Swaranjit Sharma vs Atam Parkash Gandhi

M.S. Liberhan, J.—This Revision Petition arises out of an order, dated December 9, 1987, of the Rent Controller declining to set aside ex-parte order. The petitioner sought the setting aside of the ex-parte order of ejectment, dated December 11, 1986, passed u/s 13-A of the East Punjab Urban Rent Restriction (Amendment) Act, 1985 (hereinafter referred to as the Act). A notice was issued on December 3, 1986 in terms of Section 18-A of the Act, relevant provisions run as under: --

"18-A. (1) xxx xxx xxx xxx xxx xxx (2) After an application u/s 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 issued 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 carries 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 u/s 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 registered article and an endorsement is made by a process server to the effect that a copy of the summons has been affixed as directed by the Controller on a conspicuous part of the 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, grandchild 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. 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, u/s 13-A."

The Rent Controller is enjoined to declare that there has been valid service of summons, which he had to do after perusing the reports on various processes by which notices/summons have been served on the tenant in the form specified which grants fifteen days time to file an affidavit, for permission to defend on the grounds disclosed in the affidavit.

The petitioner was required to file an affidavit disclosing the grounds of defence and seeking permission to contest the application for eviction within fifteen days from the date of service of the notice. It was alleged that notice was received on December 8, 1986 only. An ex parte order was passed on December 11, 1986. The statutory time of fifteen days provided by the Act for seeking permission to contest the application was never granted to the petitioner.

The allegations were denied by the respondent.

The learned Rent Controller after framing the Issues and recording evidence, came to the conclusion that it was incumbent upon the applicant-respondent to appear on December 11, 1986 and then seek fifteen days'' time for filing application for seeking permission to contest the application. The application for setting aside ex parte order had been filed on December 17, 1986.

In my considered view, the approach of the Rent Controller Is erroneous. The summons in statutory form itself envisages and makes it incumbent upon the Rent Controller to grant fifteen days time from the date of service to the tenant to file an affidavit disclosing the grounds on which be seeks to contest the application for eviction. The tenant had the option to appear on the date fixed or file an affidavit within the time granted. The Rent Controller had no jurisdiction to order ejectment on the date fixed if fifteen days had not expired after service of the notice I have gone through the record and there is nothing on the record to show that on December 11, 1986 fifteen days had expired from the date of service of the notice. The notice issued itself bears the date December 3, 1986 which lends support to the unrebutted statement on oath of the petitioner that he was served on December 8, 1986. In view of these peculiar circumstances, the Rent Controller could not pass an ejectment order on December 11, 1986. Thus, the order passed before the expiry of statutory period is an illegal order and is liable to be set aside.

In view of my observations made above, the Revision Petition is allowed, the ex parte ejectment order passed by the Rent Controller is set aside and the impugned ex parte order of ejectment is quashed.

The parties arc directed to appear before the Rent Controller on June 8, 1990, the respondent would be at liberty to file an affidavit seeking permission to contest the application for eviction within fifteen days of the appearance before the Rent Controller. If the affidavit is filed, the Rent Controller would proceed in accordance with law.