Punjab-Haryana High Court
Harpreet Singh vs Parneet Singh Sohi on 4 April, 2025
Neutral Citation No:=2025:PHHC:045963
1
CR-2039-2024 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR No.2039 of 2024 (O&M)
Date of Reserve: 07.03.2025
Date of Decision: 04.04.2025
HARPREET SINGH ......Petitioner
Vs
PARNEET SINGH SOHI ....Respondent
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJ
MANUJA
Present: Mr. Sapan Dhir, Advocate
for the petitioner.
Mr. R.S. Athwal, Advocate
for the respondent.
****
HARKESH MANUJA, J. (Oral)
1. By way of present petition, challenge has been laid to an order dated
12.02.2024 passed by the learned Rent Controller, Chandigarh whereby an
application filed on behalf of petitioner-tenant
petitioner tenant seeking condonation of delay in
filing an application for leave to defend on his behalf has been dismissed thereby
resulting
ng into acceptance of eviction petition filed at the instance of respondent-
respondent
landlord by directing the petitioner-tenant
petitioner tenant to handover the vacant and physical
possession of the demised premised.
2. Briefly stating, in the present case the respondent
respondent-landlord
d while
claiming himself to be an NRI;
NRI having American passport filed an eviction petition
against the petitioner-tenant
petitioner tenant qua building/flat No.1257/2 Sector 43
43-B,
B, Chandigarh;
Chandigarh
invoking Section 13-B
13 B of the East Punjab Urban Rent Restriction Act
Act,, 1949
(hereinafter
fter to be referred as the ‘1949 Act’).
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2.1. In the eviction petition, it was pleaded that the property in question
was rented out to the petitioner-tenant
petitioner tenant on 01.05.2021 @ Rs.12,000/- per month,
month
who failed to even pay the arrears of rent w.e.f. 01.01.2022 and besides it, the same
was even required by the respondent-landlord
respondent landlord for his personal use as he wanted to
return to India and utilize the same during his visits for his stay so as to keep in
touch with his relatives and childhood friends.
friends. It was also pleaded that the
respondent-landlord
landlord had neither rented out nor got vacated and was not even in
occupation of any other property in U.T., Chandigarh.
3. Upon notice, the petitioner-tenant
petitioner tenant put in appearance through his
Advocate, who filed
filed his power of attorney on 15.07.2023 before the Rent
Controller and hearing of the eviction petition was adjourned to 04.08.2023.
Thereafter, the eviction petition was deferred for 01.09.2023 and on the said date,
the petitioner-tenant
tenant filed an application
application seeking condonation of delay in moving
an application for leave to defend along with application seeking grant of leave as
well while submitting that neither any summon nor notice was received by the
tenant nor even his counsel informed him that the eviction
tion petition was filed under
Section 13-B
B of 1949 Act and an application for leave to defend was to be filed
within 15 days. Further, it was also pleaded that an agreement to sell qua the
property in question was executed between the parties and based thereupon even a
suit for specific performance was filed by the petitioner
petitioner-tenant
tenant on 04.10.2023
before the Civil Court;
Court which was pending consideration.
4. The respondent-landlord
respondent landlord filed his reply to the application moved by
the petitioner-tenant
tenant for seeking condonation of delay of 31 days in filing
application for
or leave to defend while submitting that there was no provision under
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1949 Act which enabled
enable the Rent Controller to condone the delay and thus, prayed
for dismissal of the same.
5. The Rent Controller vide its order dated 12.02.2024 dismissed the
application filed on behalf of the petitioner-tenant
petitioner tenant for condonation of delay in
filing the application for leave to defend. Aggrieved thereof, the instant petition
has been filed.
6. Learned counsel for the petitioner submits that the non
non-filing
filing of
application for grant of leave to defend within 15 days of appearance occurred on
account of bona fide miscommunication between the petitioner and his lawyer,
who never informed the petitioner-tenant
tenant of his right of filing an application for
grant of leave to defend within 15 days of appearance before the Rent Controller.
Learned counsel further submits that passing of the impugned order
by the Rent Controller has caused serious prejudice to the rights of the petitioner-
petitioner
tenant and as such instead of non-suiting
non him for technical reasons, he was
required to be permitted to file his substantial defence, so that his substantial rights
were adjudicated upon as per merits. In support of his submissions, learned counsel
relies upon the decision rendered in the case of Director Education and Anr. vs.
