JUDGMENT
N.K. Kapoor, J.
1. This is tenant’s revision petition against the order of Rent Controller refusing him premission to contest the application filed by the respondent under Section 13-A of the East Punjab Rent Restriction Act, 1949 (for short ‘the Act’) as made applicable to the Union Territory, Chandigarh.
2. The respondent landlady claiming herself to be ‘specified landlord’ sought eviction of the petitioner/tenant on the ground that portion Mark B which has been described as ABCD in the map attached with the petition has fallen to her share on the basis of Civil Court decree dated 15th June, 1989. Either she had been serving in the Punjab Education Department and finally retired as Youth Welfare Officer on 31st October, 1990. Presently she is in occupation of one room and one chowkidar’s room which accommodation is not suitable to her requirement and status. She does not own and possess any other suitable accommodation in the urban area of Chandigarh. She further averred that notice has already been served upon the tenant which has been received back with the report that he was not available.
3. The tenant put in appearance and sought permission of the Rent Controller in terms of Section 18-A of the Act to contest the petition on merits. Various grounds were urged by the tenant seeking leave to contest, namely, (i) the landlady is not ‘specified landlord’; (ii) the present petition has not filed within one year from the date of her retirement; (iii) there is no relationship of landlord and tenant between the parties; and (iv) that the civil court decree dated 15th June, 1989 suffered by Smt. Kamla Madhok is collusive and suffered by her solely with a view to seek eviction of the petitioner tenant as her previous attempt in this regard has not been proved to be fruitful. Even the petition filed by Baldev Madhok, brother of the landlady, met with the same fate. In support of this contention the tenant relied upon number of documents including the previous judgments, affidavits, etc.
4. The Rent Controller, however, observed that the various points highlighted by the tenant in this petition seeking leave to contest are primarily arguable point and so chose to discus the same without allowing the tenant to substantiate the same by leading evidence.
5. The learned counsel for the petitioner with a view to seek reversal of the impugned order of the Rent Controller has once again highlighted the various points which somehow did not find favour with the Court below. The counsel further argued that in view of the prima facie documentary evidence in the nature of judgments of the Courts between Smt. Kamla Madhok and the petitioner or Baldev Madhok and the petitioner and other factual averments made in his petition seeking leave to contest the petition of the landlady under Section 13-A of the Act which have either been admitted or not specifically denied go in a long way in proving that triable to issue arise and this way the Rent Controller has erred in declining the prayer so made which is not only unjust but also contrary to the statutory provisions. Elaborating the first point which needs close scruting is whether Smt. Sunita Madhok-landlady is specified landlord. On her own showing she retired from government service on her attaining superannuation on 1st November, 1989. Thus, if it be taken that she is ‘specified landlord’ qua the petitioner she could bring such an action for evicting the tenant under Section 13-A of the Act within one year prior to or within one year after the date of her retirement. The present petition having been filed on 28th August, 1991 was thus not within the specified limit. As per Section 13-A of the Act, subsequent re-employment and the alleged finally retiring from such a service could not clothe her with any such right as given by the Rent Controller argued further, the counsel highlighted that the Civil Court decree dated 15th June, 1989 suffered by erstwhile owner/landlord is nothing but a device set up by her to get rid of the tenant as earlier her attempts have not been proved fruitful. Even the petition filed by Baldev Madhok under Section 13-A of the Act was dismissed by the Rent Controller by order dated 12th August, 1991. The fact that the Civil Court decree dated 15th June, 1989 is collusive is well proved on record as per proceeding culminating in dismissal of the petition under Section 13-A of the Act filed by Baldev Madhok, pendency of civil revision No. 3458 of 1989 filed by Smt. Kamla Madhok and the factum of recovery of rent for the period 1st December, 1988 to 2nd May, 1990 by Smt. Kamla Madhok in a petition cumulatively point towards the complicity of Kamla Madhok and Smt. Sunita the alleged landlady. All these points in any case needed close scrutiny and could not be thrown out in summary manner. Even the conclusion of the Rent Controller that the decree dated 15th June, 1989 could not be assailed by the tenant is unsupportable in law. Lastly, the counsel submitted that fragmentation of the property situate at Chandigarh is not permissible as per Rule 14 of the Chandigarh (Sales of site and Building) Rules 1960.
