CR No. 5979 of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CR No. 5979 of 2007 Date of decision February 24, 2009 Surinder Gupta .......Petitioner Versus Hukam Chand ........Respondent CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. M. L. Sarin, Sr. Advocate with Mr. Hemani Sarin, Advocate for the petitioner. Mr. Arun Jain, Sr. Advocate with Mr. Amit Jain, Advocate and Mr. Chetan Salathia, Advocate for the respondent. ****** 1. Whether reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the reporters or not? Yes 3. Whether the judgment should be reported in the digest? Yes **** K. Kannan, J. 1. Civil Revision No. 5979 and 6063 of 2007 are respectively petitions arising out of petitions filed by the same landlord in relation to the ground floor and the first floor of the building respectively. The landlord's requirement to the premises under Section 13-A of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the 'Act') was upheld by the Rent Controller and the aggrieved tenants are the revision petitioners before this Court. The grounds of challenge are the same in both the petitions and therefore they are disposed of by a common order. The objections by the tenants are taken on five different grounds. CR No. 5979 of 2007 2 1. The landlord's withdrawal of an application filed in respect of the property without any liberty obtained from the Rent Controller for prosecuting a fresh application on the same ground constituted a bar under Order 23 Rule (1), (3) and (4) of the Civil Procedure Code. 2. The affidavit given by the party in Court in support of the chief examination was not properly verified and therefore could not be relied upon. 3. The certificate of retirement from Government service as contemplated under Section 13-A of the Act. The sale deed on the basis of which the petitions had been filed was not proved and therefore, the petition itself is not maintainable. 4. The sale deed in favour of the landlord had not been properly proved. 2. As regards the bar of the institution of the fresh petition the basis of the tenant's contention was that the landlord had earlier filed an application for eviction on 29.7.2005 and objection had been taken by the tenant that as per the contentions of the landlord he was due for retirement only on 31.7.2005 and the petition had been filed more than one year before his actual date of retirement and hence was pre-mature. Based on such a contention, the landlord had made a statement that in view of the submissions made by the tenant, the petitions that he had filed could be withdrawn. The Rent Controller had also passed an order on 22.11.2005 that the landlord was permitted to withdraw the petition. The learned Sr. counsel appearing on behalf of the tenant argued that if the previous petition contained formal defect in the matter of institution of the petition and it was found that objection of the tenant was tenable that was a CR No. 5979 of 2007 3 ground for the landlord to seek for permission for withdrawal with liberty to file a fresh petition on the same cause of action. Order 23 Rule 1 (4) clearly laid down that if a withdrawal was made without obtaining such permission to file a fresh petition, the petition itself was not maintainable. He refers to the objection regarding the non-maintainability of the petition without seeking liberty to file a fresh petition and seeks strength to his case by reference to a decision of this Court in Mehtab Singh Vs. Tilak Raj AIR 1989 P&H 12 where this Hon'ble Court had held that the provisions of Order 23 Rule 1 clause (4) was applicable to the Rent Contorl proceedings also. Similar was the judgment in Ram Sarup Bhalla Vs. Barkat Singh reported in 1990 (2) RCR 392 where this Court had held that the application for ejectment by a specified landlord filed under Section 13-A which had been withdrawn without permission of the Rent Controller to file a fresh application, the second petition would be barred. The Supreme Court had occasion to consider the case arisen out of Bombay Tenancy Act in V.C. Charati Vs. Hussein Nhanu Jamadar reported in JT 1998 (8) SC 120 where it held that even a wrong decision if not challenged would constitute the bar of res judicata. 3. The propositions laid down by these decisions strike the other side of the pendulum in certain other decisions laid down by this Court in Mangal Sain Vs. Jiwan Dass reported in 2003 (1) RCR 54 where in the proceedings dealing with Haryana (Control of Rent and Eviction ) Act, 1973, this Court held that if a landlord is allowed to withdraw the ejectment application on the ground of formal defect, it has to be inferred that the Court allowed the landlord to file a fresh application. The fact that the order itself did not make a reference granting liberty to file a fresh petition, as such in the judgment was not material. The Supreme Court held in N.R. Narayan Swamy Vs. B. Francis Jagan reported in 2001 HRR 579 held that successive suits for eviction by a landlord on the CR No. 5979 of 2007 4 ground of bona fide requirement if withdrawn without pressing the ground of eviction, the second suit on the same ground was not barred by