C.R.No.3884 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH. C.R.No.3884 of 2011 Date of decision: 14.10.2011. Smt.Vandana ....Petitioner. Vs. Rajinder Singh Rana ....Respondent. Coram: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. Present: Mr.S.P.Soi, Advocate, for the petitioner. Mr.Harsh Aggarwal, Advocate, for the respondent. Rakesh Kumar Garg,J. This is tenant's revision petition challenging the impugned order dated 1.4.2011 of Rent Controller Chandigarh whereby prayer for leave to defend the petition by the respondent filed under section 13-A of the East Punjab Urban Rent restriction Act, 1949 (hereinafter referred to as “the Act”) was rejected. The facts as emanating from the impugned order are that the respondent-landlord filed a petition under section 13-A of the Act on the averments that he was landlord/owner of House No.3188/1 Sector-45D Chandigarh (hereinafter referred to as the “demised premises”) and has retired as a gazetted officer from the post of Additional Administrative Officer, Public Relations Department Haryana, on 30.4.2008. On 1.3.2001 the petitioner had taken the demised premises on rent from him and with effect from 1.3.2002 at a monthly rent of Rs.4000/- per month with an increase of Rs.500/- every year. The petitioner had stopped paying rent after March 2007 and the last rent paid by him was Rs.7000/- for the month of C.R.No.3884 of 2011 2 March 2007. It was further averred that after his retirement from his government service on 30.4.2008, he had asked the tenant to vacate the demised premises as the same was urgently needed by him to re-settle himself and his family members and having no other alternative, he had to continue to stay in government accommodation by paying license fee which is 20 times higher than the normal licence fee. It was also averred that respondent-landlord had no other accommodation or any other suitable accommodation with the municipal limits of Chandigarh. The respondent- landlord vacated the government accommodation on 27.2.2009 and took another accommodation that is the ground floor of House No.1127 Phase- X, Mohali at a monthly rent of Rs.8250/- and was residing with his family in the said house. A legal notice dated 23.3.2009 was also issued to the petitioner. The respondent or any of his family members had not got vacated any other house in the urban area of Chandigarh after commencement of the Act. Since the respondent had retired from his service and he required immediate possession of his tenanted premises, the instant ejectment petition was filed. Upon appearance petitioner-tenant filed an application for leave to defend on 14.5.2009 alleging the same within limitation of 15 days from the date of issuance of notice on 29.4.2009 by the Rent Controller. In the application for leave to defend petitioner averred that she has not taken on rent the demised premises nor has ever paid any rent. She is an illiterate lady who is living with her husband and two children and has no independent source of income. Her husband is working as a Salesman at a liquor vend and is getting salary of Rs,.3500/- per month and in these circumstances she could not pay Rs.4000/- or Rs.7000/- per month. It was C.R.No.3884 of 2011 3 further averred that the petitioner had replied to the notice of the respondent stating that the premises were taken on rent in the year 2001 at the rate of Rs.500/- per month which was subsequently raised to Rs.750/- and the last rent of Rs.750/- was paid in February 2009. Since there were triable issues the petitioner was entitled to the grant of leave to defend the petition. In reply thereto the respondent-landlord submitted that the stand taken by the petitioner in her reply to the application is self contradictory. On one hand she has stated that she had never taken the premises on rent and on the other, she has stated that the premises were taken on rent in year 2001 at the rate of Rs.500/- per month. It was further prayed that the respondent-landlord was a specified landlord and in the application for leave to defend no defence was disclosed which entitled the petitioner to seek leave of the Court and thus the instant application was liable to be dismissed. While passing the impugned order, the Rent Controller has noticed that the tenant has confined her argument only to the point that she is not the tenant of the demised premises and no rent was ever paid by her and Balkrishan her husband has not been impleaded as a party in the present petition as he is the actual tenant of the demised premises. Whereas on the other hand the respondent-landlord had argued that the respondent is the landlord of the demised premises and petitioner was tenant therein. It was also argued on behalf of the respondent-landlord that application for leave to contest was not maintainable having been filed after lapse of the statutory period and that the petitioner has failed to prove any of the necessary ingredients for grant of leave to defend. The Rent Controller concluded that despite service the petitioner failed to appear and C.R.No.3884 of 2011 4 file an application within 15 days from service as contemplated under section 18-A of the Act, and therefore, the application for leave to defend lacks on this ground. The Rent Controller also held that the petitioner had taken a self contradictory stand stating on the one hand that she had never taken on rent the accommodation in question and also admitting on the other hand that the premises were taken on rent in the year 2001 at the rate of Rs.500/- per month which was subsequently raised to Rs.750/-. Thus, admitting her possession over the demised premises as a tenant. The Rent Controller found that the necessary ingredients as contemplated under section 18-A of