REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) No.24430 OF 2008
Om Prakash ... Petitioner
Vs.
Ashwani Kumar Bassi ... Respondent
J U D G M E N T
ALTAMAS KABIR, J.
1. This Special Leave Petition is directed against
the judgment and order dated 5th October, 2007,
passed by a learned Single Judge of the Punjab &
Haryana High Court, dismissing Civil Revision
Petition No.5129 of 2007 which had been filed by
the Petitioner herein against an order dated 4th
August, 2007, passed by the Rent Controller,
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Ludhiana. By his said order the Rent Controller
dismissed the Petitioner’s application under
Section 5 of the Limitation Act for condoning the
delay in filing the application for leave to
contest the eviction petition. Consequently, the
application for leave to contest the eviction
petition was also dismissed.
2. The Respondent herein filed an application for
eviction of the Petitioner from the premises in
question under Section 13-B of the East Punjab
Urban Rent Restriction Act, 1949, hereinafter
referred to as “the 1949 Act”. Notice of the
application was issued to the petitioner/tenant in
the prescribed form asking him to appear before the
Rent Controller within 15 days from the date of
service of the notice and to apply for leave to
contest the petition. The tenant was served with
the summons of the eviction petition on 19th May,
2005. The 15 days’ period indicated in the notice
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for filing the application for leave to contest
expired on 3rd June, 2005. Such an application was
subsequently made the next day on 4th June, 2005,
but was not accompanied by any application for
condonation of the delay of one day in making the
same. Thereafter, the petitioner filed an
application under Section 5 of the Limitation Act
for condonation of the said delay in filing the
application which was dismissed by the Rent
Controller on 4th August, 2007, along with the
application for leave to defend the eviction
petition. In dismissing the Petitioner’s
application under Section 5 of the Limitation Act,
1963, the Rent Controller, relying on certain
judgments of the Punjab & Haryana High Court, held
that the provisions of Section 5 of the Limitation
Act were not applicable in proceedings before the
Rent Controller, particularly, for condoning the
delay in filing an application for leave to contest
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the eviction petition.
3. The said decision of the Rent Controller,
Ludhiana, was questioned in Revision Petition
No.5129 of 2007 before the High Court and it was
contended that the impugned order had been passed
in violation of the provisions of Section 18-A(7)
of the East Punjab Urban Rent Restriction Act,
1949, as also Section 17 of the Presidency Small
Causes Courts Act, 1882. It was contended on
behalf of the Petitioner that by virtue of Sub-
section (7) of Section 18-A of the 1949 Act, the
procedure prescribed for trial of a suit under the
Small Causes Courts Act was also applicable for
trial of eviction petitions under the 1949 Act and
by virtue of Section 17 of the Small Causes Courts
Act, the Code of Civil Procedure has been made
applicable to eviction proceedings as well. It
was also contended that it was, therefore,
obligatory upon the part of the Rent Controller to
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have considered the merits of the eviction petition
and to direct the landlord to lead evidence to
prove the grounds for eviction taken by him. It
was also urged before the High Court that mere
rejection of an application for leave to contest
did not ipso facto entitle the landlord to an order
of eviction. On the other hand, the Rent
Controller should have recorded the evidence of the
landlord and it is only after such evidence was
recorded and the Rent Controller was satisfied as
to the existence of grounds for eviction of the
tenant under Section 13-B of the 1949 Act, that the
order of eviction could be passed.
4. On consideration of the submissions made on
behalf of the respective parties, the High Court
took the view that the provisions of Section 18-A
of the 1949 Act have an overriding effect on all
other laws inconsistent therewith and that Sub-
section (7) of Section 18-A of the 1949 Act and
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Section 17 of the Presidency Small Causes Courts
Act, 1882, were not attracted to the facts of the
case or in a situation where leave to contest has
been declined for any reason whatsoever. The High
Court further held that under the circumstances,
there was no statutory obligation upon the Rent
Controller to frame issues or to try the eviction
petition by calling upon the petitioner to lead
evidence. The High Court further held that refusal
to grant leave to contest amounts to admission of
the contents of the eviction petition and if the
eviction petition itself satisfies the requirements
of Section 13-B of the 1949 Act, an order of
eviction has to follow as a matter of course.
5. It is against the said order of the learned
Single Judge of the High Court, dismissing the
petitioner’s Revision Petition, that the present
Special Leave Petition has been filed.
