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2012 DIGILAW 292 (PNJ)

Vinod Chawla v. Surinder Singh

2012-02-21

G.S.SANDHAWALIA

body2012
JUDGMENT Mr. G.S. Sandhawalia, J.: (Oral) - C.M. No. 4461-CII of 2012 1. Application filed for exemption from filing certified copies of Annexures P-1 to P-6 is allowed, in view of averments made in the application, which are duly supported by an affidavit. C.R. No. 1089 of 2012 2. The present petition has been filed by the tenant, who is aggrieved against the order dated 05.09.2011 passed by the Rent Controller, Chandigarh wherein, his application for condonation of delay under Section 5 of the Limitation Act, 1963 in an application for leave to defend under Section 18-A has been dismissed. 3. The respondent-landlord filed a petition under Section 13-B of The East Punjab Urban Rent Restriction Act, 1949 (for short ‘The Rent Act’) dated 03.09.2010 Annexure P-2. In the said petition, the petitioner filed an application under Section 18-A of the Rent Act for grant of leave to contest the application dated 01.11.2010. The said application was to be filed within 15 days from the date of service which was effected on 10.09.2010, however, in the application for condonation of delay filed alongwith the Section 18-A application, it was averred that the knowledge of pendency of the petition came only on 30.10.2010 and, therefore, the report of process server pertaining to the service as per the summons effected on 10.09.2010, was not correct. Accordingly, it was prayed that the delay of 36 days for filing the leave to defend may be condoned. 4. The said application was contested by filing reply by the landlord and it was alleged that the tenant was served personally alongwith complete copy of the petition on 10.09.2010 through the Court Process Server and it was his personal service, which was good and proper as per law. The Rent Controller has declined the application for condonation of delay under Section 5 of the Limitation Act, 1963 in view of the judgment of the Hon’ble Apex Court in Om Parkash vs. Ashwani Kumar Bassi, (2010) 9 SCC 183 . 5. The Rent Controller has declined the application for condonation of delay under Section 5 of the Limitation Act, 1963 in view of the judgment of the Hon’ble Apex Court in Om Parkash vs. Ashwani Kumar Bassi, (2010) 9 SCC 183 . 5. Counsel for the petitioner contends that earlier the landlord had filed the suit for possession and in that case there was no such averment that the landlords were Non-Resident Indians and, therefore, the application was wrongly rejected and the application for leave to defend should be allowed in order to contest on merits since triable issue would arise and, therefore, the application for condonation of delay has been wrongly dismissed. 6. Submission of the counsel cannot be accepted in view of the settled position of law that the application for leave to contest is to be filed within 15 days from the date of service. Admittedly, in this case, service was effected on 10.09.2010 and the present application is dated 01.11.2010, which has been filed after the expiry of period of 15 days from the date of service of summons. The Rent Controller has taken into account the binding precedent of the Hon’ble Supreme Court of India in Om Parkash’s case (supra), which goes on to hold that even the delay of one day cannot be condoned since the Rent Act is a special Act. Rent Controller has no power to entertain an application under Section 5 of the Limitation Act, 1963 for condonation of delay since the Statute does not vest him with such power. The relevant paras read as under:- “24. Section 13-B is a power given to a non-resident Indian owner of a building to obtain immediate possession of a residential building or scheduled building when required for his or her use or for the use of anyone ordinarily living with and dependent on him or her. The right has been limited to one application only during the lifetime of the owner. Section 18-A(2) of the aforesaid Act provides that after an application under Section 13-B is received, the Controller shall issue summons for service on the tenant in the form specified in Schedule II. The said form indicates that within 15 days of service of the summons the tenant is required to appear before the Controller and apply for leave to contest the same. The said form indicates that within 15 days of service of the summons the tenant is required to appear before the Controller and apply for leave to contest the same. There is no specific provision to vest the Rent Controller with authority to extend the time for making of such affidavit and the application. The Rent Controller being a creature of statute can only act in terms of the powers vested in him by statute and cannot, therefore, entertain an application under Section 5 of the Limitation Act for condonation of delay since the statute does not vest him with such power. 25. In such case, neither the Rent Controller nor the High Court had committed any error of law in rejecting the petitioner’s application for seeking leave to contest the suit, since the same had been filed beyond the period prescribed in the form in Schedule II of the Act referred to in Section 18-A(2) thereof. 26. The special leave petition must, therefore, fail and is dismissed accordingly. However, there will be no order as to costs.” 7. Accordingly, no fault can be found with the order of the Rent Controller and the present petition is dismissed in limine.