^.v.^"' HI6H COURT OF CHHATTIS^ARH: SILASPUR S.B. HON'BLE SHRI VTJAY KUMAR SHRIVASTAVA. CIVIL REv/ISION N0.51/2006 Tenant/^pp iaicant Dr Pradeep BaSyandere S/o Shri NM Baiyondre, aged about 45 ycars R/o Shrinagar, Khamtaryj Rajpur, &ist-Roipur(C^) Versus Landlord/Respondent Smt jQjndu Bai' Mishra VV/o Late Shri Mishri Ls! Mighrs R/o fVushra Compjex Bhanpuri Tahs'! & D'st - Raipur P&E5ENT: Shri ^outam Bhaduri, counsei for the appiicant Shri Sanjay S Agrawai, Counsei for 1ft€respondent OR DER (Passed on 7th November, 2006) This revision under Section 23-E of the Chhattisgarh Aceommodation Controi Act, 1961 (henceforth !5the Act11') has bsen fiied by 1tie tenOtfit/Qppiicant chajiengi'ng the propriety, ijlegGJity and correctness of the impugned order dated 01,03<2006 pas^d by ftent Controliing Authority, Raipur (henceforth 5t1+ie AuthorJty'O in case No,9~90(8) 2004-05, whereby order vf evict|gn has been passed in fayour of the iandiord/respondent. -.?:-^,.....,;....;? i,; Pags 2 of 9 2) Fact matcrial for disposGJ of this revision as unfolded before th©Authority Is that the respondent clajrriing herself to be the landJord irs accordarsce with Section 23"J of the Act, filed an appIicatJGn under Section 23-A of the Act for recovery of possession of the sult accommodGtJors/uverring inat th©suit accommodation is requi'red bonafide for starting buslness of her major son Kamlesh Kumar and she has no other suitGble altematiEV€ accommodation avaibble in the clty. Appjicarit/ tenant was served with notice Jn accordance Section 23-C of the Act, AdtrHttedly, notice was seryed on 1tie tenGnt/upplicant, but he did not flle any appiication for grarst of to corstest the appJJcation fii©dby the landlord/respondent for recoves^y of the possession of the sult accomirsodGtion. His defence was st?uauck off by the AuthorJty vid^ order duted 06.02.2006, Thereafter statement of Kamlesh Kumar recorded by the Authorit'y and the iBmpugn€d order vf evjction against the applicant has passed^ 3) ^rned counsel tor tha C4pp"Curit contended thut AuthorJty did HOt p03S OTiy Ordcr of eviction under Section 23-C of the Act, therefore, the irripugned order passed on the basis of evidence of attorney Karriiesh Kumar irs absence cBf oral statement of Jandlord Smt Kundubai is iIJegal. He further contended that the attorney on bchalf of the i'andlord is not competent to prove the Page 3 of 9 of iandbrd and in absence of statement of Kundubaj, adverse infercnce shvuld have drawn against her, In order to support his contention, he r^Sied on judgments rendered by Honsbi€ Apex Court in yidhy^hur Vs reported Jn AIR S^ 1442 and Judgment rendered in JunK/ uu^ y^ r^ported in ^Ift S€sly' 2CS04 7064. On the contrary, tearned Cvunsel for the iandJord/respondent contended that the Authorlty has not onjyB th@ order cn evidergce adduc^d by brsdiord, but aiso took shelter of the provisions as enyisaged under SectJons 23< and 23" b(3) of the Act. 4) For reference, 23-C and 23nD of the Act ar^ reproduced as bejow : 23-C : Tenant not ©ntitlsdto eontest excspt cert-aJ" — (1) The tenant on whom the sursimons Is servcd in the form specified In the Scheduje sha!l not contest the pruyer for evictjon from the accommodation uniess he flied withln fjfteen days frorrs thc date of service of the summons, an appjjcation supported by an affidavjt stating the grounds on whjch he seeks to contest the uppiication for eviction and obtains !eave from the Rent Controijjng Authority as hereinaftsr provided, and in default of his appearance in pursuance of the surruTions or in default of hi^ obtaining such leaye, or if ^uch bave Is refused, the statement made by the landlord in the uppiicatjon for eviction shall