NAVEEN MEHTA Vs. RAKESH KUMAR GUPTA

JUDGEMENT

(1.) THIS is tenant's revision petition challenging the impugned order dated 03.02.2011, whereby his application for leave to defend the eviction application filed by respondent -landlord under Section 13(1 -A) of Haryana Urban(Control of Rent and Eviction) Act, 1973(hereinafter referred to as 'the Act'), has been declined being barred by limitation as well as being devoid of any material which would dis -entitle the landlord from obtaining order for recovery of possession of building under the Act with a further direction to vacate the premises within two months from the date of order.

(2.) AT the time of motion hearing, the following submission was made by the learned counsel appearing on behalf of the petitioner: Present: Mr. Manoj Bajaj, Advocate, for the petitioner. ***** CM No.8607 -CII of 2011 Application is allowed as prayed for. CR No.2159 of 2011 (O&M) Learned counsel for the petitioner, inter alia, contends that on 13.11.2010 notice issued to the petitioner/tenant on his first address was received back with the report of refusal by his mother and since service on his second address was not effected, therefore, service by way of munadi was ordered. It is submitted that there is a limited right granted to the tenant under Section 13(1 -A)(5) of the Haryana Urban (Control of Rent & Eviction) Act, 1973 [for short "the Act" ] as he had to seek leave to defend his case and for that purposes Legislature has provided a mechanism for service as it is apparent from Section 13(1 -A)(2) of the Act that the Controller shall issue summons in relation to every application referred to in sub -section (1) of Section 13 -A of the Act and in addition thereto and simultaneously with the issue of summons for service on the tenant, also direct the summons to be served by registered post, acknowledgment due, addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides. He further submits that in case of refusal of summons by his mother, the learned Rent Controller should have resorted to the provisions of Order 5 Rule 17 of the Code of Civil Procedure, 1908 [for short "CPC" ] which provides for affixation of the summons on the outer door or some other conspicuous part of the house of the tenant. It is further argued that the petitioner/tenant has been served by way of publication on 07.01.2011 when the case was fixed for 17.01.2011 for filing application seeking leave to defend which has been dismissed by the learned Rent Controller by taking service from the first date of issuance of notice. Notice of motion for 27.04.2011. Dispossession of the petitioner shall remain stayed till then. March 29, 2011 (Rakesh Kumar Jain) Judge

(3.) MR .Jaswant Jain, learned counsel appearing on behalf of the respondent -landlord has vehemently contested the argument raised by learned counsel for the petitioner and has submitted that the petitioner was served on 27.11.2010, whereas the application for leave to defend was filed on 17.01.2011 which was beyond the statutory period of 15 days . As such the leave to defend was rightly declined and the impugned order directing the petitioner to vacate the premises was passed rightly as delay in filing the application for leave to contest cannot be condoned in view of the various judgements of this Court.