Delhi High Court
Smt. Ram Pyari Through Lrs vs Sh. Sheikh Mohd. Arif & Ors. on 28 August, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC. REV. No.618/2012
% 28th August, 2014
SMT. RAM PYARI THROUGH LRS ......Petitioners
Through: Mr. N.M. Popli, Advocate.
VERSUS
SH. SHEIKH MOHD. ARIF & ORS. ...... Respondents
Through: Mr. A.J. Bhambhani, Senior Advocate
with Mr. J.K. Srivastava, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The impugned order of the Additional Rent Controller dated
7.12.2011 decrees the eviction petition for bonafide necessity under Section
14(1)(e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the
Act') inasmuch as leave to defend application was not filed within the
prescribed statutory period of 15 days. The Additional Rent Controller has
therefore relied upon the judgment of the Supreme Court in the case of
Prithipal Singh Vs. Satpal Singh (dead) through LRs (2010) 2 SCC 15 to
hold that there is no provision by which delay can be condoned and hence
the eviction petition has been decreed.
2. Since the impugned order dated 7.12.2011 is a short order, I
reproduce the same as under:-
"This is a petition u/s 14(1)(e) r/w section 25B of DRC Act 1958 as
filed by petitioners against the respondents on the ground of bonafide
requirement. It is stated that petitioners are the landlord and
respondents are tenant in respect of one room, bath on ground floor
and two rooms, latrine and kitchen on the first floor excluding the roof
of the property bearing no.5346, Gali Petti Wall, Sadar Bazar, Delhi-6
as shown in the red and green in the site plan attached with the
petition, on a monthly rent of Rs.330/- p.m. exclusive of other
charges.
Summons as per form specified in IIIrd Schedule of DRC Act 1958
were duly served upon all the respondents on 29.10.2011. However,
application for leave to contest was filed on 05.12.2011 and an
application u/s 151 CPC r/w section 5 of the Limitation Act on behalf
of all the respondents for condonation of delay, was filed on
02.12.2011. It is submitted that delay of 21 days in filing of
appearance application for respondent no.1-4 be condoned. Ld.
counsel for petitioner submits that this court has no power to condone
the delay in moving the application for leave to contest u/s 25B of
DRC Act 1958.
Admittedly, application for leave to contest has not been filed
within stipulated period and in view of section 25-B(4) of DRC Act,
1958, the statement made by the landlord, in the application for
eviction shall be deemed to be admitted by the tenant and petitioner is
entitled to an order for eviction on the abovesaid ground.
In an authority reported as 2010 (1) UJ 239 (SC) titled as Pritpal
Singh V. Satpal Singh (dead) through LRs. it was held by Hon'ble
Supreme Court and I quote:-
".... Whether the additional Rent Controller is competent to recall
orders of eviction on an application under Order 9 Rule 13 read with
Order 37 Rule 4 and Section 151 of the Code and condone the delay in
applying for leave to defend when he was not conferred with such
power to condone the delay in filing the application for leave to
defend the eviction proceedings under the Rent Act specially when
such application was earlier rejected by the Additional Rent Controller
on the ground of delay - Held, Section 25B was inserted by the
Legislature for eviction of a tenant of a certain classes of landlords, in
which the entire procedure has been given - 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 bonafide
requirement, has to follow strictly in compliance with Section 25B of
the Act - Rule 13 since has no manner of application, because of
applicability of Section 25B, it cannot be agreed that the provisions of
the Code can be applied in the present case -"
In view of above law, settled by Hon'ble Supreme Court, this court
has no power to condone the delay in filing the application for leave to
contest u/s 25B of DRC Act 1958. Accordingly, application as filed
by respondents u/s 151 CPC r/w section 5 of Limitation Act dt.
02.12.2011, is not maintainable and stands dismissed.
In view of provisions of section 25-B(4) of DRC Act 1958, petition
stands allowed and an eviction order is passed in respect of tenanted
premises i.e. one room, bath on ground floor and two rooms, latrine
and kitchen on the first floor excluding the roof of the property
bearing no. 5346, Gali Petti Wali,Sadar Bazar, Delhi- 6 as shown in
the red and green in the site plan attached with the petition, however,
in view of section 14(7) of the DRC Act, this order shall be executable
after the expiration of period of six months from today.
File be consigned the Record Room."
3. As per Section 25B(4) of the Act, once there is no leave to
defend application, contents of the eviction petition are deemed to be
admitted. Once, contents of the eviction petition are deemed to be admitted,
the eviction order has to follow and as noted in the last para of the impugned
order which is reproduced above.
4. Learned counsel for the petitioner has sought to place reliance
upon the Constitution Bench judgment of the Supreme Court in the case of
Nathi Devi Vs. Radha Devi Gupta (2005) 2 SCC 271. I really fail to
understand that why at all this judgment is cited inasmuch as the issue in that
case is not with respect to non-filing of the leave to defend application
within time and consequent decreeing of the eviction petition as per Section
25B(4) of the Act read with ratio of the judgment of the Supreme Court in
the case of Prithipal Singh (supra).
5. Learned counsel for the petitioner then sought to argue that the
respondent/landlord is guilty of concealing facts, however, no such argument
can be permitted inasmuch as such argument had to be taken up in the leave
to defend application, and once there is no leave to defend application, any
aspect of facts/merits or otherwise cannot be examined, and eviction petition
had to be decreed in view of Section 25B(4) of the Act.
6. In view of the above, there is no merit in the petition, and the
same is therefore dismissed, leaving the parties to bear their own costs.
Interim order of payment of user charges passed by a learned Single Judge
of this Court on 23.5.2014 will stand confirmed. Whatever amount has been
deposited by the petitioner in this Court be released to the respondent
alongwith accrued interest thereon by the Registry within four weeks from
today.
VALMIKI J. MEHTA, J
AUGUST 28, 2014
Ne