Mohd. Shamim and Ors, reported as “2018(1) 50. Reliance has also
2018(1) R.C.R. (Rent) 50
been placed upon the decision passed in the case of S. Manohar Singh vs. S.
Aridaman Singh Dhillon reported as 2002(2) R.C.R. (Rent) 652
652. Relevant
paragraph Nos.10 & 13 thereof are extracted hereunder:
hereunder:-
“10.
10. It may be noticed that under the Act, there is no clause which
expressly exclude the applicability of tthe
he Limitation Act to any of the
proceedings under the said Act. Therefore, keeping in view the
interpretation of Section 29(2), the provisions of Section 4 to 24 including
that of Section 5 would be applicable to the proceedings under “the Act”
including that
that to application for leave to defend. It may further be noticed
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that the Hon’ble Supreme Court in Mukri Gopalan’s case has approved the
minority view in Jokkim Fernandez case (supra) whereas the Division
Bench in Ashwani Kumar Gupta’s case has approved tthe
he majority view of
the said Full Bench of the Kerala High Court. The principle laid down by
Hon’ble Supreme Court in Mukri Gopalan’s case (supra) has come up for
decision in other cases as well before the Hon’ble Supreme Court.
13. Keeping in view the binding
ding precedents of Hon’ble Supreme Court in
Mukri Gopalan’s case and subsequently in Kartick Chandra, I hold that the
provisions of Section 5 of the Limitation Act would be applicable to the
proceedings under “the Act” including that of application for lea
leave
ve to
defend. Since the provisions of Section 29(2) and Mukri Gopalan’s case
were not brought to the notice of the Court, the judgment given by the
Division Bench is law per incuriam. Rule of per incuriam can be applied
where a Court omits to consider the binding precedent of th
thee same Court or
superior court tendered
tendered on the same issue or where the Court omits to
consider any statute while deciding that issue. Reference may be made to
Mamleshwar v. Kanahaiya Lal, A.I.R. 1975 S.C. 907 wherein it has been
held as under:-
“Certainty of the law, consistency of rulings and comity of
courts-all
all flowering from the same principle
principle-converage to the
conclusion that a decision once rendered must later bind like
cases. We do not intend to detract from the rule that, in
exceptional
ceptional instances, where by obvious inadvertence or
oversight a judgment fails to notice a plain statutory
provision or obligatory authority running counter to the
reasoning and result reached, it may not have the sway of
binding precedents. It should be a glaring case, an obtrusive
omission. No such situation presents itself here and we do not
embark on the principle of judgment per incuriam.”
6.1. Learned counsel for the petitioner also relies the decision rendered by
this Court in the case of Paramjit Kaur vs. Gurcharan Singh Walia
Walia,, reported as
589. Relevant paragraph No.11
2007(2) R.C.R. (Rent) 589. o.11 thereof is extracted
hereunder:-
“11
1. However, on consideration of the matter, 1 find force in the
contention raised by the learned Counsel for the petitioner. As observed
above, till the filing of the application under Section 18A of the Act, the4 of 18
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parties as well as the Court were proceeding w
with
ith the matter as if the
petition was filed under Section 13 of the Act. Statutory summons were not
served in prescribed form, thus there was no valid service under Section
13-B
B of the Act, thereby, the application for leave to defend could not be
said to be time barred. The reliance placed by the learned ccounsel for
or the
respondent on the judgment of this Court in Narinder Singh‘s case (supra)
is misconceived as in the said case it has not been held that in absence of
service of statutory summons also, the petition is to be treated as time
barred, rather in the said case, it was observed that the petitioner can have
no grievance for non-service
non service of summons in Schedule II as plea for leave to
defend was considered on merit. The situation in the present: case
practically
ractically is also the same, as besides holding the application to be
beyond limitation, the learned Rent Controller, in fact, has considered the
plea of the petitioner on merit.”