6. Counsel for the respondent in support of the order of the Rent Controller has highlighted the definition of a ‘specified landlord’ in Section 2(hh), Section 13-A and Section 18-A Clause 5(5), 5(6), 5(8) of the East Punjab Rent Restriction (Amendment Act) 1985. Elaborating that the landlady as per Section 2(hh) of the Act comes within the ambit of a ‘specified landlord’ and so had a right to maintain this petition as she finally retired as per certificate duly proved on record on 31st October, 1990. The petition for eviction having been filed on 28th August, 1991 comes within the purview of Section 13-A of the Act and so has been rightly held by the Rent Controller to be maintainable. With regard to the plea of the petitioner that the decree suffered by Smt. Kamla Madhok is nothing but collusive, the counsel urged that the tenant has no right to assail the correctness of the judgment as held in the case reported as Kewal Krishan v. Lajwanti, (1988-1) 93 P.L.R. 307. A bare perusal of the judgment and decree of the sub Judge reveals that it is on the basis of a family settlement. Each one of the parties have been assigned separate share in the suit property. Such a judgment could be assailed only by the parties on the ground of fraud, undue influence etc. In any case, the tenant has no such right and this way too the approach of the Rent Controller is perfectly legal and in consonance with the judicial pronouncements of the judicial Court.
7. I have heard learned counsel for the parties at considerable length and perused the documents which were placed by the petitioner-tenant in support of his plea that he be permitted to contest the petition filed by the landlady under Section 13-A of the Act. It has come on record that Smt. Kamla Madhok, the erstwhile-owner, sought eviction on the ground of personal necessity way back in the year 1985. Her petition was, however, dismissed by the Rent Controller and an appeal there from met the same fate. Admittedly, Civil Revision No. 3458 of 1989 between Smt. Kamla Madhok and petitioner is still pending in the High Court. Earlier to the present petition, Baldev Madhok, brother of Smt. Sunita, too attempted to evict Sh. Mathur in terms of Section 13-A of the Act by filing a petition on 29th August, 1987. His application was rejected by the Rent Controller on 12th August, 1991. Thus, it appears that Kamla Madhok having not succeeded, in getting the petitioner evicted, Smt. Sunita has chosen to assert her right on the basis of decree dated 15th June, 1989 which is seriously contested by the tenant. Whether such a petition is not maintainable on the ground that the same has been filed mala fide is the point which needs close scruting by the Court. The Rent Controller has primarily relied upon the civil court decree dated 15th June, 1989 and so has held the landlady to be a ‘specified landlord’ further holding that she finally retired on 31st October, 1990. Earlier litigation between Kamla Madhok, Baldev Madhok and the petitioner as well as the civil court decree dated 15th June, 1989 have indeed material bearing upon the point in controversy. Not only this, it needs further examination as to the effect of Rule 14 of the Chandigarh (Sales of Site and Building) Rule, 1960 as the judgment of this Court relied upon by the Rent Controller in support of his conclusion has been set aside vide order of the apex Court in case Chandigarh Administration v. Chander Parkash Malhotra, Civil Appeal No. 4994 of 1992 decided on November 24, 1992. I have purposely avoided a threadbare examination of the various judgments cited by the learned counsel for the respondent as any observation in the context of the present dispute may not amount to prejudging the matter or otherwise precluding of the Rent Controller from deciding unhampered. In the light of the material on record, I am of the view that tenant’s petition under Section 18-A of the Act raises triable issue and so could not be decided summarily. Accordingly, I accept the petition, set aside the order of the Rent Controller for fresh adjudication. The Rent Controller shall afford reasonable opportunity to the parties to lead evidence in support of their contention, and decide the matter without inordinate delay. Section 18-A sub Clause (6) of the Act stipulate that the Rent Controller is to commence the hearing of the petition not later than one month from the date on which the leave is granted to the tenant to contest such an application and hear the application from day to day basis till the hearing is concluded and application decided. This being the mandate of the Act, the Rent Controller would proceed in the manner as per provisions of the Act and decide the petition. The parties are directed to appear before the Rent Controller on 11th June, 1993 who thereafter shall frame the triable issues, afford opportunity to the parties to adduce evidence without any undue delay. No costs.