Punjab-Haryana High Court
Ashwani Kumar Gupta vs Shri Siri Pal Jain on 3 July, 1998
Equivalent citations: (1998)120PLR170
JUDGMENT G.S. Singhvi, J.
1. This revision petition of the tenant has been placed before the Division Bench in view of the order dated 23.1.1995 passed by the learned Single Judge.
2. The respondent-landlord, who now stands retired from service, filed an application under Section 13-A of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as 'the Act') on 7.1.992 for ejectment of the petitioner-tenant from the residential premises situated at Kali Bari Chowk, Sadar Bazar, Ambala Cantt. by stating that he was working as Senior Personal Assistant to the Chief General Manager, Telecommunication, Punjab Circle and is to retire on 31.3.1992. The landlord also averred that he was living as a tenant in H. No. 4152, Kotwali Mohalla, Ambala Cantt. and was paying monthly rent of Rs. 200/- and that the demised premises were required for the use and occupation for himself and his family which consisted of himself, his wife, two sons and three daughters including the one who was married but was divorced.
3. Notice of the application filed by the landlord was served upon the petitioner- tenant on 14.1.1992 who filed an application dated 30.1.1992 seeking leave to contest the application on the ground that the demised premises are not residential and are not needed by the landlord. He also pleaded that the application filed by the landlord for ejectment of the tenant was already pending and, therefore, there was no justification to entertain the application filed by the landlord under Section 13-A.
4. The respondent resisted the prayer made by the petitioner for grant of leave to contest the application on the ground that it was barred by time. It was urged on his behalf that the summons of the application filed under Section 13-A of the Act had been served upon the tenant on 14.1.1992 and, therefore, he could file an application or affidavit for leave to defend within 15 days from 14.1.1992 i.e., upto 29.1.1992 and the application filed by him after that date was liable to be dismissed. On behalf of the petitioner, it was pleaded that the application for grant of leave had been filed within limitation because the summons were served upon him on 15.1.1992. The Rent Controller upheld the plea of the respondent-landlord that the application filed by the tenant was barred by time. He then examined the various grounds on which the landlord sought eviction of the tenant and passed the order dated 16.2.1993 for the latter's ejectment.
5. Hon'ble H.S. Bedi, J. who heard the revision petition felt that the decision of the learned Single Judge in Gian Singh Gandhi v. Surjit Singh, (1989-1)95 P.L.R. 335 and some observations made in Pooran Singh v. Jai Ram Dass, 1989(1) Rent Law Reporter 611 are contrary to the express provisions of the statute. Therefore, his Lordship referred the case for adjudication by a Division Bench.
6. Shri Ashok Sharma Nabhewala argued that the Rent Controller has gravely erred in holding that the application filed by the petitioner on 30.1.1992 for grant of leave to contest the petition filed by the landlord is barred by limitation because the summons were served upon the petitioner on 15.1.1992 and he could file application within 15 days i.e. upto 30.1.1992. He further argued that the provision contained in Section 13-A(2) of the Act read with the form of summons shows that the provision regarding filing of application for leave to appeal is directory and in any case, the period of 15 days specified in the form can be extended by the Rent Controller on sufficient cause being shown to explain the delay. Learned counsel submitted that the provisions of Section 5 of the Limitation Act, 1963 can be invoked by the Rent Controller for condoning the delay in the filing of the application. He relied on the decision of this Court in Gian Singh Gandhi v. Surjit Singh, 1989(1) P.L.R. 335, Roop Kishore Sharma v. Smt. Bachni Devi, (1998-1)118 P.L.R. 63 and also on the decision of Delhi High Court in Surinder Kumar v. Prem Kumar, 1980(2) R.L.R. 27. Shri M.L. Sarin, Senior Advocate appearing for the respondent submitted that the finding of fact recorded by the Rent Controller about the date of service of summons and that the application was filed by the tenant after the expiry of the period ' of 15 days does not suffer from any error warranting interference by the High Court in exercise of its revisional jurisdiction. Shri Sarin submitted that Section 13-A of the Act constitutes a special provision meant to benefit a special category of landlords who are serving the Army or the government and are desirous of occupying their own premises after retirement and, therefore, it must be construed strictly and the tenant, who wants to avail of the benefit