Narinder Singh vs Raj Kumari
1991 Latest Caselaw 779 Del

JUDGMENT

S.C. Jain, J.

(1) Respondent filed an eviction petition u/Ss. 14C and 14D, Delhi Rent Control (Amendment) Act, 1988 against Narinder Singh-petitioner tenant for eviction from suit premises No. L-1V/24, Old D.S., Lajpat Nagar III. The processes under Schedule Iii of the Act were issued to the tenant, who in turn filed an application for leave to defend supported by an affidavit on 20.2.1989. Along with this application, an application for condensation of delay u/S. 5 of the Limitation Act was also filed. The Rent Controller observed that service of summons on the tenant was effected on 25.1.1989 by registered post and the application seeking leave to defend was filed on 22.2.1989 i.e. after expiry of 15 days and that he had no jurisdiction to condone the delay. Accepting the averments in the eviction petition as correct, an order of eviction was passed against the tenant on 20.11.1990 u/S. 14C and 14D of the Act. The order was made executable after 2 months.

(2) Petitioner thereafter filed an application u/Order 37 Rule 4 r.w.S. 151, Civil Procedure Code seeking the relief that eviction order passed on 20.11.90 be set aside and he be permitted to defend the eviction petition. The grounds taken in this application were that he was not personally served with the summons issued under Schedule Iii of the Act. He was out of Delhi 'from 24-1-90 to 2-2-90" (in his earlier application dt. 20.2.89 for condensation of delay the period of his absence was mentioned as 23.1.89 to 31.1.89) and his family consists of himself his wife and two minor children. His wife found a few papers lying at the door and when he returned back t

(3) The averments made by the tenant in his application were controverter by the respodent. It has been averred that the tenant has falsely stated that he was out of Delhi from 24.1.90 to 2.2.90. The plea taken by him in earlier application for condensation of delay was that he was out of Delhi during the period 23.1.89 to 31.1.89 and it contradicts his stand that he was out of Delhi from 24-1-90 to 30.1.91. There is a certificate issued by the postal authorities that the registered cover (Regd. letter No. 4659 dated 24.1.89) was delivered to Narinder Singh on 25.1.1989. There are no grounds for setting aside the order and allowing the tenant to re-agitate the matter on his application filed seeking leave to defend.

(4) It is settled principle of law that the provisions of S. 5 of the Limitation act are not applicable when the tenant does not apply for permission to defend the eviction petition within 15 days of the service of summons issued under Schedule Iii of the Act. However, the tenant can apply for setting aside an eviction order on the analogy of Order 37 Rule 4 and S. 151, Cpc, as the Rent Controller has no power to extend The time for putting in appearance, if sufficient cause is shown to excuse the delay in entering in appearance or in applying for leave to defend even after the eviction order has been passed. In this case, the R.C. has not only passed the eviction order but also dismissed the application u/Order 37 Rule 4, Cpc filed thereafter. As per his observation the plea taken by the tenant that he was out of station during the relevant period cannot be accepted as correct. He did not explain as to where he had gone. This plea taken by him is vague. As per the report of the postal authorities service was duly effected on him on 25 1.89 by registered post. The ordinary process was not accepted by him, though tendered to him by the process server on 24.1.89.

(5) In this case it is to be seen whether the tenant has shown sufficient cause to excuse the delay in entering appearance or in applying for leave to defend eviction proceedings.

(6) Record shows that he has been taking contradictory pleas about his absence from Delhi during the relevant period. He has not mentioned in either of the applications as to where he had gone during this period. Rather he has taken contradictory stand on this point. In para 5 of his application u/Order 37 Rule 4, Cpc he has mentioned that he was out of Delhi from 24.1.90 to 2.2.90 and that during his absence his wife found certain papers lying outside his door, whereas earlier he had taken the stand that he was out of Delhi from 23.1.89 to 31.1.89. There is a certificate from the postal authority on the file issued by the Sub Post Master, Lajpat Nagar which reads : "It is intimated that the registered article was delivered to Narinder Singh on 25.1.1989".

(7) This certificate issued by the postal authorities, which has not been challenged, belies the stand taken by the tenant in his application for setting aside the eviction order and for condensation of delay. The R.C. correctly came to the conclusion that the stand taken by the tenant is not sufficient for setting aside the eviction order and allowing him to appear and defend the eviction petition. It is mandatory provision of law that he should have field an application seeking leave to defend within 15 days from the date of service. As per the certificate issued by the postal authorities he was served on 25.1.1989, He should have moved on application within 15 days but he did not do so till 20.2.89. The order passed by the R.C. rejecting the application filed by tenant for condensation of delay and for setting aside the eviction order suffers from no legal infirmity.

(8) Learned counsel for the petitioner submitted that even on merits, the decree of eviction should not have been passed inasmuch as no relationship of landlord and tenant exists between the parties. According to him, it was Meera Sethi who was the landlady and who was receiving rent from the tenant. The present petitioner is neither the landlady nor the owner of the suit premises. As far as the ownership is concerned, the respondent Raj Kumari has produced on record a photo copy of the sale deed dated 9.2.1970 showing that she purchased this property from one Raj Rani Mehra. In the presence of documentary evidence which has not been specifically contested leads to the inescapable conclusion that she is the owner of the property. Mere denying a thing for the sake of denial cannot be taken as proof. Regarding relationship, of landlord and tenant no doubt, it is true that Meera Sethi as the mother of the respondent Raj Kumari has been managing the property and has been receiving rent from the tenant, as Raj Kumari being a Govt. servant was posted outside Delhi, but for the purpose of filing an eviction petition u/S. 14C and 14D, it cannot be said that she (Raj Kumari) is not the landlady. Her mother, Meera Sethi has been receiving rent as attorney/agent of Raj Kumari, the owner. The person who inducts a tenant is a landlord but an, owner is also a landlord simultaneously and suit for eviction can be filed by the owner. It is not necessary that the suit for eviction on the ground of bonafide requirement should be filed by a person who inducts the tenant. This view has been taken by the Punjab & Haryana High Court in Ram Piari vs. Delhi Fruit Co 1980 (.1) Rcr 512. The plea of the counsel for petitioner tenant that Meera Sethi had filed an application for eviction on the ground of non payment of rent and as such it is Meera Sethi who is the landlady and not Raj Kumari is not tenable. An application for eviction on the ground of non payment of rent can be filed even by a landlord alone who may not be the owner of the property, but the landlord who is not owner can not file an eviction petition for personal bonafide requirement, as provided u/S. 14(1)(e) or 14B, 14C or 14D of the Act. That application can only be filed by the owner who is also a landlord being owner of the property. It is a fact that Raj Kumari-respondent is a retired Govt. servant as well as a widow and provisions of Section 14C and 14D are available to her. It is the respondent Raj Kumari who is the owner and landlady of the suit premises, though she might not have inducted the petitioner as tenant. The rent was being realised from the tenant by Meera Sethi her mother as an agent of the owner. When an application is filed by the owner landlord/ landlady on the ground that he/she bonafide requires the premises for his/her own occupation, then it will be the need of the owner and not of the person who was there only to realise the rent though he comes within the definition of the word "landlord", which is to be looked into. I find no legal infirmity in the order of A.R.C. Revision dismissed.