bc tce bc admitted by tenant. The Rent Controlljng Authorjty shaii in such a case pass an order of evlction of the tenant from th©accommodution : Page 4 of 9 Proyided that the Rerst Controlljrfg Authorit/ may, for sufficjent cause shown by the tenant, excuse the delay of the tenant in entering appearance or In applying for leave to defend the Gppjicatjorj for eyiction and where €;K-part€' order has besn passed may set it aside. (2) The Rent ControJisisng Authoy-ity shali, within one month of the of receipt of appiication, gsye to th©tenarst, if neces^ary leave to contest the appjjcation/jf the applicatJon supported by an affidayit filed by the tenant disclo^e^ such facts as wouSd disentitJe the landbrd from obtajning an order for the recovery of possession of the accorrimodation on the ground ^peclfied in Section 23=SA, R@n1 23-D. Proeedurs to b® follo'wed by ControSlirsg Authority or of l@av@ to to corstest -~ (1) "Where leaves Js granted to the tenant to contest the appJication, the Rent Controjjing Aulfiorjt)' shall commence tiie hearing of the appljcation as esr!y as practjcable and decide thc same, as far as may be, vvithin sisx m.onths of the order of granting of to the tenant to contest applicatson. (2) TTre Rcnt Controiijng Authority shall, whJte holding an enquiry in a proceeding to which this Chapter cxppJses, tQilow as far as practscabie, the practjce and procedure of a Court of Small Causes jnciuding the rgcording of evidence under the Provincjd Small Cause Courts Act, 1887 (IX of 1887). Jhe. ftsnt Controiiing Authori'ty shali' as far as possible, proceed with the hearing of the appiscatjon trosr. day to day. (3) In respcct of an application by a JandJGrd it shal! be pre^umed, unfe^ the contrary is proved, the reauirement bv the iandbrd with reference to ciause (a) or cjuujse (b), as th% CQSS. ma^ be of section 23-A is A^w ^^ i Page 5 of 9 55 VVhen defendarst fails to specificaSly deny the aJtegations ^t. of the plaint, the Court is empowered under C.P*C^ leavjng certain exceptjons to pass Judgment ayuirsSt the defendant, The relevant proyislon envisayed under Order VI££Rule 5 of the CPC is reproduccd herein bcbw: s!5. Speeific denisi." [(!)] Every' aiiegottion of fact in the piaint/ jf not denied specsficaijy or by necessary impiication, or stated to be not admitted in the pteuding of the defendant, shdl be taken to be Gdmittsd except as against a pcrson undcr disability : Provided thut the Court may in ists di^cretion require any fact so udmitted to be proved otherwise than by such admission. [(2) Vv'here the defendarst has not fiied a pleading, it ^hal! be lawfui for the Court to pronounce iudgnnent on the basls of the facts contained in the plaint, except as against a person under a di^abijity, but the Court may, jn sts dsscretion, reqiiire any ^uch fact to be proved. (3) In exercising it^ di^cretion under the proviso to sub-ruJe (1) or under sub-ruie (2), the Court shall have due rcgard to the fact whether the defendunt couid have, or has, cngaged a pleader* (4) Wheneyer a Judgment is pronounced under this ruJe, a decree shaii be drawn up in accordancc with such Judgmcnt and such decree shal! bcar the on which the judgiTient pronouncsd." 