pleas
6.2 Further, learned counsel for the petitioner places reliance upon
decision in case of ‘Roop
‘Roop Kishore Sharma vs. Smt. Bachni Devi‘, reported as
1997(2) R.C.R. (Rent) 285. Relevant paragraph No.4 thereof is extracted
hereunder:-
4. After considering the rival contentions of the parties, this Court is
of the opinion that the impugned order dated 29.4.97 is liable to be set
aside. While disposing of such like applications, a too rigid approach is not
supposed to be taken by the learned Rent Controller if the tenant has raised
an arguable point in the application.
application. Those points should be scanned
through by judicial scrutiny. It is a case where some cause has been given
by the tenant as to why he has not been able to make the application within
15 days. If there is a delay on the part of the tenant in filing the nnecessary
ecessary
application after the statutory period of 15 days then a liberal approach
should be given to condone the delay unless the learned Rent Controller
thinks that the delay on the part of tenant was mala fide affair. At this
juncture it is not proper on
on the part of the trial Court that the delay in
moving the application for defence was a motivated or mala fide.
fide.”
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6.3. Reliance has also been placed in case of ”Kimti
Kimti Lal vs. Jaswinder
Kaur‘ reported as ‘2009(3)
‘2009(3) Indian Civil Cases 131
131. The same is extracted
hereunder:-
“B.N.
B.N. Agrawal, J. – Leave granted.
2. Heard learned counsel for the parties.
3. The application filed by the appellant under Section 13
13-B
B of the East
Punjab Urban Rent Restrictions Act, 1949 for grant of leave to contest the
landlord’s prayer for eviction was dismissed by the Rent Controller on the
landlord’s
ground that the same was barred by time. The High Court dismissed the
revision petition filed against the order of the Rent Controller. Hence, this
appeal by special leave.
4. Having heard learned counsel for the parties and perused the
application filed by the appellant, we are of the view that in the facts and
circumstances of the present case, the Rent Controller should have granted
leave to the appellant to contest the petition filed by the landlord.
5. Accordingly, the appeal is allowed, impugned orders are set aside
and leave is granted to the appellant to contest the eviction petition filed by
the respondent. Eight weeks’ time is allowed to the appellant to file written
statement. The Rent Controller is directed to dispose of the main petition
within a period of six months from the date of receipt/production of copy of
this order.”
order.
7. On the other hand, learned counsel for the respondent while relying
upon the decision rendered by the Hon’ble Apex Court in the case of Om Parkash
vs. Ashwani Kumar Bassi reported as “2010
2010 AIR (Supreme Court) 3791 and the
decisions passed by this Court in the case(s) Babu Ram vs. Naresh Kumar
reported as “2003(3) 49 Raju vs. Gurdeep Singh reported as
2003(3) R.C.R. (Rent) 49;
“2017(3)
2017(3) PLR 682;
682 Director and Warden of Fisheries, Punjab Chandigarh vs.
Sant Kaur @ Basant Kaur and another reported as “”2007(11)
2007(11) R.C.R. (Civil) 533and Suman vs. Bhagat Ram reported as “2008(1) R.C.R. (Civil) 313 submits that
the Rent Controller was having no jurisdiction to condone the delay by invoking
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Section 5 of the Limitation Act and grant extension of time in favour of the
petitioner-tenant
tenant towards filing of application for grant of leave to defend. Learnedcounsel further submits
submits that the period of 15 days as prescribed under Section 18-A
18of the 1949 Act was sacrosanct and the same could not be extended by the Court
and, thus, prayed
ed for dismissal of the present revision petition.
8. I have heard learned counsel for the parties and gone through the
paper book of this case. I am unable to find merit in the present revision petition.
9. Before proceeding further in the matter, it is important to have a close
look at the relevant provisions of 1949 Act, which read as under:
under:-
13-B.
B. Right to recover immediate possession of residential building or
scheduled building and/or non-residential
non residential building to accrue to Non-
Non
resident Indian:-
Indian:
(1) Where an owner is a Non-Resident
Resident Indian and returns to India and
the residential building or scheduled building and/or non
non-residential
residential
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 :
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
owner of such a building and shall be available only
once during the life time of such an owner.
(2) Where the owner referred to in sub
sub-section
section (1), has let out more than
one residential building or scheduled building and/or non
non-residential
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
sub-section
building and/or one non-residential
non residential building, each chosen by him or her.
