Civil Revision No.7478 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.7478 of 2011(O&M) Date of Decision: December 16, 2011 Rekha Chhabra .....Petitioner v. Rishi Dev Singh Pathania .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.D.S.Kahlon, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.28931-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.7478 of 2011 The present revision petition has been filed against order dated 1.11.2011 passed by learned Rent Controller, Pathankot, vide which petition for ejectment of present petitioner filed by respondent-landlord under Section 13-A of the East Punjab Urban Rent Restriction Act, 1949 (for short `the Act') for ejectment of present petitioner-tenant was allowed. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned Rent Controller. Briefly stated, petitioner is in possession of premises in dispute on rent @ `1500/- per month under respondent-landlord. The present petition was filed by respondent-landlord under Section 13-A of the Act for ejectment of present petitioner from the demised premises on the ground Civil Revision No.7478 of 2011(O&M) -2- that he is completing the age of superannuation on 30.4.2012 as he is employed in Irrigation and Public Health Department of Himachal Pradesh and he requires the premises in dispute for his own occupation as after retirement he intends to shift to the house in dispute alongwith his other family members. Plea has been taken that he has to settle the family of his son Amit Pathania. It is also contended that his other son, namely, Aman Pathania, is also yet to be married and he is also to be settled and hence plea has been taken that premises in dispute is bonafidely required for his personal use and necessity. He has specifically pleaded that he does not possess any other suitable accommodation in the local urban area of Pathankot. Upon notice being issued in the form prescribed under Section 18-A of the Act, present petitioner appeared and, however, he did not file an application for leave to defend the main petition as per procedure prescribed under the said Section. Rather reply has been filed contesting the petition on merit. Hence, as no application for leave to defend under Section 18-A of the Act was filed by present petitioner, learned Rent Controller while accepting the averments of respondent-landlord as correct, passed the impugned order directing present petitioner to vacate the demised premises within a period of one month. The only point argued by learned counsel for the petitioner is that when petition under Section 13-A of the Act was filed by respondent- landlord, another petition under Section 13 of the Act on the same ground was already pending and hence, plea is taken that second petition under Section 13-A of the Act on the same ground is not maintainable. On the other hand it has been contended by learned counsel for Civil Revision No.7478 of 2011(O&M) -3- the respondent that when petition under Section 13 of the Act was filed, respondent-landlord was having no right to maintain petition under Section 13-A of the Act, hence, petition under Section 13-A of the Act was filed when respondent became specified landlord as per the said provision as he could file the said petition within one year of his date of superannuation. Hence, it is contended that there is no bar in filing the petition under Section 13-A of the Act when respondent-landlord became eligible to avail remedy under the said provision in spite of the fact that earlier petition filed under Section 13 of the Act was pending. Further contends that moreover the said petition filed under Section 13 of the Act was also withdrawn by respondent-landlord vide order dated 23.8.2011. It is pertinent to reproduce Section 13-A and Section 18-A of the Act, which read as under:- “13-A Right to recover immediate possession of residential or scheduled building to accrue to certain persons.- 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 East Punjab Urban Rent Restriction (Amendment) Act, 1985, 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 an 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 Civil Revision No.7478 of 2011(O&M) -4- (whether expressed or implied), custom or usage to the contrary, a right to 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: Provided that in case of death of the specified landlord, the widow or widower of such specified landlord and in the case of death of such 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 shall be entitled to make an application under this Section to the Controller:- (a) in the case of death of such specified landlord, before the commencement of the East Punjab Urban Rent Restriction (Amendment) Act, 1985, within one year of such commencement; (b) in the case of death of such specified landlord, after such commencement, but before the date of his retirement, within one year of the date of his death; (c ) in the case of death of such specified landlord, after such commencement and the date of his retirement, with one year of the date of such retirement; and on the date of such application the right to recover the possession of the residential building or scheduled building, as the case may be, which belonged to such specified landlord at the time of his death shall accrue to the applicant: Provided further 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: Provided further that the Controller may give the tenant a reasonable period for putting the specified landlord or, as the case may be, the widow, widower, child, grand-child or widowed daughter-in-law in possession of the residential Civil Revision No.7478 of 2011(O&M) -5- building or scheduled building, as the case may be and may extend such time so as not to exceed three months in the aggregate. Explanation:- For the purposes of this section, the expression `retirement' means termination of service of a specified landlord otherwise than by resignation.” “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 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 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 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 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 Civil Revision No.7478 of 2011(O&M) -6- Controller after such inquiry 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 scheduled 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 may 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 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 Civil Revision No.7478 of 2011(O&M) -7- 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 building 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 13-A or Section 13-B shall be same as the procedure for the disposal of applications by the Controller.” A bare perusal of the aforementioned provisions of law show that tenant has to apply to the Controller, to obtain leave to contest the petition by filing appropriate application, within a period of 15 days of the receipt of summons as per Sub Section 2 of Section 18A read with Schedule II of the Act. However, admittedly, no such course was adopted by petitioner in this case and no such application for seeking leave to defend was filed and hence, Rent Controller was having no other alternative but to accept the averments made by respondent-landlord as correct and to pass an order of ejectment against the present petitioner-tenant. In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned Rent Controller in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Civil Revision No.7478 of 2011(O&M) -8- Court. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 16.12.2011 (Ram Chand Gupta) meenu Judge