Sukhmal Jain vs Bhagwati Devi & Another
1998 Latest Caselaw 1068 Del

ORDER

C.M. Nayar, J.

1. The present petition is directed against the Orders dated 6th December, 1994 and 9th May, 1996 respectively passed by the Additional Rent Controller, Delhi. The first Order declined to entertain the application for leave to defend on merits as it was filed after 17 days of service and the delay was held not condonable. The second Order disposed of an application filed by the petitioner under Section 151 of the Code of Civil Procedure for condensation of delay in filing an application for leave to defend which was also dismissed.

2. The admitted facts are that the respondents filed an eviction petition under Section 14(1)(e) read with Section 25-B of the Delhi Rent Control Act (herein- after referred to as 'the Act'). The petitioner was served on 30th April, 1994. The summons were allegedly delivered to him at the address 387 Kucha Bulaki Begum, Dariba Kalan though a plea was taken that the process server could not have gone to this address when the address was not mentioned in the process. The learned Additional Rent Controller did not accept the same and held that leave to defend application was filed two days beyond time as the petitioner himself had admitted to have received the summons on 30th April, 1994. The petitioner, however, contended subsequently that he was served on 2nd May, 1994 which plea was rejected. It is, however, not denied that the application for leave to contest was allegedly barred by time by two days. The learned Controller refused to exercise jurisdiction and passed an Order of eviction without considering the application on merits. The provisions as contained in sub-clause (4) of Section 25-B read as follows:-

"25B. (4) The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of the 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 and the applicant shall be entitled to an order for eviction on the ground aforesaid".

3. The Third Schedule prescribed the period of 15 days for appearance and for filing an application for leave to contest. The relevant proforma as contained in this Schedule reads as follows:-

"You are hereby summoned to appear before the Controller within fifteen days of the service here of and to obtain the leave of the Controller to contest the application for eviction on the ground aforesaid; in default whereof, the applicant will be entitled at any time after the expiry of the said period of fifteen days to obtain an order for your eviction from the said premises."

4. Sub-section (9) of Section 25-B further provides that the Controller may exercise powers which will imply that he may be at liberty to condone the delay in case where sufficient cause is made out. This provision may be reproduced as under:-

"25B. (9) Where no application has been made to the High Court on revision, the Controller may exercise the powers of review in accordance with the provisions of Order XLVII of the First Sched-ule to the Code of Civil Procedure, 1908 (5 of 1908)."

5. The Additional Rent Controller has relied on the judgment of the Division Bench of this Court as reported in Md.Quresh Vs. Smt. Roopa Fotedar & Ors 1990 Rajdhani Law Reporter (DB) 112 to decline the prayer for condoning the delay of two days and has further held that the judgment as reported in Surinder Kumar Vs. Prem Kumar 1980 Rajdhani Law Reporter 621 does not lay down the correct law. The Division Bench merely stated that a tenant who does not apply for permission to defend within 15 days is not entitled to condensation of delay under Section 5 of the Limitation Act. However, the option was given to the tenant to apply for setting aside of eviction order under Section 151 or under Order 37 Rule 4 C.P.C. on special reasons. The judgment as reported in Surinder Kumar's case (Supra) clearly provides that provisions of Section 25-B prescribing 15 days to file an application to leave to defend is directory and not mandatory. Paragraph 33 of the judgment as reported in Md.Quresh (supra) reads as under:

"We, hence, answer the question of law by holding that the Controller has no power to condone the delay made by the tenant in moving an application seeking leave to appear and defend an eviction case brought under Chapter III-A but after the eviction order is passed the Controller has the power under Order 37 Rule 4 of the C.P.C. read with Section 151 of the C.P.C. to set aside the eviction order for some special reasons or in the interests of justice."

p>6. In the present case there is a delay of only two days to move an application for leave to contest. There is some confusion about the method of service though admittedly the petitioner was treated to be served on 30th April, 1994. The Additional Rent Controller has already passed an eviction order on December 6, 1994 and directed that the petitioner be evicted from the tenanted premises. Therefore, the law as stated in paragraph 33 of the judgment of the Division Bench as referred to above may be applied to the facts of the present case. Taking into account the facts and circumstances of the present case the Additional Rent Controller could have set aside an Order of eviction. The petition as a consequence is allowed. The matter is remanded back to the Additional Rent Controller to treat the application of the petitioner as within time and for passing an Order on merits as to whether leave to contest is required to be granted in the facts and circumstances of the present case. He will also be at liberty to decline leave to contest and pass orders as permissible in law. There will be no order as to costs. The learned counsel for the parties shall appear before the learned Additional Rent Controller on 15th December, 1998 for further proceedings in accordance with law.