(3) Where an owner recovers possession of a buil
building
ding 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 apply7 of 18
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to the Controller
Controller for an order directing that he shall be restored the
possession of the said building and the Controller shall make an order
accordingly.
accordingly.”
Section 18-A
18
18A. [ Special procedure for disposal of applications under Section 13-A
13
or Section 13-B.]
13
(1) Every application under [section 13
13-A or section 13-B]
B] [Substituted
vide Punjab Act 9 of 2001.] shall be dealt with in accordance with the
procedure specified in this section.
(2) After an application under [section 13
13-A
A or section 13-B]
13
[Substituted vide Punjab Act 9 of 2001.] 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
sub-section
section (2) shall be served on
the tenant as far as may be in accordance with th
thee provisions
of Order V of the First Schedule to 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
mpowered 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 respe
respect
ct whereof the application under
[section 13-A
A or section 13
13-B]
B] [Substituted vide Punjab Act 9
of 2001.] 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
ontaining 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 enquiry as he deems fit, is satisfied
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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
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] [Substituted vide Punjab Act No. 9 of
2001.], 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
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
daughter-in-law
law of such
specified landlord [or the owner, who is non resident Indian] [Inserted vide
Punjab Act 9 of 2001.] 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
th 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 may be, the widow,
widower, child, grand-
grand child or widowed
owed daughter
daughter-in-law
law [or the owner,
who is non resident Indian] [Inserted vide Punjab Act 9 of 2001.] of such
specified landlord from obtaining an order for the recovery of possession of
the [residential building or scheduled building and/or non residential
residentia
building] [Substituted vide Punjab Act No. 9 of 2001.], as the case may be,
under [section 13-A
13 or section 13-B]
B] [Substituted vide Punjab Act 9 of
2001.].
(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 granted to the tenant to contest and shall
hear the application from day-to-day
day 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.
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(8) No appeal or second appeal shall lie against an or
order
der for the
recovery of possession of any [residential building or scheduled building
and/or non residential building] [Substituted vide Punjab Act No. 9 of
2001.] 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
wise provided in this section, the procedure for the
disposal of an application for eviction under [section 13
13-A
A or section 13-
13
B] [Substituted vide Punjab Act 9 of 2001.] shall be the same as the
procedure for the disposal of applications by the Controlle
Controller.
Schedule
Schedule-II
Schedule II
[See sub-section
section (2) of Section 18
18-A]Form of summons in a case where recovery of possession of
[residential building or scheduled and/or non
non-residential
residential building]
[Substituted vide Punjab Act 9 of 2001.] is prayed for under [section 13-A
13
or section 13-B]
13 B] [Substituted vide Punjab Act No. 9 of 2001.] of the East
Punjab Urban Rent Restriction Act, 1949.
(Name, description and place of residence of the tenant)
Whereas Shri——————————————
——————————————has filed
d an
application (a copy of which is annexed
annexed) for your eviction from—————
—————
(here insert the particulars of the residential building or scheduled building
and/or non-residential
non building under [section 13
13-A
A or section 13-B]
13
[Substituted vide Punjab Act No. 9 of 2001.] of the East Punjab Urban Rent
Restriction 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 applicant for eviction under [section 13-A
13
or section 13-B]
13 B] [Substituted vide Punjab Act No. 9 of 2001.] 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 eeviction
viction
from the said [residential building or scheduled building and/or non-
non
residential building] [Substituted vide Punjab Act 9 of 2001.].
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Leave to appear and contest the application may be obtained on an
application to the Controller supported by an af
affidavit
fidavit as is referred to in
sub
sub-section (5) of Section 18-A
A of the said Act.
Given under my hand and seal this…………..day of……19…
Controller”
10. The aforementioned provisions have been extensively dealt with by
the Hon’ble Apex Court as well as this Court and the exposition of law made
thereupon in brief is discussed hereunder:-
hereunder:
(a) In case of Roop Kishore Sharma (supra), the delay in filing of
application for leave to defend was condoned merely for the reason
that liberal approach
approach was required to be adopted in such matters;
matters
unless delay on the part of tenant was a mala fide affair.
(b) In case of Paramjit Kaur (supra)
(supra), it was decided in favour of
tenant while condoning the delay in granting leave to defend for the
reason that the statutory summons were not served in prescribed form
and thus, there was no valid service under Section 13
13-B of the Act.
