A-f/^. @) ^ -4a. HIGH COURT OF CHHATTISGARH AT BILASPUR S.B. : HOWBLB SHRI JUSTICB VIJAY KUMAR SHRIVASTAVA CIVIL REVISION N0. 146/2004 PBTITIQNBR Nikllesh Benerjee, s/o. late H.C. Beiierjee, Advocate, r/o. in front of Maya Institute, Old Nehru Scliool, Choudhary Bada, Moti Para, Quarter No.lSO-A And 150-B, Ward No.46, Durg (CG). versus "-< Resoondent Nishithkant Choudhary, s/o. ItekhU Kaat by oceupa- tion Rt. Director, R/o. c/o. Shubhneel Choudhary, Present address FIat No.8 A/1, Shart Cooperative Housdng Society^ Kamgnrnagar Road Kurla (Bast) Mumbai -24. \^ PRBSBWT: Mr. Vivek Shanna, Counsel for fhe petitioner. Mr. M.P.S. Bhatia, Counsel for fhe respondent. O R D BR (Passed on 28th June, 2005) This is*a revision filed under Section 23 E of fhe Chhatdsgarh Acconmiodation Contanol Act, 1961 (for short, afhe Acf) agaiast order dated 31/07/2004 passed by the Rent Controllmg Aufhority (for short, "the Authority"), Dwg (CG), in Case No. 07/A-90/2003-2004, whereby the appUcation of respondent- Nishifhlcaat Choudhaiy for recoveiy of possession of fhe suit house has been aUowed. @ "•>' -^ ^- \, 2) Respondent - Nishifhkant Choudhaxy QLed aa appUcation under Section 23 -A of fhe Act for aa order directing fhe tenant to put fhe laad lord in possession of fhe suit accominodation stating fhat he was retired fnom Govemment service on 31/10/2003 aiid after his retirenient he requires fhe suit house for his residential piirpose as no ofher suitable rcsidential acconmiodation is avadlable ia Durg cily. The leanaied Aufhority issued notice to fhe petitioner (tenant), who afiter service ofnotice appeared before fhe Aufhorify, Durg on 27/03/2004 and filed aa appUcation uiider Order 11, Rule 4 of fhe Code of Civil Procedure (for short, afhe Code") aloug wifh an affidavit. 3) Petitioner ia para 2 of fhe affidavit stated fhat fhe appUcation filed by the respondent is false aad agamst law, fherefore, he seeks pennission to contest fhe case. Respondent repUed fhe said application and affidavit stating fhat fhe provisions of Order 11, Rule 4 of fhe Code are not appUcable aad ffcie affidavit is not aa appUcation for pemiission to contest fhe case. 4) The Authority in its UDipugaed order held fhat the petitioner has not fiiled aay application wifhin 15 days froiui fhe for date of receipt of summons on hm^leave to contest fhe case and iastead filed an application under Order 11, Rule 4 of fhe Code which was not required. Petitioner also filed an affidavit ia para 2 of the affidavit he has prayed for permission to contest fhe case, but has not put forth any sufllcient ground, The Aufhorily fiirther held fhat fhere is nothiag substaatial to grant pennission to contest flie case and accordmgly ordered strikmg out fhe right of defence of fhe petitioner. The Aufhority also held fhat respondent has retircd fix)in Goveisgient sennc^ on ^1 AI@/2003 and besides 1- - fhe suit house he does not have aay other acconiDiodation ia Durg city aad fhe suit house is required bona fide by him, and accordiagly passed fhe impugned order ofeviction. 5) Only contention durmg ax^unient raised by fhe petitioner is fhat the Authority committed a grave error m not aUowiag fhe petitioner to defend fhe case. On fhe ofher haad, respondent contended fhat petitioner did not file application, which is raaadatory for obtaiaiag leave to contest fhe case. Therefore, learaed Auffaonty has not coinmitted aay error. 6) Section 23-C of fhe Chhatdsgarh Accommodation Control Act, 1961 reads as below: <(23-C. Tenant not entitled to contest exoept under certain circumstcinces^fl) The terwnt on whom the sumnwns is served in the form spedfied in the Second Schedule shcdl rwt contest the prayerfor eviction from the ajcoonimodation uriless he filed within fifteen days jfrom the date ofseruioe ofthe sumjnons, an application supported by an affidamt stating the grounds on which he seeks to contes< the application for eviction and obtains leave jrom the Rent Conirolling Authority as hereinafter provided, and in default of his appearance inpursiiance ofthe swwrwns or in default of hls obtaining such leave, or if such leave is refusedy the staiement ynade by the landlord m the apph'catfon for eviction shcdl be deemed to be cuSmitted by the