HIGHCOURTOFGHHATTIS6ARH:BILASPUR S.B. HON'BLE SHRI VIJAV KUMAR SHRIVASTAVA J CIVIL REVISION N0.149/2004 c w Ifi' ADDlicont Tenant Suresh Kumar Chauhon aged about 65 years; S/o Shri L.B!1 Chauhah House No.3(!t0) Choudhari - Bada Motipara Ward No.26, Durg (C6) (Ou-ter Building) Vs. Respondent Landlord Nishidhkant lChaudhoa^, agedabout^0years,i Retired bire;ctor (Electrical) Mines Secunty Direclnrate Hyderabad (AP) Atpresent: C/o Shubhra Nil Choudhary Flat No.8 A/l Sharot Co-operative Housing Socibty Kamgar Nagar Road - Kurta (East) Mumbai-24 PRESENT: Shri V.6Tamaskar, Counsel for the appliccmt Shri M.P. S Bhatki, Counsel for the respondent OR&ER r ( Passed -w 27th September 2005) This Revision is directed against the order dated 31.07.20^ passedby Rent Controlling Authority (for short, "the Authority"), Durg in Eviction Cose No.06/A-90/2003-04, J a;''t;rw'~'r?Br:°i'^t^—isniT!^n^isai'--—' i.f^~i^>i ^SW^.^^S!.!^:'.. ^SSS^S:^if:l\^^:IIS| ^ m;ia 'tffiB whepeby allowing the application filed by the non-applicant/ landlord against the applicant/tenant for eviction. 2) Non-applicant Nishidhkont Choudhary and his brother Nitish Choudhary fited a civil suitagainst the applicant for eviction, arrearsof rent and domage on the grounds that the suit house has become unsafe for human habitation, applicont has encroached upon the open land of landlord and without permission has made some construction, and also rriade some construction and alteroifion in the suit house. The suit was registered asCivil SuitNo.73-A/2002. The suit WCB finally decided by lower Court'on 28/02/2004 whereby suit has been partly decreed. Against the said judgment and decree applicant preferred cn appeal which has been registered as Civil Appeal No.l2-A/2004. Theappeal is pending ondthe appellote Court- videorder dated29/04/2004 has stayed theoperation of the said decree. 3) During pendency of the suit, one of the tandlords Nishidhkant Choudhary filed an appdcation under Section 23-A -•^it> of the Chhattisgarh Accommodation Control Act, 1961 (for short, "the Act) against the applJcwrLfpr eviction on the ground .^.iiii^ ^VS^fiS^'-VS'l: ^fimwtWB^Sf;^^^. -^ /'.^•J-frl^ BS- tel that he requires the suit house bona fide for his residential purpose. Applicant wais served with anoticewho, after service of the same, appeared before the Court and within time filed on application under Section 23- C of the Act supportec||with on affidcn/it, stating thegrounds on which he seeks to contest the application for eviction. In his applieation, he raised +he plea of promissory estopj^l against the respondent, who in civil suit has pleoKled thot the house inqyestion was not fit for living.| Healso raised an objection that aiit accommodation wos a joint ipropert-y and without port'ition, respondent alone has no right to claim it for his bona fide need. During pendency of the civilsuit for eviction. the application under Section 23-A of the Act for eviction has been filed ond also raiserf other groundsas would disentitle the landlord to obtain possession. Although the application was opposed bythe respondent, but he did not file any counter affidavit to controvert the affidavit filed bythe appliccnt. Learned Court below bya combined impugned order, dis-allowed the application filed by the appliccmt for ledve to contest ond allowed the apglication_£il,edby the respondent for eviction. ^ ;3HB?^SB=K^;3"'' i: i;;-.fi-'-Bi&H;l;~iiai;'isa>i !: •J'SSK;i?<3iIZl[B¥3^®^(^ :r;.;^;j'i 3"": •^"iS^-,!,S3\S^'SS:SS^.. VI ili ;i; 4) Respondent and his brother in their suit pleaded thot the suit accommodotion is not fit for human habitation, the impact of this admission has not been considered by the 1 Authority. Theavailabilityofanother accommpdort-ion as averred by the applicant has been repelled. The ground that applicant has entered into oin agreement to purchose t;he suit house has also been repelled on the ground that it is fictitious and baseless. Appliccnthas filed an affidavit to support- his averments which was not controvert-ed by the respondent, therefore,it was incumbent upon the Authority to consider all thefactsobjectively. M r' (& 5) Section 23 C(2) of the Chhattisgarh Accommodation Control Act, 1961 reads as below : "The Rent Controlling Authority shall. within one month of the date of recejpt of fhe application, give to the fenant, if necesscvy, leave fo contest the applicafion, if the applicafion supporfed by an affidavit filed by the fenant discloses axh facts as would dfsentifie the landlord from obtaining esi order for the recovery of possession of the accommodation on the ground 1 specified in Section 23-A' w: 6) From bore reading of the aforesaid provision, it is •I •'• clear that if an appliccrt-ionsupporl-ed byan affidavit filedbythe tenant disctoses such facts as would disentitle the landlord from obtaining an order of the accommodation on the ground specified in Section 23-A of the Act, the Authorityshall permit the tenant to contest the case. l-1ere, in the instant case, landlord himself in another suit has pleaded thdt the aiit accommodation isnotfit for humon living. Applicant/Tenant has disclosed a number of facts like availability 6f another suitable accommodation, theproperty being joint ftonily propert-y and without partition application under Section 23-Aof the Act, is not maintainable, he has entered into acontract to purchase the suit accommodation, and all these facts, prima facie, if proved may be grounds to djsentitle the lcndlord from obtaining an order for the recovery of possession. Leorned Court below, without minutely considering the legal impact, only on the conjunctures and surmises, rejected the application and refused the tenanf to contest the suit. Therefore, the order is .erroneous, without jurisdiction cmd is required to be interfered. iBii ^?=Sla®Rg?S@g5&.Sii.;;C • • ^i^.^^ •^•'•^k^e^a.i^.'S^sh^^£AVA!^®a^cJg^ Rl;l 7) In the result, the application filed by the applicant / tenant for leave to contest is allowed. The impugned combined order passed by the Rent Contpolling Authority is set aside and the case is remanded back to the authority fw disposal of the same in accordance with law, with a direction that the Authority shall expedite disposal of this case, preferably within three months from 26th October, 2005. 8) Both the parties are directed to appear before the Rent Controlling Authority, Durg on 26Thpctober 2005 Sd/- V.K.Shrivastava Judge - 27/09/200? padma. liUUil lljliiiii^.. ^l^^i^^^ssi^&ri^: