Punjab-Haryana High Court
Chander Bhusan Anand vs Devinder Kumar Singla on 11 November, 2009
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Civil Revision No.5952 of 2007 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH.
Civil Revision No.5952 of 2007
Date of Decision:-November 11,2009
Chander Bhusan Anand ...Petitioner
Versus
Devinder Kumar Singla ...Respondent
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present: Mr.S.M.Wadehra, Advocate for the petitioner.
Mr.Arun Jain, Senior Advocate with
S/Shri Amit Jain and Deepak Arora, Advocates
for the respondent.
Mehinder Singh Sullar, J.
The matrix of the facts culminating in the commencement, relevant for disposal, of present tenant's revision petition and emanating from the record, is that originally, Devinder Kumar Singla son of B.L.Singla respondent-landlord (hereinafter to be referred as "the landlord") filed a petition on 31.8.2002 against Chander Bhusan Anand petitioner-tenant (hereinafter to be referred as "the tenant") for his ejectment from the demised premises, inter-alia, on the ground of personal necessity, invoking the special provisions of section 13-A of the East Punjab Rent Restriction Act, 1949 (as applicable to Chandigarh) (hereinafter to be referred as "the Act") claiming the rate of rent of Rs.2640/- per month. During the pendency of the petition, the buildings, which were fetching the rent more than Rs.1500/- per month in U.T. Chandigarh, were exempted from the Civil Revision No.5952 of 2007 2 provisions of the Act vide notification dated 7.11.2002 issued by the Chandigarh Administration.
2. It is, therefore, in view of the indicated notification exempting such buildings from operation of the Act, the landlord moved an application (Annexure P1) on 24.7.2003 for the withdrawal of the rent petition under Section 13-A of the Act. In the wake of statement of the landlord, the Rent Controller accepted the application and dismissed the main petition as withdrawn vide order dated 24.7.2003 (Annexure P3), which is in the following manner:-
"An application has been moved on behalf of petitioner by counsel for withdrawal of the petition. Copy of the same is supplied to the opposite counsel.
Petitioner has made statement, recorded separately, that in terms of application moved today he withdraws the petition.
In view of the statement given by the petitioner, the present petition is dismissed as withdrawn."
3. Thereafter, the landlord filed a regular suit for possession against the tenant. During the pendency of the same, although the writ petition challenging the notification dated 7.11.2002 was dismissed by this Court, but the said notification was quashed by the Hon'ble Apex Court in Vasu Dev Singh and others Versus Union of India and others (2006) 12 Supreme Court Cases 753. It necessitated the landlord to file an application for restoration of the original rent petition, inter-alia, pleading that because he has withdrawn the ejectment petition on account of publication of notification dated 7.11.2002, which has now been quashed, Civil Revision No.5952 of 2007 3 therefore, he is entitled to get the rent petition restored to its original position. According to the landlord, since the rent petition was filed under the special provisions of section 13-A of the Act, therefore, now he is not in a position to file a fresh petition on the same grounds after the expiry of statutory period of one year. As such, the rent petition is liable to be restored to its original number because there is no fault on his part in withdrawing the same. On the strength of aforesaid pleadings, the landlord prayed for restoration of the original rent petition in the manner indicated here-in-above.
4. The tenant contested the claim of the landlord and filed the reply, inter-alia pleading certain preliminary objections of maintainability of the application, which is stated to have been filed with a mala fide intention to harass the tenant. Moreover, he (landlord) has withdrawn the main petition of his own volition and without any legal compulsion. It was clear that the landlord could have only filed a fresh application, if he had been permitted by the Rent Controller at the time of withdrawal of the earlier rent petition to do so.
5. On merits, the fact of quashing of the said notification by the Hon'ble Apex Court is admitted. The rent petition was stated to be maintainable, even after issuance of the notification and there was no compulsion for the landlord to withdraw the same. He has voluntarily waived off his right under the Act. In all, according to the tenant that as there is no provision under the Act, therefore, landlord is estopped by his own act and conduct to move such application. It will not be out of place to mention here that the tenant has stoutly denied all other allegations contained in the application for Civil Revision No.5952 of 2007 4 restoration and prayed for its dismissal.
6. The Rent Controller accepted the application of the landlord and restored the main ejectment petition to its original number vide impugned order dated 18.10.2007 (Annexure P6).
7. The tenant did not feel satisfied with the impugned order and filed the present revision petition. That is how I am seized of the matter.
8. Having heard the learned counsel for the parties, having gone through the record of the case with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, as there is no merit, therefore, the revision petition deserves to be dismissed, for the reasons mentioned here-in-below.
