SinaJe Bench v. Uttam Rajak

Smt. Shanti Bai Chouteey, widow of Late Lakhanlal Chouksey, about 80 years, Occupation House Wife, Resident of Torwa Naka, front 6f Bilaspur Post OfRce, Tahsil and District Bilaspur (CG) Civil Revision under Section 23 (El oftheChhattisaarh Accommodation Control Act. 1961 Present: Shri N.L. Soni, counsel for the petitioner. Shri R.K. Tiwari, counsel forthe respondent. ORAL ORDER (Passed on 23-08-2007) l-1eard on application for amendment of the revision petition for raising additional grounds. (2) (3) Prayer is not opposed. Amendment be Incorporated today. This revision was finally heard today. (4) The petitioner/tenant is aggrieved by the order dated 5.5.2007 passed by the Rent Controlling Authority, Bilaspur (hereinafter referred to as the R.C.A.) in case No.2/A-90(6)/2006-07, whereby the application filed by the petitioner/tenant under Section 23-C of the ,^i=--.-—.-= Chhattisgarh Accommodation Control Act, 1961 (henceforth 'the Act, 1961') for permission to contest the application for eviction was rejected on the ground that it was not fiied within 15 days from the date of semce of notice upon him. (5) Brief undisputed facts are that the respondent/landlord filed an appiication under Section 23-A of the Act, 1961 before the R.C.A. for eviction ofthe petitioner/tenant on 30.12.2006. Summons to the tenant was not issued in the form specified in the 2nd Schedule to the Act,

1961. The petitioner/tenant appeared before the RCA on 19.1.2007 on which date he was supplied with a copy of the appiication fi!ed under Section 23-A by the landlord. On 27.1.2007, the petitioner/tenant filed an application under Section 23-C ofthe Act, 1961 for permission to contestthe application. ,) (6) The R.C.A. rejected the application under Section 23-C of the Act, 1961 dated 27.1.2007 filed by the petitioner/tenant as barred by iimitation on the ground that the summons was sen/ed on the petitioner on 9.1.2007 and therefore, he ought to have moved an appiication under Section 23-C of the Act, 1961 within 15 days. (7) Shri N.L. Soni, learned counsel for the petitioner argued that on an application being fiied under Section 23-A of the Act, the R.C.A. is under an obiigation to issue summons to the petitioner/tenant in the form specified in the 2 Schedule. It was further contended that Section 23-C of the Act, 1961 further stipulates that the right to fi!e an application therein accrues to the tenant only upon service of summons in the form specified in the 2" Schedule. Since no summons was issued in the form specified in the 2 Scheduie, the R.CA. erred in computing the period of 15 days provided under sub- section (1) of Section 23-C of the Act, 1961 from the date of semce of the summons on the petitioner/tenant on 9.1.2007. It was also urged that a copy of the application under Section 23-A of the Act, 1961 was not served along with the summons issued in a routine manner and oniy on first appearance before the R.C.A. on 19.1.2007, petitioner/tenant was supplied with a copy of the application under Section 23-A of the Act, 1961. In this manner, the application for permission to contest the application under Section 23-A of the Act, 1961 having been filed on 27.1.2007 was within limitation and the impugned order is liable to be set aside. (8) On the other hand, Shri R.K. Tiwari, learned counsei for the respondenVlandlord submitted that the petitioner/tenant did not raise any such ground mentioned above in his application dated 27.1 .2007 before the R.C.A. and therefore, the impugned order passed by the R.C.A. could not be faulted with. (9) Having heard the rivai submissions, 1 have perused the impugned order passed by the R.C.A. Chapter 111-A of the Act, 1961 deais with evs'ction of tenants on grounds of "bona fide" requirement. Section 23-A of the Act, 1961 reads as under: "23"A. Special provision for eviction of tenant ort ground of bona fide requirement.- Notwithstanding anylhing contained in any other iaw for the time being in force or contract to the contrary, a iandiord may submit an appiication, signed and verified in a manner provided in rules 4 14 and 15 of Order VI of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908) as if it were a plaint to the Rent Controlling Authority on one or more of the foiiowing grounds for an order directing the tenant to put the iandlord in possession ofthe accommodation, namely:- the accommodation let residential purposes is required "bona fide" by the landlord for occupationas residence for himself or for any member of his famiiy, or for any person for whose benefit, the accommodation is heid and that the landlord or such person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned. Expianaiion.' For the purposes of ihis ciause "accommodation let residential purposes" includes' (i) (ii) any accommodation which having been let for use as a residence is without express consent of the landiord, used wholly or partiy for any non-residential purpose; any accommodation which has not been !et under an express provision of contract for non -residential purpose; the accommodation let for non-residential purposes is required "bona fide" by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmamed daughters, if he is the owner thereof or for any person for whose benefit the accommodation is hetd and that the landlord or such person has no non-residentiai accommodation of his own in his occupation in the city or town concerned: reasonably suitabie (a) (b) Provided that where a person who is a landlord has acquired any accommodation or any interest therein by transfer, no appiication for eviction of tenant of such accommodation shal! be maintainable at the instance of such person unless a period of one year has elapsed from the date of such acquisition". (10) Section 23-B of the Act, 1961 further provides as under: "23-B. - Rent Controlling Authority to issue summons in relation to every application under Section23"A.-(1) The Rent Controlling Authority in relation to issue to the tenant a summons, every appiication referred to in section 23-A, form specified in the Second Schedule. in the Save as otherwise provided in this Act, (2) provisions of order V and Order XVI of the First Scheduie to the Code of Civil Procedure, 1908 (V of 1908) regarding issue and service of summons to a defendant witnesses to give evidence or to produce documents shall apply "mutatis mutandis" to issue and service of any summons to a tenant or opposite pariy or to a witness to give evidence or to produce documents in an inquiry or proceeding under this Chapter". summoning attendance (11) A plain reading of Section 23-B of the Act, 1961 leaves no room for any doubt that the R.C.A. is under an obligation to issue summons in relation to every application under Section 23-A of the Act, 1961, in the form specified in the 2 Schedule, which is as urider: "SECOND SCHEDULE (See Section 23-B) Form of summons in a case where recovery of possession of accommodation is prayed for on grounds of "bona fide" requirement Office ofthe Rent Controiling Authority, (Piace). To Eviction Case No. Whereas Shri.................... has filed an appiication (a copy of which is annexed) for your eviction from (here insert the particulars of the accommodation) on the grounds specified in ciause (a)/clause (b) of section 23-A of the Chhattisgarh Accommodation Control Act, 1961 (No.41 of 1961) You are hereby summoned to appear before the Rent Controliing Authority within fifteen days of the service for hearing and to obtain the leave of the Rent Controlling Authority to contest the application for evlction on the grounds aforesaid; in defauit whereof the applicant witl be entitled at any time after the expiry of the said period of fifteen days to obtain an order for your eviction from the said 6 accommodation. Subject as aforesaid the date for further proceedings shali be Leave to appear and contest the application may be obtained on an application to the Rent Controlling Authority supported by an affidavit as is referred to in section 23-C. Given under my hand and seal. This

