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2001 DIGILAW 924 (PNJ)

Pritam Singh v. Lakhbir Singh

2001-08-27

R.L.ANAND

body2001
Judgment R.L.Anand, J. 1. This is a tenants revision and has been directed against the order dated 15.2.2001 passed by the Appellant Authority, Ludhiana which dismissed the appeal of the petitioner/tenant holding that the same was not competent. 2. Some facts can be noticed in the following manner :- Lakhbir Singh respondent earlier filed a petition under Section 13-A of the East Punjab Urban Rent Restriction Act (hereinafter referred to as the Act) for eviction of Pritam Singh from the building consisting of one room with verandah, open space and deodi part of building No. B-XI-429, situated in Field Ganj, Kucha Harnam Dass, Ludhiana, fully described in the head-note of the petition. The notice of the petition was given to the respondent-tenant Pritam Singh, who filed an application for permission to contest the petition and the same was allowed by the Rent Controller on 1.6.1997. When the proceedings were pending before the Rent Controller, an application was moved under Order 6 Rule 17 CPC by the respondent-landlord praying that the ejectment petition earlier filed under Section 13-A of the Act No. 3 of the 1949 may be treated in the alternative as an application under Section 13 of the Act. This application was allowed vide order dated 13.9.1989 passed by the Rent Controller. The order runs as follows :- "This order will dispose of an application for amendment of petition filed U/O 6 Rule 17 CPC of the ground that applicant has sought eviction of the respondent from building u/s 13-A of the East Punjab Rent Restriction Act, 1949 on the ground of personal necessity. The demised premises were let out to two different tenants one portion was let out to Manmohan Singh and other to the respondent. The applicant filed two petitions u/s 13-A one against respondent and one against Manmohan Singh. The petition against Manmohan Singh was accepted by Rent Controller on 20.8.88. The applicant has taken possession in April 1989 from Manmohan Singh. It is asserted that on account of change in circumstances the applicant want to amend the plaint to claim the ejectment of respondent u/s 13 of the East Punjab Rent Restriction Act in the alternative. It is prayed that in the interest of justice amendment be allowed. 2. The application is resisted on the ground that proposed amendment will put forth a new case and introduce a new cause of action. It is prayed that in the interest of justice amendment be allowed. 2. The application is resisted on the ground that proposed amendment will put forth a new case and introduce a new cause of action. The application is time barred and is also hit by principle of estoppel and waiver. On merits it is asserted that applicant is permanent resident of Lucknow. He had raised two separate and independent quarters. Both the ejectment applications filed by applicant were independent and it was not mentioned that the applicant requires both these portions for his personal necessity. It is asserted that new case is being introduced by the proposed amendment on the basis of new cause of action. 3. Learned counsel for the respondent contended that the proposed amendment will introduce altogether a new case and through the proposed amendment the petitioner wants to withdrawn from the election he made earlier in filing petition u/s 13-A. He also contended that petitioner has availed the remedy u/s 13-A and now he is estopped from seeking the amendment. 4. After considering the facts and circumstances of the case, I am of the view that in the interest of justice application be allowed so that matter in controversy be decided effectively and completely on merits. The present petition u/s 13-A was filed alongwith another petition under the same Section against Respondent and one Manmohan Singh by the petitioner in the year 1986. Admittedly petition against one Manmohan Singh was accepted and possession of the portion of the building (?) occupation of Manmohan Singh has been taken by petitioner in April, 1989. Through the proposed amendment the application only intends to claim ejectment u/s 13 of the East Punjab Rent Restriction Act, 1949 in the alternative. The ground of personal necessity has also been taken in the petition. Counsel for the petitioner during the course of arguments stated at bar that no new evidence is to be adduced by the applicant in case proposed amendment is allowed. No prejudice will occasion to the respondent by the proposed amendment as no new evidence will be led. Furthermore the proposed amendment will avoid further multiplicity of proceedings between the parties as matter in the controversy between them will be decided more effectively and completely. No prejudice will occasion to the respondent by the proposed amendment as no new evidence will be led. Furthermore the proposed amendment will avoid further multiplicity of proceedings between the parties as matter in the controversy between them will be decided more effectively and completely. Further more the amendment has been also necessitated on account of changed circumstances i.e. acceptance of connected petition u/s 13-A. Keeping in view the circumstances application is allowed compensating respondent with Rs. 100/- as costs." 