ANIL KUMAR AND OTHERS Vs. CHITRANJAN DEV

JUDGEMENT

(1.) The tenants are in revision against the order of the learned Rent Controller, Nakodar dated 05.09.2008 by which they have been ordered to vacate the demised premises on the ground of personal necessity of the landlord.

(2.) In brief, the respondent/landlord filed a petition under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949for short ''the Act''. alleging that he is an NRI, owner of the demised premises for last more than 5 years and requires it for his personal use and occupation. The tenant filed an application under Section 18-A(5) of the Act in order to seek leave to defend on the grounds; i) the demised premises comprising of 4 Marias is jointly owned by the landlord and Jain Mandir, Nakodar to the extent of half share each for which the other co-owner (Jain Mandir, Nakodar) has not filed the eviction petition, ii) the demised premises was let out by the original owner Dogar Mal and as such the respondent/landlord cannot seek eviction, iii) the eviction petition is bad for mis-joinder of the necessary parties as Raj Kumar had died leaving behind his widow Chander Kanta, 3 daughters and one son, whereas Pushpa Devi wife of Hans Raj is also a tenant in the premises as per the decision rendered in Rent Petition No.26 of 1976 by Shri J.S.Chatha, District Judge-cum-Appellate Authority under the Act who has not been impleaded; iv) the landlord is in possession of one house in Mohalla Kallian situated at a distance of 100-150 yards from the demised premises, v) the tenant is a poor illiterate widow, aged about 72-75 years and suffering from brain tumor whose husband died due to cancer, having no other place to live, and vi) the service of summon has been effected upon the tenant on 13.08.2004 by the process server who had told her the date of appearance as 08.10.2004 before the Court and had never informed her that she had to apply for leave to defend within 15 days from the date of service, therefore, the delay in filing the application for leave to defend was also not her fault.

(3.) Learned Rent Controller issued notice in the application for leave to defend to which reply was filed by the landlord who admitted that the demised premises is jointly owned by him with Jain Mandir, Nakodar and that he is living in Mohalla Kallian. There is no denial that the demised premises was let out by Dogar Mal and not by the present landlord who had only alleged that he is owner from the last more than 5 years. It was also alleged that Pushpa Devi daughter of Raj Kumar is living with her in-laws after her marriage and that the application has not been filed in time not due to the fact that the process server did not inform her about her right to file leave to defend within 15 days from the date of service, but because of her own fault. The learned Rent Controller, while dismissing the application for leave to defend, had observed that the landlord has filed photostat copy of the passport No.JK-914667 issued by the Canadian Government, secondly that even if the demised premises is jointly owned by Jain Mandir, Nakodar who had not come forward to file eviction petition, would hardly affect the right of the landlord to file eviction petition qua his share and the landlord even if residing in Mohalla Kallian would not loose his right to seek vacation of the demised premises for which he can always file a petition under Section 13-B of the act once in his life time. In respect of the mis-joinder of the necessary parties, it was observed that the other legal heirs of Raj Kumar were inducted as respondents on 27.03.2006 and the delay in filing the application beyond 15 days cannot be condoned in any manner.