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2004 DIGILAW 592 (PNJ)

Amarjit Singh Walia v. Harbans Singh

2004-05-20

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This is landlords petition filed under Section 18(A)(8) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity the Act) challenging the order dated 29.4.2003 passed by the Rent Controller, Amritsar. The Rent Controller has granted leave to defend by observing that the objection with regard to maintainability of the application for leave to defend and the objection with regard to limitation would be decided afterwards. 2. Brief facts of the case arc that the landlord-petitioner filed an application under Section 13A of the Act seeking ejectment of the tenant-respondent from the demised premises on 18.3.2002. Notice of the application was issued for 2.5.2002. According to the report submitted, the service was affected by affixation on 10.4.2002. However, the Rent Controller ordered fresh service for 1.6.2002. According to the report submitted to the Rent Controller, the tenant-respondent refused to accept notice on 21.5.2002. Thereafter, the Rent Controller directed service by muniadi and fixed the date of hearing as 9.8.2002. Muniadi was effected on 4.7.2002 and the application for leave to defend was filed on 9.8.2002 by the tenant-respondent which has been allowed by the Rent Controller on 29.4.2003. The operative part of the order of the Rent Controller reads as under; "The applicant in the present case is claiming that he is in possession of only one room and two stores shown in blue colour in the site plan, which is already placed on record. In the site plan there is another tenant namely Mrs. Kaushalya, who is in possession of three rooms etc. shown in green colour, whereas the portion in red colour shown in the site plan is the disputed portion. On the other hand plea of the respondent is that apart from the blue portion, the applicant is also in possession of portion shown in green colour i.e. remaining entire building. However, the correctness of the site plan is also denied by the respondent/applicant. This fact is a matter of evidence as to whether the applicant/respondent is in possession of sufficient accommodation or not. Whether the applicant/respondent has filed the application with malafide intention or not or beyond limitation, can be decided only when he leads evidence in support of his claim. Hence, under the given set of circumstances, the plea of respondent as taken in the application allowed and leave to defend is granted to the applicant/respondent." 3. Whether the applicant/respondent has filed the application with malafide intention or not or beyond limitation, can be decided only when he leads evidence in support of his claim. Hence, under the given set of circumstances, the plea of respondent as taken in the application allowed and leave to defend is granted to the applicant/respondent." 3. Shri B.R. Mahajan, learned counsel for the landlord-petitioner has argued that the Rent Controller has committed a grave error by granting leave to defend without first deciding the question whether the application for leave to defend was within the time prescribed by Sub-section (ii) of Section 18A of the Act and the performa of summons. According to the learned counsel a period of 15 days is specified in the form appended to Schedule 11 of the Act and even under Section 5 of the Limitation Act, 1963 (for brevity the 1963 Act) the period could not be extended as the Rent Act is a complete code in itself. Learned counsel has pointed out that if the period of 15 days is counted from the date of service effected by affixation i.e. 10.5.2002 or the date of refusal i.e, 21.5.202 then the application for leave to defend would be clearly beyond the period of 15 days. According to the learned counsel even if the period is taken from the muniadi effected on 4.7.2002 the period of 15 days would be deemed to have expired on 19.7.2002. Therefore, the Rent Controller should have first determined the question as to whether the application for leave to defend is within the time prescribed. In support of his submission, the learned counsel has placed reliance on a Division Bench judgment of this Court in the case of Ashwani Kumar Gupta v. Shri Siri Pal Jain, (1998-3) 120 P.L.R. 170 and argued that the period of 15 days prescribed under the Act could not be extended even under Section 5 of the 1963 Act. 4. Shri Pardeep Rajput, learned counsel for the tenant-respondent has pointed out that the Rent Controller was not satisfied with the service by affixation or service by refusal and had ordered service by muniadi by fixing the date of hearing on 9.8.2002 when the application for leave to defend was filed. Therefore, there is no delay and the period of 15 days provided by the Act has not expired on 9.8.2002. 5. Therefore, there is no delay and the period of 15 days provided by the Act has not expired on 9.8.2002. 5. After hearing the learned counsel for the parties and in view of the enunciation of law by this Court in Ashwani Kumar Guptas case (supra) I am of the considered view that the Rent Controller has committed a grave error in law by not deciding the objection with regard to limitation that the application for leave to defend was not filed within 15 days and by observing that the objection would be decided after the leave to defend has been granted. This approach of the Rent Controller amounts to putting the cart before the bull and the proper course required to be adopted by the Rent Controller was to first decide as to whether the application for leave to defend has been filed within 15 days of the service of notice and only then he could have decided the rate of the application whether leave to defend was to be granted or not. 6. Accordingly, this petition is allowed. The order dated 29.4.2003 passed by the Rent Controller is set aside with a direction to him to decide the application for leave to defend fresh in accordance with the law as expeditiously as possible and preferably within a period of two months from the date of receipt of copy of this order.