Kiran Hazrati vs Meena Chandna
2010 Latest Caselaw 513 Del

              IN THE HIGH COURT OF DELHI AT NEW DELHI

+             RC.REV. 19/2010 & CMs No.1757, 1758 & 1759/2010

                                                     Decided on 29.01.2010

IN THE MATTER OF :

KIRAN HAZRATI                                              ..... Petitioner
                                        Through Mr.Sachin Mishra, Advocate

                   versus

MEENA CHANDNA                                                ..... Respondent
                                        Through Mr.Jitender Mehta, Advocate

     CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may
        be allowed to see the Judgment?                    Yes

     2. To be referred to the Reporter or not?             Yes

     3. Whether the judgment should be
        reported in the Digest?                             Yes


HIMA KOHLI, J. (Oral)

1. The present petition is directed against an order dated

28.7.2009 passed by the learned Additional Rent Controller, dismissing the

application filed by the petitioner/tenant for leave to defend an eviction

petition preferred by the respondent/landlady under Section 14(1)(e) of the

Delhi Rent Control Act, 1958(for short `Act') in respect of one shop on the

ground floor portion of property bearing No.4/1, Subhash Nagar, New Delhi.

2. Counsel for the petitioner/tenant explaining the delay in preferring the

present petition by stating that the delay occurred on account of the fact

that due to bona fide inadvertence, the petitioner/tenant had assailed the

impugned order before the Rent Control Tribunal, by filing an appeal in the

month of August 2009, which was ultimately withdrawn by her, as recorded

in the order dated 14.12.2009 passed by the Tribunal, certified copy of

which is placed on the record.

3. A perusal of the impugned order shows that the leave to defend

application filed by the petitioner/tenant was filed beyond the statutory

period of 15 days. Though the learned ADJ observed that the court had no

authority to extend limitation beyond the stipulated period as provided for,

under the Act Delhi Rent Control Act, he proceeded to deal with the merits of

the case and held that the petitioner/tenant had failed to raise any triable

issue.

4. Counsel for the respondent submits that in view of the aforesaid

observation of the learned Additional Rent Controller with regard to

maintainability of the leave to defend application beyond the period of

limitation as prescribed under the Act, the same was liable to be rejected on

the said ground alone, without proceeding to deal with the merits of the

case. There is merit in the aforesaid submission of the counsel for the

respondent. If the learned Additional Rent Controller was of the opinion that

the leave to defend application had been filed by the petitioner beyond the

prescribed period of limitation, then the matter ought to have rested there

and the Court ought not to have proceeded to examine the case on merits.

5. At this stage, counsel for the petitioner states that the petitioner

be given two weeks' time to approach the learned Additional Rent Controller

by filing an appropriate application under Order XXXVII Rule 4 of the Code of

Civil Procedure, for seeking setting aside of the order of eviction passed on

the ground that her leave to defend application was filed beyond the

prescribed period under the Act.

6. It is settled law that in such circumstances, as noted above, the

petitioner has a remedy available to her under Order XXXVII Rule 4 of the

CPC, as observed by the Division Bench of this Court in the case of

Mohd.Quresh Vs. Roopa Fotedar & Ors., reported as ILR 1990 Delhi 16 and

reiterated in the case of Prithi Pal Singh Vs. Satpal Singh reported as 133

(2006) DLT 686. It was observed in Mohd. Quresh (supra) as below :

"(33) 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 XXXVII Rule 4 of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure, to set aside the eviction order for some special reasons or in the interests of justice."

7. In these circumstances, the present petition along with the

pending applications are disposed of while granting liberty to the petitioner

to file an application before the learned Additional Rent Controller, under the

provisions of Order XXXVII Rule 4 of the Code of Civil Procedure, within

three weeks with an advance copy to the counsel for the respondent. The

parties are directed to appear before the learned Additional Rent Controller

on 26.2.2010, for further proceedings. The learned Additional Rent

Controller shall consider the aforesaid application of the petitioner and

dispose of the same in accordance with law.

                                                             (HIMA KOHLI)
JANUARY 29, 2010                                               JUDGE
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