Order 23 Rule 1 (4). A Full Bench of this Court held in Ram Dass Singh Vs. Sukhdev Kaur that the provisions of Order 23 Rule 1 (3) were not applicable to the proceedings under the Act. The decision of the Full Bench came on reference from a Single Judge who found that there was contradictory opinion on the same subject in Madan Lal and others Vs. Ram Lal (1978) 80 PLR 388 and Shakuntala Devi Vs. Ramesh Kumar reported in 1980 (1) RLR 327 and noticing that this was an important question of law and authoritative pronouncement was necessary. The Full Bench answered the reference by holding that the provisions of Order 23 Rule 1 (3) of the Code of Civil Procedure was not applicable to the proceedings under the Act. 4. A proper consideration of all the decisions, I am of the view, lay down that an order of withdrawal must be always understood under the particular circumstance when withdrawal was sought. I have already referred to the fact that the tenant had made a specific contention in the earlier round of litigation about the maintainability of the petition that the landlord had filed the petition even one year prior to the actual date of retirement and hence the petition was not maintainable. The landlord's petition for withdrawal was sought on an express statement referring to the fact that the petition had been filed more than one year before the date of his actual retirement and hence the petition was being withdrawn. The Court, while merely passing an order for withdrawal, is deemed to have passed an order only on the basis of what was contended by the parties namely of the tenant's objection regarding the pre-mature filing of the petition and the non-maintainability of such a petition and the landlord acted on such an objection and sought for withdrawal. It is not a case where the landlord has sought for a liberty which was refused by the Court. CR No. 5979 of 2007 5 On the other hand, it was an action of the landlord in responding to an objection about the maintainability as stated by the tenant. The provisions of Order 23 itself is raised on a principle of Public policy that a defendant shall not be vexed with the same nature of suit again and again. It is indeed a provision to protect a defendant but if a defendant had himself invited a second petition by his objection that the earlier petition was pre- mature or not maintainable, he cannot be heard to contend that the second petition was also not maintainable. It will be really a case of estoppel operating against the defendant to contend that the second petition was barred. I, therefore, reject the contention raised on behalf of the tenant that the subsequent petitions were not maintainable. 5. The second objection relating to the manner of drafting of the affidavit without proper verification is with reference to the proof affidavit given for his chief examination. The expressions which are under caption used before verification of the signatures are “verified that the contents of my affidavit are true and correct to my knowledge and belief.” This verification according to the petitioner, is inadequate and does not confirm to the law under Order 19 of the Code of Civil Procedure. The learned Senior counsel refers to a decision in AKK Nambiar Vs. Union of India reported in 1970 SC 652 which lays down that if affidavits are not property verified it cannot be admitted in evidence. The Supreme Court was laying down the importance of verification by stating that the test of genuineness and authenticity of allegations and also to make the deponent responsible for allegations contained in verifications and in the absence of proper verification affidavits could not be admitted in evidence. This objection by the revision petitioner, in my view, is frivolous, if the contents in the affidavit were subjected to lengthy cross examination and case is decided not merely on the basis of affidavits but on the basis of evidence that flows out of cross examination as well the averments in the CR No. 5979 of 2007 6 affidavits There is a reasonable ground to believe that all the averments in the affidavits are fully met by the person against whom evidence is used. Therefore, no prejudice could be said to be caused to a person by any deficiency in the manner of verification. As a matter of fact, the learned counsel appearing for the landlord points out that the affidavits sworn to by the tenants contain a verbatim reproduction of how the landlord has verified in his affidavit. I, therefore, reject the contention of the tenants that the affidavit is not proper and that it could not be relied. 