Civil Revision No. 5405 of 2010 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Revision No. 5405 of 2010 Date of Decision: 26.8.2010 Group Captain (Retired) Satish Parshad Garg …Petitioner Versus Chander Bhan and Another …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Vijay Kumar Jindal, Advocate for the petitioner. Kanwaljit Singh Ahluwalia, J. (Oral) The owner/landlord of the property, on the eve of retirement, is not made to search for a roof, a summary mechanism under Section 13- A of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as “1973 Act”) was introduced to cause eviction of tenant from residential property. Section 13A of the 1973 Act reads as under:- “13-A Special Procedure for disposal of application in certain cases:-- (1) Where the application is made by a landlord who is or was a member of the Armed Forces of the Union of India within one year prior to or after the date of his retirement or discharge or Civil Revision No. 5405 of 2010 2 within one year from the date of commencement of the Haryana Urban (Control of Rent and Eviction) Amendment Act, 1986, whichever is later, on the ground mentioned in sub-clause (i) of clause (a) of sub section (3) of section 13, the same shall be dealt with in accordance with the procedure specified in this section. Provided that in case of death of such landlord, his widow and in the case of death of such widow, his child, grandchild or widowed daughter-in- law who was dependent upon him at the time of his death shall be entitled to make an application under this Section to the Controller, -- (a) in the case of death of such landlord before the commencement of the Haryana Urban (Control of Rent and Eviction) Amendment Act, 1988, within one of such commencement; (b) in the case of death of such landlord after such commencement, but before the date of his retirement or discharge, within one year of the date of his death; Civil Revision No. 5405 of 2010 3 (c) in the case of death of such landlord after such commencement and the date of his retirement or discharge, within one year of the date of such retirement or discharge; and on the date of such application the right to recover the possession of the residential building which belonged to such landlord at the time of his death shall accrue to the applicant. (1-A) Where an application is made by a landlord who is or was an employee of Government of India or of Government of Haryana or of any State owned Board or Corporation of Haryana within one year prior to or after the date of his retirement or within one year from the date of commencement of Haryana Urban (Control of Rent and Eviction) Amendment Act, 1990, whichever is later, on the ground mentioned in sub-clause (i) of clause (a) of sub-section(3) of section 13, the same shall be dealt with in accordance with the procedure specified in this section. (2) The Controller shall issue summons, in relation to every application referred to sub-section (1), in the form appended to this Act. (3)(a) The Controller shall, in addition to, and Civil Revision No. 5405 of 2010 4 simultaneously with, the issue of summons for service of the tenant, also direct the summons to be served 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 or personally works for gain and may, if the circumstances of the case so require, also direct the publication of the summons in a newspaper circulating in the locality in which the tenant is last known to have resided or carried on business or personally worked for gain. (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 had refused to take delivery of the registered article, the Controller may declare that there has been a valid service of summons. Civil Revision No. 5405 of 2010 5 (4) The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) shall not contest the prayer for eviction from the residential building 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 he summons or his obtaining such leave, the statement made by the landlord 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 on the ground aforesaid. (5) The Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the residential building on the ground specified n sub-clause (i) of clause (a) of sub-section (3) of section 13. (6) Where leave is granted to the tenant to contest the application, the controller shall commence the hearing of the application as early as practicable. (7) The Controller shall, while holding an inquiry in a proceeding to which this section applies, Civil Revision No. 5405 of 2010 6 follow the practice and procedure of a Court of Small Causes, including the recording of evidence. (8) No appeal or second appeal shall lie against an order for the recovery of possession of any residential building 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) Where no application has been made to the High Court for revision, the Controller may exercise the powers of review in accordance with the provisions of order XLVII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908). (10) Save as otherwise provided in this section, the procedure for the disposal of the application for eviction shall be the same as the procedure for the disposal of applications by the Controller. (11) The provisions of this section or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in this Act or in any other law for the time being in force”. Civil Revision No. 5405 of 2010 7 This Court need not to go into the question as to whether leave to defend could be granted to the tenant or not especially when a consistent view has been taken by this Court that Section 13-A of the 1973 Act is not applicable to the commercial property. The Rent Controller, Gurgaon, relying upon the consistent view of this Court, held as under:- “...8. At this juncture, I may observe that question regarding applicability of provisions of Section 13-A of Haryana Urban (Control of Rent and Eviction) Act, 1973 also arose before our own Hon'ble High Court in Gurnam Singh Vs. Roshan Lal 209(1) RCR 61 and Sudarshan Kumar Bhatia Vs. Dharam Pal Sharma 2009(2) RCR (Civil) 214 and it was held that section 13-A of Haryana Urban (Control of Rent and Eviction) Act, 1973 is applicable only to residential premises and not to non residential premises. Hence, the question of maintainability of the present application under provisions of Section 13-A is involved. It is noteworthy that if the question of maintainability is ultimately decided in favour of applicant/respondent No.1, the petitioner landlord will not be entitled to eviction under section 13-A of the Act”. Though, it is well settled that delay in filing application for leave to defend cannot be condoned, yet, before granting leave to defend and issuing notice in the eviction petition, the Court has to Civil Revision No. 5405 of 2010 8 determine as to whether for commercial property, Section 13A of the 1973 Act could be invoked or not and if the answer is that Section 13-A is not applicable, the eviction petition in itself cannot be entertained by the Court. Therefore, this Court cannot come to rescue for the petitioner. Hence, the present revision petition is hereby dismissed, in limine. (Kanwaljit Singh Ahluwalia) Judge August 26, 2010 “DK”