20. Rent Controlling Authority" (12) It is thus clear that the purpose of issuance of summons to the tenant in the form prescribed in the 2nd Schedule is to give notice to the tenant that he may appear within 15 days of the sen/ice of such notice and obtain the ieave of the R.C.A. to contest the application for eviction failing which the landlord would be entitled to obtain an order for eviction. (13) Section 23-C ofthe Act, 1961 reads as under: "23-C. Tenant not entitled to contest except under certain circumstances.-(l) The tenant on whom the summons is served in the form specified in the Second Schedule shall not contest the prayer for eviction from the accommodation unless he files within fifteen days from the date of service of the summons, an application supported by an affidavit stating the grounds on which heseeks to contest the application for eviction and obtains ieave from the Rent Controlling Authority as hereinafter provided, and in default of his appearance in pursuance of the summons or in default of his obtaining such leave, or if such ieave is refused, the statement made by the landiord in the application for eviction shall be The Rent deemed to be admitted by the tenant. in such a case pass an Controlling Authority shali from the accommodation: eviction tenant Proyided that the Rent Controlling Authority may, for sufficient cause shown by the tenant, excuse the delay of the tenant in entering appearance or in !eave to defend the application for applying for eviction and where '"ex-parte" order has been passed, may set it aside. The Rent Controlling Authority shail, within one (2) month of the date of receipt of appiication, give to the tenant, if necessary, leave to contest the application, if the application supported by an affidavit fiied by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of the accommodation on the ground possession of specified in section 23-A". (14) A perusal of sub-section (1) of Section 23-Cof the Act makes it further clear that the condition of sen/ice of summons upon the tenant in the form specified in the 2 Schedu'e 's a ssne qua non for fi'.ing an application to seek permission to contest the application for eviction within 15 days from the date ofsuch sen/ice ofthe summons. (15) In this manner, is clear issuance of summons as prescribed under Schedule-2 to the tenant is not a mere formality but is mandatory. In the absence of a summons having been issued to the petitioner/tenant by the R.C.A. in the form prescribed under Schedule- 2, the application dated 27.1.2007 filed by the tenant for leave to contest the appiication could not be rejected on the ground of limitation. More so, in view of the fact that copy of the application under Section 23-A of the Act, 1961 was served on petitioner/tenant for the first time on 19.1.2007 on first appearance of the tenant before the R.C.A. In this manner, due to non-compliance of the mandatory provision contained in Section 23-B ofthe Act, 1961 the impugned order is liable to be set aside. (16) In the resuit, the revision is allowed. Order dated 5.5.2007 passed by the R.C.A., Bilaspur is set aside. The R.C.A shall, after 8 giving opportunity of hearing to the parties and affording an opportunity to the petitioner/tenant to substantiate the grounds mentioned in the application under Section 23-C ofthe Act, 1961 for seeking permission to contest the application under Section 23-A of the Act, 1961, decide the application filed by the tenant under Section 23-C of the Act, 1961 on merits. i Dilip Raosaheb Deshmukh Judge Priya