6. The third objection by the tenant is that the provisions of Section 13-A required two aspects to be satisfied: (i) That the landlord must apply to the Controller along with certificate from the authority competent to remove him from service and his evidence to the effect that he does not own any other suitable accommodation. The production of the said certificate according to the learned Senior counsel affirms the bedrock of the right to the landlord to apply under Section 13-A. The learned counsel refers to the office order that has been issued by the Principal Secretary to the Government of Punjab, Irrigation Department, Chandigarh and marked as Ex. P-2. The order states that Sh. Hukam Chand, Superintendent Gr. I held the charge of the post of Registrar of the Office of Chief Engineer, Irrigation Works Department, Punjab (Head Office), Chandigarh and had been retired from the government service w.e.f. 31.7.2005 (A.N.) on attaining the age of superannuation of 58 years. It has been issued on 26.10.2005. This according to the landlord is not a certificate as contemplated in Section 13-A by is it issued by the authority competent to remove him. This objection again in my view is meaningless. Since the earlier objection to the petition had been taken by the tenant only on the ground that the landlord was due for retirement on 31.7.2005, the fact of employment in government service itself was not questioned but a vague CR No. 5979 of 2007 7 suggestion has been put to the landlord that he continued in service. The Office order issued by the Principal Secretary in my view satisfies the legal requirement. The mandate contained in this Section cannot be stretched to illogical length. Obviously a reference to a certificate is only to ensure that a person not in government service ought not to lay a claim under Section 13-A by a person creating a false proof of his retirement. If evidence alliunde is available about the fact of his retirement, the want of a certificate itself ought not to be taken as fatal to the contentions of the landlord or the maintainability of the petition under Section 13-A. The learned counsel for the landlord also relies on decisions of this Court in Lt. Col. Baldev Singh Bhalla Vs. Prem Sagar and another reported in 1991 (1) PLR 289 that a certificate from a Military Secretary's Branch of Army retirement of the landlord as Lt. Col. was acted upon even though it had been signed by an Officer lower in rank than the petitioner, where it said “That was itself not a ground to cast any doubt on the genuineness of the validity of the certificate”. This issue was affirmed in another ruling in Sohan Lal Vs. Utam Singh reported in 2004 (2) RCR (2) 208 where the Court held that the question whether the authority which issued the certificate was competent or not was insignificant. In so saying this Court relied on a decision of the Supreme Court in Kanta Udharam Jagasia Vs. K. S. Rao reported in 1997 (2) RCR 693 where the Supreme Court held that a certificate of employment granted by a competent authority could not be doubted in summary proceedings such as the rent control proceedings. A recent judgment of this Court affirms the same principle in Bachan Lal Vs. Yogeshwar Lal Mehta 2006 (2) HRR 682. I, therefore also reject the contention of the tenants that the petitions by the landlord ought to fail for want of alleged lack of appropriate certificate. 7. The last submission of the landlord is that sale deed in favour of the landlord has not been properly proved. The proof CR No. 5979 of 2007 8 sought to be given through evidence of a witness from the revenue department contained reference to the property No. 1320 but the petition was covered by the property bearing No.1350. The genuineness of the sale deed itself cannot be questioned by the tenant in any rent control proceedings. The tenant had accepted the landlord as a person entitled to receive rent and such a person cannot impeach the genuineness of the sale in favour of his landlord. Further it could also be seen that reference to the number contained in the document produced by PW-2 is an obvious mistake for was nobody's case that the landlord owned another property No. 1320. The evidence of PW-1 itself had been only with reference to H. No. 1350. The sale deed is not a document which is required by law to be attested. The non-examination of the witnesses to sale deed as pointed out by learned Senior counsel arguing on behalf of the tenants merits no consideration. 8. As a last fling against the landlord's petition, it is contended by the counsel arguing on behalf of the tenant in C.R. No.6063 of 2007 that the landlord himself filed another petition under Section 13 of making out a case of bona fide requirement and the case was still pending. According to him the subsequent filing of the petition was an admission of the non-maintainability of the petition under challenge. Subsequent petition is not a matter of adjudication before this Court and tenability or otherwise is irrelevant. Again no inference could be drawn about the maintainability of the petitions now challenged by the fact that the landlord had filed the subsequent petition for the same releif under Section 13 . A subsequent petition could be a matter of over caution by a landlord but that would not take away merits of the landlord's claim in petitions which have been held to be maintainable. 9. For the reasons stated above, the revisions are without any merit and are dismissed. The costs of the landlord is assessed CR No. 5979 of 2007 9 at Rs.5,000/- in two sets payable by the respective tenants in two civil revision petitions. Time for eviction four months. (K. KANNAN) JUDGE February 24, 2009 archana