Punjab-Haryana High Court
S.Sadhu Singh vs Col. Avnish Sharma & Anr on 29 July, 2009
Author: Surya Kant
Bench: Surya Kant
C.R.No.3322 of 2009. ::-1-::
IN THE HIGH COURT FOR THE STATES OF PUNJAB
AND HARYANA AT CHANDIGARH.
C.R. No. 3322 of 2009. [O&M]
Date of Decision: 29th July, 2009.
S.Sadhu Singh Petitioner
through
Mr. S.K.S.Bedi, Advocate
Versus
Col. Avnish Sharma & Anr. Respondents
through
Mr. Devanshu Jain, Advocate.
CORAM:
HON'BLE MR. JUSTICE SURYA KANT.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
SURYA KANT, J.
This revision petition is directed by the tenant against the order dated 20th April, 2009 passed by the Rent Controller, Chandigarh whereby his application, purportedly under Order 7 Rule 11 CPC "for dismissal of the application for ejectment dated 24th January, 2009 or in the alternative for grant of permission to defend the application for ejectment", has been dismissed and an order of eviction has been passed under Section 13-A of the East Punjab Urban Rent Restriction Act, 1949, as is applicable to U.T., Chandigarh.
[2]. The facts may be noticed briefly. [3]. The first respondent was serving as a Colonel in the
Indian Army, who got premature retirement w.e.f. 26th February, 2008. He filed an ejectment application under Section 13-A of the the C.R.No.3322 of 2009. ::-2-::
East Punjab Urban Rent Restriction Act, 1949 [for short 'the Act'] as applicable to Chandigarh against the petitioner - tenant, inter-alia, averring that House No. 67, Sector 28-A, Chandigarh [in short 'the demised premises'] was owned by his father Shri J.M.Sharma and his mother Smt. Sanjogta Sharma [proforma respondent No.2]; Shri J.M.Sharma died about one and half years back and during his life time he had executed a Will bequeathing his share in favour of the respondent - landlord on the basis of which half share of the demised premises has already been transferred in the name of the respondent by the Estate Officer, UT, Chandigarh vide letter dated 15th October, 2007 and, thus, he has become owner and landlord of the demised premises along with his mother - respondent No. 2. He further averred that the petitioner was inducted as a tenant about 13 years back on a monthly rent of Rs.2000/- in addition to water and electricity charges, on the first floor of the demised premise and that after his retirement, the respondent - landlord has shifted to Chandigarh and starting sharing the accommodation with his mother, who is living on the ground floor of the house. The respondent -
landlord requested the petitioner to hand-over the premises who assured to vacate the same by 31st December, 2008, therefore, the mother of the respondent, namely, respondent No. 2, got executed a fresh rent deed on 3rd April, 2008 from the petitioner up to 31st December, 2008. The respondent -landlord further averred that the ground floor was wholly insufficient to accommodate him and his family members along with his mother for the reason that the respondent is having only one bed room as one room is occupied by C.R.No.3322 of 2009. ::-3-::
his mother, another room by his daughter and one room is required to be retained for his married sisters, who are regular visitors to respondent No.2. One of the son of the respondent - landlord is in Merchant Navy and whenever he is on holidays, he visits Chandigarh and lives with the respondent - landlord and a separate room is required for him also. The respondent further averred that he is a "specified landlord" and is entitled to seek eviction of the petitioner - tenant summarily as per the procedure laid down under Section 18-A of the Act.
[4]. Before adverting to the facts of the case in hand, a brief reference to the newly added provisions, namely, Sections 13-A and 18-A along with Schedule-II of the Act may be made. [5]. Section 13-A confers a right upon a "specified landlord" to recover immediate possession of a residential or scheduled building from the tenant, within one year prior to or one year after the date of his retirement or within one year from the date of commencement of the amended Act, 1985, whichever is later. Section 18-A of the Act lays down the special procedure for disposal of applications under Section 13-A or 13-B and the same [relevant extracts] reads as follows:-
"18-A. Special procedure of disposal of applications under section 13-A or section 13-B. - (1). Every application under section 13-A or section 13-B shall be dealt with in accordance with the procedure specified in this section.
(2). After an application under section 13-A or 13-B is received, the Controller shall issue summons for service on the tenant in the form specified in Schedule II.
