CR No.1313 of 2011 (O&M) - 1 - CR No.1314 of 2011 (O&M) CR No.1326 of 2011 (O&M) CR No.1327 of 2011 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.1313 of 2011 (O&M) Date of Decision: 23.3.2011 Anil Kumar Sharma . . .Petitioner Versus Barjinder Singh Mann . . . Respondent ***** CR No.1314 of 2011 (O&M) Date of Decision: 23.3.2011 Joginder Singh . . .Petitioner Versus Barjinder Singh Mann . . . Respondent ***** CR No.1326 of 2011 (O&M) Date of Decision: 23.3.2011 Amarjit Singh Makkar . . .Petitioner Versus Barjinder Singh Mann . . . Respondent ***** CR No.1327 of 2011 (O&M) Date of Decision: 23.3.2011 Jasvir Singh . . .Petitioner Versus Barjinder Singh Mann . . . Respondent ***** CR No.1313 of 2011 (O&M) - 2 - CR No.1314 of 2011 (O&M) CR No.1326 of 2011 (O&M) CR No.1327 of 2011 (O&M) CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.Amit Rawal, Advocate, for the petitioner. Mr.Chetan Mittal, Sr. Advocate, with Mr.Kunal Mulwani, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J (ORAL) By this common order I shall be disposing of four Civil Revisions namely, CR No.1313 of 2011 titled as “Anil Kumar Sharma Vs. Barjinder Singh Mann”, CR No.1314 of 2011 titled as “Joginder Singh Vs. Barjinder Singh Mann”, CR No.1326 of 2011 titled as “Amarjit Singh Makkar Vs. Barjinder Singh Mann” and CR No.1327 of 2011 titled as “Jasvir Singh Vs. Barjinder Singh Mann” as identical questions of law and fact are involved therein. The brief background of this litigation is that the landlord filed four applications under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (for short ‘the Act’) in order to seek eviction of four tenants occupying four shops allegedly owned by him. The tenants had a right to seek leave to defend, which was exercised by them by filing applications in the month of November 2009. In all the four cases, the tenants filed an applications under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short ‘CPC’) seeking amendment on the ground that the landlord can get only one shop vacated. This amendment was allowed as it was not contested by the landlord. In other three cases except for CR No.1313 of 2011, the tenants filed three applications namely, (i) amendment of the application for leave to contest, (ii) application for admission and denial, (iii) dismissal of the eviction petition on the ground that the landlord is not the owner. However, in CR No.1313 of 2011, two applications were filed by the tenant namely, (i) that the landlord is not NRI as he has not produced Green Card, (ii) that eviction petition be dismissed as he is not the owner. The learned CR No.1313 of 2011 (O&M) - 3 - CR No.1314 of 2011 (O&M) CR No.1326 of 2011 (O&M) CR No.1327 of 2011 (O&M) Rent Controller dismissed all the applications filed in all the four cases by a common order as a result of which four revision petitions have been filed before this Court in which notice of motion was issued pursuant to which landlord has put in appearance through his counsel. The first revision petition, which has been argued by learned counsel for the tenant/petitioner is CR No.1313 of 2011 in which he has made a statement that he does not press the application to the effect that the landlord/respondent is not the NRI and has only confined his argument with regard to the dismissal of his application by the Rent Controller, which was filed to seek dismissal of the eviction petition on the ground that the Landlord is not the owner. The other revision petitions have been argued in respect of the dismissal of the application for amendment, application for admission and denial and also dismissal of the eviction petition. Learned counsel for the petitioner has submitted that by virtue of an application filed by the petitioner to Tehsildar on 30.11.2010, information was sought as to who is the owner of Khasra No.165/2 situated at village Hassan Rora, Tehsil and District Ludhiana as the landlord had claimed himself to be the owner of the same on the basis of a gift deed which is allegedly executed in his favor by his mother Dalip Kaur, which is the subject matter of the dispute. The said application dated 30.11.2010 was forwarded by Tehsildar, Ludhiana (East) to Halqa Patwari for the purpose of report. According to the learned counsel for the petitioner, Patwari had reported that from the record he has not found Khasra No.165/2 to be entered anywhere. The said report of Patwari dated 30.11.2010 made the basis of the application which was filed for seeking dismissal of the eviction petition and has been dismissed by the Rent Controller vide his impugned order dated 10.2.2011. Learned counsel for the petitioner has further submitted that while dismissing the said application, learned Rent Controller has not even adverted to the report of Halqa Patwari and has only relied upon the mutation produced by the landlord/respondent which was sanctioned in his name with regard to Khasra No.165/2. He also submitted that the learned Court below remained under the impression that the landlord has to only prove relationship of landlord and CR No.1313 of 2011 (O&M) - 4 - CR No.1314 of 2011 (O&M) CR No.1326 of 2011 (O&M) CR No.1327 of 2011 (O&M) tenant between the parties but in a case where application is filed under Section 13-B of