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Himachal Pradesh High Court · body

2012 DIGILAW 551 (HP)

Om Parkash Kahol v. Mahesh Kumar Sharma

2012-09-13

DEV DARSHAN SUD

body2012
JUDGMENT Dev Darshan Sud, J. This is the tenant’s revision against the order of the learned Rent Controller, Court No.IV, Una, dismissing the application instituted by the petitioner herein under Section 16(5) of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the Act’). 2. The respondent-landlord instituted eviction proceedings against the petitioner-tenant under Section 15 of the Act on the averments as made therein. The provision deals with the rights of a specified landlord. The point for consideration before the learned trial Court was whether the period of 15 days as specified in Schedule-II of the Act within which time tenant can file an application for leave to defend can be instituted or not. 3. In Devi Ram vs. Shyam Sunder, 1996(2) Sim.L.C.82, this Court, after incorporating the provisions of Section 15 and Schedule-2, holds:- “11. Now, the question arises as to whether in the absence of any provision for extension of period of fifteen days, the Rent Controller has the jurisdiction to condone the delay for putting in appearance by the tenant to seek leave to contest the eviction petition? For answering this question, the intention of the Legislature is to be seen, which is apparent from section 15(2) of the Act whereby a right has been given to be specified landlord to recover possession of the premises from the tenant at any time within one year prior to or within one year after the date of his retirement if he intends to reside therein himself. Looking to the urgency of the need of specified landlord, special procedure for disposal of his eviction petition has also been prescribed under section 16 of the Act whereby besides other things a fixed period of fifteen days of the date of service of summons has been provided for putting in appearance before the Rent Controller, if he intends to seek leave to contest the claim of the specified landlord. This period of fifteen days has been specified in Schedule II, which prescribes the form in which summons is sent to the tenant requiring the tenant to appear before the Rent Controller within fifteen days of the service to obtain the leave of the Controller to contest the eviction petition, in default whereof the landlord would be entitled at any time after the expiry of the said period of fifteen days to obtain an order of his eviction from the demised premises. The language used in sub-section (2) of section 16 and Schedule II of the Act makes it clear that the period of fifteen days for putting in appearance by the tenant as specified in Schedule II is mandatory and the Rent Controller has no authority to extend it. Any other interpretation would defeat the purpose of making special provision for specified landlord to get immediate possession of the tenanted premises. Moreover, had it been the intention of the Legislature that the period of fifteen days may be extended by the Rent Controller, they would have made such a provision in the Act. 12. In this view of the matter, this Court has no hesitation to hold that the Rent Controller has no jurisdiction to extend the period of fifteen days for putting in appearance by the tenant to seek leave to defend the eviction petition of specified landlord. For taking this view, this Court finds support from the earlier judgment of learned Single Judge of this Court in K.S. Rawat v. H.S. Bisht, (1990)2 Sim.LC 283 and of Delhi High Court in Smt. Savitri Devi v. Shri Nathu Ram 1982(2) Rent Control Reporter 95 and M/s Flowmore Private Ltd. v. Mr. Keshav Kumar Swarup 1982(2) Rent Control Reporter 520. The judgment cited by Mr.Kuldip Singh, learned Counsel for the petitioner-tenant in Tharia Ram v. Smt.Chitra Devi and others 1983(1) Rent Control Reporter 698, is on the facts of the case before the learned Judge of the Delhi High Court and has not been followed in the later judgments of the Delhi High Court. Therefore, this Court holds that the Rent Controller is right in rejecting the application of the petitioner-tenant for grant of leave to contest the eviction petition as time-barred. 13. Therefore, this Court holds that the Rent Controller is right in rejecting the application of the petitioner-tenant for grant of leave to contest the eviction petition as time-barred. 13. After dismissing the application for leave to contest the eviction petition as time-barred the Rent Controller had rightly passed tenant eviction order, as the statements made in the eviction petition were deemed to be admitted by the petitioner-tenant, as provided under sub-section (4) of section 16 of the Act. If no application for leave to contest the eviction petition is filed, it is obligatory for the Rent Controller to pass eviction order accepting the statements made by the specified landlord in the eviction petition. The only requirement is that the eviction petition should be accompanied by the requisite certificate and the affidavit to the effect that her or his spouse does not own and possess any other suitable accommodation in the local area in which he intends to reside.(Please see Shri Bachan Singh v. Shri Khem Chand, 1987(1) Rent Control Reporter 556 and Smt. Bbuvneshwari Devi v. Col. Kalyan Singh 1993(2) Rent Control Reporter 457).” (pp.89-90) 4. In Om Parkash vs. Partap Singh Kaushal, 1991(2) Sim.L.C.219, interpreting these provisions, the Court holds:- “6. ……………………………The requirement is essentially of notice to the tenant of the petition and to appear before the Controller within 15 days of the service thereof and to obtain the leave of the Controller to contest the application for eviction and in default thereof the applicant becomes entitled, as any time after the expiry of the said period of 15 days, to obtain an order for his eviction from the said premises. Perusal of the summons, issued in accordance with the Schedule-II discloses no infirmity in the issuance thereof and there could be no reason for the tenant to be under any mistaken belief simply because the case had been fixed on 27.2.1990. Same view was taken by the Punjab and Haryana High Court in (1988)1 RCR 168, Krishan Lal alias Kalla v. Des Raj Sethi and 1986(2) RCJ 52, Food Corporation of India v.Smt. Usha Bhardwaj. Therefore, he could put his appearance in the Court, since in the body of the summons there is clear direction to appear before the Controller within 15 days of the service and to obtain the leave of the Controller to contest the application. Therefore, he could put his appearance in the Court, since in the body of the summons there is clear direction to appear before the Controller within 15 days of the service and to obtain the leave of the Controller to contest the application. Although the Court closed for winter vacation from 22.1.1990 to 20.2.1990, the limitation had started running and the tenant could appear on the opening of the Court. His case that he was out of the town and was also not aware of the nature of the proceedings, has no basis in view of the documents on record which point out quite clearly that he w3as very well in Simla and was also in touch with his Lawyer.” (p.221) 5. The controversy stands concluded by the judgment supra. No other precedent has been brought to my notice. Submissions on behalf of the petitioner- tenant is that the order operates harshly as it places a premium on dishonesty, that is, despite the fact the case of the landlord may not fall within the provisions of Section 15 of the Act would still be entitled to a decree without contest. Learned counsel submits that in the application for leave to defend, the petitioner had placed ample material which would disentitle the respondent from claiming eviction. The submissions made cannot be accepted for the reasons that there is no jurisdiction with the Rent Controller to extend time for filing application for leave to defend and in that event there can be no question of establishing the allegation by evidence. The Rent Controller would of course scrutinize the material to ascertain whether the mandatory conditions of the Act are complied with. Petition dismissed.