6) Landlord averring that tenant/appiicant DrPrudeep Balvadri has stopped' paying rent May 2003, she bona-fide require the suit accommodatjon for business of hcr son Kamtesh Kumar, and she Page 5 of 9 has no other r^asonabte accommodation in her possession in Raipur city, fited the appiication duiy yeri'fted and supported with an affJdaviEt for recovery of possession of th©sult accommodation. Admittedly, she was iarsdbrd in accordunce with Section 23"J of the Act. The Authority in accordance with Section 23-C vf the Act, in proper form served the summons on tenant/appiicant, He did not fiie any appjication for obtaininy ieave to contest the Gppjicution fjied by 1ti€ Jarsdbrd for evlction wi1+iJn the prescrlbed perlod Gr thereafter, tiil dsEspvSal of the case, 7) Under Section 23-C of thc Act in absence of teavc to contest, there is a deeming cjause that the statement made by the iandlord in the appiication fc"r evJctiors shaIJ bc deemed to bc adrrsitted by the tenant/appjicant, and it is obiJgatory on the part of the Authorlty to order of evlction, Under provisJon of SectJon 23"b of the Act urgjess contrary is proved it is to be presumed that the requirement vf the iandJord/respondent with reference to ciause (a) or (b) as the may be of Section 23-aA is bona-fide. Neithes" Section 23-C nor 23-D of the Act imposes any condition or Jimitativn restricting the Authvrjty to exercise its Jurisdlctiors und power in uccordance with the presumption clause and decrrsjng clausB. Even under Ordcr VIII Rute 5 of the CP.C., the Court if did not cali uny particular fact to be Page 7 of 9 proyed by the party is competent to act upon the deerrsing provJsions contempbted therein. 8) No doubt the power of Attorney holder cannot depose the fact which are not within hls knowlcdge, and Js rsot competent to prove those facts, which are within exciusive knowtedge of the landjord. But whcn Jaw itself provides that m the absence of teave to contest^statemerst of petition itsejf shaSI be treated to be admitted by th©tenant and in absence of contrary to be proved presumptjon regarding bona-fJde requireiTtent is to be ds-awn In favour of th© appiicant/JGndIord, the absersce of evldence of iandlord who did not 1.* enter as u witness in witness box not in any wayaffecther riaght adyersciy in obtaJning the order of eviction. So far as drawing adverse irEference on rson-examination of iandlord is concerned/ it Js not permissibte as tegJsiature itself has Jald the law, p?w5oviding deeming ciause and presumptiora, In fayour of th©Jandiord. 9) The Authorit-y vide order dat©d 06.02.2006 struck of the of tenant/appi'icant and posted th©case for 10/02.2006 for rccordlng the evidencc of Jandbrd and on thut date tenant/Gppiicarst did not appcar before the AuthorJty and in his absence thc stGtement of Attorney Karrsi'esh Kumar was s-ecorded when tenant/applJcant was not present, the question of dis-ajbwing him to cross-examine the witrsess does not arlse, Page 8 of 9 10) Here, in the Instant case, the AuthoriBty to pass the order, not only relted on the statement of Kamlesh Kumar, son of the Jandbrd Smt Kundubal but also invoked the dcemjng provi'siors of S^ction 23-C of the Act Tlierefore, so far eviction part of the order is concemea' It is In accordance with the deemirsg cJause and presumption clause as contemplated under Section 23-0 and 23-& of tihe Act. 10) The accGm'mvdation is a commercia! one; therefore, Jandiof-d is entitled tv take possession oniy if she pays to th©tenant te tn^ ulTIOUnt Ot OtHHUut StcSHdCird r€HtOi th^ uCCOlTilTsGdCltjOH* So far the order of ev'Jction is concerned', that does not sjffer from any infjrmity, therefore, the Jmpugned order is sustained with modifjcation that respondent/iundJord shail pay doubie 1fi€amount of annual rent J.e, Rs,48,000/" (Rupees forty clght thousand) to tenant/appjicant and thereafter expJiutatJon of a period of two monl+is, she wiil bc entJtled for recovery of possessiors of the suit accommodatjon, accordingjy, appiicant/tenanr shaJI vacate and deliver vacant possession of the suJt accommodatjon to the Jarsdlord/resporsdent, 12) Parties to bear their own cost. padma Sdl- V.K.Shrivastava judge