the Act, landlord has to prove that he is the owner of the demised property in dispute for the last more than five years. On the contrary, learned counsel for the respondent has submitted that the petitioner is in the habit of filing frivolous applications which is apparent from the facts of the present case as he had earlier filed amendment application which was allowed on the statement of landlord as it was delaying his eviction petition and now he has filed present application just to delay the proceedings as the eviction petition was filed on 4.10.2008 and still the application filed under Section 18-A has not been argued by the tenant. He also submitted that once mutation has been sanctioned in the name of the landlord, any report obtained thereafter is of no consequence especially when the report is only of 10 years whereas he is in possession of another report which shows that prior to 10 years landlord is recorded as owner. He has also submitted that the application in the present form is not maintainable in terms of Order 7 Rule 11 of the CPC to which learned counsel for the petitioner has submitted that he has not filed any such application instead has filed an application for dismissal of the eviction petition on the ground that landlord is not owner. Be that as it may, I have found that Rent Controller while passing the impugned order has erred in not taking into account documentary evidence tendered by the tenant specially when he is allowed to contest the application filed under Section 13-B only on the basis of an affidavit. The Rent Controller is expected to pass a reasoned order after taking into account all the submissions made by both the sides but from the reading of the impugned order it appears that document submitted by the tenant has not been considered at all and hence the revision petition on this ground deserves to be allowed and the matter deserves to be remanded back to the learned Rent Controller to decide it afresh by taking into account the evidence led by both the parties so far and by giving one chance to the landlord to show the report in which he is recorded as the owner prior to the period of 10 years. Hence, revision petition is hereby allowed on this ground. CR No.1313 of 2011 (O&M) - 5 - CR No.1314 of 2011 (O&M) CR No.1326 of 2011 (O&M) CR No.1327 of 2011 (O&M) Now reverting back to the other applications, which were also dismissed by the Rent Controller, namely, application for amendment and application filed for admission and denial. Insofar as application for amendment is concerned, to my mind there is no error in the order passed by the Rent Controller because the tenant has not averred in the application for amendment as to when he came to know about the fact which he wanted to incorporate in his application under Section 18-A of the Act. No doubt that Delhi High Court in the case of “Ved Prakash and another Vs. Om Prakash Jain” 2009(2) RCR (Rent) 372 has held that an application can be moved under Order 6 Rule 17 of the CPC to incorporate subsequent events to contest the application filed under Section 13-B of the Act but it has also held that the application has to be filed immediately without wasting any time as time granted to the tenant is only 15 days to contest the application filed under Section 13-B of the Act. In the absence of the material particulars about the time when the petitioner allegedly came to know about the alleged subsequent event and also from the photographs attached on record, I am of the view that the amendment is wholly frivolous and has been rightly declined by the Rent Controller. Insofar as second application i.e. application filed under Order 12 Rule 2 of the CPC seeking admission and denial is concerned that has also been rightly dismissed by the Rent Controller because the landlord had denied the documents and once it is denied, it is for the tenant to prove his case and he cannot force him to admit the case set up by him. In view of the matter, the present revision petition, on the issue of the dismissal of the application for dismissing the eviction petition succeeds and the case is remanded back to the Rent Controller. The parties are directed to appear on the date already fixed i.e. 31.3.2011. Rent Controller shall decide the application filed by the tenant with regard to the dismissal of the eviction petition again within a period of 15 days from 31.3.2011 by passing a speaking order and would also take into account the earlier order passed by this Court in CR Nos.253 to 256 of 2011 on 3.2.2011 wherein the Rent Controller was directed to take into consideration all the applications moved CR No.1313 of 2011 (O&M) - 6 - CR No.1314 of 2011 (O&M) CR No.1326 of 2011 (O&M) CR No.1327 of 2011 (O&M) by the tenants, which have been disposed of by him vide the impugned order now including application for leave to defend but it appears that said order was not communicated to him. Now he is directed to take into account this order as well as order dated 3.2.2011 and decide the application for leave to defend on the same day when he decides the application of the petitioner in the present case. A photocopy of this order be placed on the file of other connected cases. (RAKESH KUMAR JAIN) MARCH 23, 2011 JUDGE Vivek