IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No.2078 of 2003 Date of Decision: 22.7.2010 Dr.Madan Lal. ....... Petitioner through Shri Veneet Sharma, Advocate. Versus Rattan Singh. ....... Respondent through Shri B.R. Mahajan, Advocate with Ms.Gaganpreet Kaur, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This revision petition under Section 15(5) of the East Punjab Urban Rent Restriction Act,1949 (for short, `the Act') has been directed against judgment dated 11.3.2003 passed by the Appellate Authority, Amritsar whereby the appeal of the respondent-landlord was accepted, judgment dated 9.2.1996 of the Rent Controller, Amritsar was set aside and the eviction of the petitioner-tenant from the demised premises was ordered. The facts of the case need to be adverted to as they are essential C.R.No.2078 of 2003 -2- .... because of the peculiar nature of the controversy which has been raked up in the wake of the petition which was filed by the respondent and styled as a petition under Sections 13 and 13-A of the Act. Having described the petition as thus, the respondent chose the following grounds for seeking eviction of the petitioner:- (1) Non-payment of rent; (2) Personal necessity as the demised premises is required for his own use & occupation and also for his son. The petitioner, who was issued summons in accordance with Schedule II of the Act when the petition was purportedly treated as the one under Section 13-A by the Rent Controller. He was served on 22.5.1989 and promptly filed an application for leave to defend on 30.5.1989 which was the first date of hearing. The Rent Controller then proceeded with the matter and on 24.5.1990, the following issues were framed by him:- 1. Whether the relationship of landlord and tenant exists between the parties?OPA 2. whether the petitioner requires the demised premises for his own use and occupation?OPA 3. Relief. No other issue was claimed or pressed by the petitioner. It may be mentioned here that the rent was paid in the first instance which rendered the ground of non-payment thereof as redundant leaving the parties to go to trial on the issue of bona fide need of the respondent to have the demised premises. C.R.No.2078 of 2003 -3- .... After affording opportunities to the parties to lead their evidence and perusing the same, the Rent Controller dismissed the petition while the Appellate Authority reversed that decision and ordered the eviction of the petitioner. Aggrieved by the judgment of the Appellate Authority, the petitioner has filed the present petition. The foremost thrust of the arguments of the learned counsel for the petitioner while assailing the findings of the Appellate Court is that the eviction petition was filed by the respondent primarily under Section 13-A of the Act and since the demised premises were commercial in nature, such a remedy was not available to him as under the aforesaid provision of law, a specified landlord can seek eviction of a tenant from a residential premises alone and not from a commercial premises. He contended that leave to defend was specifically granted by the Rent Controller vide order dated 11.4.1990 and it was thereafter that the proceedings commenced on the eviction petition. He further contended that the appeal filed by the respondent was not maintainable in view of the specific bar contained in Section 13-A of the Act. In support of his arguments/ submissions/ contentions, he placed reliance on Pritam Singh Versus Lakhbir Singh, 2001 (2) R.L.R. 395 (P&H); State Bank of Patiala versus S.Zulzuaoar Singh Virk and others, 2003(1) R.C.R.(Rent) 670 (P&H) and Dinesh Kumar Versus Ram Singh and others, 2006(1) R.C.R. (Rent) 182 (P&H). On the other hand, learned counsel for the respondent argued that even though the petitioner was summoned under Section 13-A of the C.R.No.2078 of 2003 -4- .... Act, yet, after grant of leave to defend, the matter proceeded in its normal course and special procedure as enshrined under the said section was not followed. He submitted that in view of this, the petitioner cannot say that any prejudice has been caused to him. He contended that Section 13-A of the Act, even though provides for an eviction petition to be filed by a specified landlord qua a residential building only, but this artificial distinction is unsustainable for the reason that it would be far-stretched to say that a person, who retires from service, can only recover possession of a residential premises and he is barred from invoking such provision qua the commercial premises it is equally possible that such a specified landlord may in the evening of his life, desire to set up a venture in such commercial premises for his own use and such a need itself cannot be said to be wishful thinking of a landlord so as to deny him the desired relief. To support his submissions, he placed reliance on a judgment of the Supreme Court in Ashok Kumar Versus Ved Prakash & Ors., 2010(1) R.C.R. 63 (S.C.) and also on a judgment of this Court in Manoj Kumar Aggarwal & Anr. Versus Vijay Kumar, 2009(4) R.C.R.(Civil) 272 (P&H). I have thoughtfully considered the rival contentions/ submissions and have perused the material on record, as also the evidence of the parties which is available. To understand and answer the controversy as raised by the counsel for the parties before this Court, it is essential to delineate the procedure and scope of the proceedings under Sections 13 and 13-A of the Act. Section 13 of the Act contemplates the filing of a petition by the C.R.No.2078 of 2003 -5- .... landlord seeking eviction of a tenant on the grounds which have been mentioned therein. Once such a petition is filed, the Rent Controller is obliged to proceed with the matter to determine the validity of the grounds on which such eviction has been sought, but in so far as Section 13-A is concerned, apart from the limited grounds on which the eviction can be sought, it is also governed by special provisions contained in Section 18-A of the Act. Sub-sections (2) and (3)(a) of Section 13, Sections 13-A, 18-A and Schedule II of the Act are extracted below for ready reference:- “13. Eviction of tenants.--(1) xx xx xx xx xx (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied- (i) that the tenant has not paid or tendered the rent due by him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable: Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid C.R.No.2078 of 2003 -6- .... or tendered the rent within the time aforesaid; (ii) that the tenant has after the commencement of this Act without the written consent of the landlord - (a) transferred his right under the lease or sublet the entire building or rented land or any portion thereof; or (b) used the building or rented land for a purpose other than that for which it was leased, or (iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land, or (iv) that the tenant has been guilty of such acts and conduct as are a nuisance to the occupiers of buildings in the neighbourhood, or (v) that where the building is situated in a place other than a hill station, the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause, the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application: Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate. C.R.No.2078 of 2003 -7- .... (3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession - (i) in the case of a residential building if - (a) he requires it for his own occupation; (b) he is not occupying another residential a building in the urban area concerned; and ( c ) he has not vacated such a building without sufficient cause after the commencement of this Act, in the said urban area; (d) it was let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and the tenant has ceased, whether before or after the commencement of this Act, to be in such service or employment: Provided that where the tenant is workman who has been discharged or dismissed by the landlord from his service o employment in contravention of the provisions of the Industrial Disputes Act,1947, he shall not be liable to be evicted until the competent authority under that Act confirms the order of discharge or dismissal made against him by the landlord. (i-a) in the case of a residential building, if the landlord is a member of the armed forces of the Union of India and requires it for the occupation of his family and if he C.R.No.2078 of 2003 -8- .... produces a certificate of the prescribed authority, referred to in Section 7 of the Indian soldiers (Litigation) Act,1925, that he is serving under special conditions within the meaning of Section 3 of that Act. Explanation.