(c) The Hon’ble Supreme Court, in case of Kimti Lal (supra) went
on to grant leave in favour of tenant to contest in the peculiar fact
factss and
circumstances of the case, without laying down any law on the point
as to whether the provisions of Section 5 of Limitation Act, 1963
could be invoked by the Rent Controller for condoning delay in
favour of tenant while dealing with applications for grant of leave to
defend.
(d) Further, exposition of law made by this Court in case of S.
Manohar Singh (supra) whereby it was held that provisions of
Section 5 of Limitation Act, 1963 would apply for the purpose of
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condonation of delay while dealing with application for grant of leave
to defend was discussed and distinguished in a later decision in case
of Babu Ram (supra) with the following discussion in paragraph
Nos.10 & 11 thereof:-
thereof:
“10. The applicability of the provisions of the Act, therefore, is to
be judged not from the terms of the Limitation Act but by adverting
to the provisions of the Act relating to filing of a petition under
Section 13-A
A of the Act for seeking immediate possessio
possessionn of a
‘residential’ or ‘scheduled building’ for which a right accrues to
certain persons. It is to be seen by adverting to the provisions and
where the procedure provided therein is a complete Code itself, it
does not then admit the application of the pro
provisions
visions of the
Limitation Act mentioned in Section 29(2) thereof. A reference to the
provisions of Sections 13-A
A and 18
18-A
A of the Act would show that the
procedure provided regarding right to recover immediate possession
of ‘residential’ or ‘scheduled build
building’,
ing’, is a complete code by itself
and the same does not admit the application of any provision of the
Limitation Act mentioned in Section 29(2) thereof. It is also
appropriate to note that in terms of Section 18
18-B
B of the Act, it is
provided that Section 18-A
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. This also would exclude the applicability of the
Limitation Act.. The procedure prescribed for seeking recovery of
immediate possession of ‘residential’ or ‘scheduled building’ in terms
of Section 13-A
A of the Act, would not admit the applicability of the
provisions of the Limitation Act. In fact, in Ashwani Kumar Gupta’s
Gupta
case (supra) also, it was held that the procedure provided under
Section 13-A
A of the Haryana Act is a Code unto itself and it
constitutes special provisions not only vis
vis-a-vis
vis other provisions of
the Haryana Act but also any other law which is inconsist
inconsistent
ent with
the provisions of Section 13-A
A and Section 18
18-A
A of the Act. As such,
the tenant cannot invoke the provisions of the Limitation Act for
seeking condonation of delay in filing the application. Besides, the
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Rent Controller cannot condone the delay in filing an application for
seeking leave to contest an application for eviction under Section
13-A of the Act.
11. The position, therefore, is that the provisions of the Limitation
Act in respect of an application for condoning the delay to file an
application
tion for leave to contest an application filed under Section
13-A(2) of thee Act which is required to be fil
filed
ed with 15 days of the
receipt of summons, are not applicable. The position as pleaded by
the petitioner is that the tenant
tenant-respondent
respondent did not file an
a
application for seeking leave to contest the petition filed under
Section 13-A
A of the Act within the period of 15 days from the date of
service of summons. The respondent, however, subsequently on
7.2.2005 submitted an application for condoning the delay and for
grant of leave to defend the case. The application being barred by
time, the Rent Controller had no jurisdiction to grant the leave to
contest the petition and thereby impliedly condone the delay under
Section 5 of the Limitation Act. The said pro
provision
vision is inapplicable to
the procedure provided in respect of right to recover immediate
possession of ‘residential’ or ‘scheduled building’ in terms of Section
13-A
A of the Act. The provisions of the Limitation Act having been
held to be inapplicable in the
he matter of procedure provided for
seeking recovery of immediate possession of ‘residential’ or
‘scheduled building’ in terms of Section 13
13-A
A of the Act, the
application for leave to contest was not liable to be granted. The
application seeking leave to contest
ontest the petition under Section 13-A
13
of the Act having not been filed within time as has been stipulated in
the statute itself as a condition precedent for the Rent Controller to
proceed further to enquire the merits in defence, the Rent Controller
is obliged
liged under the constraining influence of compulsion statutorily
cast upon it to pass an order of eviction in the manner envisaged
under Section 13-A of the Act.”
