Allowed

Harnek Singh v. Paramjit Singh

Punjab & Haryana HC24 Mar 2009CR/1029/2008

Case brief

AI extract

What is this about?

Single judge held that the Rent Act, 1949 is a self-contained Code excluding the Limitation Act. The tenant's application for leave to defend was time-barred as it was filed beyond 15 days from service via munadi. The petition challenging this was allowed and the application dismissed.

What did the court decide?

Impugned order accepting leave to defend set aside; application for leave to defend dismissed.

Harnek Singh Vs Paramjit Singh — Property and Title | Punjab & Haryana HC (2009)

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Civil Revision No. 1029 of 2008

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(1)

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In the High Court of Punjab & Haryana at Chandigarh

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Civil Revision No. 1029 of 2008 (O&M)

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Date of decision : 24.3.2009

Harnek Singh

..... Petitioner

Paramjit Singh

..... Respondent

Coram: Hon'ble Mr. Justice Rajesh Bindal

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Present: Mr. Puneet Jindal, Advocate, for the petitioner.

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Mr. Sudhir Pruthi, Advocate, for the respondent.

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Rajesh Bindal J.

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The petitioner in a rent petition, filed for eviction of the respondent from the shop in dispute, has approached this court challenging the order dated 4.12.2007 (Annexure P-6), whereby the application filed by the respondent for leave to defend the petition has been accepted.

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Briefly, the facts are that the petitioner filed a petition seeking eviction of the respondent from the tenanted premises under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 (for short, 'the Rent Act'). It was claimed by the petitioner that he is NRI. As he has completed 55 years of age, he wanted to settle at Jalandhar permanently in some business and the shop-cum-flat in possession of the respondent as tenant is the most suitable premises. The premises is required for his personal use and occupation and he did not possess any other residential or non-residential premises in Municipal Limits of Jalandhar. As his request to the respondent to vacate the premises was not acceded to, the petition came to be filed. The respondent after appearance filed application for leave to defend. The same having been allowed, the petitioner is before this court.

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Learned counsel for the petitioner submitted that eviction petition against the respondent, who is in possession of the premises in dispute, was filed on 4.2.2006 and as the respondent was avoiding service, the same was ordered to be effected through munadi. As per the report of the process server, the munadi was effected on 1.7.2006 for appearance on

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Civil Revision No. 1029 of 2008

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(2)

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7.8.2006. The present application for leave to defend having been filed on 24.8.2006 was clearly time-barred. As per the provisions of Section 18-A of the Act, the tenant is required to put in appearance within 14 days and seek leave to defend. In case the application for leave to defend is not filed in the prescribed period, right to defend the petition is lost. The provisions of the Limitation Act, 1963 (for short, 'the Limitation Act') are not applicable to seek condonation of delay in filing the application. It was further submitted that the respondent cannot take excuse of his not knowing even the factum of munadi at the spot as he is still carrying the business in the same premises outside which munadi was effected. Copy of summon of munadi was affixed on the door as per the report of the process server. Reliance was placed upon a judgment of this court in Civil Revision No. 4028 of 2007 Director and Warden of Fisheries, Punjab, Chandigarh vs Sant Kaur @ Basant Kaur and another decided on 14.8.2007, Vijay Kumar vs Surinder Tamna 2007 (1) Rent Control Reporter 648 Rajpal vs Gurdev Singh 2007 (2) Rent Control Reporter 364.

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On the other hand, learned counsel for the respondent submitted that in the present case the respondent had put in appearance on 9.8.2006 for the first time and within 15 days thereof on 24.8.2006 the application for leave to defend was filed, which was within limitation. He submitted that application was filed on 23.8.2006 and not on 24.8.2006. He further submitted that in terms of Article 123 of the Limitation Act, the limitation of 30 days starts from the date of the ex-parte decree and when it is the case of the defendant that summons was not duly served, the period of limitation for moving an application for setting aside an ex-parte decree starts from the date of the knowledge of the ex-parte decree. Accordingly, the limitation for filing the application to leave to defend cannot be counted from the date when the service was effected through munadi. He further submitted that he has good grounds on merits to defend the eviction petition filed by the petitioner, which is not bonafide and the object is just to get the premises vacated from the respondent.

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Heard learned counsel for the parties and perused the record. The relevant provisions of the Rent Act are extracted as under:-

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“13-B Right to recover immediate possession of residential building or scheduled building and/or non-residential

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Civil Revision No. 1029 of 2008

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(3)

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building to accrue to Non-resident Indian.-- (1) Where an owner is a Non-Resident Indian and returns to India and the residential building or scheduled building and/ or nonresidential building, as the case may be, let out by him or her, is required for his or her use, or for the use of any one ordinarily living with and dependent on him or her, he or she, may apply to the Controller for immediate possession of such building or buildings, as the case may be:

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Provided that a right to apply in respect of such a building under this section, shall be available only after a period of five years from the date of becoming the owner of such a building and shall be available only once during the life time of such an owner.