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6. As indicated hereinbefore, the case of the
Petitioner is that both the Rent Controller and the
High Court had erred in law in holding that the
provisions of the Limitation Act would not apply in
a proceeding before the Rent Controller and that
Section 18-A of the 1949 Act would have an
overriding effect over Section 29(2) of the
Limitation Act, 1963. It was reiterated that by
virtue of Sub-section (7) of Section 18-A of the
1949 Act, the procedure prescribed for trial of
suits in the Small Causes Courts Act, is also
applicable for trial of eviction petitions since
by virtue of Section 17 of the Small Causes Courts
Act, the Code of Civil Procedure has been made
applicable to eviction proceedings as well.
7. Appearing for the Petitioner, Mr. Ujjal Singh,
learned advocate, referred to and relied upon the
decision of this Court in Mukri Gopalan vs.
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Cheppilat Puthanpurajil Aboobacker [(1995) 5 SCC
5], wherein a similar question had arisen with
regard to the power of the Appellate Authority
under Section 18 of the Kerala Buildings (Lease and
Rent Control) Act, 1965, to condone the delay in
filing an appeal after expiry of the period of
limitation prescribed under the Act. This Court
held that the conditions for applicability of
Section 29(2) of the Limitation Act were satisfied
since Section 18 is a special law and in the
absence of any provision under the Limitation Act,
for filing an appeal, the period of limitation
provided under Section 18 would have to be treated
to be different from that under the Limitation Act.
It was held that as a consequence, Section 5 of the
Limitation Act would be automatically attracted to
an appeal under Section 18 in the absence of any
express exclusion under the Rent Act. It was
further held that since the District Judges
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function as Appellate Authority under Section 18,
such an authority is a court and not persona
designata and, therefore, entitled to resort to
Section 5 of the Limitation Act. It was further
held that the Appellate Authority constituted under
Section 18 of the Kerala Buildings (Lease and Rent
Control) Act, 1965, functions as a Court and as a
result the period of limitation under the said
provisions governing appeals would be computed
keeping in view the provisions of Sections 4 to 24
of the Limitation Act, 1963. Reference was made to
a decision of this Court in Gaya Prasad Kar vs.
Subrata Kumar Banerjee [(2005) 8 SCC 14], wherein
it was held that having regard to the beneficial
provisions of the West Bengal Premises Tenancy Act,
1956, which allowed extension of time for making
deposit of arrears of rent, the provisions of the
Limitation Act and, in particular, Section 5
thereof, would also be applicable.
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8. Yet another decision of this Court in the case
of Akesh Wadhawan & Ors. vs. Jagdamba Industrial
Corporation & Ors. [(2002) 5 SCC 440], was referred
to on behalf of the Petitioner in the context of
the 1949 Act, in which it was held that subsidiary
rules of interpretation envisage that in case of
ambiguity, a provision should be so read as to
avoid hardship, inconvenience, injustice, absurdity
and anomaly. It was held that since a statute can
never be exhaustive, courts have jurisdiction to
pass procedural orders, though not specifically
contemplated by statute and that such innovation is
permissible on the basis of authority supported by
the principles of justice, good sense and reason.
9. Certain other decisions were also referred to
by learned counsel which are on similar lines.
10. On behalf of the Respondent it was submitted
that Section 13-B had been introduced in the 1949
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Act by way of amendment in 2001 to make special
provisions for Non-Resident Indians who return to
India and are in need of immediate possession of
their building or buildings let out by them. Such
benefit had been made available to a Non-Resident
Indian only after a period of five years from the
date on which the Non-Resident Indian became the
owner of such building. It was contended that the
provisions of the 1949 Act and, in particular,
Section 13-B thereof, would have to be very
strictly construed on account of the object with
which it had been enacted. In this regard
reference was made to a decision of this Court in
Prithipal Singh vs. Satpal Singh (Dead) through its
LRs. [(2010) 2 SCC 15], where an ex-parte eviction
order based on ground of bonafide requirement of
landlord was recalled by the Rent Controller
exercising jurisdiction under Order 9 Rule 13 read
with Order 37 Rule 4 and Section 151 of the Civil
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Procedure Code. The said order was affirmed by the
High Court observing that in view of Rule 23 of the
Delhi Rent Control Rules, 1959, the Rent Controller
is conferred with power to set aside the ex-parte
order of eviction in exercise of jurisdiction under
the aforesaid provisions of the Code. On the said
orders being questioned in this Court it was held
that Rule 23 of the aforesaid Rules could not be
applied in view of Section 25-B which is a special
code and provides for a specific and exhaustive
procedure for eviction of a tenant by a landlord on
ground of bonafide requirement. The order of the
High Court was, therefore, set aside and that of
the Rent Controller was restored.
