• :.;.ii.Il.ikJli HIGH COURT OF CHHAmSGARH: BILASPXJR S.B. HOB'BLE SHRI VIJAY KOMAR SHWVASTAVA. J CTVIL REVISIOH N0. 335/2003 PETITIONER: Vs. RESPONDENT Shri Nagendra Kumar Agrawal, aged about 60 years, s/o, Shri JaiKrishna Agrawal, Sar&swati Printing F'ress, Sadar Bazar, Raipur, Dist. Raipur (CG). Siut. Hakeein Bai, Wd/o. Late Shri Tehir Ali, r/o. Sadar Bazar, Raipur, Dist Raipur (CG). PRESENT: Shri H.S. Patel and Shri Vivek Raajaa Tiwari, Counsel for the petitioner. Ku. Madhu Modi, Counsel for the respondent. ORDER ( Passed on 03/01/2006) This rewteion under Section 23-E of ttie Chliatdsgarh Acconuaodation Control Act, 1961 (for short, fhe Act^) is directed against fhe order dated 17/ 10/;03 passed by the Reat Controlliag Authority (for short, "Authority') Raipur, in Case No. 6/90(8) 2002-2003 whereby order for the recoveiy ofpossession in favour oflaadlord/respondent has been passcd. 2) Respondent/laadlord Smt. Hakeem. Bai ffled aa applieation under Section 23-A of fhe Act for the reccweiy 6f possession of the siiit accoiamodation on fhe ground that the suit accommodation is required bona fide by her for .business of her son namely Falaz Abl^as Saifi. .t.-Siks.ihlfjysat^^,-^^ 'S-5 3) Petitioner/tenant on service of sununons, wifhia prescribed period filed an application supported by an affidavit stetuig the k groiiads on which he sought to contest fhe application for eviction to obtain leave fiom fhe Rent ContToUing Authority in accordauce wifh Section 23-C of fhe Act. The application was opposed by the landloi'd/respondent. Petitioner/tenant in Ns appUcation stated fhat Falaz Abbas Saifi who is aa Advocate is doiag his business for fhe last 26-27 years in a part of house beariag No.44/288. The said house is situated at mnm road aad behiud it a house wifh aU facilities haviag 4500 sq.flt Carpet are in his possession. Smt. Hakeein Bai is only a co-owner having 12.5% share in the said accoinuiodation who is nientally aiid physicaUy iU and is not conipeteat to j51e an application. Otity to euliance the rent fi-oiu Rs.1600/- (Rupees One fhousand six huadred) to Rs.5,000/- (Rupees Pive thousand) on false pretext fhis application for (he recoveiy of the suit 'accoininodation has been filed. Respondent/landlord alfhough opposed the appUcation, but did not deny, in a speci&c tenn, her share as stated by tenaut/peti.tioner to be incorrect. 4) Leamed Aufhority after hearing both fhe parties vide separate order dated 17/10/2003 dismissed the appUcation fBfed by the tenaat for obtaming leave to defend on fhe ground fhat the tensmt faUed to show any ground on which leave to defend inay be aUowed. Leamed Authority also struck out his dcfence aud vide iinpugned order allowed the appUcation filed by fhe landlord/respondent for the recoveiy of the suit accoinniodation fix>in tenanit/petitipner^ /' ..^J- 5) Section 23-C (2) of fhe Act reads as below: k "23-C(2) The Rent Confrolling Authority shaff, within one nwnthfrom. ihe date of receipi of appKoation give to the fenant, if necessary, leave to contest the appKcatmn if the dppUcation supported by an (^fidcwit filed by the tenant dtsc?oses such fcuds would disentMe the landlord from obtairung an order for the reoovery of possession of the Ctccormnodation on the ground spedfied ;n Section 23-A. ° 6) Froni bare readiug of the above said provision it is clear that if tenaut discloses such facts fhat would disentifle fhe landlord from. obtaining an order for fhe recoveiy of possession of fhe accoininodation on fhe ground speciGed in Section 23-A Ue is entitled to obtain leave to contest the application. 7) Ur-der Section 23-A of fhe Act, application for fhe recoveiy ofpossession for non-residential accoinmodation on bona fide requireinent filed by fhe owner is tenable. Landlord's son who is aa Advocate, is doing his business in aa accoiumodatton for the last 26-27 yeare. Whefher that accomiaodation is sufficient or not and whether acconimodation ia possession of tenaat wiB fu1fi11 the need to carry out his busiaess are fhe niatters required to be ; proved by evidence and if it is proved fhat requireiuent is not b.0na fide, or if it is pioved fhat application for recovery of possession has not been made by owner/laadloid or if it is filAd oxily to put pressure on tenaat to enhance tihie rent, atl fhat wopld »i*lkKl*n»^A a' disentifle the landlord/respondent •froni recovering possession over fhe suit accominodation. Therefore, it is mianifest tiiat fhe tenant t . in his appUcation duly supported by an affidavit disclosed those facts which would disentifle the landlord frova. obtauung an order for fhe recoveiy of possession, aad fherefore, fhe Aufhority was bound to aUow the application duly supported by an uncontroverted affidavit which discloses the facts which would disentifle the landlord from obteummg an order for the recoveiy ofllie possession. 8) Leamed Authority vide unpugiied order dated 17/10/2003 erroneously dismissed fhe appUcation filed by ftie tenant/petitioner for obtaining leave to defend aad struck out his defence. Therefore, the iinpugned order passed m. favour of fhe laudlord/respondent and also the order rejecting the appUcation are liable to be set aside. 9) In the result, the impugued order as weU as the order rejectuig the appUcation filed under Section 23-C of fhe Act by the Aufhority are set aside and the application filed by fhe tenant/petitioner under Sectfon 23-C of fhe Act for leave to contest the petition ffled by the landloid. is aUowed. The case is remanded back to the Authority for deciding the saine iu acconlanee with law. 10) Bofh the parties are directed to appear before the Aufhority on 15/02/2006. i Sd/- V.K.Shrivastava Judge .' -'•-^s "s !iil