Rena Verma vs Veena Gupta
2012 Latest Caselaw 4633 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                             CM(M.) 178/2012

                                                 Date of Decision: 06.08.2012

RENA VERMA                                            ..... PETITIONER

                           Through:     Mr. B.B. Sharma, Adv.


                           Versus

VEENA GUPTA                                           ......RESPONDENT

                           Through:     Mr. Rajiv Bajaj, Adv.


CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. The petitioner has invoked Article 227 of the Constitution of India to challenge the validity of order dated 19.12.2011 passed by the Ld. ARC, whereby the application of the petitioner under Order 37 Rule 4 read with Section 151 of the Code of Civil Procedure (CPC) was dismissed.

2. The sequence of events that led to the passing of the impugned order in brief is that the respondent filed an eviction petition in respect of property bearing no. L-24, second floor, South-Ex, Delhi, seeking eviction of the petitioner on the ground of bonafide requirement. The summons of the said petition were served upon the petitioner on 18.01.2011. The petitioner then

filed an application on 01.02.2011, praying for direction to the respondent to supply legible copies of the petition to her. The matter came up before the Ld. ARC on 11.02.2011, who issued notice to the respondent on this matter.

3. After hearing arguments of both parties on the issue, the Ld. ARC dismissed the application of the petitioner on 23.02.2011.The petitioner then filed the application seeking leave to defend along with an application for condonation of delay under Section 5 of the Limitation Act. On 27.04.2011, the Ld.ARC passed an eviction order against the petitioner, noting that there is no provision in the Delhi Rent Control Act (DRCA) for condonation of delay in filing leave to defend application. The petitioner then proceeded to file an application under Order 37 Rule 4 read with Section 151 of (CPC) for recalling of the order dated 27.04.2011 on the ground that she was not served with summons as mandated under Section 25 B read with Schedule III of DRCA.

4. While dismissing the said application, the ld. ARC observed thus :

" 2......If, the copy of petition supplied to the respondent was not legible and incomplete, it was incumbent upon the respondent to approach the Court immediately or at least on the date fixed i.e., 28.01.2011 and then prayed for supply of legible and complete set of eviction petition and documents. However, perusal of the order sheet dt. 28.01.2011 revealed that there was no appearance on behalf of respondent on that day. The application of respondent for direction to the petitioner to supply legible copy of petition was filed on 11.02.2011. Respondent has not explained as to how the said application was not moved immediately after the service of summons.

Therefore, it cannot be said that special circumstances exists in the present case warranting the review of order dt. 27.04.2011.

3. The order sought to be reviewed was passed on 27.04.2011 and the present application was filed by the respondent on 30.09.2011. It is clear that the application was filed beyond the period of limitation. The application is not accompanied by any application for condonation of delay. Therefore, the application is barred by the limitation. Accordingly, the application for review of order dt. 27.04.2011 is dismissed."

5. The impugned order has been challenged by the petitioner on the ground that the Ld. ARC has ignored the provisions of Section 37 Rule 4 CPC and not considered his submission that the copy of the petition served upon him was not legible and hence the petitioner could not file the leave to defend application within the statutory period of 15 days.

6. The learned counsel for the respondent pointed out that the possession of the tenanted premises has been taken by the respondent in the execution proceedings. This has not been controverted by the petitioner.

7. The contention of the petitioner before this court is that the copy of the eviction petition was illegible and hence rendered her unable to file the application for leave to defend. The same contention was urged by the petitioner before the ld. ARC, but the perusal of record shows that after service of summons, the petitioner took no step to obtain the copy of petition or to bring the matter before the trial Court immediately, but instead waited till last day, i.e., 01.02.2011 to file an application for direction to the petitioner to supply legible copy of petition. The only reason put forward by

the petitioner was that no steps could be taken by him due to his marriage. Even the application filed under Order 37 Rule 4 of CPC on 30.09.2011 for review of order dated 27.04.2011, was time barred and was not accompanied with the application for condonation of delay. The whole chain of events displays chronic apathy on the part of the petitioner, and I am unable to find the presence of any special circumstances existed which could merit the condonation of delay in filing the application for leave to defend.

8. Moreover Section 25B of DRCA, which provides for summary trial of applications for eviction on the ground of bonafide requirement, is a code in itself and the provisions of Code of Civil Procedure have no applicability in proceedings instituted under the said Section. Sub-section (1) of Section 25 B clearly stipulates that the application for eviction shall be strictly dealt with in accordance with the procedure specified in this Section. There is no such thing as any inherent power of court to condone delay in filing an application for leave to defend before Court/Authority concerned, unless the law warrants and permits it, since it has a tendency to alter the rights accrued to one or the other partly under the DRCA. In Prithipal Singh Vs. Satpal Singh(Dead) through LRs. 2009(14)SCALE 672, the question of applicability of the provisions of CPC for condonation of delay in filing leave to defend application was raised before the Apex Court. While answering the question in negative, the Apex Court held that Section 25B was inserted by the Legislature for bonafide requirement of a certain classes of landlords, in which the entire procedure has been stipulated. Section 25B itself is a special code and therefore, Rent Controller, while dealing with an

application for eviction of a tenant on the ground of bona fide requirement, has to follow strictly in compliance with Section 25B of the Act.

9. In view of above discussion, I find no infirmity or illegality in the order of the Ld. ARC dismissing the application of the petitioner. The petition, being without any merit is hereby dismissed.

M.L. MEHTA, J.

AUGUST 06, 2012 ss