3. In the petition under Section 13 of the Act the Rent Controller framed issues on 27.7.1987. An Additional issue was also framed on 25.2.1987. Thereafter the issues were struck afresh on 28.11.1989 after the passing of aforesaid order. These issues are reproduced as under in order to appraise the contentions raised by the learned counsel for the parties :- "1. Whether there is relationship as landlord and tenant between the parties ? OPA 2. Whether the petitioner bona fide requires the demised premises for his use and occupation? OPA 3. What is the rate of rent of the demised premises ? OP Parties. 4. Whether the petitioner has no locus standi to file the present petition ? OPR 5. Whether the petition is bad for non-joinder of the necessary parties ? OPR 6. Whether petition is not maintainable in the present form ? OPR 7. Whether written reply is liable to be rejected as alleged, if so, its effect ? OPA 8. What is the effect of ejectment order passed by Shri Bhagwan Singh, RC, Ludhiana ? OPR 9. Whether the composite application under Section 13-A of the Act is not maintainable as alleged ? If so its effect ? OPR 10. Whether the petition is mala fide, false and frivolous, if so its effect ? OPR 11. What is the effect of previous litigation in respect of demised premises ? OPR 12. Relief." 4. Finally, the Rent Controller gave specific findings on various issues and vide order dated 31.10.2000 passed the ejectment order against the petitioner/tenant and gave him two-month time to vacate the demised premises. 5. Feeling aggrieved by the order of learned Rent Controller, the tenant filed an appeal before the Appellate Authority, Ludhiana under Section 15 of the Act. Relief." 4. Finally, the Rent Controller gave specific findings on various issues and vide order dated 31.10.2000 passed the ejectment order against the petitioner/tenant and gave him two-month time to vacate the demised premises. 5. Feeling aggrieved by the order of learned Rent Controller, the tenant filed an appeal before the Appellate Authority, Ludhiana under Section 15 of the Act. The appeal came up for hearing before the Appellate Authority, Ludhiana which vide order dated 15.2.2001 came to the conclusion that the appeal against the impugned order dated 31.10.2000 passed by the Rent Controller is not competent under Section 18A(8) of the Act. Consequently the appeal was dismissed being not competent. Aggrieved by the order of appellate Authority, the present revision. 6. I have heard Mr. Arun Jain, Advocate on behalf of the petitioner, Mr. R.L. Batta, Sr. Advocate on behalf of the respondent and with their assistance have gone through the records of this case. 7. As I have just said that the appeal of the petitioner was dismissed by the Appellate Authority mainly on the ground that it was not competent. The Appellate Authority understood as if the ejectment petition was filed by the landlord under Section 13-A of the Act treating him as a specified landlord. The learned counsel for the petitioner submits that the ejectment petition of course was filed under Section 13-A of the Act but with the passing of the interim order in the application under Order 6 Rule 17 CPC, this petition was treated under Section 13 of the Act and the ejectment order was also passed under Section 13 of the Act. In these circumstances, the appeal filed under Section 15 of the Act was maintainable before the Appellate Authority. On the other hand, learned counsel for the respondent submitted that the main petition was filed under Section 13-A of the Act. It was prayed in the alternative by the landlord that the application be also allowed under Section 13 of the Act. The application was allowed under Section 13-A, therefore, the appeal of the tenant was not competent before the Appellate Authority. 8. I have considered the rival contentions of the learned counsel for the parties and in my opinion the approach of the learned Appellant Authority was totally erroneous. The application was allowed under Section 13-A, therefore, the appeal of the tenant was not competent before the Appellate Authority. 8. I have considered the rival contentions of the learned counsel for the parties and in my opinion the approach of the learned Appellant Authority was totally erroneous. Section 13(2) of the Act lays down that 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 that the tenant has committed default as specified in sub-section (i) to (v) of Section 13(2) of the Act, the Controller has the power directing the tenant to put the landlord in possession of the building or rented land. The reading of the above would show that on receipt of a petition under Section 13 of the Act, the Controller issues a notice to the tenant who gives the appearance and files a reply by virtue of reasonable opportunity which was supposed to be given by the Rent Controller and the Rent Controller frames issues for his own convenience for the disposal of the rent petition because he is a persona designata and the proceedings under Order 14 Rule 5 CPC are not applicable to the proceedings of the Rent Controller. Thus it is clear that on receipt of a petition a notice has to be given to the tenant so that he may get reasonable opportunity to contest the petition. No