Bombay High Court
Deepak N. Gulwani vs The Additional Commissioner, ... on 4 May, 2017
Bench: R.M. Savant
wp-2278-17-(919)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2278 OF 2017
Deepak N. Gulwani )
Age 35 years, Occ Business )
At present R/o, Plot No.5-A, )
Kasturba Housing Society, )
Himgiri Apartment, Dhanori, )
Pune-Alandi Road, Vishrantwadi )
Pune - 411015 ) ..Petitioner
Vs.
1 The Additional Commissioner )
Pune, Region Pune )
2 Shantaram Waman Randive )
Age 67 years, Occu:- Retired )
R/o, C-5, Flat No.2, Hermes Heritage, )
Pune-Nagar Road,, Yerawada, )
Pune 411 006 ) ..Respondents
Mr. R. S. Kadam for the Petitioner
Mr. Akshay Tapkir for the Respondent No.2
CORAM : R. M. SAVANT, J.
DATE : 4th MAY, 2017
ORAL JUDGMENT
1 Rule. With the consent of the Learned Counsel for the parties
made returnable forthwith and heard.
2 The order dated 15-4-2014 passed below Exhibit 15, the order
dated 8-5-2014 passed below Exhibit 18 and the order dated 29-9-2016
passed by the Revisionary Authority are taken exception to by way of the
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above Petition. The first two orders are passed by the Competent Authority
whereas the third order has been passed by the Additional Commissioner, Pune
Division, Pune, by which order, the Revision Application filed by the Petitioner
against the order dated 8-5-2014 came to be dismissed.
3 In so far as the order dated 15-4-2014 is concerned, the
application Exhibit 15 filed by the Respondents came to be allowed and
resultantly it was held that the proceedings will proceed exparte against the
Opponent i.e. the Petitioner herein.
4 In so far as the order dated 8-5-2014 is concerned, the Competent
Authority refused to take the Written Statement of the Petitioner on record as
the same was not filed within 30 days of the receipt of the summons. As
indicated above, the said order dated 8-5-2014 came to be challenged by the
Petitioner by filing a Revision Application No.154 of 2014. The said Revision
Application came to be dismissed by the Additional Commissioner by order
dated 29-9-2016.
5 The controversy therefore revolves around whether the Petitioner
can be permitted to file his Written Statement. In the said context, Section
43(4) of the Maharashtra Rent Control Act assumes importance. The same is
reproduced hereinunder for the sake of ready reference:
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43(4)(a):- The tenant or licensee on whom the
summons is duly served in the ordinary or by
registered post in the manner laid down in sub-
section (3) shall not contest the prayer for
eviction from the premises, unless within thirty
days of the service of summons on him as
aforesaid, he files an affidavit stating grounds on
which he seeks to contest the application for
eviction and obtains leave from the Competent
Authority as hereinafter provided, and in default
of his appearance in pursuance of 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 or
the licensee, as the case may be, and the applicant
shall be entitled to an order for eviction on the
ground aforesaid.
A reading of the said provisions therefore discloses that the
Applicant has to file his appearance as also the application for leave to defend
within 30 days of the summons being served upon him. If the appearance is
not filed or the leave to defend is not granted, then the Competent Authority is
required to proceed with the proceedings on the basis that the Opponent
admits the case of the Applicant as set out in the application.
6 It is in the said context of the said statutory mandate that the facts
of the instant case would have to be seen.
7 In the instant case, the summons was served upon the Petitioner
on 10-3-2014. The Petitioner filed an application for leave to defend on 20-3-
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2014. The said application came to be allowed by the Competent Authority by
order dated 15-4-2014. The Petitioner thereafter ventured to file his Written
Statement on 8-5-2014 but the Competent Authority refused to accept the
same on the ground that the same was not filed within 30 days of the receipt
of the same. Thereafter an order to proceed exparte came to be passed against
the Petitioner as also the Revision Application filed by the Petitioner came to
be dismissed.
8 In so far as the statutory mandate is concerned, the same
contemplates the filing of the application for leave to defend within 30 days of
the receipt of the Summons by the Opponent. Implicit in the said fact would
be the fact that the said application has to be accompanied by the Written
Statement which the Opponent is desirous of filing in the proceedings, as there
is no separate provision for filing of the Written Statement and the period
prescribed for the same. This has also to be considered in the context the
proceedings before the Competent Authority are summary proceedings. In the
instant case, there is no dispute about the fact that the application for leave to
defend was filed on 20-3-2014 i.e. within 10 days of the summons being
served, hence there was compliance in so far as Section 43(4)(a) of the said
Act in the matter of filing of the application for leave to defend is concerned.
However, thereafter the Petitioner ventured to file his Written Statement on 8-
5-2014 which has not been accepted by the Competent Authority and has been
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rejected on the ground that the same was not filed within 30 days of the
receipt of the same.
9 The Learned Counsel appearing on behalf of the Petitioner faced
with this situation on instructions states that the application for leave to
defend which inter alia contains the grounds on which the Petitioner seeks to
defend the proceedings may be directed to be treated as the Written Statement
and the matter to proceed on the said basis.
10 In the facts and circumstances of the present case where the
application for leave to defend was undisputedly filed within the time
stipulated in Section 43(4)(a) of the said Act, though the same was not
accompanied by the Written Statement, the indulgence as sought b y the
Learned Counsel for the Petitioner can be acceded to. Hence the application
for leave to defend is directed to be treated as the Written Statement of the
Petitioner original Opponent.
11 The Learned Counsel appearing on behalf of the Respondents i.e.
the Applicants before the Competent Authority opposes the above Writ Petition
and contend that the matter is being unduly delayed and that the Respondent
No.2 is around 71 years of age.
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12 In my view, the delay cannot be attributable to the Petitioner
having regard to the fact that the Petitioner had filed the application for leave
to defend with reasonable despatch and in fact within the time frame
stipulated in Section 43(4)(a) of the said Act. In my view, the interest of
justice would therefore be served if the following directions are issued:
(i) The application for leave to defend is directed to be treated as the
Written Statement or the defence of the Petitioners i.e. the Opponent in the
proceedings.
(ii) Resultantly the impugned orders dated 15-4-2014, 8-5-2014 and
29-9-2016, would stand set aside. The Competent Authority would proceed
on the basis of the pleadings of the parties which would now comprise of the
application for leave to defend which is to be treated as the defence of the
Petitioner/Opponent. The proceedings would be tried on their own merits and
in accordance with law.
(iii) The contentions of the parties on merits are kept open.
(iv) The Competent Authority having regard to the fact that the
proceedings have been filed in the year 2013 is directed to hear and decide the
same latest by 31-8-2017.
13 The Petition is allowed to the aforesaid extent. Rule is accordingly
made absolute in the aforesaid terms with parties to bear their respective costs
of the Petition.
[R.M.SAVANT, J]
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