of Section 13-A(4) and 13-A(5) of the Act has to apply for grant of leave within 15 days, else the Rent Controller has no jurisdiction to condone the delay. He argued that the very purpose of enactment of the special provision like Section 13-A of the Act will be defeated if the Rent Controller is given discretion to condone the delay in the filing of the application. Learned counsel submitted that the provisions of Limitation Act, 1963 cannot be applied to the proceedings initiated under Section 13-A of the Act because the Act of 1973 constitutes a special statute vis-a-vis the Act of 1963. He relied on Krishan Lal alias Kalla v. Des Raj Sethi, (1988-1)93 P.L.R. 273, Gurditta Mal v. Shri Bal Sarup, 1980(2) R.C.R. 338, Smt. Savitri Devi v. Nathu Ram, 1982(2) R.C.R. 95, Sml. Kamal Bhandari v. Brig. Shamsher Singh Malhotra, 1981(2) R.C.R. 386, Madan Mohan and Anr. v. Krishan Kumar Sood, 1993 H.R.R. 193 and Officer on Special Duty (Land Acquisition) and Anr. v. Mani Lal Chhandulal, J.T. 1996(2) S.C. 278.
7. In order to appreciate the respective submissions in a correct perspective, it will be useful to reproduce Section 13-A (1A) to (11) and the form prescribed for issuance of summons under Section 13-A(2) of the Act. The same read as under:
"13-A. Special procedure for disposal of application in certain cases:
xx xx xx (1A). Where an application is made by a landlord who is or was an employee of Government of India or of Government of Haryana or of any State owned Board or Corporation of Haryana within one year prior to or after the date of his retirement or within one year from the date of commencement of Haryana Urban (Control of Rent and Eviction) Amendment Act, 1990, whichever is later, on the ground mentioned in sub-clause (i) of clause (a) of sub-section (3) of Section 13, the same, shall be dealt within accordance with the procedure specified in this section.
(2) The Controller shall issue summons, in relation to every application referred to in sub-section (1), in the form appended to this Act.
(3) (a) The Controller, shall, in addition to, and simultaneously with, the issue of summons for service on the tenant, also direct, the summons to be served by registered post, acknowledgement due addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works for gain and may if the circumstances of the case so require, also direct the publication of the summons in a newspaper circulating in the locality in which the tenant is last known to have resided or carried on business or personally worked for gain.
(b) When an acknowledgement purporting to be signed by the tenant or his agent is received by the Controller or the registered article containing the summons is received back with an endorsement purporting to have been made by a postal employee to the effort that the tenant or his agent had refused to take delivery of the registered article, the Controller may declare that there has been a valid service of summons.
(4) The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) shall not contest the prayer for eviction from the residential building unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid.
(5) The Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the residential building on the ground specified in sub-clause (1) of clause (a) of sub-section (3) of Section 13 (6) Where leave is granted to the tenant to contest the application, the Controller shall commerce the hearing of the application as early as practicable.
(7) The Controller shall, while holding an inquiry in a proceeding to which this section applies, follow the practice and procedure of a Court of Small Causes, including the recording of evidence.
(8) No appeal or second appeal shall lie against an order for the recovery of possession of any residential building made by the Controller in accordance with the procedure specified in this section; Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this Section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.
(9) Where no application has been made to the High Court for revision, the Controller may exercise the powers of review in accordance with the provisions of Order XLVII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908).
(10) Save as otherwise provided in this section, the procedure for the disposal of the application for eviction shall be the same as the procedure for the disposal of application by the Controller.
(11) The provisions of this Section or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in this Act or in any other law for the time being in force."
"FORM "(See sub-section (2) of Section 13-A).
Form prescribed for issuance of summons.
Form of summons in a case where recovery of possession of residential building is prayed for under Section 13-A of the Haryana Urban (Control of Rent And Eviction) Act, 1973.
