed in such cases. Section 25B(8) bars the appeals against an order of recovery of possession except a provision of revision to the High Court. Thus a combined effect of Sections 25B(6), (7) and (8) would lead to expeditious disposal of eviction petitions so that a landlord need not wait and suffer for long time. On the other hand, when a tenant is denied leave to defend although he had fair chance to prove his defence, will suffer great hardship. In this view a balanced view is to be taken having regard to competing claims.”
10. Mr. M.L Sarin, learned senior counsel appearing for the caveator (landlord) -respondent has vehemently contested the submissions made by Mr. Palli. He has stated that posting of the landlord as a Security Adviser is only till his date of superannuation. He has been unable to explain as to why the landlord was appointed in September, 2008 when he was due for retirement in February, 2009. He has shown me offer of appointment as National Security Adviser in which it has been stated that effective date of contract is date of assumption of duty and the period is one year renewable. It has been further stated therein that the termination of contract is one month notice by either party or one month notice by mutual agreement. It is further stated that in the present case, Rent Controller is not required to examine the sufficiency of accommodation, as accommodation on first floor and the second floor is not in consonance with the status of the landlord. Therefore, it is not a case of additional accommodation but a suitable and sufficient accommodation. It is further stated that the fact that marriage of son of the landlord is scheduled in December, 2008, has not been denied by the tenant. It is not a case of desire of the landlord but is of his actual need. It is further stated that re-employment after retirement cannot dis-entitle the landlord to seek eviction of the tenant under Section 13-A of the Act. In support of this, he has relied upon S.S Sodhi of Chandigarh v. Wing Commander Narender Pal Singh (Retd.), 1990 HRR 353. He has further relied upon a judgment rendered in Zenobia Bhanot v. P.K Vasudeva and another, 1996 (1) RCR (Rent) 72 : (1995) 6 SCC 770 to state that where residential building is let out in parts, specified landlord has option to recover immediate possession either of the entire building or any part or parts thereof. It has been urged before me that Hon'ble Apex Court has held that in case where the building is let out in parts, the part so let out, will form part of the building itself. Therefore, under Section 13-A of the Act, landlord has an option to get the recovery of the said residential building.
11. I have given my thoughtful consideration to the various submissions made by counsel for the parties. Two material aspects “whether accommodation on the first floor and second floor is sufficient or not?; and “whether landlord will continue to remain posted in Mauritius or not? require consideration. Therefore, these being issues of facts can only be determined if parties are allowed to lead evidence. Declining of leave to defend and ordering eviction of the tenant in summary manner, will be in violation of the test of prima facie laid by the Hon'ble Apex Court in Inderjeet Kaur's case (supra).
12. Mr. Sarin has harped on the status of landlord. Mr. Palli on the plight of widow-tenant. Balance is the essence of judicial dispensation.
13. The object of enactment of Section 13-A of the Act is to provide immediate abode to the retiree employee. Vacation of Government accommodation should not make retiree landlord vagabond. But, in case there is accommodation available as in present case, landlord has entire first floor and second floor in his occupation, for vacation of ground floor, landlord cannot be provided with summary mechanism, especially when first floor san front and back lawns is replica of ground floor. This is the law enunciated in cases of N.N Jain (supra), R.K Sakhuja (supra), Prit Pal Kaur (supra), Ravinder Nath Khanna (supra) and K.G.P Pillai (supra).
14. From the submissions made above, tenant has succeeded in making out a case that an opportunity to test the truth of the averments made in the eviction petition by cross-examination ought to be allowed to him. It has been held in Inderjeet Kaur's case (supra) by Hon'ble Apex Court that even in cases where leave is granted, provisions can be made for expeditious disposal of the eviction petition. Taking into consideration, the entire gamut and forming a whole-some view in the present case, in case tenant is denied leave to defend, she will suffer great hardship as she will be deprived of a fair chance to prove her defence.
15. Fair play and balance of equities demand that in the present case, leave to contest should be granted, in favour of the tenant. Therefore, present revision petition is allowed and the petitioner-tenant is granted leave to defend. However, taking into consideration that the landlord is due for retirement and his employment in Mauritius is subject to renewal of the contract on yearly basis, it will be appropriate in case Rent Controller is directed to decide the eviction petition within six months. Both the landlord and the tenant shall be afforded three opportunities to conclude their evidence so that the ejectment petition is decided on or before 31.5.2009