”
Similarly decision in case of S. Manohar Singh (supra) was
also discussed and distinguished by another Co
Co-ordinate
ordinate Bench of this
Court in case of Suman (supra) to hold that the provision of Section 5
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of the Limitation Act, 1963 was not to apply while dealing with
application filed by the tenant for grant of leave to defend under the
th
provisions of 1949 Act. Relevant paragraph Nos.11 to 14 of the
judgment are reproduced hereunder:
hereunder:-
11. The question that arises for consideration is whether
provisions of Section 5 as also Section 29(2) of the Limitation Act,
1963 can be said to be inco
inconsistent
nsistent or to be construed as
supplemental to each other. The answer lies in the judgment of the
Hon’ble Supreme Court in the case of Gopal Sardar (supra) wherein
it has been observed as under:
13. …even though special or local law does not state in
so many words expressly that Section 5 of the
Limitation Act is not applicable to the proceedings
under those Acts, from the scheme of the Act and
having regard to various provisions such express
exclusion could be gathered. Thus, a conscious and
intentional omission by the legislature to exclude
application of Section 5 of the Limitation Act to the
proceedings under Section 8 of the Act, looking to the
scheme of the Act, nature of right of pre
pre-emption
emption and
express application of Section 5 of the Limitation Act
Ac
to the other provisions under the Act, itself means and
amounts to “express exclusion” of it satisfying the
requirement of Section 29(2) of the Limitation Act.
(Emphasis supplied)
12. In the opinion of the Hon’ble Apex Court, even if there is no
specificc or express exclusion of Section 5 of the Limitation Act in a
special or local law and such special/local law does not provide for
extension of time or condonation, Section 5 of the Limitation Act will
not apply and the provisions must be construed to exc
exclude
lude Section 5
of the Limitation Act. In the light of ratio of this Judgment, there is
no escape but to hold that Section 5 of the Limitation Act is not
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applicable for condoning delay in making application for leave to
contest eviction petition.
13. There is another important and relevant provision which must
be construed to exclude the applicability of Section 5 of the
Limitation Act. Sub-section
section 18
18-B
B of the East Punjab Urban Rent
Restriction Act, 1949 reads as under:
18-B.
B. Section 18
18-A to have over-riding effect-Section
Section
18-A
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 time being in force.
14. A bare reading of this Section makes it abundantly clear that
procedure prescribed under Section 18
18-A of the Act has over-riding
riding
effect on all other provisions of this Act or any other law for the time
being in force to the extent of inconsistency. This ca
can
n be construed to
be a provision which expressly excludes Section 5 of the Limitation
Act as otherwise it tends to render the provisions of Section 18
18-A
A of
the Act read with Form prescribed which contains specific period of
limitation for seeking leave to contest the eviction petition and does
not envisage any extension or relaxation of the prescribed period as
otiose. Thus, I am of the considered view that the view expressed in
the case of Babu Ram v. Naresh Kumar (supra) needs to be
followed.
(e) Above all,
ll, even the Hon’ble Apex Court in case of Om
Parkash (supra) dealt with the provisions of East Punjab Urban Rent
Restriction Act, 1949 and went on to hold that Rent Controller has no
jurisdiction to condone delay under Section 5 of Limitation Act, while
dealing
ealing with an application for leave to defend. Relevant paragraph
Nos.17 & 18 of the judgment are reproduced hereunder:
hereunder:-
17. Section 13-B
B is a power given to a Non
Non-Resident
Resident Indian
owner of a building to obtain immediate possession of a residential
building or scheduled building when required for his or her use or
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for the use of any one ordinarily living with and dependent on him or
her. The right has been limited to one application only during the
life time of the owner. Section 18
18-A(2)
A(2) of the aforesaid Act provides
that after an application under Section 13
13-B
B is received, the
Controller shall issue summons for service on the ten
tenant
ant in the form
specified in Schedule II. The said form indicates that within 15 days
of service of the summons the tenant is required to appear before the
Controller and apply for leave to contest the same. There is no
specific provision to vest the Rent Controller with authority to
extend the time for making of such affidavit and the application. The
Rent Controller being a creature of statute can only act in terms of
the powers vested in him by statute and cannot, therefore, entertain
an application underr Section 5 of the Limitation Act for condonation
of delay since the statute does not vest him with such power.