(Name, description and place of residence of the tenant).
Whereas Shri has filed an application (a copy of which is annexed) for your eviction from _____ (here insert the particulars of the residential building) under Section 13-A of the Haryana Urban (Control of Rent and Eviction) Act, 1973;
Now, therefore, you are hereby summoned to appear before the Controller within fifteen days of the service thereof and to obtain the leave of the Controller to contest the application for eviction made under Section 13-A of the said Act, in default whereof, the applicant will be entitled at any time after the expiry of the said period of fifteen days to obtain an order for your eviction from the said residential building.
Leave to appear and contest the application may be obtained on an application to the Controller supported by an affidavit as is referred to in sub-section (5) of Section 13 of the said Act.
Given under my hand and seal this____day of____Controller."
8. If we carefully analyse the above extracted provisions of Section 13-A of the Act along with the form, it becomes clear that the Rent Controller, before whom an application is filed by the landlord under Section 13-A(1A) of the Act has to issue summons for service on the tenant in the ordinary course as well as by registered post acknowledgement due. He is also empowered to direct the publication of the summons in the newspapers circulating in the locality in which the tenant is last known to have resided or personally worked for gain. The tenant on whom the summons is duly served, whether in the ordinary way or by registered post, is precluded from contesting the prayer made by the landlord for eviction from the residential building if he fails to file an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller. Sub-section (5) of Section 13A of the Act empowers the Controller to grant leave to the tenant to contest the application. The practice and procedure of the Court of Small Causes is to be followed by the Controller while holding an enquiry under Section 13A. Section 13A(8) of the Act declares that no appeal or second appeal shall lie against an order for the recovery of possession of any residential building made by the Controller under Section 13A of the Act. However, the High Court can call for the records of the case and pass appropriate order. Sub-section (10) of the Act lays down that except as otherwise provided, the procedure for disposal of the application filed under Section 13A of the Act shall be the same as the procedure for the disposal of application by the Controller. Sub-section (11) of Section 13A of the Act gives an over-riding effect to the provisions of Section 1.3A of the Act as against any other provision contained in the Act or any other law for the time being in force.
9. The above mentioned analysis of Section 13-A of the Act shows that the Legislature has prescribed a special procedure for adjudication of applications filed by the members of Armed Forces, the employees of the Government of India and the Government of Haryana who seek eviction of their tenants on the ground mentioned in Section 13(3) (a) (i) of the Act, namely, that the landlord requires the building for his own occupation. The object of enacting Section 13-A of the Act is to give expeditious relief to the landlord falling in the specified category who wants to occupy his property for personal use by ensuring the ejectment of the tenant without subjecting such landlord to the hustles and delays which are ordinarily caused in the decision of an application filed for ejectment of the tenant. At the same time, the Legislature has enacted Section 13A(4) and (5) for protecting the interest of the tenant by enabling him to seek leave of the Court to contest the application filed by the landlord. However, for taking advantage of these provisions, the tenant is required to make an application duly supported by an affidavit within 15 days of the service of the summons issued under Section 13A(2) of the Act. By giving overriding effect to the provisions of Section 13A of the Act vis-a-vis other laws including the provisions of the Act, the Legislature has made it abundantly clear that Section 13A should be treated as a code unto itself and the landlord as well as the tenant who wants to take the benefit of it must rigorously comply with the conditions enumerated therein.
10. In the back drop of the above discussion, it is to be seen whether the provisions of Section 5 of the Limitation Act can be invoked by the tenant for condonation of delay in the filing of the application for leave to defend and whether the Rent Controller has power to condone the delay and/or to extend the period of 15 days specified in the form appended to the Act.
