Delhi High Court
M/S. Sound Craft vs Madhu Mala Properties Pvt. Ltd. on 1 December, 2015
* HIGH COURT OF DELHI AT NEW DELHI
+ RC. Revision No.312/2015 & C.M. No.11601/2015
Decided on : 1st December, 2015
M/S. SOUND CRAFT ...... Petitioner
Through: Mr. Rajendra Dutt, Advocate.
Versus
MADHU MALA PROPERTIES PVT. LTD. ...... Respondent
Through: Mr. Mahmood Hasan, Advocate.
WITH
+ RC. Revision No.341/2015 & C.M. No.12423/2015
M/S. SOUND CRAFT ...... Petitioner
Through: Mr. Rajendra Dutt, Advocate.
Versus
MADHU MALA PROPERTIES PVT. LTD. ...... Respondent
Through: Mr. Mahmood Hasan, Advocate.
WITH
+ RC. Revision No.342/2015 & C.M. No.12427/2015
M/S. AHUJA RADIO ...... Petitioner
Through: Mr. Rajendra Dutt, Advocate.
Versus
MADHU MALA PROPERTIES PVT. LTD. ...... Respondent
Through: Mr. Mahmood Hasan, Advocate.
AND
RC. Rev. Nos.312/2015, 341-343/2015 Page 1 of 12
+ RC. Revision No.343/2015 & C.M. No.12431/2015
KAMLA AHUJA ...... Petitioner
Through: Mr. Rajendra Dutt, Advocate.
Versus
MADHU MALA PROPERTIES PVT. LTD. ...... Respondent
Through: Mr. Mahmood Hasan, Advocate.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. These are four revision petitions filed against the order dated
13.4.2015. The facts in all the four matters are almost similar and the
respondent/landlord is also the same. The eviction order has been passed
on the ground that the leave to defend application was not filed within the
statutory period of 15 days. For the sake of convenience, facts of one
case bearing RC. Revision No.342/2015 are given.
2. Briefly stated the facts are that the respondent is claiming itself to
be a limited company, who had authorized one M.G. Aggarwal through
their Board Resolution to file an eviction petition in respect of property
No.13, Daryaganj, New Delhi which was under the occupation of the
present petitioner/tenant, more particularly, shown in red colour in the
site plan. Similar other portions of the same property were also under the
occupation of the other petitioners which are not in dispute. It has been
stated that as per the report of the process server, the petitioners/tenants
were served on 12.6.2014 but the present petitioners have stated that they
had received two summons one on 9.6.2014 and the other on 12.6.2014.
It was observed by the learned Rent Controller that in either case, the
period of limitation of 15 days would expire on 23.6.2014 or 26.6.2014
because according to Section 25 B (4), the leave to defend has to be filed
within a period of 15 days from the date of service and in the instant case,
the leave to defend was filed on 1.7.2014, because the petitioner/tenant
took the plea that the civil courts were closed from 8.6.2014 to 30.6.2014
and therefore, it was filed on reopening day. The learned Rent Controller
observed that the court of Rent Controller was open during summer
vacation and reproduced the duty roster for the month of June, 2014
which was as under :-
"OFFICE OF THE RENT CONTROLLER (CENTRAL)/THC: DELHI
CIRCULAR
Subject: Detention of one Rent Controller during summer vacation,
2014.
In pursuant to letter No.36866/SV/RC/Gaz/2014 dt.
23/05/2014 on behalf of Ld. District & Sessions Judge (HQ), Tis Hazari
Court, Central Distt., Delhi and in partial modification in circular
No.378/RC (Central)/2014 dt. 28/05/2014, Sh. Sunil Kumar-2, Ld. ARC,
Central, in place of Sh. Sandeep Garg, Ld. ACJ/ARC, Central, is detained
to look after the urgent rent matters of Central Distt., during the period
02/06/2014 to 20/06/2014. After the aforesaid modification, the
following Rent Controller/Additional Rent Controller, Central Distt., are
detained during summer vacations 2014 to look after the urgent rent
matters of Central District under the Delhi Rent Control Act, 1958:
S. No. Name of RC/ARC Period of detention District
1. Sh. Sunil Kumar-2, Ld. 02/06/2014 to 20/06/2014 Central
ARC, Central Distt.
