OM PRAKASHversusASHWANI KUMAR BASSI

                    [2010] 10 S.C.R. 550


A                         OM PRAKASH
                                 V.
                    ASHWANI KUMAR BASSI
        (Special Leave Petition (Civil) No. 24430 of 2008)
                        AUGUST 27, ~010
B
          [ALTAMAS KABIR AND AK. PATNAIK, JJ.]

       East Punjab Urban Rent Restriction Act, 1949: s.138 -
  Eviction petition - Delay in filing application for leave to
C contest the petition -Application under s. 5 of Limitation Act
  seeking condonation of delay - Held: Cannot be entertained
  as provisions of Limitation Act are not attracted - Limitation
  Act, 1963 - s. 5.

0      The respondent-landlord filed an eviction petition
  against the petitioner-tenant under Section 13-8 of the
  East Punjab Urban Rent Restriction Act, 1949. As per the
  notice of the petition, the tenant was required to appear
  before the Rent Controller within 15 days from the date
E of service of the notice and to apply for leave to contest
  the petition. The tenant was served with the notice of the
  eviction petition on 19th May, 2005 and he was required
  to file an application for leave to contest by 3rd June,
  2005. The tenant filed the application on 4th June, 2005.
  Thereafter, the tenant filed an application under Section
F 5 of the Limitation Act for condonation of delay in filing
  the application. The Rent Controller dismissed the
  application under Section 5 of the Limitation Act along
  with the application for leave to defend the eviction
  petition, holding that the provisions of the Limitation Act
G were not applicable in proceedings before the Rent
  Controller, particularly, for condoning the delay in filing
  an application for leave to contest the eviction petition.
  The High Court dismissed the revision petition filed by

H                               550
     OM PRAKASH v. ASHWANI KUMAR BASSI                 551


the tenant. Aggrieved, the tenant filed the instant special   A
leave petition.
    Dismissing the special leave petition, the Court

     HELD: Section 13-8 of the East Punjab Urban Rent
Restriction Act, 1949 gives privilege to a Non-Resident       B
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    C
during the life time of the owner. Section 18-A(2) of the
said Act provides that after an application under Section
13-8 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    D
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    E
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. In such case, neither the Rent               F
Controller nor the High Court committed any error of law
in rejecting the tenant's application for seeking leave to
contest the suit, since the same had been filed beyond
the period prescribed in the form of Schedule II of the Act
referred to in Section 18-A(2) thereof. [Para 17, 18) [559-   G
A-H; 560-A-B]

    Gaya Prasad Kar v. Subrata Kumar Banerjee (2005) 8
SCC 14; Prithipal Singh v. Satpa/ Singh (dead) through its
LRs. (2010) 2 SCC 15 - relied on.
                                                              H
    552       SUPREME COURT REPORTS             [2010) 10 S.C.R.


A       Mukri Gopalan v. Cheppilat Puthanpurajil Aboobacker
    (1995) 5 sec 5 - distinguished.

     · Akesh Wadhawan and Ors. (2002) 5 SCC ·440; Ashwani
  Kumar Gupta v. Siri Pal Jain (1998) 2 RCR 222; Prakash H.
B Jain v. Marie Fernandes (2003) 8 SCC 431 - referred to.
                           Case Law Reference:
          (1995) 5 sec 5       distinguished      Paras 7, 15
          ·(2005) 8 sec 14     relied on          Paras 7, 15, 16
c
          (2002) 5 sec 440     referred to        Para 8
          (2010) 2 sec 15      relied on          Para 10, 13
          (1998) 2 RCR 222     referred to        Para 11,
D         (2003) 8 sec 431     referred to        Para 14
        CIVIL APPELLATE JURISDICTION : SLP (Civil) No.
    24430 of 2008.

      From the Judgment & Order dated 05.10.2007 of the High
E Court of Punjab & Haryana at Chandigarh in civil Revision No.
  5129 of 2007.

         Ujjal Singh, J.P. Singh, A.S. Bahar, R.C. Kaushik for the
    Petitioner.        ·
F
        S.S. Rana, Bindra Rana, Vikrant Rana, Sanatombi
    Koijam, Pooja Thakur (for S.S. Rana & Co.) for the
    Respondent.

          The Judgment of the Court was delivered by
G
         ALTAMAS KABIR, J. 1. This Special Leave Petition is
    directed against the judgment and order dated 5th October,
    007, passed by a learned Single Judge of the Punjab &
    Haryana High Court, dismissing Civi! Revision Petition
H
    . ·QM PRAKASH v. ASHWANI KUMAR BASSI                      553
               [ALTAMAS KABIR, J.]

