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2008 DIGILAW 169 (CHH)

Ambadas Kawle v. Ms. Kumud Kanhe

2008-07-07

D.R.DESHMUKH

body2008
ORDER Heard on admission as also on I.A.No.1 for grant of stay. 2. The petitioner is aggrieved by an order dated 26.05.2008 passed by the Rent Controlling Authority, Raipur (henceforth `the R.C.A.) in case No.03-90(8) whereby the petitioner's/tenant's application under Section 23-C of the Chhattisgarh Accommodation Control Act, 1961 (for short `the Act') for leave to contest the application under Section 23-A of the Act filed by the landlord was refused. 3. The respondent/landlord on her retirement from Government service on 31.10.2007 initiated proceedings for eviction of the petitioner on the ground of bona fide requirement for her residence. 4. The petitioner in his application under Section 23-C of the Act for grant of leave to contest the application filed by the landlord admitted as under in paragraph 5: 5. The R.C.A. held that in view of the admission of the petitioner/tenant in paragraph 5, his contention that the respondent/landlord was not the owner of the accommodation was not tenable. In any case, under sub-clause ( a) of Section 23A of the Act, while seeking eviction of the tenant from an accommodation let out for residential purpose on the ground of requirement of the acco1l1rlodation for residence, the landlord is not required to aver and prove that she is the owner of the accommodation in question but was only required to aver and prove relationship of the landlord and tenant. Since this was not disputed by the petitioner/tenant in the application filed under Section 23-C of the Act, the R.C.A. while refusing leave to contest rightly rejected the contention of the tenant in that regard. 6. Shri B.P.Sharma, learned counsel for the petitioner/tenant has placed reliance on John Impex (P) Ltd Vs. Surinder Singh and others!, Col. Surinder Pal Singh Bhattal (Retd) Vs. Rakesh Kumar Jain2 and Precision Steel & Engineering Works and another Vs. Prem Deva Niranjan Deva Tayaz3. 7. A perusal of the application and affidavit filed by the petitioner/tenant under Section 23-C of the Act clearly shows that as regards the ground of requirement of the accommodation let out for residential purpose for occupation as residence, there is not even a semblance of material in the application filed by the tenant to show any valid ground to contest the application under sub-clause (a) of Section 23-A of the Act. 8. In John Impex (P) Ltd. Vs. 8. In John Impex (P) Ltd. Vs. Surinder Singh and others1 (supra), the Apex Court had set aside the orders passed by the High Court and the Additional Rent Controller, Delhi whereby leave to defend the application was rejected, on the ground that contest of the ownership of the landlord was seriously challenged and was material in question. As mentioned earlier, the above question is not at all material in the present case. The landlord has sought eviction of the tenant under sub-clause (a) of Section 23-A of the Act wherein the ownership of the landlord over the suit accommodation is immaterial. Moreover the tenant did not dispute the existence of relationship of landlord and tenant. 9. In John Impex (P) Ltd Vs. Surinder Singh and others1 (supra), it was observed that the purpose of introducing the provision of Section 23-C of the Act is only to find out fiivolous and uncontestable cases at the initial stage, not to eliminate other class of cases which require adjudication after contest. In proceedings under Chapter III-A of the Act where no conceivable contest is possible the litigation has to be nipped in the bud. In Precision Steel & Engineering Works and another Vs. Prem Deva Niranjan Deva Tayal3 (supra), the Apex Court has held as under : "Where the tenant files an application for leave to contest in a petition for eviction under cl. (e) of Proviso to Section 14 (1 ) and if the affidavit of the tenant discloses such facts - no proof is needed at the stage-which would disentitle the plaintiff from seeking possession, the mere discloses such facts must be held sufficient to grant leave." However, the above decision does not assist the learned counsel for the petitioner because in the present case neither the application nor the affidavit filed by the petitioner/tenant under Section 23-C of the Act discloses any ground to contest the petition for eviction under sub-clause (a) of Section 23-A of the Act. In the absence of disclosure of any facts constituting ground for grant of leave to contest, the order passed by the RC.A. is impeccable. 10. Learned counsel for the petitioner next placed reliance on Col. Surinder Pal Singh Bhattal (Retd) Vs. Rakesh Kumar Jain2. In paragraph 7 of the above cited decision is quoted as under: "7. In the absence of disclosure of any facts constituting ground for grant of leave to contest, the order passed by the RC.A. is impeccable. 10. Learned counsel for the petitioner next placed reliance on Col. Surinder Pal Singh Bhattal (Retd) Vs. Rakesh Kumar Jain2. In paragraph 7 of the above cited decision is quoted as under: "7. It is settled law that in proceedings like the one question when an application for leave to defend is made by the tenant supported by an affidavit for grant ofleave to contest the eviction petition filed by the landlord under Section 13-A of the Act, the Rent Controller is not required to examine the issue from the point of view of the ultimate proof which the tenant may produce but the only thing which the Controller is required to examine is to look into the averments made in the application by the tenant and the affidavit in support thereof to see whether the tenant has made out a case which, if proved, would disentitle the landlord from claiming the eviction of the tenant from the premises occupied by him in sununary proceedings." 11. On perusal of the application under Section 23-C filed by the tenant, under sub-clause (a) of Section 23-A of the Act, it is obvious that a contest on the ground on which eviction is sought is unconceivable because the petitioner/tenant did not produce any material whatsoever to show that requirement of the landlord for residential purpose was not genuine. I am of the considered opinion that the case law cited above by the learned counsel for the petitioner does not assist him in any manner. 12. Lastly, it was urged by Shri B.P.Sharma, learned counsel for the petitioner/tenant that the RC.A. on refusing leave to contest, was under an obligation to pass an order for eviction of the tenant from the accommodation forthwith, in view of the deeming fiction created by sub-section (1) of Section 23-C whereunder on refusal of leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant. It was also urged that by not passing an order for eviction an illegality has crept in the impugned order which is liable to be set aside. 13. It was also urged that by not passing an order for eviction an illegality has crept in the impugned order which is liable to be set aside. 13. It is true that once leave to contest an application under Section 23-A falling under Chapter Ill-A of the Act is refused, by the deeming fiction created by sub-section (1) of Section 23-C, the RC.A. is required to pass an order of eviction of the tenant from the accommodation. However, in the present case, while passing the impugned order whereby leave to contest was refused, the RC.A. appears to have overlooked this aspect of the matter. It would, therefore, suffice to direct the R.C.A. to proceed further with the application under Section 23-A of the Act filed by the respondent/landlord and dispose of the same in accordance with law at the earliest, in view of the mandatory provision contained in sub-section (1) of Section 23-C of the Act. 14. With the above observation, this revision is dismissed as being devoid of any merit. I.A.No.l for grant of stay also stands dismissed. Revision Dismissed.