2. Ms. Charu Aggarwal, 02/06/2014 to 07/06/2014 Central
Ld. SCJ/RC, Central &
Distt. 19/06/2014 to 30/06/2014
Sd/-
(Charu Aggarwal)
SCJ/RC-(Central)
THC/Delhi-05/06/2014
No........... RC (Central)/2014
Copy forwarded for information to:
(i) Ld. District & Sessions Judge (HQ)/THC/Delhi.
(ii) Sh. Sunil Kumar-2, Ld. ARC, Central, THC, Delhi.
(iii) Sh. Sandeep Garg, Ld. ACJ/ARC, Central Distt., THC.
(iv) AAO, Central District, Delhi.
(v) Office file.
Sd/-
(Charu Aggarwal)
SCJ/RC-(Central)
THC/Delhi-05/06/2014"
3. On the basis of the aforesaid duty roster, the learned Rent
Controller observed that as it is settled that the leave to defend has to be
filed within a period of 15 days and the same has not been done in the
instant case, irrespective of the fact whether they were served on 9.6.2014
or 12.6.2014, the leave to defend was summarily rejected and the eviction
order was to follow. Accordingly, the learned Additional Rent
Controller-1/Central, Tis Hazari, passed an eviction order.
4. The petitioner, in the present petition, has challenged the rejection
of the leave to defend on the ground that the aforesaid view taken by the
learned Additional Rent Controller is contrary to the view expressed by
the learned single judge in case titled M/s. Flowmore Pvt. Ltd. Vs. Keshav
Kumar Swarup; AIR 1983 Delhi 143 wherein under similar
circumstances, the learned Rent Controllers were deputed to attend to the
urgent matters and applications during the summer break in the year 1980
and the leave to defend was filed only on the reopening day. The same
was considered to be within limitation of 15 days, the tenant having been
served during the vacation and the leave to defend application having
been filed within 15 days of the date of service, the same was treated as
within limitation and the case was directed to be considered on merits.
5. As against this, the learned counsel for the respondent/landlord has
relied upon the judgment of Prithipal Singh vs. Satpal Singh (dead)
through LRs; 2010 I AD (SC) 370 to contend that if the leave to defend
application is not filed within the statutory period of 15 days from the
date of service, the eviction order has to necessarily follow. It has been
contended that a circular which is issued by the learned District Judge
deputing two Rent Controllers on various dates to attend urgent matters is
indicative enough of the fact that the leave to defend application, if so
required to be filed on account of expiry of 15 days, the same should have
been done during vacation. The learned counsel has drawn the attention
to various paragraphs of the said judgment which are reproduced as
under:-
"15 ..............If the summons of the proceeding is received
by the tenant, he has to appear and ask for leave to contest
the eviction proceeding within 15 days from the date of
service of notice upon the tenant and if he fails to do so,
automatically, an order of eviction in favour of the landlord
on the ground of bona fide requirement shall be made.
xxxxxxxxxxxx
21. .................Section 25B of the Act is a complete code by
which the entire procedure to be adopted for eviction of a
tenant on the ground of bona fide requirement filed by the
landlord in respect of a premises, shall be followed. As
noted herein earlier, Section 25B (1) clearly says that any
application filed by a landlord for recovery of possession of
any premises, inter alia, on the ground of Section 14 (1) (e)
of the Rent Act, shall be dealt with in accordance with the
procedure specified in Section 25B of the Rent Act.
Therefore, sub-section (1) of Section 25B makes it clear that
if any application for eviction of a tenant is filed by
landlord, the special procedure indicated in Section 25B
has to be followed and Section 25B (1) clearly stipulates
that the application for eviction shall be strictly dealt with
in accordance with the procedure specified in this Section.
xxxxxxxxxxxxxxx
30. ...........It is difficult to understand how an application
for leave to contest having been rejected, may be on the
ground of delay, could be allowed when it is not disputed by
the tenant respondent that no application for condonation of
delay could be entertained by the Rent Controller as the
provisions of the Limitation Act, 1963 could not be
attracted."
6. I have carefully considered the submissions made by the respective
sides and have gone through the judgments cited by the learned counsel
for the parties.