No.5129 of 2007 which had been filed by the Petitioner herein        A
against an order dated 4th August, 2007, passed by the Rent
Controller, 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
fo leave to contest the eviction petition. Consequently, the         8
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,            c
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      D
of the eviction petition on 19th May, 2005. The 15 days' period
indicated in the notice 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            E
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   F
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         G
condoning the delay in filing an application for leave to contest
the eviction petition.

    3. The said decision of the Rent Controller, Ludhiana, was
questioned in Revision Petition No.5129 of 2007 before the
                                                                     H
    554     SUPREME COURT REPORTS                 [2010] 10 S.C.R.


A High Court and it was contended thatthe 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
B Sub- section (7) of Section 18-A of the 1949 Act, the procedure
  prescribed for trial of a suit under theSmall 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
C eviction proceedings as well. It was also contended that it was,
  therefore, obligatory upon the part of the Rent Controller to 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
0 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,
E 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
F effect on all other laws inconsistent therewith and that Sub-
  section (7) 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 or in a situation where leave
  to contest has been declined for any reason whatsoever. The
G 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
H eviction· petition and if the eviction petition itself satisfies the
     OM PRAKASH v. ASHWANl KUMAR BASSI                        555
             [ALTAMAS KABIR, J.]
requirements of Section 13-B of the 1949 Act, an order of             A
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.
                                                                      B
      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          C
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           o
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. Cheppi/at Puthanpurajil Aboobacker               E
[(1995) 5 sec 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      F
conditions for applicability of Section 29(2) of the Limitation Act
were satisfied since Section 18 is a special law and in
theabsence 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          G
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
function as Appellate Authority under Section 18, such an             H
    556       SUPREME COURT REPORTS                 [2010] 10 S.C.R.


A 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
B 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 sec 14], wherein it was held that having regard to
C 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.

          8. Yet another decision of this Court in the case of Akesh
D Wadhawan & Ors. vs. Jagdamba Industrial Corporation & Ors.
  ((2002) 5 sec 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,
E 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
F 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 submittedthat
G Section 13-B had been introduced in the 1949 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-
H Resident Indian only after a period of five years from the date
      OM PRAKASH v. ASHWANI KUMAR BASSI                       557
              [ALTAMAS KABIR, J.]
on which the Non-Resident Indian became the owner of such            A
building. lt 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 decis,ion of
this Court in Prithipa/ Singh vs. Satpal Singh (Dead) th~ough        B
its LRs. [(2010) 2 SCC 15], where an ex-parte eviction brder
based on ground of bonafide requirement of landlord\was
recalled by the Rent Controller exercising jurisdiction u~der
Order 9 Rule 13 read with Order 37 Rule 4 and Section 15~of
the Civil Procedure Code. The said order was affirmed by he          c
High Court observing that in view of Rule 23 of the Delhi R . nt
Control Rules, 1959, the Rent Controller is conferred with poW~r
to set aside the ex-parte order of eviction in exercise bf
jurisdiction under the aforesaid provisions of the Code. On the
said orders being questioned in this Court it was held that Rule
                                                                     0
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
                                                                     E
 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        F
that when the 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.                         G
     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
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    558     SUPREME COURT REPORTS                 (2010] 10 S.C.R.


A 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
B by the High Court, which, as indicated hereinabove, came to
  the conclusion that 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,
c 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
D view that Section 25-8 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
E power under Order 9 Rule 13 C.P.C. to recall an ex-parte order
  passed earlier.

       4. Apart from the above is the view taken by this Court in
  Prakash H. Jain vs. Marie Fernandes ((2003) 8 SCC 431],
F 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
G 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
H who were discharging the functions of the Appellate Authority
      OM PRAKASH v. ASHWANI KUMAR BASSI                       559
              [ALTAMAS KABIR, J.].
and being a Court, it was held that the District Judge, functioning   A
as the Appellate 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         B
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                C
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            D
Prasad Kar's case (supra), 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.
                                                                      E
      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
                                                                      F
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           G
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
                                                                      H
    560      SUPREME COURT REPORTS                 [2010] 10 S.C.R.


A   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
8   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.

c        19. The Special Leave Petition must, therefore, fail and is
    dismissed accordingly. However, there will be no order as to
    costs.

    D.G.                                            SLP dismissed.