ienant The Rent ControWng Authority shalt in such a oase pass an order o/ eviction of the tenant from the aooommodafion: Provided that the Rent Controlling Authority may, for suffident caiise shown by the tenant, excuse the detay of the tenant in entering appearanoe or in dpplying for leave to defend the appliocition for eviction and where <rex parte order has been passed, may set it aside. (2) The Rent Controtling Authority shatt, wtthm one monfh ofthe date ofreoeipt of application, give (o_^ie___jtemxnt—i^ 4 '1°>. -^ necessary, leave to contest the appltoation, if the cipplioation supported by an dffidavit filed by the tenant disdloses such jfacte as would disentitle the landlord from obfaining an order for the recovery of possession of the acoommodation on the ground spedfied in section23-A.S 7) From bare readmg of fhe above provision, it is apparent fhat a duty has been cast on tiie tenant tiiat if he wants to contest the case to apply wifhiD. 15 days fix)m fhe date ofservice of siiianions on hixu, by filmg an appUcation supported by an afi&davit statiag fhe grounds on which he seeks to contest the appUcation for eviction aad only ground avaUable to him is fhat he should disclose the facts as would disentitie fh.e laadlonl fix)Di obtamiag aii order for fhe recoveiy of possession of fhe accoimnodation on fhe ground speci&ed in section 23-A. If tenaat did not appear ia pursuaace of fhe summons or make defaiilt m obtamin.g leave to contest or if leave to contest is refused, fhe statexaent niade by fhe landlord in the application for eviction shall be deenied to be adinitted by fhe tenaiit aad fhe Aufhorily shatl ia such a case pass aa order ofeviction, 8) It is crystal clear fhat ia absence of leave to contest fhe case tenant has no right to raise any question, neither he can raise fhe dispute regarding relation-ship offhe laadlord and tenaat nor he caa challenge fhe bona fide requireuient of fhe landlord and fhe Aufhority has no ofher option except to treat the statement made by fhe laadlord in fhe application as admitted by fhe tenaat and to pass order acQordia^^ >• ^ ^ 09) It is contended on behalf of the petitioner that uo doubt, petitioner in. specific tenn, has not filed any appUcation for pennission to contest fhe case, but ia para 2 offhe affidavit, fiiled by him, he has stated that fhe case jSled by respondent is false aad m contoravention of law, fhercfore, he should be permitted to contest fhe case, as such fhis affidavit should have been treated as appUcation. On fhe ofher haad, respondent contended that law requires specific appUcation wifh speci&c ground aad fhat too supported by aa aGSdavit hence fhe affidavit cartaot be trcated as aa appUcation aad wifhout aay speci&c ground, the petitioner was not entitied for pennission to contest fhe appUcation field by fhe laad lord. 10) Petitioner ia confomdty wifh Section 23-C of fhe Act, was bound to file an appUcation stating aad disclosiag fhe facts as would disentitie fhe laiidlord fix>m aa order for fhe recoveiy of possession of fhe laadlord aad should have filed an aGSdavit in support of fhose facts if he reaUy aad bona fidely iatended to contest the case and fhen only Authority could have exercised its jurisdiction regardiag accepting or rcfusiag of fhe application. It is pertment to note, fhat no appUcation ia accordaace wifh. Section 23-C of fhe Act has-been filed, In aflSdavit a prayer to defend fhe case has been made, but no grounds as specified m Section 23-C of fhe Act, have been nientioned as also no such facts as would disentifle fhe laad lord froin obtamiag aa order for fhe rccovery of possession of fhe acconunodation, have been nientioned fherein, Learaed Aufhority rightiy held fhat no appUcation for pennission to contest fhe case has been ffled and fhe afBdavit filed by fh.e petitioner does not contam. suflBicient grounds to defend fhe case. 6 ^.,,· / 's./ <. 11) No ofher grounds have been raised during argument 12) The impugned order passed by fhe Aufhority does not suffer from aay infirmily which may caU for iaterference by fhis Coiirt under its revisional junsdiction, hence fhe revision fafcls and is accordingly dismissed. Pardes to bear fheir own costs. Sd//- V.K.Shrivastava Judge Raju