Punjab-Haryana High Court
Vijay Kumar vs Surinder Tamna on 20 April, 2007
Equivalent citations: (2007)147PLR797
JUDGMENT S.N. Aggarwal, J.
1. Civil Revision No 1755 of 2006 Vijay Kumar v. Surinder Tamna and Civil Revision No. 1756 of 2006 Keshi alias Rakesh Kumar v. Surinder Tamna are being decided by this judgment as common questions of law and fact are involved in both these petitions. Facts are, however, taken from Civil Revision No. 1755 of 2006.
2. Surinder Tamna respondent had filed a petition under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (in short Rent Act) for eviction of the petitioner from the shop under reference. Summons were sent to the petitioner for 27.1.2005 in the prescribed proforma. The said summons were served on the petitioner on 1.12.2004. However, the petitioner appeared in the Court of Rent Controller on 27.1.2005 and filed an application in the form of affidavit for leave to contest the eviction petition along with an application under Section 5 of the Limitation Act for condonation of delay. The version of the petitioner was that many other eviction petitions filed by the respondent were pending trial against the petitioner. The petitioner had approached his counsel on 27.1.2005 as the date was 22.1.2005. Therefore, an application for condonation of delay was filed on 27.1.2005 along with an application for leave to contest.
3. The said application was contested by the respondent on the ground that as per the procedure laid down in the Rent Act, the petitioner was to appear before the learned Rent Controller and file an application for leave to contest within a period of 15 days from the date of his service.
4. Since the petitioner was served on 1.12.2004, therefore, he could file an application for leave to contest only upto 15.12.2004. Since the application was filed on 27.1.2005, therefore, it was barred by limitation. It was submitted that delay cannot be condoned.
5. The learned Rent Controller considered the contentions raised by the learned Counsel for the parties and vide impugned order dated 7.3.2006 dismissed the application filed by the petitioner for leave to defend by holding that provisions of Section 5 of the Limitation Act are alien to the provisions of Section 13-B read with Sections 18-A and 18-B of the Rent Act and, therefore, leave to contest the eviction petition could be filed only within 15 days from the date of service.
6. Hence the present petition by the tenant-petitioner. The factual position is not disputed that the petitioner was served on 1.12.2004 for 27.1.2005 and the petitioner had filed an application for leave to defend only on 27.1.2005 along with an application for condonation of delay. It was also not disputed that as per the proforma of notice served on the petitioner on 1.12.2004, the petitioner was to appear before the Rent Controller within 15 days from the date of service thereof and to obtain leave of the Court to contest the eviction petition filed against him under Section 13-B of the said Act in default whereof the applicant was to be entitled at any time after the expiry of said period of 15 days to obtain an order of eviction from the said residential building or scheduled building and/or non residential building.
7. The submission of learned Counsel for the petitioner was that delay was liable to condoned under Section 5 read with Section 29(2) of the Limitation Act. Reliance was placed on the judgment of the Hon'ble Supreme Court reported as Mukri Gopalan v. Cheppilat Puthnpurayil Aboobacker , and Single Bench Judgment of this Court reported as S. Manohar Singh v. S. Aridaman Singh Dhillon 2002(2) R.C.R (Rent) 652. Hence, it was submitted that the learned Rent Controller has gone wrong in not condoning the delay by applying the provisions of Section 5 read with Section 29(2) of the Limitation Act.
8. On the other hand, the submission of learned Counsel for the respondent-landlord was that the judgment of the Hon'ble Supreme Court in Mukri Gopalan's case was later on discussed by the Hon'ble Supreme Court in Parkash H. Jain v. Ms. Marie Fernandes 2003(2) RCR 559 and it was held that the Rent Controller cannot exercise any power under the Limitation Act to condone the delay as the Rent Controller is not a Court. Reference was also made to the Division Bench judgment of this Court reported as Ashwani Kumar Gupta v. Shri Siri Pal Jain (1998-3) Punjab Law Reporter 170 in which also it was held that 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. Reference was also made to the latest judgment of this Court reported as Babu Ram v. Naresh Kumar 2006(2) RCR 249. This Court has taken the same view in the unreported judgment reported as Ramesh Kumar v. Sham Lal Civil Revision No. 3437 of 2005 decided on 11.1.2007.