11. In our opinion, the question relating to applicability of Section 5 of the Limitation Act must be answered against the petitioner because, as observed herein above, Section 13A of the Act is a code unto itself and it constitutes a special provisions not only vis-a-vis other provisions of the Act but also any other law for the time being in force. This naturally displaces the applicability of any other law which is inconsistent with the provisions of Section 13A read with the form prescribed for issuance of summons under Section 13A(2) of the Act. Therefore, neither the tenant can invoke the provisions of Limitation Act nor can the Controller use Section 5 thereof for condoning the delay in the filing of application under Section 13-A(4). As a logical corollary, it must be held that the Rent Controller does not have the discretion and jurisdiction to condone the delay in the filing of the application or to extend the period specified in the form. If at all the Legislature wanted to make the provisions of Limitation Act applicable or confer some element of discretion upon the Rent Controller, nothing prevented it from incorporating an express provision to. that effect. In the absence of such express provision, we do not find any rhyme or reason to import the applicability of the provisions of Limitation Act or implied vestige of discretion with the Rent Controller to condone the delay in the filing of the application or to extend the period of 15 days.
12. We may now refer to some judicial precedents. In Kaushalya Rani v. Gopal Singh, A.I.R. 1964 S.C. 260, a three-Judges Bench of the Supreme Court, while confirming the judgment of this Court, reported in A.I.R. 1963 Pb. 145, held that Section 5 of the Limitation Act cannot be invoked for condonation of delay in the filing of the application under Section 417(3) and (4) of the Code of Criminal Procedure. Some of the observations made in that case are extracted below:
"The whole Code of Criminal Procedure is indeed a general law regulating the procedure in criminal trials generally, but it may contain provisions specifying a bar of time for particular class of cases which are of a special character. Such a law will be a 'special law' with reference to the law generally governing the subject matter of that kind of relationship. A 'special law', therefore, means a law enacted for special cases, in special circumstances, in contradistinction to the general rules of the law laid down, as applicable generally to all cases with which the general law deals. In that sense, the Code is a general law regulating the procedure for the trial of criminal cases, generally; but if it lays down any bar of time in respect of special cases in special circumstances like those contemplated by S.417(3) and (4) read together, it will be a special law contained within the general law. The Limitation Act is a general law laying down the general rules of limitation applicable to all cases dealt with by the Act; but there may be instances of a special law of limitation laid down in other statutes, though not dealing generally with the law of limitation. Once it is held that the special rule of limitation laid down in sub-section (4) of S.417 of the Code of Criminal Procedure is a 'special law' of limitation, governing appeals by private prosecutors, there is no difficulty in coming to the conclusion that S.5 of the Limitation Act is wholly out of the way, in view of S.29(2)(b) of the Limitation Act."
13. The judgment of Kaushalya Rani's case has been referred to with approval in Officer on Special Duty (Land Acquisition) and Anr. v. Shah Manilal Chandulal etc., J.T. 1996(2) S.C. 278. In that case, the Apex Court interpreted the provisions of Section 18(1) and (2) of the Land Acquisition Act, 1894 and held as under :
"It is to remember that the Land Acquisition (Amendment) Act (68 of 1984) was enacted prescribing the limitation to exercise the power under Sections 4, 6, and 11 and also excluded the time occupied due to stay granted by the Courts. Taking cognizance of the limitation prescribed in proviso to sub-section (2) of Section 18, the provisions of the Limitation Act were not expressly extended.
Though Section 29(2) of the Limitation Act is available, and the limitation in proviso to sub-section (2) of Section 18 may be treated to be special law, in the absence of such an application, by Land Acquisition (Amendment) Act (68 of 1984), the Act specifically maintains distinction between the Collector and the Court and the Collector/LAO performs only statutory duties under the Act, including one while making reference under Section 18. It is difficult to construe that the Collector/LAO while making reference under Section 18, as statutory authority still acts as a Court for the purpose of Section 5 of the Limitation Act.
Though hard it may be, in view of the specific limitation provided under proviso to Section 18(2) of the Act, we are of the considered view that sub-section (2) of Section 29 cannot be applied to the proviso to sub-section (2) of Section 18. The Collector/LAO, therefore*, is not a court when he acts as a statutory authority under Section 18(1). Therefore Section 5 of the Limitation Act cannot be applied for extension of the period of limitation prescribed under proviso to sub-section (2) of Section 18. The High Court, therefore, was not right in its finding that the Collector is a Court under Section 5 of the Limitation Act."