7. At the outset, it must be stated that so far as Prithipal Singh's case
(supra) is concerned, the question which was involved in the said
judgment was not with regard to filing of the leave to defend application
on the reopening day of the court after vacation on account of closure for
summer break or any other break but the question which was involved
before the Supreme Court was as to whether the Rent Controller has the
power to condone the delay or not.
8. While considering such a question as to whether the Rent
Controller has the power to condone the delay, the Supreme Court has
observed that the leave to defend has to be filed within a period of 15
days statutorily and the failure to do so, invites an order of eviction
because the Rent Controller does not have any power to condone the
delay. But this judgment will not cover the facts of the present case. The
question involved in the present case is filing of the leave to defend
application on the opening day after summer break. No doubt, there is a
circular issued by the learned District Judge deputing two Rent
Controllers or Additional Rent Controllers for attending to urgent matters
during vacation but the fact of the matter remains that what are the kind
of urgent matters are to be dealt with by the Rent Controller, is not
specified in the order. Therefore, this circular in itself becomes
ambiguous as to whether it is only with regard to matters where deposit
of rent is involved or where somebody's essential amenity is
disconnected and an application for restoration is filed, that it will be
considered as an urgent matter. This question as to whether the filing of
the leave to defend application, which is required to be filed within a
period of 15 days from the date of service, is not specifically specified as
an urgent matter in the circular. Further, this ambiguity gets further
confounded because if that was the intention of the learned District Judge,
who had issued the circular, then it ought to have been stated by way of a
note or in the main body itself that for the purpose of limitation, the
period of vacation will not be excluded. Meaning thereby that the very
fact that the period of vacation is not mentioned as a period to be
excluded ,leaves the person with an ambiguity as to whether he can file
the leave to defend application on reopening or not.
9. The another vital aspect of the matter which also deserves to be
considered is the fact that so far as the publicity of the circular is
concerned, it is not known as to how or as in what manner, the publicity
has been given to the circular whether it is known to the public at large
and to the counsel in general that the persons who have been served
during vacation are required to file the leave to defend application within
a period of 15 days even if the said period is expiring on the date of
limitation.
10. I feel that the judgment passed by Hon'ble Justice Yogeshwar
Dayal in M/s. Flowmore's case (supra) squarely covers the facts of the
present case. In that case, the facts were somewhat similar; the petitioner
was served with the summons in respect of eviction petition on
10.6.1980, the tenant had filed the application for leave to contest the
eviction petition on 30.6.1980. The court of Rent Controller and
Additional Rent Controller were closed during the period of 2.6.1980 to
29.6.1980 and they were only authorized to do certain specified urgent
matters and applications for leave to appear and contest in eviction
petition was not a matter which they were authorized to entertain during
that period. It is not known from the facts as to whether in the said
circular, leave to appear and contest the eviction petition was specifically
excluded or not but I assume that it was specifically not mentioned in the
circular and, therefore, the leave to defend application filed on the
opening day after vacation was treated to have been filed within time.
The present circular is in line with the circular which was issued in 1980
as is apparent from the facts. Nothing has been brought to my notice to
the contrary by either the petitioner or the respondent to change my view
in this regard. Because of these facts in M/s. Flowmore's case (supra),
since the leave to defend was filed on 30.6.1980 and till 29.6.1980 the
courts were closed, therefore, by virtue of Section 4 of the Limitation Act
read with Section 10 of the General Clauses Act, it was observed that the
leave to defend which was filed on reopening, was considered to be
within limitation.
11. I feel that the facts of the M/s. Flowmore's case (supra) squarely
cover the present case. I, therefore, feel that the order passed by the
learned Rent Controller is patently against the law laid down by our own
High Court as early as in 1980 and this judgment has not been taken note
of by the learned Rent Controller as it seems that the said judgment was
not pointed out by any of the parties.
12. I, accordingly, set aside the order of the learned Rent Controller
passed on 13.4.2015 and direct the parties to appear before the learned
Rent Controller on 18.1.2016. The learned Rent Controller shall decide
the leave to defend application after giving an opportunity to the
respondent/landlord to file reply to the leave to defend and decide the
same on merits.
13. With the aforesaid directions, all the four petitions stand disposed
of. Expression of any opinion hereinabove may not be treated as an
expression on the merits of the case.
V.K. SHALI, J.
DECEMBER 01, 2015
'AA'