prior permission is required on behalf of the tenant to defend the petition. But the legislature has deviated from this procedure by introducing the proceedings under Section 13-A which talks of a specified landlord. No prior permission is required on behalf of the tenant to defend the petition. But the legislature has deviated from this procedure by introducing the proceedings under Section 13-A which talks of a specified landlord. According to Section 13-A "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 extension 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 and 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 contact (whether expressed or implied), custom or usage to the contrary, a right to recover immediate the possession of such residential buildings or scheduled building or any part or parts of such building if it is let out in part or parts". The reading of the above would show that a special right has been given to a specified landlord to get the premises vacated from the tenant. The procedure of Section 13-A has been enumerated in Section 18-A of the Act which runs as follows :- "18-A. Special procedure for disposal of applications under Sec. 13-A. - (1) Every application under Section 13-A shall be dealt with in accordance with the procedure specified in this section. (2) After an application under Section 13-A is received the Controller shall issue summons for service on the tenant in the form specified in Schedule II. (3)(a) The summons issues 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 to the Code of Civil Procedure, 1908. (3)(a) The summons issues 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 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 to accept the service at the place where the tenant or his agent actually and voluntarily resides or caries 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 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 register article and an endorsement is made by a process server to the effect that 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 there has been valid service of the summons on the tenant. (4) The tenant on whom the service of summons has been declared to have been validity made under sub-section (3), shall have no right to contest the prayer for eviction from the residential building or scheduled 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, grand child or the widowed daughter-in-law of such specified 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 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, grandchild or widowed daughter-in-law of such specified landlord from obtaining an order for the recovery of possession of the residential building or scheduled building, as the case may be, under Section 13-A. (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 is 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 proceeding to which this section applies including the recording of evidence, follow the practice and procedure 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 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 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 shall be the same as the procedure for the disposal of applications by the Controller." 9. The combined reading of Section 13-A and Section 18 would show that both the Sections i.e. Section 13 and Section 13-A read with Section 18 have to play in different fields. These sections are not overlapping with each other. While filing the application under Section 13-A of the Act, which is to be governed by the procedure under Section 18-A, the tenant has to take the leave of the Rent Controller to defend the petition by making out a triable issue. If the permission is not granted, the Rent Controller has to pass the ejectment order forthwith. In case of a triable issue the Rent Controller has the discretion to give the tenant permission to defend the petition. 10. If the permission is not granted, the Rent Controller has to pass the ejectment order forthwith. In case of a triable issue the Rent Controller has the discretion to give the tenant permission to defend the petition. 10. Now it is to be seen what has happened in the present case. After the passing of the order on the application under Order 6 Rule 17 CPC the Rent Controller recast issues No. 1 to 12, reproduced above, on 28.11.1989. Meaning thereby that the issues which were framed on 22.7.1987 in pursuance of the leave to defend to the tenant has gone to the air. The reading of the order of the Rent Controller would show that he wanted to decide the rent petition as if the same has been filed under Section 13 of the Act. When an order is passed under Section 13 of the Act, it will always appealable under Section 15 of the Act. In these circumstances, the observations of the learned Appellate Authority that the appeal was not competent was erroneous and the same is hereby set aside. 11. Resultantly, this revision is allowed, the impugned order dated 15.2.2000 is set aside with the directions to the Appellate Authority to register it as an appeal under Section 15 of the Act and decide the same according to law within three months from the receipt of the copy of the order. The parties shall appear before the Appellate Authority, Ludhiana on 17.8.2001.