Sr. M. Noronha And Ors. vs Chandrakant D. Roge
2004 Latest Caselaw 1410 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the advocate for the petitioner. Perused the

2. On issuance of notice by order dated 28-9-2004 when the matter came up for hearing on 26th October 2004, it was adjourned to 30-11-2004 by the consent of the advocates for the parties for final disposal at the admission stage. The matter however could not reach for hearing on 30-11-2004 and when it came up for hearing on 6-12-2004 on a request of the learned advocate for the respondent, it was adjourned to 20-12-2004, i.e. today for final hearing at the admission stage. When the matter was called out for hearing in the morning session, the respondent was present, but his advocate was absent. In order to enable the respondent to secure the presence of his advocate the matter was kept back till 2 O'clock. At that time the respondent requested that the matter be kept for hearing in the after noon session and that he would secure the presence of his advocate by that time. When the matter is called out in the after noon session, neither the respondent is present nor his advocate.

3. Upon hearing the learned advocate for the petitioner and on perusal of the records, it is apparent that the points involved in the matter are that whether the competent authority exercising powers under section 22 of the Maharashtra Rent Control Act 1999 could extend the period for seeking leave to defend by the respondent in the proceedings thereunder, and secondly whether the revisional court while dealing with the revision application against the order passed by the competent court while rejecting the leave on the ground that the application in that regard was time barred could consider the matter on merits of the case put forth by the respondent.

4. Facts relevant for the decision are that the respondent was inducted in the suit premises as service tenant and his services came to be terminated by letter dated 9th August 2001. Pursuant thereto he was required to vacate the suit premises and as he failed to vacate the same, the petitioner initiated the proceedings under section 22 of the said Act for the eviction of the respondent. The respondent was infact inducted in the suit premises under the agreement dated 12th April 1980, which disclose that the premises were allowed to be used for the residence of the respondent on account of his employment in the petitioner's organisation. The summons in relation to the institution of eviction proceedings was served upon the respondent on 14th May 2003. The respondent however did not file any application to seek leave to defend in the matter till 21st July 2003. However, an application was filed for the first time only on 22nd July 2003. The said application was contested by the petitioner mainly on the ground that the competent authority had no jurisdiction to entertain the same or to grant leave to defend which is filed beyond the period prescribed for filing such application. The objections on the part of the petitioner were upheld by the competent authority and the said application was dismissed and it was held that the petitioner was entitled to recover the possession of the suit premises by evicting the respondent. The said order was passed on 17-11-2003. The respondent herein aggrieved by the same order, carried the matter in revision before the revisional authority which came to be heard and disposed of by the impugned order dated 11th May 2004 by the Additional Commissioner, Konkon Division at Mumbai.

5. While assailing the impugned order, the learned advocate for the petitioner submitted that the statutory authorities exercising powers under section 22 of the said Act cannot extend the period prescribed for filing the application to seek leave to defend. He further submitted that the decision of the Apex Court in the matter of Prakash Jain vs. Marie Fernandes delivered on 23-9-2003 is very clear in that regard and the same was brought to the notice of the revisional authority. However the said authority ignoring the said decision, referring to various documents sought to be produced by the respondent in the proceedings in the revision application, set aside the order passed by the competent authority. According to the learned advocate for the petitioner, the revisional authority could not travel beyond the scope of section 22 while dealing with the matter pertaining to the question as to whether the respondent was entitled for leave to defend the matter or not, besides being that it was bound by the decision of the Apex Court in Prakash Jain's case.

6. Section 22 empowers the landlord to seek eviction of the service tenant who was inducted in the premises of the landlord on account of such tenant being in service of the landlord, once the employment of such person with the landlord comes to an end. Section 43(4)(a) of the said Act provides that the tenant on whom the summons is duly served in the ordinary way or by registered post in relation to any such proceedings before the competent authority for eviction of a tenant shall not contest the prayer for eviction from the premises unless within 30 days of service of summons on him, he files the affidavit stating the grounds on which he seeks to defend the application for eviction and obtain leave from the competent authority and in default of his appearance in pursuance to the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction of such tenant on the aforesaid ground.

7. The scope of the powers of the competent authority in relation to such application for eviction as well as the obligation of the tenant to seek leave in order to enable him to get such application dismissed, was elaborately dealt with by the Apex Court in Prakash Jain's case wherein it was held thus:

"The Competent Authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised, in the manner provided therefore and subject to such conditions and limitations stipulated by the very provision of law under which the Competent Authority itself has been created. Clause (a) of Sub-section (4) of Section 43 mandates that the tenant or licensee on whom the summons in duly served should contest the prayer for eviction by filing, within thirty days of service of summons on him, an affidavit stating the grounds on which he seeks to contest the application for eviction and obtain the leave of the Competent Authority to contest the application for eviction as provided therefore. The legislature further proceeds to also provide statutory the consequences as well laying down that in default of his appearance pursuant to the summons or obtaining such leave, by filing an application for the purpose within the stipulated period, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant or licensee, as the case may be and the applicant shall be entitled to an order for eviction on the ground so stated by him in his application for eviction. It is only when leave has been caught for and obtained in the manner stipulated in the statute that an hearing is envisaged to be commenced and completed once again within the stipulated time. The net result of an application/affidavit with grounds of defence and leave to contest, not having been filed within the time as has been stipulated in the statute itself as a condition precedent, for the Competent Authority to proceed further to enquire into the merits of the defence, the Competent Authority is obliged, under the constraining influence of the compulsion statutory cast upon it, to pass orders of eviction in the manner envisaged in Clause (a) of Sub-Section (4) of Section 43 of the Act. The order of the learned Single Judge of the High Court under challenge in this appeal is well merited end does not call for any interference in our hands."

8. Undoubtedly therefore as submitted by the learned advocate for the petitioner the points sought to be raised in the matter are clearly concluded by the decision of the Apex Court in the above case. Undisputably the respondent was served with summons in the case in hand on 14th May 2003 and he did not bother to file application to seek leave to defend within days from service of summons. Obviously, the consequence contemplated under section 43(4)(a) were to follow and accordingly the competent authority has passed the order dated 17-11-2003 directing the respondent to deliver the possession of the premises to the petitioner. Failure on the part of the respondent to obtain leave by filing appropriate application within 30 days of the service would naturally result in accepting the contentions on the part of the landlord in the application be true and established, for the purpose of order of eviction against the respondent as the provision of law in that regard comprised under section 43(4)(a) are very clear, besides there being the judgment of the Apex Court.

9. Since the consequences of failure on the part of the service tenant to move for leave to defend have been specifically stipulated under the statutory provisions, the authority dealing with such application for eviction is left with no discretion but to follow the procedure laid down thereunder, and that is the mandate of law clarified by the Apex court in the above judgment. Being so, there could be no scope for dealing with the matter on merits and to set aside the order passed by the competent authority and hence the petitioner is justified in contending that the revisional authority could not have entertained the documents and he could not have gone into the merits of the case while dealing with the application dated 17-11-2003. For the above reason therefore the impugned order cannot be sustained and is liable to be set aside.

10. In the result therefore, the petition succeeds. The impugned order is quashed and set aside. The order dated 17-11-2003 passed by the competent authority is therefore confirmed. There shall be no order as to costs. The petition is accordingly disposed of.