Case: Anar Devi Vs. Nathuram

landlord, an obligation is imposed on the tenant to obtain leave from the Rent Controller to contest that application. For seeking such leave, the tenant is required to make an application supported by an affidavit specifying the ground on which he wants to contest the application. Again, if he does not file such application supported by an affidavit or if the Court refuses to grant leave to contest it, the statement as regards the ground on which recovery of possession of the accommodation is sought by the landlord in his application shall be deemed to be admitted by the tenant and the Rent Controller in that event, is bound to pass an order of eviction of the tenant from the accommodation. When it comes to sub-section (3) of Section 23-D, it says that `in respect of an application by a landlord it shall be presumed, unless the contrary is proved, the requirement by the landlord with reference to clause (a) or clause (b), as the case may be, of Section 23-A is bona fide. Such presumption requires the Rent Controller to regard the fact of bona fide requirement of the accommodation by the landlord to be taken as proved until the same is disproved by the tenant. Thus, when the said provisions in the Chapter along with other provisions therein, reflect a legislative scheme or policy of enabling landlords of specified classes to recover possession of accommodation from their tenants with utmost expedition before the Rent Controller, a forum specially constituted for the purpose and when under Section 116 of the Evidence Act a tenant is estopped from denying his landlords title to accommodation, whether he was there either from the beginning of the tenancy or had become a tenant subsequently by acknowledging the landlords title, it is difficult to think that the words `if he is the owner thereof used in clause (b) of Section 23-A are intended to require the landlord to plead in his application for recovery of possession made under the clause, his ownership of accommodation, and establish the same by evidence aliunde, to succeed in recovery of possession of such accommodation from the tenant. It would be so, particularly, when he was not so required to plead or establish on an application if had been made by him for recovery of possession of the accommodation on the self same ground under Section 12(1)(f) of the Act. It is also difficult to think that the said words `if he is the owner thereof in the clause, require that the landlord should plead and establish his title to the accommodation for recovery of its possession from the tenant, for that would be as good as asking him to go to Civil Court for establishing his title to the property and recover its possession from the tenant, which if is the correct position, would, instead of advancing the aforesaid object of the provisions in the Chapter, squarely result in its defeat. Therefore, what could be said of the words `if he is the owner thereof used in clause (b) of Section 23-A, is that they are although meant to enable the landlord who is the owner of the accommodation, to submit an application under that clause for recovery of possession of the accommodation from his tenant, they are not intended to require such landlord to plead in his application that he is the owner of such accommodation and adduce evidence aliunde in that behalf for succeeding in that application.17. Our answer to the question, therefore, is that the use of the words `if he is the owner thereof used in clause (b) of Section 23-A of the Act does not require of the landlord who makes an application thereunder for recovery of possession of accommodation from the tenant to plead therein that he is the owner of such accommodation and establish by evidence aliunde that he is such owner, for succeeding in such application even though these words may enable a tenant to contest such application on the ground that the landlord is not the owner of the accommodation if he is not inhibited from doing so under Section 116 of the Evidence Act.18. Coming to the facts of the present appeal, as has been already pointed out by us, the learned Judge of the High Court reversed the order of the Rent Controller, on his view that the landlord-appellant, who had sought to recover possession of the accommodation from his tenant-respondent under clause (b) of Section 23-A of the Act, had failed to establish or prove that she was the owner of the accommodation by adducing sufficient evidence in that behalf and, therefore, her application for eviction of the tenant-respondent from the accommodation was liable to be rejected. The question as to whether a landlord, who files an application under clause (b) of Section 23-A of the Act should plead in such application that he was the owner of the accommodation and establish by evidence aliunde that he was such owner, has since been considered by us earlier and answered to the effect that the landlord making such application need not plead in his application that he was an owner of the accommodation and he need not establish or prove by adducing evidence aliunde, for succeeding in such application, the view taken by the High Court that the landlords application under clause(b) of Section 23-A of the Act should be rejected on the ground that the appellant has failed to prove that she was the owner of the accommodation which she sought to recover from the tenant, cannot be sustained. Besides, the respondent, who had acknowledged the ownership of the accommodation as that of the appellant and had regarded her as the landlord in his counter notice, Ex. P-4, and plaint in the suit, Ex. P-5, was not even entitled to deny the title of the appellant to the accommodation. Hence, the judgment and order of the High Court calls to be interfered with and set aside.