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2006 DIGILAW 2748 (PNJ)

Kaki Nanda v. Nand Lal

2006-07-13

P.S.PATWALIA

body2006
Judgment P. S. PATWALIA, J. 1. This revision petition is directed against the order dated 3.5.2004 by which the application moved by the respondent-tenant seeking leave to defend the ejectment petition filed under Sec.13-B of the East Punjab Urban Rent restriction Act, 1949 (hereinafter to be referred as, `the Act) was allowed. A reading of the order would show that the learned Rent Controller has allowed the application without touching upon the issues raised. The order reads as hereunder:- "i have carefully considered the respective submissions and also gone through the case law. It is settled proposition of law that when any triable issue is involved, the court should be liberal to grant permission to defend the petition. " 2. A reading of the observations extracted above would show that the Rent Controller without going into the grounds raised by the respondent-tenant has granted leave on the assumption that the Courts should be liberal to grant permission to defend in such like cases. I am afraid that this proposition of law cannot be accepted in view of the judgment in Baldev Singh Bajwa V/s. Monish Saini, 2005 (12) SCC 778. In terms of that judgment, the leave to defend in a petition under Sec.13-B of the act cannot be granted liberally. The observations of the HON BLE Supreme Court are as hereunder:- "25. On the interpretation given by us and on a plain reading of the provisions, once in a lifetime possession is given to an NRI to get one building vacated in a summary manner. A non-resident Indian landlord is required to prove that: (i) he is an NRI; (ii) that he has returned to India permanently or for a temporary period; (iii)requirement of the accommodation by him or his dependent is genuine; and (iv) he is the owner of the property for the last five years before the institution of the proceedings for ejectment before the Controller. The tenants affidavit asking for leave to contest the nri landlords application should confine itself to the grounds which nri landlord is required to prove, to get ejectment under Sec.13-B of the Act. The Controllers power to give leave to contest the application filed under Sec.13-B is circumscribed to the grounds and inquiry on the aspects specified in Sec.13-B. The tenant would be entitled for leave to contest only if he makes a strong case to challenge those grounds. The Controllers power to give leave to contest the application filed under Sec.13-B is circumscribed to the grounds and inquiry on the aspects specified in Sec.13-B. The tenant would be entitled for leave to contest only if he makes a strong case to challenge those grounds. Inquiry would be confined to Section 13-B and no other aspect shall be considered by the Controller. " 3. A reading of the observations of the HON BLE Supreme Court would show that the leave to defend can be granted to a tenant under Sec.13-B of the Act only if he makes out a strong case to challenge the averments made out in the petition on the grounds enumerated in the aforementioned paragraph of the judgment. The order of the Rent Controller therefore cannot be sustained as it is against the observations made by the HON BLE Supreme Court in Baldev Singh Bajwas case (supra ). 4. It may also be mentioned here that Mr. Sunil Chadha, learned counsel for the petitioner has brought to my notice that the respondent-tenant had been proceeded against ex parte on 13.2.2003. The order of ex parte is still subsisting. Therefore, the leave to defend could not have been granted on this ground also. 5. In view of the above, the present revision petition is allowed. The order dated 3.5.2004 passed by the Rent Controller is set aside the matter is remanded back to the Rent Controller to pass a fresh order on the application filed by the respondent-tenant seeking leave to defend.