Delhi High Court
Anil Kumar vs Pramod Sharma on 26 May, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 26th MAY, 2022
IN THE MATTER OF:
+ RC.REV. 33/2020 & CM APPL. 2195/2020
ANIL KUMAR ..... Petitioner
Through: Mr. Bharat Deep Singh, Mr. Ashish
Atkaan, Advocates.
versus
PRAMOD SHARMA ..... Respondent
Through: Mr. Ankit Gupta, Advocate.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
SUBRAMONIUM PRASAD, J. (ORAL)
1. The instant Revision Petition has been filed against the Order dated
09.08.2019, passed by the learned ACJ-CCJ-ARC, Shahadara,
Karkardooma Courts, Delhi, in ARC No.128/2018.
2. The facts leading to the instant revision petition, shorn of unnecessary
details, are that an Eviction Petition had been filed by the Respondent herein
under Section 14(1)(e) of the Delhi Rent Control Act, 1958, in respect of a
shop located on the ground floor of property bearing no. 9/668, Subhash
Nagar, Gandhi Nagar, Delhi - 110031.
3. It is stated that in pursuance of the summons served on the Petitioner
herein on 18.05.2018 after the filing of the said Eviction Petition, the
Petitioner herein filed his application seeking leave to defend on 31.05.2018,
i.e. within the prescribed period of 14 days, however, the affidavit filed
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alongside the application was unattested. Accordingly, time was granted to
the Petitioner herein to the file attested affidavit within the period of
limitation, but the same was not filed even till the next date of hearing in the
Eviction Petition, i.e. 12.09.2018.
4. Noting the fact that ample opportunity had been given to the
Petitioner herein to file the attested affidavit along with the leave to defend
application and that no cogent reasons had been provided to justify the delay
of 5 months, the Ld. Trial Court proceeded to dismiss the Petitioner's
application seeking leave to defend and allowed the Eviction Petition filed
by the Respondent herein vide impugned Order dated 09.08.2019.
Aggrieved by the same, the Petitioner herein has approached this Court by
way of the instant revision petition.
5. Learned Counsel for the Petitioner relies on a judgment passed by this
Court in Alka Kasana v. Indian Institute of Technology, 222 (2015) DLT
473, wherein this Court has held that filing an affidavit which is not attested
is a curable defect, and that object of prescribing procedure is to advance the
cause of justice. Learned counsel for the Petitioner further submits that the
position of law has changed inasmuch the Division Bench of this Court in
RC.REV. 279/2014, by a judgment dated 29.11.2019 titled as Director
Directorate of Education & Anr. v. Mohd. Shamim & Ors., has held that a
tenant can be permitted to file an application for leave to defend beyond the
period prescribed if proper reasons are given to substantiate such delay.
6. Per contra, learned Counsel for the Respondent relies on a judgment
dated 12.03.2012, passed by this Court in R.C.R. No. 62/2010 titled as
Rakesh Gupta & Anr. v. Ashok Dilwali, wherein this Court has held that
filing an unattested affidavit with an application for leave to defend is not a
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curable defect and leave to defend cannot be granted. The reason given in
the said judgment was that permitting attestation after filing an application
with an affidavit which is not attested would amount to extending the period
for filing the leave to defend application which is not permissible under law,
and therefore, filing of an unattested affidavit amounts to non-filing of
affidavit on record.
7. The short question which arises in this case is whether an application
for leave to defend which has been filed with an affidavit that has not been
duly attested in accordance with law can be entertained and whether the
application for leave to defend should be dismissed on this ground alone
without giving an opportunity to the tenant to cure the defects.
8. Chapter III of the Delhi Rent Controller Act, 1958, was introduced
with the object of ensuring that a landlord who requires his premises for
bona fide purposes should not be forced to endure a long trials because of
which the bona fide need may itself cease to exist or certain events may
transpire that would render the entire procedure redundant. The Apex Court
in Ravi Datt Sharma v. Ratan Lal Bhargava, (1984) 2 SCC 75, has
succinctly laid down the object of bringing in Chapter IIIA of the Delhi Rent
Control Act, 1958. Relevant portion of the said judgement reads as under:
"7. In order to appreciate this contention it may be
necessary to give an extract of Statement of Objects
and Reasons of the amending Act:
"There has been a persistent demand for
amendments to the Delhi Rent Control Act, 1958
with a view to conferring a right of tenancy on
certain heirs/successors of a deceased statutory
tenant so that they may be protected from eviction
by landlords and also for simplifying the
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procedure for eviction of tenants in case the
landlord requires the premises bona fide for his
personal occupation. Further, Government
decided on September 19, 1975 that a person who
owns his own house in his place of work should
vacate the Government accommodation allotted to
him before December 31, 1975. Government
considered that in the circumstances, the Act
requires to be amended urgently."