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]16. The legislature, in our view, by use of the words `if he is the owner thereof in clause (b) of Section 23-A could not have intended to require the landlord for whose benefit that provision was made, to plead in his application and to establish by evidence aliunde, that he was the owner of the accommodation, becomes obvious from the various provisions in Chapter III-A to which we have adverted to. When we look at Section 23-A along with the form of notice in the Second Schedule to be issued on the application made under clause (b) of Section 23-A of the Act by the landlord, an obligation is imposed on the tenant to obtain leave from the Rent Controller to contest that application. For seeking such leave, the tenant is required to make an application supported by an affidavit specifying the ground on which he wants to contest the application. Again, if he does not file such application supported by an affidavit or if the Court refuses to grant leave to contest it, the statement as regards the ground on which recovery of possession of the accommodation is sought by the landlord in his application shall be deemed to be admitted by the tenant and the Rent Controller in that event, is bound to pass an order of eviction of the tenant from the accommodation. When it comes to sub-section (3) of Section 23-D, it says that `in respect of an application by a landlord it shall be presumed, unless the contrary is proved, the requirement by the landlord with reference to clause (a) or clause (b), as the case may be, of Section 23-A is bona fide. Such presumption requires the Rent Controller to regard the fact of bona fide requirement of the accommodation by the landlord to be taken as proved until the same is disproved by the tenant. Thus, when the said provisions in the Chapter along with other provisions therein, reflect a legislative scheme or policy of enabling landlords of specified classes to recover possession of accommodation from their tenants with utmost expedition before the Rent Controller, a forum specially constituted for the purpose and when under Section 116 of the Evidence Act a tenant is estopped from denying his landlords title to accommodation, whether he was there either from the beginning of the tenancy or had become a tenant subsequently by acknowledging the landlords title, it is difficult to think that the words `if he is the owner thereof used in clause (b) of Section 23-A are intended to require the landlord to plead in his application for recovery of possession made under the clause, his ownership of accommodation, and establish the same by evidence aliunde, to succeed in recovery of possession of such accommodation from the tenant. It would be so, particularly, when he was not so required to plead or establish on an application if had been made by him for recovery of possession of the accommodation on the self same ground under Section 12(1)(f) of the Act. It is also difficult to think that the said words `if he is the owner thereof in the clause, require that the landlord should plead and establish his title to the accommodation for recovery of its possession from the tenant, for that would be as good as asking him to go to Civil Court for establishing his title to the property and recover its possession from the tenant, which if is the correct position, would, instead of advancing the aforesaid object of the provisions in the Chapter, squarely result in its defeat. Therefore, what could be said of the words `if he is the owner thereof used in clause (b) of Section 23-A, is that they are although meant to enable the landlord who is the owner of the accommodation, to submit an application under that clause for recovery of possession of the accommodation from his tenant, they are not intended to require such landlord to plead in his application that he is the owner of such accommodation and adduce evidence aliunde in that behalf for succeeding in that application.17. Our answer to the question, therefore, is that the use of the words `if he is the owner thereof used in clause (b) of Section 23-A of the Act does not require of the landlord who makes an application thereunder for recovery of possession of accommodation from the tenant to plead therein that he is the owner of such accommodation and establish by evidence aliunde that he is such owner, for succeeding in such application even though these words may enable a tenant to contest such application on the ground that the landlord is not the owner of the accommodation if he is not inhibited from doing so under Section 116 of the Evidence Act.18. Coming to the facts of the present appeal, as has been already pointed out by us, the learned Judge of the High Court reversed the order of the Rent Controller, on his view that the landlord-appellant, who had sought to recover possession of the accommodation from his tenant-respondent under clause (b) of Section 23-A of the Act, had failed to establish or prove that she was the owner of the accommodation by adducing sufficient evidence in that behalf and, therefore, her application for eviction of the tenant-respondent from the accommodation was liable to be rejected. The question as to whether a landlord, who files an application under clause (b) of Section 23-A of the Act should plead in such application that he was the owner of the accommodation and establish by evidence aliunde that he was such owner, has since been considered by us earlier and answered to the effect that the landlord making such application need not plead in his application that he was an owner of the accommodation and he need not establish or prove by adducing evidence aliunde, for succeeding in such application, the view taken by the High Court that the landlords application under clause(b) of Section 23-A of the Act should be rejected on the ground that the appellant has failed to prove that she was the owner of the accommodation which she sought to recover from the tenant, cannot be sustained. Besides, the respondent, who had acknowledged the ownership of the accommodation as that of the appellant and had regarded her as the landlord in his counter notice, Ex. P-4, and plaint in the suit, Ex. P-5, was not even entitled to deny the title of the appellant to the accommodation. Hence, the judgment and order of the High Court calls to be interfered with and set aside.