9. As indicated earlier, the landlord filed the ejectment petition under Section 13-A of the Act, which postulates that where a specified landlord at any time, within one year prior to or within one year after the date of his retirement or after his retirement but within one year of the date of commencement of the Amended Act, whichever is later, applies to the Controller along with a certificate from the authority competent to remove him from service indicating the date of his retirement and his affidavit to the effect that he does not own and possess any other suitable accommodation in the local area in which he intends to reside to recover possession of his residential building or scheduled building, as the case may be, for his own occupation, there shall accrue, on and from the date of such application to such specified landlord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract, custom or usage to the contrary, a right to Civil Revision No.5952 of 2007 5 recover immediately the possession of such residential building or scheduled building or any part or parts of such building if it is let out in part or parts. The same benefit was conferred upon widow or widower,a child or a grand-child or a widowed daughter-in-law who was dependent upon such specified landlord at the time of his death by provision to this section.
10. Proviso to this section further posits that nothing in this section shall be so construed as conferring a right, on any person to recover possession of more than one residential or scheduled building inclusive of any part or parts thereof if it is let out in part or parts.
11. Not only that, the special procedure for disposal of such application is depicted in section 18-A of the Act as well, which provides that 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. The rights of the tenant are also safeguarded in the intent underlying sub section (4) of section 18-A of the Act, according to which, 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, 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 specified landlord in the ejectment petition shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction of the tenant. Civil Revision No.5952 of 2007 6
12. However, 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 building under section 13-A of the Act and where leave is granted to the tenant to contest the application, the Controller shall commence the hearing on a date not later than one month from the date on which the leave granted to the tenant to contest and shall hear the application from day-to-day till the hearing is concluded and application decided. Such orders of Rent Controller are not subject to appeal or second appeal, but are subject to revisional jurisdiction of this court only.
13. Meaning thereby, the legislative intent under lying and incorporating the provisions of section 13-A of the Act is clear and implicit conferring a cogent and special right on the landlord to recover the possession in a summary procedure as contemplated under section 18-A of the Act.
14. Above being the legal position, now adverting to the main argument of learned counsel for the tenant that as there is no specific provision under the Act for restoration of the ejectment petition, therefore, its restoration by the Rent Controller is without jurisdiction, is neither tenable nor the observations of Hon'ble Apex Court in State of West Bengal and others v. Karan Singh Binayak and others, AIR 2002 Supreme Court 1543, State of Haryana and others v. Babu Singh (2008) 2 Supreme Court Cases 85, this Court in Ram Dass v. Sukhdev Kaur and Ors. 1981 (2) R.C.R. 23 and Jagdish Parshad v. Mehar Chand and Anr. 1993 (1) R.C.R. 459 and Civil Revision No.5952 of 2007 7 the Allahabad High Court in Lalji and another v. VIIth Additional District Judge, Varanasi, and others, 2000 A.I.H.C. 1511 are at all applicable and distinguishable from the facts of the present case.
15. In State of West Bengal's case (supra), it was observed by the Hon'ble Apex Court that "State cannot invoke inherent power to reopen settled matters." In State of Haryana's case (supra), the exercise of power by the High Court under S.151 CPC in granting relief to the writ petitioner by reopening a case of voluntary retirement which the High Court had already dismissed with costs, was held improper. In Ram Dass's case (supra), it was held by this Court that "provisions of Order 23 Rule 1 (3) of C.P.C. does not govern the proceedings under the Act, except to the limited extent provided for under Sections 16 and 17 thereof. However, the Rent Controller and Appellate Authority are entitled to devise their own procedure within the confines of Rent Act. While dealing with the land acquisition matter, it was observed by the Allahabad High Court in Lalji's case (supra), that "since the award of compensation was appealable under S.54 of the Act and no appeal was filed, then inherent powers cannot be invoked".
16. In other words, in all the above mentioned cases, the orders sought to be reviewed were finally decided by the respective Courts, whereas in the present case, there is no such adjudication on merits and the rent petition was simply dismissed as withdrawn in view of the legal compulsion.
17. Possibly, no one can dispute about the aforesaid observations, but to my mind, same would not come to the rescue of the tenant because it cannot possibly be denied in the present case Civil Revision No.5952 of 2007 8 that the specified landlord has filed the original ejectment petition under section 13-A of the Act within a stipulated period. During the pendency of the same, the buildings, which were fetching the rent more than Rs.1500/- per month, were exempted from the provisions of the Act vide notification dated 7.11.2002, which necessitated the landlord to withdraw his main petition, as it was not maintainable before the Rent Controller. Consequently, the landlord filed a civil suit for possession under the general law.