18. In such case, neither the Rent Controller nor the High Court
had committed any error of law in rejecting the Petitioner’s
application for seeking
eking leave to contest the suit, since the same had
been filed beyond the period prescribed in the form in Schedule II of
the Act referred to in Section 18
18-A(2) thereof.”
11. In view of the detailed discussion made hereinabove, the principle of
law which emerges
emerge is that Sections 13-B
B & 18
18-A of 1949 Act which provide for
unique and extraordinary right to recover immediate possession of residential or
scheduled building and/or non-residential
non residential building is a complete code by itself and
the same does not admit the application of any provision of the Limitation Act
mentioned in Section 29(2) thereof; procedure under Section 18
18-A
A of the act read
with the Form prescribed under Schedule II which contains specific period of
limitation for seeking leave to contest eviction
eviction petition, has over
over-riding
riding effect on
all other provisions of this Act or any other law for the time being in force to the
extent of inconsistency and, therefore, has to be construed as an express exclusion
to Section 5 of the Limitation Act especially
especially when the provision of Section 18
18-A
A or
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Schedule-II
II nowhere provide for any extension or relaxation of the prescribed
period of 15 days;
days but to the contrary provide for entitlement of the landlord to
obtain an order of eviction at any time after the expiry of said period of 15 days.
days
Therefore,
herefore, the Rent Controller being a creature of Statute can only act in terms of
powers vested under the Statute and thus, cannot entertain an application under
Section 5 of the Limitation Act for condonation of delay; such ppower being not
vested to him under statute.
12. Accordingly, applying the exposition of law referred to hereinabove,
no illegality or perversity can be found with the impugned order passed by the
learned Rent Controller, while rejecting the application moved by the petitioner-
petitioner
tenant under Section 5 of the
the Limitation Act being not maintainable; followed by
an order of eviction against him. Furthermore, no merit can be found in the
submissions made on behalf of the petitioner-tenant
petitioner tenant that he was never served with
any notice of the eviction petition in the prescribed
prescribed Form/Schedule
Form/Schedule-II as even a
certified copy of a summon issued to him was perused by the Court at the time of
hearing which clearly depicted that not only it was mentioned therein that the
summon was about a petition under Section 13
13-B of East Punjab
ab Urban Rent
Restriction Act, but it was also reflected specifically that the tenant was required to
appear in pursuance of the summons and obtain leave of the Rent Controller to
contest the eviction petition with fifteen days and in default, the landlord will be
entitled for order of eviction. Relevant extract from the copy of summon is even
reproduced hereunder:-
hereunder:
“NOTICE
NOTICE TO RESPONDENT IN PETITION RC or ARC/187/2023
UNDER SECTION 13-B
13 OF EAST DR PARNEET SINGH SODHI
PUNJAB URBAN RENT RESTRICTION VS HARPREET SINGH
ACT PREVIOUS DATE: 29-05-2023
2023
Next Date: 15.07.2023
To
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HARPREET SINGH
Son: – LABH SINGH
FLAT NO.1257/2 SECTOR 43 B CHANDIGARH
PERMANENT RESIDENT OF HNO.265 STREET NO.265 STREET NO
10 WARD NO 5 MANSA PUNJAB
Whereas Petitioner DR PARNEET SINGH SOHI has filed an
application (a copy of which is annexed) for your eviction from the
property in dispute (mentioned in the copy of the petition) under Section
13-B
B of the East Punjab Urban Rent Restriction Act, 1949. N
Now,
ow, 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 petition for eviction under Section 13
13-B
B of the said Act, in
default whereof, the applicant
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
property in dispute. Leave to appear and context the application may be
obtained on an application to the Controller suppo
supported
rted by an affidavit as is
referred to in sub-section
sub section (5) of Section 18
18-A of the said Act.
Dated, this day of 30-05
05-2023.
RENT CONTROLLER
Chandigarh”
13. In view of above discussion present revision petition is thus,
dismissed being devoid of merits thereby upholding the dated 12.02.2024 passed
by the learned Rent Controller, Chandigarh.
14. All pending applications, if any, shall stand disposed of.
(HARKESH MANUJA)
April 04, 2025 JUDGE
Atik
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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