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,

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

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