Rajesh Kumar and Another vs Arvind Kumar and Others

Rakesh Kumar Garg, J.—This is tenants'' petition challenging the order dated 7.12.2011 of the Rent Controller, Tarn Taran, whereby, on a request made on behalf of the respondent-landlord, the written statement filed on behalf of the petitioner-tenants has been ordered to be struck off from the record. Certain facts are not in dispute. The instant petition has been filed on behalf of the respondent-landlord u/s 13-B of the East Punjab Rent Restriction Act, 1949 (for short ''the Act'') before the Rent Controller, Tarn Taran, claiming that landlord is NRI and he is entitled to eviction of the petitioner under the Amended Act. It is further not in dispute that as provided u/s 18-A of the Act, summons were not issued to the petitioner-tenants on prescribed proforma as prescribed under Schedule II of the Act and thus, depriving the petitioners, an opportunity to apply for leave to defend. It is further not in dispute that on receipt of the summons by way of ordinary process, the petitioner-tenants had put in appearance on 01.10.2011 and thereafter, filed their written statement as noticed in the order dated 7.12.2011.

On the said date, counsel for the respondent-landlord brought to the notice of the Rent Controller, Tarn Taran that the instant eviction petition was filed under the provisions of Section 13-B of the Act and since there was no application filed on behalf of the petitioner-tenants for grant of leave to defend, their written statement be struck off and thus, the Rent Controller, Tarn Taran vide impugned order dated 7.12.2011 has ordered to struck off the reply filed on behalf of the petitioner.

Counsel for the petitioners has vehemently argued that the procedure as provided under the Statute in case of eviction petition filed u/s 13-B on behalf of NRI-landlord has not been complied with and resultantly petitioners have been denied opportunity to apply for leave to defend on various triable issues arising in the case and thus, the impugned order passed by the Rent Controller is liable to be set aside.

Learned counsel appearing on behalf of respondent No. 1 has not disputed the fact that procedure, as applicable u/s 18-A of the Act, has not been complied with as the summons were not sent to the petitioners on the prescribed proforma as prescribed under the Schedule II of the Act informing them to apply for leave to defend on triable issues, if any, within 15 days from the date of service of the summons upon them.

At this stage, it is useful to refer to the case of Paramjit Kaur Vs. Gurcharan Singh Walia, wherein it is held that in such a situation where the application for leave to defend is not filed within the prescribed limit of 15 days because there was no valid service, such application for leave to defend cannot be said to be time barred.

Thus, learned counsel appearing on behalf of respondent No. 1 has stated that only effect of the non-compliance of the said procedure could be to the extent of allowing the petitioners to move an application for leave to defend at this stage.

Counsel appearing on behalf of the petitioners has not disputed the aforesaid ratio of law as noticed in the aforesaid judgment.

Keeping in view the facts as noticed above and the law in the aforesaid judgment Paramjit Kaur vs. Gurcharan Singh Walia (supra), the impugned order is set aside and the parties are directed to be present before the Rent Controller, Tarn Taran on 10.09.2013.

It is further observed that petitioners are entitled to submit an application for leave to defend within 15 days from the aforesaid date of appearance before the Rent Controller, Tarn Taran i.e. upto 25th September, 2013. If any, such application is filed for leave to defend, the same shall be decided by the Rent Controller, Tarn Taran in accordance with law.

Needless to say at this stage, the Rent Controller will not take note of the written statement already filed on behalf of the petitioners. However, in case, application for leave to defend is decided in favour of the petitioners, then they are entitled to submit their defence in accordance with law. However, it is made clear that in case petitioners do no apply for leave to defend, within 15 days, as noticed in the order, it shall be deemed that statutory provisions of the Act have been complied with and necessary consequences shall follow.