11. Reference was also made to a Bench decision of
the Punjab & Haryana High Court in Ashwani Kumar
Gupta vs. Siri Pal Jain [1998 (2) RCR 222], in a
Civil Revision, where the very same question fell
for consideration and it was held that when the
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tenant had failed to file affidavit seeking leave
to contest the proceedings within the time
prescribed, the Rent Controller had no power to
condone the delay. Certain other cases were also
referred to on the same lines relating to the 1949
Act and Sections 13-B and 18-A thereof.
12. From the materials on record it is clear that
the application for leave to contest the
application under Section 13-B of the 1949 Act has
to be made within 15 days from the date of service
of the summons. In this case, the application for
leave to contest the application was made one day
after the said period had expired. The issue for
consideration before us is whether the Rent
Controller was right in rejecting the application
on the ground that he had no jurisdiction to
condone the delay under the Act. The matter was
considered at length by the High Court, which, as
indicated hereinabove, came to the conclusion that
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Section 18-A of the 1949 Act would have an over-
riding effect on all other laws inconsistent
therewith and that Sub-Section (8) of Section 18-A
of the 1949 Act and Section 17 of the Presidency
Small Causes Courts Act, 1882, were not attracted
to the facts of the case.
13. The views expressed by the High Court also
formed the subject matter of the decision in
Prithipal Singh’s case (supra), though in the
context of the Delhi Rent Control Act, 1958, and
the rules framed thereunder. This Court was of the
view that Section 25-B of the Delhi Rent Control
Act was a complete Code by itself and other
provisions could not, therefore, be brought into
play in such proceedings. In the instant case, the
same principle would apply having regard to the
fact that the Rent Controller had not been
conferred with power under Order 9 Rule 13 C.P.C.
to recall an ex-parte order passed earlier.
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14. Apart from the above is the view taken by this
Court in Prakash H. Jain vs. Marie Fernandes
[(2003) 8 SCC 431], where it was specifically held
that since the Competent Authority under Section 40
of the Maharashtra Rent Control Act, 1999, was not
a court but a statutory authority with no power to
condone the delay in filing an affidavit and
application for leave to contest, the Competent
Authority had no other option but to pass an order
of eviction in the manner envisaged under the Act.
15. The decision in Mukri Gopalan’s case (supra)
relied upon by Mr. Ujjal Singh is distinguishable
from the facts of this case. In the facts of the
said case, it was the District Judges who were
discharging the functions of the Appellate
Authority and being a Court, it was held that the
District Judge, functioning as the Appellate
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Authority, was a Court and not persona designata
and was, therefore, entitled to resort to Section 5
of the Limitation Act. That is not so in the
instant case where the Rent Controller appointed by
the State Government is a member of the Punjab
Civil Services and, therefore, a persona designata
who would not be entitled to apply the provisions
of Section 5 of the Limitation Act, 1963, as in the
other case. The decision in Gaya Prasad Kar’s case
(supra) is also of little help to the Petitioner
since under the West Bengal Premises Tenancy Act,
1956, powers have been vested in the Rent
Controller to extend the time for making deposits
of arrears of rent, which would make the provisions
of the Limitation Act applicable in such specific
instances.
16. The instant case stands on a different footing
and, in our view, is covered by the decision of
this Court in Gaya Prasad Kar’s case (supra),
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wherein it was held that the Competent Authority
had no other option but to pass an order of
eviction since it had no power to condone the delay
in filing an application for leave to contest.
17. 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 any one ordinarily living with and
dependent on him or her. The right has been
limited to one application only during the life
time 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.
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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.
18. 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.
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19. The Special Leave Petition must, therefore,
fail and is dismissed accordingly. However, there
will be no order as to costs.
…………………………………………J.
(ALTAMAS KABIR)
…………………………………………J.
(A.K. PATNAIK)
New Delhi
Dated:27.08.2010