18. The matter did not rest there as luck would have been the same notification was subsequently quashed by the Hon'ble Apex Court in Vasu Dev Singh's case (supra) restoring the legal position, which existed prior to the notification dated 7.11.2002. So, under those legal compulsions, there was no option for the landlord except to get the original ejectment petition restored because he cannot again file the fresh second ejectment petition under section 13-A of the Act beyond the statutory period of one year of his retirement as contemplated therein.
19. No doubt, the provisions of Civil Procedure Code are not applicable to the proceedings under the Act, but its principles can equally be applied by the Rent Controller by devising in built procedure for disposal of such petition under the Act, to advance the cause of justice.
20. An identical question arose before the Hon'ble Supreme Court in Jet Ply Wood (P) Ltd. and another v. Madhukar Nowlakha and others (2006) 3 Supreme Court Cases 699 in which it was held that "in the absence of a specific provision under the Code of Civil Procedure providing for the filing of an application for recalling of an Civil Revision No.5952 of 2007 9 order permitting withdrawal of a suit, the inherent provisions can be restored to in the interest of justice."
21. Sequelly, this Court in Mathra Das v. Om Parkash and others 1957 PLR 45 held that "in the absence of restraining provision, a Rent Controller or a District Judge acting under the provisions of the Rent Restriction Act is at liberty to follow any procedure that he may choose to evolve for himself so long as the said procedure is orderly and consistent with the rules of natural justice and so long as it does not contravene the positive provisions of the law."
22. Likewise, in Bhim Sain v. Laxmi Narain 1982 PLR 50 and Banke Ram v. Shrimati Sarasvati Devi 1977 (1) RCR (Rent ) 595 it was observed that "the general principles of the Code of Civil Procedure, 1908 apply to proceedings before the Rent Controller, though strictly the Code as such is not applicable." These observations mutatus-mutandi are applicable to the facts of the present case and the complete answer to the problem in hand.
23. As stated above, the Legislature has conferred special right on such specified landlord to recover the possession under section 13-A of the Act and special procedure has been prescribed for disposal of such application under section 18-A of the Act, which can only be filed within statutory period of one year described therein. Such valuable right cannot be taken away from the landlord by mere technicalities of procedure and that too without any fault on his (landlord's) part. Hence contrary arguments on behalf of tenant 'stricto-sensu' deserve to be and are hereby repelled under the Civil Revision No.5952 of 2007 10 present set of circumstances.
24. To me, the Rent Controller has rightly restored the ejectment petition by applying the principles of CPC in exercise of his in built procedure and disposed of the matter under reference vide impugned order, which has been challenged by the tenant in this revision petition. If the main ejectment petition is not restored then it will inculcate and perpetuate injustice to the landlord in this regard.
25. There is another aspect of the matter which can be viewed from a different angle. Admittedly, the landlord is debarred from filing a second petition under section 13-A of the Act beyond the prescribed period of one year. He withdrew his main ejectment petition not on the ground of any technical defect but on the ground of operation of the law and legal compulsion at the relevant time. The notification exempting such buildings from purview of the Act was quashed by the Hon'ble Supreme Court, which necessitated the landlord and he accordingly sought restoration of his main petition. In these circumstances, it cannot possibly be saith that the landlord was negligent or at fault in any manner in this direction as urged by learned counsel for the tenant. The Rent Controller has not decided the rights and liabilities of the parties. He has only restored the ejectment petition for its proper adjudication. As the tenant would have all his statutory rights to apply for permission to contest the petition, therefore, he cannot possibly be termed aggrieved as such by the impugned order at this stage.
26. Moreover, such rules of procedure are handmaid of justice. The court must always be anxious to do justice and to prevent victories by way of technical knock-outs. Procedural law is Civil Revision No.5952 of 2007 11 not to be a tyrant but a servant, not an obstruction, but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. It is no doubt true, that rules of procedure are meant to further the course of justice and the effort of every court is to afford an effective opportunity to the contesting parties to substantiate their respective pleas. That is what the Rent Controller appears to have done in this case. To my mind, the Rent Controller has considered the matter in a right perspective and restored the main ejectment petition of the landlord and such just order cannot possibly be set aside in exercise of revisional jurisdiction of this Court, which is very limited and is confined only to testing the legality or propriety of the orders under revision. It is now well settled proposition of law that it is not the province of this Court to set aside such orders unless the same are perverse and without jurisdiction. No such irregularity or patent illegality has been pointed out by the learned counsel for the tenant. It is, therefore, the impugned order is hereby affirmed in the obtaining circumstances of the case.
27. No other point worth consideration has been urged or pressed by the learned counsel for the parties.
28. In the light of the aforesaid reasons, as there is no merit, therefore, this revision petition is dismissed with no order as to costs.
(Mehinder Singh Sullar)
November 11,2009 Judge
AS