C.R.No.3322 of 2009. ::-4-::
(3) (a). the summons issued under sub-section (2) shall be served on the tenant as far as may be in accordance with the provisions of Order V of the First Schedule of the Code of Civil Procedure Code, 1908. The Controller shall in addition direct that a copy of the summons be also simultaneously sent by registered post acknowledgment 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 of personally works for gain and that another copy of the summons be affixed at some conspicuous part of the building in respect whereof the application under Section 13-A or section 13-B has been made.
(b). When an acknowledgment 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 effect that the tenant or his agent has refused to take delivery of the registered article and an endorsement is made by a process server to the effect that a copy of the summons has been affixed as directed by the Controller on a conspicuous part of building and the Controller after such inquiry as he deems fit, is satisfied about the correctness of the endorsement, he may declare that there has been a valid service of the summons on the tenant.
(4). The tenant on whom the service of summons has been declared to have been validly made under sub-
section (3), shall have no right to contest the prayer for eviction from the residential building or scheduled building and/or non-residential building, as the case may be, 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 C.R.No.3322 of 2009. ::-5-::
summons or his obtaining such leave, the statement made by the specified landlord, or as the case may be, the widow, widower, child, grandchild or the widowed daughter-in-law of such specified landlord or the owner, who is a non-resident Indian 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 of the tenant.
(5). The Controller may give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would dis-entitle the specified landlord or, as the case may be, the widow, widower, child, grand-child or widowed daughter-in-law of such specified landlord or the owner, who is a non-resident Indian from obtaining an order for the recovery of possession of the residential building or scheduled building and/or non-residential building, as the case may be, under Section 13-A or section 13-B."
[6]. Similarly, Schedule II of the Act prescribes the Form of summons to be sent to the tenant where recovery of possession of residential or scheduled building is sought under Section 13-A and the relevant part of it reads as follows:-
"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 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 or scheduled 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 the C.R.No.3322 of 2009. ::-6-::
Section 18-A of the said Act". [Emphasis applied] [7]. On a combined reading of Sections 13-A and 18-A read with Schedule II of the Act, it is crystalized that when an eviction application is filed under Section 13-A, the Rent Controller is required to issue summons for service on the tenant in the Form specified in Schedule II and on receipt thereof, the tenant, if he wants to contest, has to apply "within 15 days" for the grant of leave to contest by way of an application supported by an affidavit stating the grounds on which he seeks to contest the application for eviction, as provided under Section 18-A[4] of the Act.
[8]. The question as to whether the period of 15 days within which the tenant is required to apply for leave to contest from the date of receipt of summons is mandatory or there exists any discretion with the Rent Controller to extend the said period, is no longer res-integra and stands settled beyond any controversy that no such power is possessed by the Rent Controller. In other words, there can be no condonation of delay as no express or implied power has been conferred by the statute upon the Rent Controller to that effect and the tenant is obligated to apply for leave to contest within 15 days from the date of service of summons and not beyond that.
Reference in this regard may be made to a decision of the Hon'ble Supreme Court in Prakash H.Jain v Ms. Marie Fernades, 2003[2] RCR, 559 and the view taken by this Court in [i] Ashwani Kumar Gupta v Siri Pal Jain, 1998[2] RCR, 222; [ii] Om Parkash v Ashwani Kumar Bassi, 2008[3] PLR, 520; [iii] Harnek Singh v Paramjit Singh, 2009[2] PLR, 421; and [iv] S.Amarjit Singh Walia C.R.No.3322 of 2009. ::-7-::
v S.Harbans Singh, 2004[2] RCR,222.
[9]. In the instant case, it is an admitted fact that the respondent - landlord filed the eviction petition under Section 13-A of the Act in which summons were duly served upon the petitioner -
tenant on 2nd February, 2009 as per Schedule-II. The petitioner -
tenant could, therefore, apply for leave to contest within 15 days there from, i.e., on or before 17th February, 2009. This is also an admitted fact that no application for leave to contest was moved by the petitioner - tenant within 15 days. It was after a period of 25 days from his service that the petitioner - tenant, instead of applying for leave to contest, moved an application purportedly under Order 7 Rule 11 CPC for rejection of the eviction application, inter-alia, on the grounds that [i] the rent note dated 3rd April, 2008 has been executed by Mrs. Sanjogta Sharma [ respondent No. 2] and she alone is owner and landlady of the demised premises, therefore, no eviction application at the instance of the first respondent was maintainable;
[ii] letter dated 15th October, 2007 of the Estate Officer, U.T., Chandigarh does not confer any title or ownership on the first respondent nor it establishes the relationship of landlord and tenant between the parties; [iii] the first respondent has sufficient accommodation on the ground-floor of the demised premises and [iv] the ownership letter dated 15th October, 2007 issued by the Estate Officer, U.T., Chandigarh is a sham transaction.