-- For the purposes of this sub-paragraph -- (1) the certificate of the prescribed authority shall be conclusive evidence that the landlord is serving under special conditions; and (2) “family” means such relations of the landlord as ordinarily live with him and are dependent upon him; (ii) in the case of rented land, if (a) he requires it for his own use; (b) he is not occupying in the urban area concerned for the purpose of his business any other such rented land; and (c ) he has not vacated such rented land without sufficient cause after the commencement of this Act, in the urban area concerned; (iii) in the case of any building or rented land, if he requires it to carry out any building work at the instance of the Government or local authority or any Improvement Trust under some improvement or development scheme or if it has become unsafe or unfit for human habitation; (iv) in the case of any residential building, if he requires it for use as an office, or consulting room by his son who C.R.No.2078 of 2003 -9- .... intends to start practice as a lawyer or as a registered practitioner within the meaning of that expression as used in the Punjab Medical Registration Act,1916, or for the residence of his son who is married, if -- (a) his son as aforesaid is not occupying in the urban area concerned any other building for use as office, consulting room or residence, as the case may be; and (b) his son as aforesaid has not vacated such a building without sufficient cause after the commencement of this Act,in the urban area concerned: Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not, except under sub-paragraph (i-a), be entitled to apply under this sub-section before the expiry of such period: Provided further that where the landlord has obtained possession of a residential building or rented land under the provisions of sub-paragraph (i) or sub-paragraph (ii) he shall not be entitled to apply again under the said sub- paragraphs for the possession of any other building of the same class or rented land: Provided further that where a landlord has obtained possession of any building under the provisions of sub- paragraph (iv) he shall not be entitled to apply again under C.R.No.2078 of 2003 -10- .... the said sub-paragraph for the possession of any other building for the use of, or as the case may be, for the residence of the same son. (b) xx xx xx xx xx xx xx xx ( c ) xx xx xx xx xx xx xx xx (4) xx xx xx xx xx xx xx (4-A) xx xx xx xx xx xx xx xx (5) xx xx xx xx xx xx xx xx 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, applied 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 and from the date of such application to such specified landlord, notwithstanding C.R.No.2078 of 2003 -11- .... anything contained elsewhere in this Act or any other law for the time being in force or in any contract, 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, within one year of the date of such retirement; and on the date of such application the right to recover the C.R.No.2078 of 2003 -12- .... 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 maybe, the widow, widower, child, grand-child or widowed daughter-in-law in possession of the residential 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 purpose 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 C.R.No.2078 of 2003 -13- .... 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 acknowledgement 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 Controller after such enquiry as he deems fit, is satisfied about the correctness of the endorsement, he may declare that C.R.No.2078 of 2003 -14- .... 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 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 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 nona-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 C.R.No.2078 of 2003 -15- .... 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 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 ana 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 the same as the procedure for C.R.No.2078 of 2003 -16- .... the disposal of applications by the Controller. .-.-.- SCHEDULE II [See sub-section (2) of Section 18-A] 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. (Name,description and place of residence of the tenant) 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 Ast 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 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. Leave to appear and contest the application may be obtained on an application to the Controller supported by an affidavit C.R.No.2078 of 2003 -17- .... as is referred to in sub-section (5) of the Section 18-A of the said Act. Given under my hand and seal this .......... day of ......19 Controller” .... A conjoint reading of the afore-quoted provisions show that Section 13 provides remedy for a landlord to evict his tenant from rented building or land on the grounds of non-payment of rent, sub-letting, material impairment of value and utility thereof, the tenant being guilty of such acts and conduct as are a nuisance to the occupiers of the buildings in the neighbourhood, requirement of the building by him for himself or his family for own use and occupation etc., whereas Section 13-A enshrines a special provision for a retired landlord to get the rented residential or scheduled building vacated from tenant. Further, if a summons is served upon a tenant of the application under Section 13-A, he is required to obtain leave to contest such application within a period of fifteen days of such service. If the leave is declined, then the Rent Controller is to decide the eviction application summarily, but on the other hand, if the leave is granted, then he shall commence the hearing on a date not later than one month from the date on which such leave was granted and shall hear the application from day-to-day till the hearing ins concluded and the application is decided. The mandate of sub-sections (4) to (6) is unambiguous in this regard. The ostensible purpose of having such a procedure is to obviate and mitigate the sufferings of a landlord, who retires from service and has no residential premises and is desirous of retrieving C.R.No.2078 of 2003 -18- .... the same from his tenant. If the facts of the instant case are to be seen, then even though the petitioner was issued summons in