Food Corporation Of India vs Usha Bhardwaj
1986 Latest Caselaw 193 Del

JUDGMENT

G.C. Jain, J.

(1) Smt. Usha Bhardwaj, respondent herein, brought a petition under Clause (e) of the proviso to Sub-section (1) of Section 14 read with Section 25B of the Delhi Rent Control Act, 1958 (for short 'the Act') against the Food Corporation of India seeking its eviction from the premises in dispute. No. D-44/3, East of Kailash, New Delhi-110024.

(2) The petitioner-tenant moved an application under Section 25B(5) of the Act for leave to defend the said eviction petition. Along with this application he moved another application under Section 151 of the Code of Civil Procedure read with Section 5 of the Indian Limitation Act for condensation of delay in filing the application for leave to defend. It was averred that service on the F.C.I, was effected through its Secretary/Principal Officer in the Head Office but no notice was sent to the Principal of the Central Institute of Training. The service was effected on the Head Office on March 2, 1985 and the Principal of the Central Training Institute received the summons on March 5, 1985. A few days were taken to appoint an advocate. Thereafter the advocate could not be contacted for two/three days in his office and ultimately he could be contacted on March 15, 1985 and in these circumstances the application for leave to defend could not be moved before March 18, 1985 which was the last date for moving the said application. The learned Addl. Controller held that the petition for leave to defend was filed on March 18, 1985, i.e. after the expiry of 15 days prescribed in the Act for filing the said application. He further held that he had no option except to pass an order for eviction. After perusing the allegations in the petition he felt satisfied that the grounds under Clause (e) of the proviso to Sub-section (1) of Section 14 of the Act had been made out and consequently directed the eviction of the petitioner. It was however allowed six months time to vacate the premises.

(3) Feeling aggrieved the petitioner-tenant has filed this revision petition.

(4) Mr. K.C. Mittal, learned counsel appearing for the petitioner, contended that the learned Addl. Controller was wrong in granting an order for eviction without deciding his application for condensation of delay and therefore the impugned order was liable to be set aside.

(5) On a careful consideration I do not find any merit in this contention because of the Division Bench decision of this court in Jagdish Pershad v. Phool Wati Devi, 1980 Rlr 367 and Gurdittamal v. Bal Sarup, 1980 Rlr page 1. It was held that the delay could not be condoned under Section 5 of the Indian Limitation Act. However the eviction order passed could be set aside applying the analogy of Order 37 Rule 4 of the Code of Civil Procedure. In view of these two Division Bench decisions learned Addl. Controller was right in holding that he was not competent to condone the delay at this stage.

(6) Mr. Mittal, learned counsel for the petitioner, contended that it is a settled law that the Controller could condone the delay and set aside the eviction order on the analogy of Order 37, Civil Procedure Code . Why, argued the learned counsel, it could not be done before passing an eviction order. He urged that this led to unnecessary multiplicity of the proceedings and powers could be exercised before making the eviction order. He relied on Surinder Kumar v. Prem Kumar, 1980 Rlr 621. M.L. Jain J. in that case observed that "In Jagdish Pershad (supra) para 16, it was held that both Section 37(2) and Section 25B(7) of the Act contemplate that the Controller shall follow the procedure laid down in Order 37 Rule 4, Civil Procedure Code . if the special circumstances of the case before him justify such a cause. If that is so, the Controller is required to follow the amended Sub-rule (7) of Rule 3 of Order 37 Civil Procedure Code . which will operate retrospectively, and which provided that the court may for sufficient cause excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit." These observations may to some extent help the petitioner but I feel bound by the Division Bench decisions referred to above.

(7) Reliance was also placed on the decision of this court in Gurdittamal v. Bal Sarup, 1980 Rlr 136. In this judgment Avadh Behari J.of this court held in clear terms that the Controller was not competent to extend the time under Section 5 of the Limitation Act. He also held that he was not competent to review his own order. While discussing the inherent powers he said "take a case where the tenant has not been duly served with summons or a case where for sufficient cause he was prevented from applying for leave to defend within 15 days e.g. where he fell seriously ill and was unable to contact the lawyer. In exercise of the inherent jurisdiction the Controller can set aside the order of eviction and rehear and redecide the case if the tenant can show that he was prevented from apply ing for a leave for sufficient cause." . These observations make it clear that the question of the exercise of inherent power would arise only after an order of eviction has been made. These powers cannot be exercised before making the order for eviction.

(8) For all these reasons I find no infirmity with the impugned order and dismiss the revision.

(9) Learned counsel for the petitioner says that his application under Section 151, Civil Procedure Code . has not yet been decided. He also says that he has moved an application for setting aside the eviction order in exercise of the inherent powers. Learned Addl. Controller is directed to decide these applications expeditiously and, if possible, within two months. Execution of the eviction order is stayed for two months from today. No order as to costs.