Shivshanker Lal and another vs Surender Nath

J.V. Gupta, J.—This petition is directed against the order of the Rent Controller, Charkhi Dadri, dated 29-3-1989 whereby an eviction order has been passed u/s 13-A of the Haryana Urban (Control of Rent and eviction) Act, 1973 (hereinafter referred to as ''the Act'') as amended.

The premises in dispute were rented out vide rent note dated 13-3-1989 on a monthly rent of Rs. 900/-. Application for eviction was filed on 13-1 M987 purporting to be u/s 13-A of the Act. The premises in dispute were alleged to be residential building. Ejectment was sought u/s 13A, the landlord being a member of the Armed Forces and having retired on 30-11-1986 as Lt. Col. The other grounds taken were non-payment of arrears of rent and in the alternative even if the premises in dispute are held to be a non residential building, the landlord having retired from the Armed Forces required the same for his personal use and therefore, was entitled to eject the tenant. Summons were issued to the tenant for 27-1-1988. On that day, the tenant appeared and on the assessment of the arrears of rent and the costs etc. he tendered the arrears of rent, but the landlord refused to accept the same. The case was then adjourned from time to time. It was on 3-3-1989 that the landlord moved an application that eviction order be passed against the tenant u/s 13-A as the tenant failed to file affidavit as required u/s 13-A(4) of the Act stating the grounds on which he seeks to contest the application for eviction nor obtained any leave from the Rent Controller to contest the same. Notice of this application was given to the tenant. Though the reply to the same was filed but the Rent Controller passed the eviction order on 29-3-1989 on the short ground that the Respondents were required to contest the application after filing the affidavits and obtaining the leave of this Court but uptill now neither affidavit has been filed by the tenant nor leave of this Court was obtained and therefore, the Rent Controller had no option but to pass the eviction order.

Learned Counsel for the tenant-Petitioners submitted that the eviction application was never filed u/s 13-A only as it contained other grounds as well including the non-payment of arrears of rent and the plea available u/s 13(3-a). Moreover, argued the learned Counsel, the summons as prescribed u/s 13-A were never issued in the present case and therefore, there was no occasion for the tenants to seek permission as provided u/s 13-A(4) of the Act. He also submitted that the premises in dispute is a non-residential building and therefore no eviction order could be passed for a non-residential building u/s 13-A of the Act. In support of his contention he referred to M/s. Delhi Cloth Mills and Ors. v. Lachhman Dass (1989-2) 96 P.L.R. 242 and Joginder Paul of Ludhiana v. Gurdial Singh (1989-1) 95 P.L.R. 441.

On the other hand, learned Counsel for the landlord-Respondent submitted that the eviction application was filed u/s 13-A of the Act though certain other grounds were also taken, therein. The eviction order could be passed u/s 13-A and that being so since the tenant failed to seek permission to contest, eviction order has been rightly passed by the Rent Controller.

After hearing the learned Counsel for the parties I am of the considered view that no eviction order could be passed u/s 13-A of the Act because the ejectment application was never filed u/s 13-A only as it contained other grounds as well. Not only that even the summons issued were not in the prescribed form to be issued u/s 13-A of the Act. The original application for ejectment was filed on 13-11-1987 and it remained pending for about two years. It was on 3-3-1989 that the landlord moved the application for passing orders u/s 13-A of the Act. Under the circumstances, the tenants could not be taken by surprise when procedure prescribed u/s 13-A of the Act was never followed by the Rent Controller earlier.

Consequently, this petition succeeds and the impugned order is set aside and the case is sent back to the Rent Controller for deciding the matter afresh in accordance with law. The parties have been directed to appear before the Rent Controller on 6-10-1989. Records of the case be sent back forthwith. It may be made clear that it will be open to the landlord to move an application to the Rent Controller as to whether he wants to proceed with the present application u/s 13-A of the Act only and incase such an application is filed, the learned Rent Controller will pass the appropriate orders. If the application is allowed, the procedure prescribed u/s 13-A of the Act will be followed for disposing of the same. But since the nature of the premises have been disputed, the tenants would be entitled to contest the same.