Judgment:
N.K. Kapoor, J.
1. The petitioner has challenged order of Rent Controller, Chandigarh, dated 7th May, 1992 whereby respondent has been granted permission to contest the application filed by the petitioner under Section 13-A of the East Punjab Urban Rent .Restriction Act, 1949.
2. Briefly the fact of the case are that the petitioner filed an application under Section 13-A of the Bast Punjab Urban Rent Restriction Act, 1949, for ejectment of the respondent from the premises in dispute on the ground that he was retiring on 31st March, 1992 and so required this accommodation for himself and his family members. The petitioner further averred that his two sons are married whereas one son and a daughter are unmarried. It was further averred that the wife of petitioner is suffering from Bronchial Asthma with Hypertension and diabities Mellitius.
3. The Rent Controller on receipt of application under Section 13-A of the Act issued notice for service of the respondent, who was served by means of substituted service on 12th April, 1991. However, the respondent did not seek leave of the Court to contest this application within the stipulated period, but came present in the Court on 14.5.1991 as per affidavit filed by the respondent. He averred that he learnt about affixation of notice on 7th May, 1991. Even till then no application was filed by the respondent seeking permission to contest the eviction application, which was filed on 6th June, 1991. This application was contested by the petitioner on the ground that since permission was not sought within 15 days time, as per Section 18-A of the Act, respondent is not entitled for the relief now sought in the present application.
4. The Rent Controller, however, came to the conclusion that since the petitioner is already residing on the first floor of the premises in dispute, and the remaining part of. the building is with the other tenants, which fact though denied by the petitioner, can be appropriately decided by affording an opportunity to the respondent to lead the evidence, granted the permission so sought.
5. The first submission of the learned counsel for the petitioner is that the Rent Controller has erred in law in over-looking the mandatory provision of Section 18-A of the Act which has consequently resulted in failure of justice. In the instant case, the Rent Controller after receipt of application under Section 13-A of the Act ordered to issue summons for service on the tenant in the forms prescribed in Schedule II. In addition to this, summons were also sent simultaneously by registered acknowledgment due post addressed to the tenant. Since he did not come present, service was effected by affixation also. This later fact is admitted by the respondent. Thus despite service by affixation on 12th April, 1991, the respondent did not seek the leave of the Court to defend the petition till 6th June, 1991 In this way, in fact, the respondent had forfeited his right to contest and the order allowing the respondent leave to contest is legally unsustainable.
6. The next submission of the learned counsel is that the Rent Controller erred in law in going into the fact of insufficiency or sufficiency of the accommodation while deciding the application for leave to defend. According to the counsel, such a plea is not permissible under Section 13-A of the Act. In this way too, the order is unsustainable.
7. Learned counsel for the respondent, however, contends that once leave has been granted by the Rent Controller, on the basis of relevant material placed before him, such an order does not suffer from any legal infirmity and so is not amenable to the revisional jurisdiction of this Court.
8. After bearing the learned counsel for the parties, I am of the view that this petition merits acceptance. Admittedly, respondent was served by process of fixation on 12th April, 1991, who however, did not seek leave of the Court to defend this petition under Section 13-A of the Act within the stipulated period of 15 days. No plausible explanation has been given by the respondent for not seeking the permission within the stipulated period. Even the application filed on 6th June, 1991 does not give any reason for delay in seeking the permission to defend the eviction application. Significantly, the Rent Controller has not examined the fact of seeking the permission as per Section 18-A of the Act. On this account alone, the order of the Rent Controller is indeed unsustainable. The Rent Controller has ignored the positive assertion of the petitioner to the effect that on account of his retirement from service, the allotment of the government house has also been cancelled. Not only this, a notice under Section 4 of the Public Premises Act, 1971, has already been served upon the petitioner on 22nd October, 1991. Since the petitioner is in occupation of the government accommodation, he is already paying penal rate of rent to the Chandigarh Administration. This fact itself belies the stand of the respondent that the petitioner is residing on the first floor of the demised premises In fact, the affidavit filed by the respondent appears to be false and has been filed solely to get an opportunity to delay the adjudication of the petition under Section 13-A of the Act. The petitioner is a 'specified landlord' which is also the finding of the Rent Controller, permission granted in violation of Section 18-A of the Act is per se illegal Even perusal of the application filed by the respondent does not disclose any triable issue. The petitioner's application under Section 13-A of the Act is supported by an affidavit and such a petition is intended to be disposed of in a summary manner.
9. For the aforesaid reasons I set aside the order of the Rent Controller whereby permission was granted to the respondent to contest the application under Section 13-A of the Act, Since the petitioner has been held to be a 'specified landlord', I pass an order of eviction against the respondent. The respondent is, however, granted three months time to deliver back the possession of the premises in dispute to the petitioner subject to his paying all the arrears of rent including the rent for three months, which amount shall be deposited within a month from today. No costs.