9. These submissions have been considered. This Court in the judgment reported as Babu Ram (supra) has discussed the judgment of the Hon'ble Supreme Court reported as Mukri Gopalan (supra) as also in Parkash H. Jain' case and the Single Bench judgment of this Court in S. Manohar Singh's case. The statutory provision relating to Section 13-A and the procedure laid down in Sections 18-A, 18-B and the form of summons as detailed in Schedule II have also been discussed in detail and it was concluded that the Rent Controller has no jurisdiction to condone the delay. The tenant is bound to file the application in the form of affidavit within the statutory period of 15 days as stated in the summons for leave to contest the ejectment petition and if the tenant fails to do so, the Rent Controller cannot extend the period of limitation.
10. Section 13-A deals with the right of specified landlord while Section 13-B deals with the right of non resident Indian to seek ejectment of the tenant from the residential/scheduled building. In the present case, the eviction petition was filed by the landlord under Section 13-B of the Rent Act. Section 18-A deals with the procedure applicable only in the ejectment petitions filed under Sections 13-A or 13-B of the Rent Act. It would be of advantage to reproduce the said provision:
18-A. Special procedure for 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.
(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, 1908. The Controller shall in addition direct that a copy of the summons be also simultaneously sent 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 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 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 within 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 enquiry 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 schedule 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 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 disentitle the specified landlord or, as the case 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) 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 is granted to the tenant to contest and shall hear the application from day-to-day till the hearing is concluded and application decided.
(7) Notwithstanding anything contained in this Act, the Controller shall while holding an inquiry in a proceeding to which this section applies including the recording of evidence, follow the practice and procedure of a Court of Small Causes.
(8) No appeal or second appeal shall lie against an order for the recovery of possession of any residential building or scheduled and/or non-residential building, as the case may be, 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) Save as otherwise provided in this section, the procedure for the disposal of an application for eviction under Section 13A or Section 13-B shall be the same as the procedure for the disposal of applications by the Controller.
11. Section 18-B is very important. It gives over-riding effect to the provisions of Section 18-A over all other laws. It reads as under:
Section 18-B : Section 18-A to have over-riding effect - Section 18-A or any rule made for the purpose thereof shall have effect notwithstanding anything inconsistent therewith contained elsewhere in this Act or in any other law for the time being in force.
Sub-section (2) of Section 18-A of the Act provides for issuance of service of summons on the tenant in the form specified in Schedule II. The said form in Schedule II is as follows.
12. Before concluding this aspect of discussion, it would be necessary to reproduce the form of summons as laid down in Schedule II which is exclusively applicable to the ejectment petitions filed under Section 3-A or 3-B for which procedure as laid down in Section 18-A of the Act is applicable. It reads as under:
SCHEDULE II (See Sub-section (2) of Section 18-A).
Form of summons in a case where recovery of possession of residential building or schedule building is prayed for under Section 13-A or Section 13-B of the East Punjab Urban Rent Restriction Act, 1949.
(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 or scheduled building and/or non-residential building under Section 13-A or Section 13-B of the East Punjab Urban Rent Restrictions Act, 1949.
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 or Section 13-B 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 and/or non-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 the Section 18-A of the said Given under my hand and the seal this... day of... 19.... Controller.
13. The Hon'ble Division Bench in Ashwani Kumar Gupta's case (supra) and the Hon'ble Single Bench in Babu Ram's case (supra) have been pleased to hold that the provisions of Sections 13-A, 13-B, 18-A and 18-B of the Rent Act are code in itself. It was held by the Hon'ble Division Bench of this Court in Ashwani Kumar Gupta's case (supra) as under:
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 mis-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.
14. In view of the discussion held above, the law has been clearly settled that the petitioner can file an application for leave to contest only within 15 days from the date of service and the provisions of Section 5 or any other provision of Limitation At are alien to this specific provisions as the procedure has been laid in Sections 18-A,18-B read with Schedule II of the Rent Act. The Rent Controller has no jurisdiction to extend the period of limitation. The learned Rent Controller has exercised his jurisdiction legally and properly which does not for any inference.
15. No merit.
16. Dismissed.