The dominant object of the amending Act was,
therefore, to provide a speedy, expeditious and
effective remedy for a class of landlords contemplated
by Sections 14(1)(e) and 14-A and for avoiding
unusual dilatory process provided otherwise by the
Rent Act. It is common experience that suits for
eviction under the Act take a long time commencing
with the Rent Controller and ending up with the
Supreme Court. In many cases experience has
indicated that by the time the eviction decree became
final several years elapsed and either the landlord died
or the necessity which provided the cause of action
disappeared and if there was further delay in securing
eviction and the family of the landlord had by then
expanded, in the absence of accommodation the
members of the family were virtually thrown on the
road. It was this mischief which the Legislature
intended to avoid by incorporating the new procedure
in Chapter III-A. The Legislature in its wisdom thought
that in cases where the landlords required their own
premises for bona fide and personal necessity they
should be treated as a separate class along with the
landlords covered by Section 14-A and should be
allowed to reap the fruits of decrees for eviction within
the quickest possible time. It cannot, therefore, be said
that the classification of such landlords would be an
unreasonable one because such a classification has got
a clear nexus with the objects of the amending Act and
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the purposes which it seeks to subserve. Tenants
cannot complain of any discrimination because the
Rent Act merely gave certain protection to them in
public interest and if the protection or a part of it
afforded by the Rent Act was withdrawn and the
common law right of the tenant under the Transfer of
Property Act was still preserved, no genuine grievance
could be made. This was clearly held in the case of
Kewal Singh v. Lajwanti [(1980) 1 SCC 290 : AIR
1980 SC 161 : (1980) 1 SCR 854] ."
9. In light of this, the legislature has fixed a period of 15 days within
which the tenant has to file an affidavit raising such issues which would
deny the landlord the relief of an immediate eviction order. This makes the
period of 15 days, within which the tenant should raise such triable issues,
sacrosanct. Since there was a difference of opinion as to whether the period
of 15 days can be relaxed or not, a Division Bench was constituted to give
pronouncement on this question. The Division Bench of this Court in
Director Directorate of Education & Anr. v. Mohd. Shamim & Ors. (supra),
has held that the period for filing an application for leave to defend can be
relaxed beyond 15 days if the tenant is able to give substantial reasons as to
what prevented him from filing a leave to defend application within the
stipulated time. The Division Bench has observed as under:
"25. We, therefore, hold that merely because the
Controller has passed an order of eviction in a
proceeding governed under Section 25B, on failure of
the tenant to, within the prescribed time, apply for
leave to defend and merely because the Controller vide
Prithpal Singh supra has been held to be not
empowered to recall the said order, would not prevent
this Court from, in exercise of powers under proviso to
Section 25B(8), considering once a case for the
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landlord to be not entitled to an order of eviction to be
deemed admission following non-filing of leave to
defend within the prescribed time, the said order
cannot be said to have been made according to law
and would qualify as being contrary to law and liable
to be set aside.
26. Having held so, we answer the question no.(A)
framed in the referral order in the affirmative and with
the condition that this Court would be empowered to
set aside the order of eviction only if the tenant passes
the dual test of prevented by reasons beyond control
from applying for leave to defend within the
prescribed time (as distinct from every default) and if
makes out a substantial case for consideration of the
application for leave to defend. We, however, in
deference to Prithipal Singh supra choose/opt to not
answer the question (B) framed in the referral order."
(emphasis supplied)
10. The Court must, therefore, scrutinize the application for leave to
defend very carefully and in line with the judgment of the Division Bench of
this Court. It is no doubt correct that procedure is only a hand-maiden of
justice and substantive law cannot be sacrificed at the altar of the procedural
law. However, that concept cannot have a universal application, especially
when the legislature does not intend to do so. The Courts must, therefore,
interpret the law with the view to advance the purpose for which the law was
introduced.
11. In the instant case, the Petitioner herein was made aware of the
defects afflicting his leave to defend application and had been provided an
opportunity to rectify the same by filing an attested affidavit before the next
date of hearing. However, the Petitioner and his Counsel failed to do so by
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the next date of hearing. There is no material on record that indicates as to
whether the Petitioner or their learned Counsel had taken concrete measures
to cure the defects in the affidavit and whether they were prevented from
doing so for substantial reasons. It is not the case of the Petitioner that the
lawyers' strike that had allegedly prevented the Petitioner from filing the
attested affidavit along with the application for leave to defend before
31.05.2018, had continued for a period of five months.
12. The reliance of the learned Counsel for the Petitioner on Alka Kasana
v. Indian Institute of Technology (supra) does not hold any water as in the
case therein, an opportunity had been afforded to the Petitioner therein to
cure the defects and the same was duly done. Furthermore, this Court
observed in the judgement that if the Petitioner failed to cure the same
inspite of opportunities being granted to them, then the Court could proceed
with rejecting the plaint.
13. In this matter, the Petitioner herein had been granted time to file the
attested affidavit within the period of limitation, i.e. before 31.05.2018.
However, no attested affidavit was filed even till the next date, i.e.
12.09.2018. A delay of five months in filing of the attested affidavit cannot
be stated to be inadvertent and the Petitioner, therefore, cannot be allowed to
take advantage of his own mistakes as the same would defeat the intent of
the Legislature in devising the procedure for summary trial for a separate
class of landlords under Chapter IIIA of the Delhi Rent Control Act, 1958.
14. The Petitioner has failed to demonstrate that the delay in filing the
attested affidavit, despite an opportunity being granted to do so, was for
reasons not attributable to him or for reasons beyond his control. The dual
test laid down in the said judgement, regarding reasons that prevented the
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tenant from applying for leave to defend within the prescribed time that
would empower the Court to set aside the order of eviction, has not been
satisfied in the instant case.
15. This Court, therefore, finds no infirmity in the findings of the Ld.
ARC in rejecting the leave to defend application of the Petitioner herein and
allowing the Eviction Petition of the Respondent. The Order dated
09.08.2019 passed by the learned ACJ-CCJ-ARC, Shahadara, Karkardooma
Courts, Delhi, in ARC No.128/2018 does not suffer from any legal
perversity and does not warrant the interference of this Court.
16. In view of the above, the instant revision petition is dismissed, along
with pending application(s), if any.
SUBRAMONIUM PRASAD, J
MAY 26, 2022
Rahul
Signature Not Verified
By:RAHUL SINGH
Signing Date:30.05.2022
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