the Act are satisfied on behalf of the landlord for recovery of the immediate possession of the demised premises, and the rate of rent of the demised premises was Rs.750/-. As per the plea of the petitioner, she failed to show that she had made the payment of rent after March 2007 @ Rs.750/- per month and thus, petitioner was in arrears of rent with effect from the said date. In a sequel to the aforesaid finding the Rent controller declined the prayer for grant of leave to defend to the petitioner vide impugned dated 1.4.2011. In the instant petition the aforesaid order dated 1.4.2011 of the Rent Controller is under challenge. On 3.6.2011 noticing the contentions of the learned counsel for the petitioner, the following order was passed:- “ Learned counsel for the petitioner, inter alia, contends that in para No.9 of the impugned order, the Court records that the petitioner/tenant had not appeared within 15 days of the date of service as contemplated under Section 18-A of the Act, though according to the petitioner, the Court ordered for summoning the respondent on 29.4.2009 for 12.5.2009. In C.R.No.3884 of 2011 5 pursuance of which, he appeared on 12.5.2009 and filed an application for leave to defend on 14.5.2009 which is within 15 days from the date of issuance of notice on 29.4.2009. Notice of motion for 28.7.2011. Till then, dispossession of the petitioner shall remain stayed.” On 28.7.2011 the record of the Rent Controller,Chandigarh, was also called which were received as noticed vide order dated 14.9.2011. It is useful to refer to the zimni orders dated 8.4.2009 and 12.5.2009 of the Rent Controller which reads thus:- “ Fresh petition received by entrustment. Itbe checked and registered. Now notice to the respondent be issued for 12.5.2009 on filing of RC/D/PF and copy of the petition etc. within 7 days. Dasti summons be also taken if requested”. Sd/-C.J.(JD)/RC/8.4.09”. “ The concerned Ahlmad has not issued the summons on the prescribed proforma, as per service of the respondent would be effected. Heard. I perused the record also. This is a petition u/s 13-A of the Rent Act for which special procedure is envisaged./ The concerned Ahlmad is directed to careful while issuing the summons in this case. Let respondent be again served on the prescribed proforma, for 17.7.2009. Dasti summons be also taken simultaneously. Sd/-CJ(JD)/RC/12.5.09”. On the basis of the aforesaid facts counsel for the petitioner has vehemently argued that the issuance of summons in the prescribed format as per the schedule of the Act was a sine qua non for computing limitation C.R.No.3884 of 2011 6 of 15 days for filing an application for leave to defend. In the instant case admittedly the summons issued to the petitioner for 12.5.2009 were not issued in the prescribed format and, therefore, the Rent Controller could not have recorded a finding that the application was not well within time. At the outset it may be mentioned that after perusing the record it is found that the summons issued to the petitioner in pursuance of the order dated 28.4.2009 for appearance before the Rent Controller on 12.5.2009, were not issued as per the format given in the schedule of the Act. The summons issued to the petitioner for 12.5.2009 were duly served upon him. The summons in the prescribed format were issued to the petitioner only vide order dated 12.5.2009 for 17.7.2009 and the petitioner was served on 4.7.2009 in persuance of the said notice. Thus findings of the Rent Controller in this regard are not tenable. Learned counsel appearing on behalf of the landlord has submitted that even if the contention of the petitioner is accepted on the point of limitation and the application for leave to defend filed by her is treated within limitation the petitioner has no case as the said application does not disclose any defence on the basis of which leave to defend can be granted as all the necessary ingredients of section 13-A of the Act are fulfilled in the instant case. The only point raised by the petitioner that she is not the tenant and her husband who is the actual tenant has not been arrayed as a party and, therefore, the Rent Controller had no jurisdiction to proceed against her is without any merit and is liable to be rejected. Thus, without going into the question whether the service upon the petitioner on the prescribed format as required under the law was a condition precedent/mandatory this Court is proceeding to examine the C.R.No.3884 of 2011 7 question, “whether petitioner had raised any triable issue entitling her to grant leave to defend in her application”. It is useful to refer to the following paragraphs of the ejectment application filed on behalf of the respondent:- “ That the petitioner is the landlord/owner of the residential House No.3188/1, Sector 45-D,Chandigarh (U.T) and the respondent-tenant took the demised residential premises on rent from the petitioner on 01.03.20011. “ That it has been agreed between the petitioner-landlord and the respondent-tenant that the tenant shall pay Rs.4000/- ( rupees four thousand only) per month to the landlord, as the monthly rent, w.e.f.01.03.2002 along with the yearly increase of Rs.500/- (rupees five hundred only), year to year, for each forthcoming year, till the vacation of the said premises by the tenant. “That the respondent-tenant has been habitually irregular in paying the monthly rent and she used to pay the rent with delay and at times, even after the passing of certain particular months. “ That on 08th March,2009, the petitioner, who is a retired officer and an elderly gentleman had gone to his House no.3188/1, sector-45D, Chandigarh to request the tenant to vacate the premises. But to his utter surprise the respondent- tenant and his family