The Single Bench of the Bombay High Court consisting of Justice Ravindra V. Ghuge while hearing a writ petition held that the language used in Section 43(4)(a) of the Maharashtra Rent Control Act, 1999 requires an affidavit to be filed and not a mere application.
Facts and Procedural History
The petitioner is the original respondent in application filed by respondent No.3, original applicant, before the competent authority, under the Maharashtra Rent Control Act, 1999 (“the Rent Act”). His grievance is that his leave to defend was belated by one day and the day, on which the limitation period of 30 days expired, was a Sunday and, therefore, a holiday. Section 4 of the Limitation Act would apply in such a case and, he would get the benefit of one day. The petitioner was served with the summons issued by the authority dealing with the eviction application, on 25/10/2019. The petitioner then was a police officer. He appeared before the authority on 15/11/2019 and sought an adjournment. The adjournment was granted, and the matter was posted on 25/11/2019. The date on which the summons was served on the petitioner, is the day, which must be excluded while computing the 30 days’ limitation period. As such, the period of 30 days, will have to be computed, by including 26/10/2019 as the first day. When the matter appeared on 25/11/2019, it is undisputed that, the petitioner filed yet another adjournment application at Exh. -7, which was rejected by the authority. Thereafter, the petitioner filed an application at Exh. -8, titled as ‘Application to Leave to Defend’. The said application is dated 25/11/2019, which is supported by a simple verification.
The learned advocate for the petitioner, before the competent authority, neither signed below the said application, Exh. -8, nor he signed below the verification. The signature of the petitioner appears below the application and below the verification. The said verification clause has not been affirmed before any authority, empowered to administer the oath in support of the verification, to be treated, as an affidavit. 24/11/2019 was a Sunday and, therefore, a holiday. On 25/11/2019, the petitioner had sought an adjournment, vide application, Exh. -7, which was rejected on the same day. He, therefore, filed application, Exh. -8, for seeking leave to defend.
Observations of the Court
The Bench observed that:
“The learned advocate for the petitioner, at first blush, would appear to be right in placing reliance upon Section 4 of the Limitation Act, the issues that need to be considered are, (a) whether Section 5 of the Limitation Act would be applicable to the case of the petitioner and, (b) whether application, Exh.-8, seeking leave to defend, could be termed to be an application, in the eyes of law, in the absence of an affidavit or even a verification not affirmed before an oath administering authority.”
Relying on various decisions, it further held that:
“it is obvious that Exh. -8, without the mandatory affidavit, would not be an application, which is within the strict prescription of law. In fact, the language used in Section 43(4)(a) requires an affidavit to be filed and not a mere application. As such, though Section 4 of the Limitation Act may have rescued the petitioner, the absence of an affidavit, which is mandatory, would render the said application non-existent in the eyes of law.”
Judgment
This petition being devoid of merits, was, therefore, dismissed.
Case Name: Laxman Dadasaheb Jagtap vs Additional Commissioner, Kokan Division, Mumbai & Anr.
Citation: WRIT PETITION NO.579 OF 2022
Bench: Justice Ravindra V. Ghuge
Decided on:19th January 2022
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