14. In Jokkim Fernandez v. Amina Kunhi Umtna, 1973 K.L.T. 138, a Full Bench of Kerala High Court by a majority judgment held that the provisions of Section 5 of the Limitation Act are not applicable to the proceedings under the Kerala Buildings (Lease and Rent Control) Act, 1965. In P.V, Gadgil and Ors. v. P.V. Deshpande and Anr., A.I.R. 1983 Bombay 342, a Bench of that Court held that the provisions of Section 5 of the Limitation Act are not applicable for condonation of delay in seeking to make a reference under Section 18 of the Land Acquisition Act. Same is the view of Andhra Pradesh High Court in Spl. Dy. Collector Land Acquisition, Anantapur v. K. Kodandaramacharlu, A.I.R. 1965 A.P. 25.
15. In Madan Mohan and Anr. v. Krishan Kumar Sood, 1993 H.R.R. 193, a three-Judges Bench of the Supreme Court interpreted Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 and held that if the tenant fails to pay the arrears within 30 days from the date of order of payment, the Rent Controller has no right to make an order enlarging the period of 30 days. While doing so, the Apex Court approved the following observations made by R.S. Pathak, C.J., as his Lordship then was, in Shri Krishan Kumar v. Shri Gurbux Singh, 1977(2) R.C.R. 62.
"It is apparent that the statute itself provides a period of 30 days from the date of the order for payment of rental arrears by the tenant. On such payment, the statute declares, that effect will not be given to the order of eviction. The statute does not leave the determination of the period to the Rent Controller. It is not open to the Rent Controller, when disposing of the petition for eviction, to make an order either abridging or enlarging the period of 30 days. Indeed, the period having been determined by the statute itself, no order was necessary by the Rent Controller. There being no power in the Rent Controller to vary the period mentioned in the statute, it is apparent that the order made by him in the execution proceedings is a nullity. The Appellate Authority is right in the view taken by it."
16. In Krishan Lal alias Kalla v. Des Raj Sethi, (1988-1)93 P.L.R. 273, the learned Single Judge referred to an earlier decision in B.D. Thapar v. Shri Pal Singh, (1987-1)91 P.L.R. 344 and held that if no application is filed by the tenant within 15 days of the service of summons for leave to contest the application, the landlord will be entitled to obtain an order of eviction. Some of the observations made in that decision which are quite relevant to the issue raised in this case, are:
"If the summons are read as a whole, it could not be successfully argued on behalf of the tenant-petitioner that the period of 15 days was provided only for the appearance before the Controller and not for obtaining the leave to contest the application. To put any other interpretation will be defeating the very purpose of the provisions of Section 13(A) read with Section 18-A of the Act. If no period of 15 days as such is prescribed for making an application for obtaining the leave of the Controller to contest and it is left open to the tenant to move such -an application as and when it is convenient to him, it will be violative of the language used in the summons. It, may be that the period of 15 days was not provided under Section 18-A of such but the form of the summons has been specified in Sub-section 2 of Section 18-A of the Act in Schedule II. Thus the said form will be deemed to be a part of Sub-section 2 of Section 18-A of the Act. The last para of the summons only reiterates the provisions of sub-section. 5 of Section 18-A of the said Act, which provide that the Controller may give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the specified landlord from obtaining an order for the recovery of possession of the residential building. Apart from that, 15 days period is given for appearance as well as to obtain leave of the Controller to contest the application under Section 13(A) of the Act. It is not obligatory on the tenant to put in appearance unless he has the inclination to contest the eviction petition. That itself is enough to suggest that if he makes up his mind to appear, he must apply for leave to contest within the period allowed i.e. 15 days from the date of service. In default, the landlord will be entitled at any time after the expiry of the said period of 15 days to obtain an order for his eviction as provided in the summons itself. That further makes the period of 15 days relevant."