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(2) Where the owner referred to in sub-section (1), has let out more than one residential building or scheduled building and/or non-residential building, it shall be open to him or her to make an application under that sub-section in respect of only one residential building or one scheduled building and/or one non-residential building, each chosen by him or her.

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(3) Where an owner recovers possession of a building under this section, he or she shall not transfer it through sale or any other means or let it out before the expiry of a period of five years from the date of taking possession of the said building, failing which, the evicted tenant may apply to the Controller for an order directing that he shall be restored the possession of the said building and the Controller shall make an order accordingly.”

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Section 18-A. Special procedure for disposal of applications under section 13-A (1) Every application under section 13-A shall be dealt with in accordance with the procedure specified in this section.

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(2) After an application under section 13-A is received, the Controller shall issue summons for service on the tenant in the form specified in Schedule II.”

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(4)

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Civil Revision No. 1029 of 2008

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Form of summons in a case where recovery of possession of residential building or scheduled building is prayed for under Section 13-A of the East Punjab Urban Rent Restriction Act, 1949.

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(Name, description and place of residence of the tenant)

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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 under Section 13-A of the East Punjab Urban Rent Restriction Act, 1949;

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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.

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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 Act.”

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The issue regarding filing of application to defend the eviction petition and as to whether the same could be entertained if filed beyond the period of 15 days of service of notice came up for consideration before this court in Sant Kaur 's case (supra), wherein it was opined that the provisions of the Limitation Act are not applicable for seeking condonation of delay in filing the application to leave to defend under Section 18-A of the Rent Act.

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The Hon'ble Division Bench in Ashwani Kumar Gupta vs Shri Siri Pal Jain 1998 (2) RCR (Rent) 222 and the Hon'ble Single Bench in Babu Ram vs Naresh Kumar 2006 (2) RCR (Rent) 249 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. In Ashwani Kumar Gupta's case (supra), it was held

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Civil Revision No. 1029 of 2008

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(5)

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as under:-

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“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 provision 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.”

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In view of the settled proposition of law regarding nonapplicability of provisions of the Limitation Act, what is to be seen in the present case is as to whether the application filed by the respondent/applicant was within 15 days from the date of service of notice. The contention of learned counsel for the petitioner was that service is deemed to be effected on 1.7.2006 when the munadi was conducted for

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Civil Revision No. 1029 of 2008

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(6)

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appearance on 7.8.2006 and the application having been filed by the respondent on 24.8.2006 is clearly barred. As against that the contention of learned counsel for the respondent was that in terms of Article 123 of the Limitation Act, the limitation starts from the date of knowledge of proceedings.

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A perusal of the impugned order shows that the learned court below had gone wrong while calculating the period for filing the application from the date of appearance of the respondent, which is not in conformity with the language of the statute, where it is required that the application for leave to defend is to be filed within 15 days from the date of service. As regards service also, in my opinion, the application filed by the respondent was beyond period of 15 days. The date of service as per munadi is 1.7.2006. Even if the date of appearance after munadi on 7.8.2006 is taken as the date of service, the case was to be put up on 9.8.2006 because the court was not functioning on 7.8.2006. In the memo of appearance given in the application to leave to defend the respondent has not mentioned as to what is the source of knowledge of pendency of litigation and date thereof. The fact that the respondent had appeared in the court on 9.8.2006 clearly shows that it was on account of service effected through munadi on 1.7.2006 which was for appearance on 7.8.2006. No fresh notice on 7.8.2006 was issued for 9.8.2006. Even if the period of 15 days is taken from 7.8.2006 still the application filed by the respondent on 24.8.2006 or even 23.8.2006 as is sought to be claimed, is beyond 15 days from the date of knowledge. As the provisions of the Limitation Act are not applicable and the delay in filing of the application cannot be condoned, the application for leave to defend being barred by time was required to be dismissed.

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For the reasons mentioned above, I find merit in the contentions of the learned counsel for the petitioner. Accordingly, the present petition is allowed and the impugned order, Annexure P-6, is set aside. The application for leave to defend filed by the respondent is dismissed.

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( Rajesh Bindal) Judge

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24.3.2009 vs.

Harnek Singh v. Paramjit Singh

Case brief

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Harnek Singh v. Paramjit Singh

Case brief

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