Delhi High Court

Sh. Anil Jain vs Sh. Niwas Aggarwal & Ors. on 3 March, 2011

Author: S.L.Bhayana

              IN THE HIGH COURT OF DELHI AT New Delhi

              RC.REV. No. 298/2010 & C.M. No. 22037/2010

                                Date of Decision:- 03.3.2011



Shri Anil Jain                                                ...Petitioner

                                      Through:    Mr.     C.S.    Rathore,
                                      counsel for the petitioner.

                                Versus

Sh. Niwas Aggarwal & Others                              ...Respondents

                                       Through: Mr. Ashish Pandey with
                                       Mr. Praveen Mishra, counsel for
                                       the respondents.

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

       1.     Whether reporters of local paper may be
              allowed to see the judgment?                    Yes
       2.     To be referred to the reporter or not?          Yes

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



S. L. BHAYANA, J.

The present revision petition under section 25-B(8) of Delhi Rent

Control Act, 1958 (for short as "the Act") has been filed by the

petitioner against the order dated 20.10.2010 passed by Additional

Rent Controller (for short as "the Controller") Delhi, vide which leave to

defend/contest the eviction petition has been dismissed and an

eviction order is passed under section 14 (1) (e) read with section

25(B) of Act against the petitioner in respect of suit premises.

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

alleged by the petitioner/tenant are that the petitioner/tenant is in

physical possession of a ground floor bearing No.G-2, of House

Property C-16 (Part), West Old Arjun Nagar, Delhi -51, from May/June,

2006 onwards which was initially let out by verbal rent agreement by

Shri Gyan Chand Jangra i.e. father of respondent herein @ Rs. 2700/-

per month excluding electricity and water charges, hereinafter referred

to as "suit premises".

3. Thereafter, the monthly rent was increased to Rs. 3,000/-

sometime in the year 2007 to 2009. Again the monthly rent was

increased in January 2010 to Rs.3,300/- excluding water and electricity

charges. The rent was collected either by the father or by the

respondent himself mostly through cash and the petitioner did not

insist for issuing rent receipts, therefore the receipts were not issued

by the respondent or his father as at that time both the respondent

and the petitioner were having cordial relations.

4. That, after making payment of past arrears of rent by the

petitioner and other charges qua the suit premises, an unregistered

written rent agreement initially for further period of 2 years in respect

to the suit premises was entered into between the petitioner and the

respondent signed and notarized on 6.1.2010. But the respondent

fraudulently mentioned the commencement of the period of tenancy

from 1.12.2008 to 31.12.2010 and obtained the signatures of the

petitioner thereupon without disclosing the said dates by taking an

undue advantage of the illiteracy of the petitioner. The copy of the said

rent agreement was never provided to the petitioner by the

respondent despite request.

5. Later on the respondent delivered a rent receipt of payment of

earlier period but it did show up-to-date payment of rent made by the

petitioner. However, the respondent permitted the petitioner to furnish

the suit premises at his own expenses and the petitioner made

required renovation inside the suit premises as per his family's

requirement, which was also lying unfurnished since 2006. As such the

petitioner spent about Rs. one lakh on furnishing of the suit premises

and the said fact is well within the knowledge of the respondent and

his father.

6. The petitioner received a legal notice dated 28/30.4.2010 for the

first time in the month of May 2010.

7. The respondent has received the rent and other charges upto the

month of July 2010 including cheque NO.322782 dated 8.5.2010 drawn

on PNB in the name of the respondent for a sum of Rs. Rs.3,300/- and

another cheque No.322787 dated 27.6.2010 for a sum of Rs.7,900/-

drawn on PNB, Delhi, has been paid by the petitioner towards

electricity bills to the BSESYP Ltd. and the same has been cleared from

the bank account of the petitioner.

8. Despite the payment of electricity charges made by the the

petitioner the respondent and his father have withheld the electricity

and water supply of suit premises with malafide intention to evict the

petitioner.

9. Thereafter, the respondent filed an eviction petition and

summons of the petition were served upon the wife of the petitioner on

7/8/ June,2010. When the petitioner tried to enquire about the case

from the record of the Additional Rent Controller's, Court he came to

know that the courts are closed for summer vacations from 7th June to

30th June and will re-open on 1st July, 2010 and any application

regarding the case can be filed only in the concerned court after re-

opening on or after 1.7.2010.

10. The petitioner was on complete bed rest till 26.6.2010and being

an illiterate person he could not file the leave to contest application

within the statutory period of 15 days. The petitioner has filed

application for leave to defend/contest application before the

Additional Rent Controller on 3.7.2010, along with the application

under section 5 of Limitation Act, therefore, there was delay of 10

days. But the Additional Rent Controller has rejected the application of

the petitioner herein on 20.10.2010 which was filed under section 5 of

the Limitation Act and consequently dismissed his leave to defend

application on the ground that the Rent Controller does not have a

power to condone the delay in filing leave to defend/contest

application under section 14(1) (e) read with section 25-B, of Delhi

Rent Control Act.

11. I have heard the arguments advanced by the learned counsel for

the parties and perused the record carefully. I find that the contention

of the counsel for the petitioner is that the eviction petition has been

filed by the respondent herein and the summons were served upon the

wife of the petitioner on 7/8/6.2010. Thereafter, the petitioner came to

know that that the courts are closed for summer vacations from

7.6.2010 to 30.6.2010 and the court will re-open on 1.7.2010.

12. The petitioner is an illiterate person therefore, he could not file

application for leave to defend/contest within the statutory period of 15

days and he has filed it only on 3.7.2010. Therefore, his application for

leave to defend/contest has been dismissed by the learned ARC on the

ground that the leave to defend application has been filed beyond the

period of limitation.

13. Learned counsel for the respondent has asserted that there was

a delay of more than 10 days, which has not be condoned by the

Controller as the Rent Controller has no power to condone the delay in

filing leave to defend application under section 14 (1) (e) read with

section 25-B of the DRC Act.

14. 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:-

"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 the 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.

XXX XXX XXX 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".

15. 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.

16. For the aforesaid reasons the Rent Controller has dismissed the

leave to defend application being barred by limitation and has held

that the Rent Controller has no power to condone the delay in filing the

application for leave to defend by the petitioner.

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