17. In Jaedish Parshad v. Smt. Phoolwati, 17(1990) D.L.T. 446, Gurditta Mal v. Bal Samp, 1989 R.L.R. L Subhash Chander v. Rehmatullah, 1972 R.L.R. 154 and Smt. Savitri v. Nathu Ram, 1982 R.C.R. 95, Delhi High Court has laid down the following propositions:
(i) The Controller is not a Court for the purpose of Section 5 of the Limitation Act and, therefore, the provision of 1963 Act cannot be applied to the proceedings under Delhi Rent Control Act, 1958.
(ii) The form of summons prescribed in Schedule-Ill to the Act is a part of the Act and the 15 days prescribed by it is a special period of limitation beyond which an application for leave to contest cannot be made.
(iii) The Rent Controller has no power to extend the period of 15 days specified in the form.
18. In Gian Singh Gandhi v. Surjeet Singh, (1989-1)95 P.L.R. 335, the learned Single Judge upheld the order passed by the Rent Controller by which the latter condoned two days delay in the filihg of application by the tenant to contest the prayer made by the landlord under Section 13-A of the Act for his ejectment. In Surinder Kumar v. Prem, 1980(2) R.L.R. 279, the learned Single Judge of Delhi High Court held that the provision of filing of application by the tenant within 15 days is directory and the tenant can apply for condonation of delay. In Roop Kishore Sharma v. Smt. Bachni Devi, 1998(1) A.I.J. 131, the learned Single Judge held that a liberal approach should be adopted by the Rent Controller while dealing with the application for condonation of delay filed by the tenant along with his application for grant of leave to contest the prayer of the landlord for ejectment under Section 13-A of the Act. In Puran Singh v. Jai Ram Das, 1989(1) R.L.R. 611, the learned Single Judge held that where the tenant did not give cogent explanation for the delay, the Rent Controller was justified in rejecting the application for leave to contest ejectment application suggesting thereby that the Controller has got power to condone the delay.
19. Three of the last four decisions have been relied upon by Shri Nabhewala in support of his contention that the Rent Controller has the discretion to condone the delay, but with great respect we are unable to subscribe the opinion expressed in these decisions because in none of the cases the learned Single Judges dealt with the issue relating to interpretation of Section 13-A of the Act and the period of 15 days specified in the form appended to the Act. A careful reading of these judgments shows that the learned Judges proceeded on the assumption that the Rent Controller is vested with the discretion to condone the delay and dealt with individual cases on their own facts. In our considered view, these decisions cannot be read as laying down a proposition of law that Section 5 of the Limitation Act can be invoked for condonation of delay in the filing of application by the tenant for grant of leave to contest the prayed made by the landlord under Section 13-A- of the Act or that the Rent Controller is vested with the discretion to extend the time specified in the form appended to the Act. Rather, we express our complete agreement with Hon'ble H.S. Bedi, J. that the observations made in Gian Singh Gandhi's case and Pooran Singh's case are contrary to the express wording as also to the spirit of Section 13-A of the Act and hold that the provisions of Section 13-A of the Act constitute a special legislation and in view of sub-section (11) thereof the provisions of Limitation Act, 1963 cannot be invoked for dealing with the applications filed under that Section. We also hold hat the Rent Controller does not have the jurisdiction to extend the period of 15 days specified in the form appended to the Act and if the tenant fails to make an application within 15 days of the service of summons, he cannot be granted leave to contest the petition filed by the landlord under Section 13-A of the Act.
A look at the impugned order shows that the Rent Controller has, on a thorough evaluation of the evidence, recorded a finding of fact that the summons sent to the petitioner by registered post were received by him on 14.1.1992 and that is to be considered as the date of service of summons upon him for the purpose of computing the prescribed period of 15 days for filing the affidavit seeking leave to contest the application. He further held that the application filed by the petitioner on 30.1.1992 is barred by time. In our opinion, the findings recorded by the Rent Controller do not suffer from any error of law requiring interference by the High Court.
For the reasons mentioned above, the revision petition is dismissed. The petitioner shall pay costs of Rs. 2,000/- to the respondent.