members had assaulted the petitioner- landlord. Fearing further trouble, the petitioner landlord had made a complaint to the SSP U.T.chandigarh on 14-03-2009 vide receipt No.PW200901349 issued on 16-03-2009, copy of the aforesaid a receipt No.PW200901349 is annexed as Annexure P6. “That subsequently, a legal notice dated 22-03-2009 has been issued to the tenant vide receipt no.SP EP 7771 321 30 IN dated 22.03.2008, but neither the respondent-tenant has complied to the contents of the said legal notice nor any reply C.R.No.3884 of 2011 8 to the said Legal Notice has been made. Copy of the said legal notice dated 23.03.2008 is annexed herewith as Annexure P7”. It may also be noticed that in his application for leave to defend petitioner has averred as under:- “That the petition has been filed against applicant/respondent showing her as tenant of H.No.3188/1, Sector 45-D, Chandigarh paying rent @ Rs.7,000/- P.M. It is absolutely wrong & incorrect. Respondent has taken on rent the accommodations in question on rent, nor has she ever paid any rent @ Rs.4,000/- in 2001 & then increased it @ Rs.500/- per year and finally paid @ Rs.7,000/- as alleged in the petition. That respondent is illiterate house wife who is living with her husband and two children, copy of Ration Card Ex.A. Shehas no independent source of income from any corner. Her husband took working as Salesman at a liquor vend and draws monthly salary ofRs.3500/- only.This income is not sufficient to meet both ends meet as a result of one son of respondent had to be sent to his paternal parents house in Himachal Pradesh from where he passed his middle examination from Govt. High Court PIHRI (H.P) (photocopy of certificate is attached) R-1. Another son had to leave studies in fifth class. In such circumstances, how could respondent or her husband afford to pay Rs.4,000/- in year 2001 and subsequently Rs.7,000/- per month in the year 2009. Salary certificate of husband is employer is attached as R-2. That petitioner is intentionally making wrong assertions as is apparent from para 3 and 5 of petition & affidavit. In para 3 date of renting out accommodations has been shown as 01.03.01 while in Para 5 it has been shown as 01.03.02. Same has been repeated in affidavit also. This fact clearly shows that petitioner has intentionally put false & fabricated C.R.No.3884 of 2011 9 allegations and assertions with regard to rate of rent or date of renting out the accommodation or the name of the tenant. That petitioner had earlier sent a legal notice dt.19.03.09 to Sh.Balkrishan where he referred him as his tenant & this fact appeared 22 times in 4 page notice. In Para 1 of the notice it is mentioned “you and your wife have been illegally occupying without paying any rent to him for last 2 year”. In respect Paras of notice Balkrishan has been referred as “you” and in para 7 of notice it has been stated “That you are hereby warned..........otherwise corresponding civil & criminal proceedings shall be instituted against you (Sh.Balkrishan).” Reply to said notice was sent through regd.post on 08.04.09 (Photocopy of postal receipt dt.08.04.09 is attached as R-3. In reply to notice sent by Balkrishan, this fact was specifically mentioned that petitioner was intentionally involving his wife with ulterior motive to harass him knowing fully well that his (Balkrishan's) wife is chronic patient of heart. But inspite of this petitioner has filed the present petition against respondent only & left out Balkrishan with ulterior motive only. It has been replied in notice by Balkrishan copy of reply's postal receipt is Ex.R-3 that premises were taken on rent in year 2001 @ Rs.500/- P.M. Whioch subsequently were raised to Rs.750/- P.M. Last rent paid was in Feb.2009 @ Rs.750/- only and not Rs.7000/- as alleged. Copy of the reply sent by Balkrishan is attached as R-5. That contents of criminal complaint filed by petitioner against Balkishan ( as finds mention in Para 14 of the petition) if read, it shall become ample clear as to who is tenant. Respondent has nowhere shown as tenant in said complaint. To conceal the details of contents of complaint, petitioner has not annexed copy of the complaint but has only annexed the slip of public window system as Annexure P-6.” C.R.No.3884 of 2011 10 From the aforesaid averments, it is clearly established that respondent-landlord has specifically averred that the petitioner is a tenant in the demised premises whereas the petitioner in her application for grant of leave to defend, though, denied the relationship of landlord and tenant between the parties and has further denied payment of rent by her but has admitted that her husband is the actual tenant and she is living with him. Thus, it may be noticed that in the application for ejectment the respondent- landlord has specifically averred that petitioner is a tenant in the demised premises whereas petitioner has denied her relationship of landlord and tenant and has taken a stand that her husband is the actual tenant. However, from the averments made in the application it is clearly made out that she had admitted herself as a tenant. Thus, it does not lie in her mouth to say that there is no relationship of landlord and tenant between the parties and, thus, she ought to have been granted leave to defend the ejectment application. Not only this along with her application for leave to defend she has not placed on record any document in support of her stand taken in the said application. In view of the aforesaid discussion, the contention of the petitioner that there is no relationship of landlord and tenant between the parties, is without any merit and is hereby rejected. No other point was raised. No merit. Dismissed. (Rakesh Kumar Garg) Judge October 14, 2011 rk