Shiv Gopal & Anr. vs Shipra Singh & Ors.
2011 Latest Caselaw 830 Del

               IN THE HIGH COURT OF DELHI AT New Delhi

                           RC. REV. No. 9/2011

                                 Date of Decision:- 11.2.2011

       Shiv Gopal & Anr.                                 ...Petitioner
                                       Through:   Mr. A.K.Nigam, Sr. Adv.
                                       with Mr. Satya Narayan for
                                       Petitioner

                                 Versus

       Shipra Singh & Ors.                               ...Respondent

                                        Through: Mr. S.K. Chachra, Adv.
                                        for Respondent No.1

       CORAM:
       HON'BLE MR. JUSTICE S.L. BHAYANA

       1.      Whether reporters of local paper may be
                allowed to see the judgment?

       2.      To be referred to the reporter or not?

       3.      Whether the judgment should be referred in
               the Digest?

S. L. BHAYANA, J.

The present petition is filed under Section 25-B of Delhi Rent

Control Act against the order dated 13.7.2010 passed by the Additional

Rent Controller, wherein the trial court has dismissed leave to defend

application filed by the petitioner/tenant and passed an eviction order

against the petitioner herein.

2. The facts necessary to be highlighted in the present petition are

that the petitioner herein was served by Registered Post on 13.2.2009

and the returnable date was 16.3.2009. As per statutory provision the

leave to defend application was to be filed latest by 28.2.2009 (i.e.

within 15 days). According to the petitioners they have signed the

application of leave to defend on 28.2.2009 and handed over such

application after lunch at about 3 P.M. to the Reader of the Learned

ARC, on that day it was Saturday. Next day i.e. on 1.3.2009 it was

Sunday. Subsequently, on 2.3.2009 the petitioner came know that the

Reader put up the application before the Learned ARC on 2.3.2009 and

upon which the following endorsement was made "Be put up on date

fixed with the file. Sd/-ARC, ND 2.3.2009" and on that very day the

counsel for petitioner was not present. Accordingly, after hearing the

arguments on the application the Learned ARC has dismissed the

application for leave to defend the eviction petition on the ground of

not filing within the statutory time frame of 15 days as provided in the

DRC Act.

3. Learned counsel for the petitioner has asserted that the

impugned judgment is bad in law and the Learned ARC has not

appreciated the correct facts that the counsel has handed over the

copy of the application to Reader of the Learned ARC on 28.2.2009 at

about 3 P.M. and the endorsement on that application was not made in

the presence of the counsel for the petitioner and he was also not

present in the court on 2.3.2009. Therefore, there is no delay on the

part of the petitioner as well as his counsel as he has handed over the

application to the Reader on the last day of expiry of the statutory

period of 15 days.

4. On the other hand learned counsel for the respondent has

asserted that application for leave to defend the eviction petition was

filed on 02.3.2009 and if the last service of summon by post upon the

petitioner is considered to be served by AD card on 13.2.2009 even

then, the leave to contest has to be filed by 28.2.2009. If, the date

13.2.2009 is excluded for the purpose of limitation the leave to defend

has to be filed on 28.2.2009.

5. Learned counsel for the petitioner/tenant has relied upon the

judgments of Supreme Court in cases Tharia Ram V/s. Chitra Devi

etc.,1983 RLR 482, State of Maharashtra V/s. Ramdas Shrinivas

Nayak, AIR 1982 SC 1249, and Jagdish Prasad V/s. Phool Wati Devi,

1980 RLR 367. The facts of these citations are not applicable to the

facts of the present case.

6. I have heard learned counsel for both the parties and perused

the record. The contention of the learned counsel for the petitioner

that the application for leave to defend was filed on 28.2.2009 is not

supported from the record. There is an endorsement of the learned

A.R.C on the said application "Be put up on date fixed with file. Sd/-

A.R.C dt. 2.3.2009". The endorsement of the A.R.C on the application

also bears his signatures and date i.e. 2.3.2009. Had the petitioner

submitted the said application on 28.2.2009, the A.R.C would not have

put the date as 2.3.2009 but would have put the date as 28.2.2009.

So the record shows that the said application was not filed before the

Trial Court on 28.2.2009 but was filed only on 2.3.2009.

7. From the materials on record it is clear that the application for

leave to contest the eviction petition under section 25-B of the Act has

to be made within 15 days from the date of service of the summons. In

this case, the application for leave to contest the eviction petition was

filed two days after the said period had expired. The issue for

consideration before me is whether the Rent Controller was right in

rejecting the application on the ground that he had no jurisdiction to

condone the delay under the Act.

8. In Om Prakash V/s. Ashwani Kumar Bassi, AIR 2010 SC3791,

the Supreme Corut while deciding the question of condonation of delay

in filing the leave to defend application has held that the Rent

Controller has no power to condone the delay. The Hon'ble Supreme

Court has laid down the law as under:-

"17. Section 13B is a power given to a Non-Resident Indian owner of a building to obtain immediate possession of a residential building or scheduled building when required for his or her use or for the use of any one ordinarily living with and dependent on him or her. The right has been limited to one application only during the life time of the owner. Section 18A (2) of the aforesaid Act provides that after an application under Section 13B is received, the Controller shall issue summons for service on the tenant in the form specified in Schedule II. The said form indicates that within 15 days of service of the summons the tenant is required to appear before the Controller and apply for leave to contest the same. There is no specific provision to vest the Rent Controller with authority to extend the time for making of such affidavit and the application. The Rent Controller being a creature of statute can only act in terms of the powers vested in him by statute and cannot, therefore, entertain an application under Section 5 of the Limitation Act for condonation of delay since the statute does not vest him with such power.

18. In such case, neither the Rent Controller nor the High Court had committed any error of law in rejecting the petitioner's application for seeking leave to contest the suit, since the same had been filed beyond the period prescribed in the form in Schedule II of the Act referred to in Section 18A (2) thereof".

9. Keeping in view the law laid down by the Hon'ble Supreme Court,

I am of the opinion that Section 25-B of the Delhi Rent Control Act is a

complete Code by itself and other provisions could not, therefore, be

brought into play in such proceedings. In the instant case, the same

principle would apply having regard to the fact that the Rent Controller

had not been conferred with power to condone the delay even for one

day. The Rent Controller has rightly observed on submissions made on

behalf of the respective parties, which is reproduced as under:

"It is not in dispute between the parties that the leave to defend has to be filed within 15 days from the service of summons. The Rent Controller has no power to condone the delay in filing leave to defend. The respondents No.1 &2 had lastly served by AD card on 13.2.2009. The date of 13.2.2009 is excluded for the purpose of limitation then the leave to defend has to be filed by 28.2.2009 in court hours. The leave to defend has been filed on 2.3.2009 and I have made an order on the application as "Be put up on date fixed with file. /Signatures/" The order itself says that the file has not been put up on the application and the order was made to put up the leave to contest application along with file on the date fixed. The argument of the learned counsel for applicant/respondent No.1&2 are, not sustainable that he had filed the application on 28.2.2009."

10. For the aforesaid reason the Rent Controller has dismissed the

leave to defend being barred by limitation.

11. Thus, the Trial Court has given a detailed and reasoned order

which does not call for any interference nor the same suffers from any

infirmity or erroneous exercise of jurisdiction.

12. The present petition is hereby dismissed accordingly. However,

there will be no order as to costs.

S.L.BHAYANA,J

FEBRUARY 11, 2011