[10]. The afore-stated application moved by the petitioner -
tenant having been dismissed by the Rent Controller that the petitioner has approached this Court.
C.R.No.3322 of 2009. ::-8-::
[11]. Learned counsel for the parties have been heard and the impugned orders as well as pleadings, referred during the course of hearing, have been perused.
[12]. In the light of the un-disputed fact that the petitioner - tenant failed to apply for leave to contest within the stipulated period of 15 days, there can be no escape but to hold that the petitioner lost his right to contest the eviction petition instituted by the first respondent under Section 13-A of the Act. In the absence of any application for leave to contest, the Rent Controller had no other option but to pass an order of eviction as mandated by Section 18-A of the Act. No fault, therefore, can be found with the impugned order on that count.
[13]. However, in order to satisfy with regard to the maintainability of the eviction petition filed by the first respondent, I have heard learned counsel for the petitioner on merits as well. There is no denial to the fact that the demised premises was earlier jointly owned by parents of the first respondent or that his father - J.M.Sharma has unfortunately expired. The Will executed by the father of the first respondent, whereby he bequeathed his estate in favour of the first respondent, has been accepted by the Estate Officer, U.T., Chandigarh and accordingly half share in the house stands transferred in his name. The petitioner has no locus-standi to question the same when such a transfer has not been objected to either by respondent No. 2 or other legal heirs of deceased J.M.Sharma. In any case, the first respondent was bound to inherit a particular share in the demised premises after the death of his father C.R.No.3322 of 2009. ::-9-::
even by way of natural inheritance. The plea of the first respondent that he is co-owner in the demised premises, therefore, stands established beyond any pale of doubt. It is also not in dispute that the petitioner was inducted as a tenant by the father of the first respondent, though extension in the lease period up to 31st December, 2008 was granted by his mother [respondent No. 2] to which the first respondent was not a party. There is also no controversy on facts that the first respondent has retired from Army on 26th February, 2008. In his application under Order 7 Rule 11 CPC the petitioner - tenant has no where disputed the factum of two married sisters, one young daughter or a major son employed in Merchant Navy of the first respondent or that a separate room is required by the first respondent for his mother, daughter and other visiting family members. The bona-fide necessity of the respondent, thus, stands fully established. The petitioner's contention that letter dated 15th October, 2007 issued by the Estate Officer, U.T., Chandigarh is a sham transaction, is wrong and baseless inasmuch as the Estate Office, UT, Chandigarh is the custodian of the records of ownership of the immovable properties situated within UT, Chandigarh and the letter issued by that office is only a certification of the title of respondent No. 1 qua the estate bequeathed in his favour by his deceased father.
[14]. Learned counsel for the respondent is right in contending that the application moved by the petitioner - tenant purportedly under Order 7 Rule 11 CPC is wholly misconceived and was not maintainable at all. What is directly barred by Section 18-A read with C.R.No.3322 of 2009. ::-10-::
Schedule-II of the Act can not be indirectly achieved by the petitioner
- tenant under the pretence of invoking powers of a Civil Court under Order 7 Rule 11 CPC. If the petitioner had lost the statutory right to apply for leave to contest under Section 18-A[4] of the Act, he can not intrude and seek that very leave by resorting to a procedure not recognized by the said Statute, i.e., the amended Act as applicable to UT, Chandigarh.
[15]. For the reasons afore-stated, I do not find any merit in this revision petition, which is accordingly dismissed. However, keeping in view the facts and circumstances of the present case, the petitioner - tenant is permitted to vacate the demised premises by 30th September, 2009, subject to payment of rent.
[16]. No costs. July 29, 2009. ( SURYA KANT ) dinesh JUDGE