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Cites 5 docs
The Code Of Civil Procedure (Amendment) Act, 1956
The Delhi Rent Act, 1995
Gurditta Mal vs Bal Sarup on 19 October, 1979
Surinder Kumar vs Prem Kumar on 23 May, 1980
S. Thakar Singh And Anr. vs Karriers Finance Pvt. Ltd. on 4 November, 1968
Citedby 2 docs
Mohd. Quresh vs Roopa Fotedar And Ors. on 15 December, 1989
Infrastructure Leasing And ... vs Santosh Baweja on 14 November, 2003

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Delhi High Court
V.N. Sood vs Gurbachan Singh on 17 March, 1981
Equivalent citations: 20 (1981) DLT 75
Author: R Sachar
Bench: R Sachar

JUDGMENT

Rajindar Sachar, J.

(1) This is an application for revision filed by the petitioner/tenant against the order of the Additional Rent Controller dated 28.2.1980 by which he held that the leave application filed by the petitioner was beyond time and, therefore, he was not entitled to ask for leave to defend the eviction application filed against him. Having done that he naturally further allowed the eviction petition and passed an order in favor of the respondent/landlord. The petitioner has come up in revision to this court.

(2) The respondent/landlord filed an application for eviction on the ground of bonafide need. It is common case that the petitioner was served with the summons on 7.11.1979. The proceedings by the respondent/ landlord are under Chapter Iiia, Section 25B of Delhi Rent Control Act 1958 (to be called the Act). Section 25B(4) requires that the tenant on whom the summons are duly served shall not contest the prayer for eviction unless he files an affidavit staling the grounds on which he seeks to contest the application for eviction. The form provided requires the tenant to appear before the Controller within 15 days of service hereof and to obtain leave of the Controller to contest the eviction application. Undoubtedly the application for leave to contest filed on 10.12.1979, the petitioner/tenant was beyond the period of 15 days. In view of Gurditla Mal v. Bal Sarup (1980(10) Rlr 1) there is no jurisdiction in the Rent Controller to extend the period of limitation i.e. 15 days provided in the summons. The consequence which inevitably then follows is that an order of eviction has to be passed because leave has not been granted vide Section 25B(4). However, the question was still mooted whether notwithstanding that the Rent Controller may not have jurisdiction to extend the time of 15 days, mentioned in the summons, the tenant could invoke on the analogy of Order 37 Rule 4(old) and now Order 37 Rule 3(7) Civil Procedure Code by which the court may for sufficient cause shown by the defendant excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit. Such a matter came before Avadh Behari, J. and in (1980(9) Rlr (22) Gurdilta Mal v. Bal Sarup etc. the learned Judge held that Order 37 Civil Procedure Code could be invoked by the tenant to persuade the Rent Controller to set aside the decree if sufficient cause was shown by the tenant as to why he had not applied for leave within the period mentioned in summons i.e. 15 days. In a number of cases before the learned Judge he applied the principles of Order 37 Civil Procedure Code and though the leave application was filed beyond the period of 15 days he held that there was a sufficient cause and he set aside the order of eviction. This view of the learned Judge that the Controller has the discretion to give the benefit of provisions of Order 37 Rule 4 Cpg to a tenant seeking leave to defend himself against the application for eviction filed by the landlord has been up-held in (1980 Rlr 367) Jagdish Pershad v.Phoolwati Devi. The position in law, therefore, is that though in the first instance the Rent Controller cannot extend the period of 15 days provided in the summons, for practical purposes the only result is that no doubt the Rent Controller will pass an order for eviction but immediately thereafter if the tenant applies and is able to sasisfy the Rent Controller that there was sufficient cause for not moving him within the period of 15 days, benefit of Order 37 Rule 3(7) can be given to him, the result of which would be to set aside the order for eviction and thereafter consideration on merits of the tenant's application for leave to defend the eviction application. Now the Rent Controller following (1980 Rlr 1) (Supra), held that application for leave was filed beyond 15 days from the date of service, the only course open to it was to pass an order of eviction, as he had no power to condone the delay in filing the leave application beyond 15 days. In that of course the Additional Rent Controller may not be much at fault because the Judgment , Avadh Behari, J. was not brought to his notice and the Division Bench Judgment was given after the order of the Rent Controller. The Rent Controller having held that it was not within his power io condone the delay has no doubt casually. observed that on merits he failed to find any reason as to why the petitioner who was served on 7.11.1979 had not appeared or filed the leave application within 15 days of the service. But a reference to the impugned order will show the casual manner in which this aspect has been dealt with.

(3) Now the reason given by the petitioner for condoning the delay was stated to be that the summons which was received in his office bore the date of 14.12.1979 which the petitioner not being involved in any litigation before, naturally took it to be the date of hearing before the Court and he, therefore, kept the sumnone in his drawer as there was sufficient time. He then says that on 7.12.1980 when he went to his lawyer, who told him that under the special procedure the tenant is expected to file an application for leave within 15 days from the service of summons. It is stated that he only then came to know of Special procedure and delay was bonafide and, there- lore, the delay in filing the application for leave should be condoned. It was also mentioned that the service by registered A.D. post had not yet been effected and, therefore, there was no proper service. It it however, important to note that the Rent Controller did not in any way comment on the explanation which was given by the petitioner that because of the date 14.12.1979 being put on the summons he took that to be the date of hearing and that is why he did not move an application earlier than that date. This was presumably because in view of the (1980 Rlr 1) (supra.) Rent Controller evidently considered any explanation to be of no use because even if the explanation is found satisfactory it would serve no purpose. This in view of later decisions clarifying (1980 Rlr 1) (supra.) is a patent error of law and procedure resulting in refusal to exercise jurisdiction vested in him.

(4) A look at the summons shows that after reciting the title of the eviction petition though it does mention that the petitioner was summoned to appear before the Collector (which I take it is probably a typographical error for the word 'Controller' because the word 'Controller' is stated correctly at the bottom) within 15 days of service hereof and to obtain leave; but there is undoubtedly and very boldly written on the summons a date i.e. 14.12.1979. Mr. Seth was candid enough to admit that this date is being invariably put by the court Ahalmads on all summons as the date when the cases are fixed for hearing, before the court. Now the explanation of the petitioner is that he took this date i.e. 14.12.1979 to be the date of hearing and evidently thought that he could file the application for leave to contest any time prior to that date as the procedure under Section 25B being special and latest procedure he did not being a layman imagine that the leave application has to be filed within 15 days of' the service of the summons. Mr. Seth tried to ridicule this plea and characterised it as utterly unbelievable able. Hid the matter been res in tegra, I might have considered such a matter arguable, because Frankly speaking as a first impression I had ray hesitations in the matter. But my hesitation is immediately cleared when I find that such an explanation has found favor in a series of decisions of this court. In a D.B. case Karam Singh v. M/s Chahal Finance Pvt. Ltd. in R.F.A. 103D/1964, decided on 2.12.1965, the simmons sent under Order 37 Cpc which clearly require (like the present case) the defendant to enter appearance and move an application for leave had also mentioned date of hearing on 30.1.1964. The Division Bench held that the explanation of the defendant that he bona fide thought that he was required to be present only on the date of hearing was not such which could be thrown out and that the trial court was in error in taking too technical a view of the law in not extending the time for filing the application for leave. This view was followed by Chawla, J. in Civil Revision 112/1979, JagdishPandey v.SharwanKumar. In that case also in the margin of summon the date of hearing was mentioned as 25.10.1978. The learned Judge accepted that a lay man would assume that this was the date on which he was required to appear and this was too much to expect a lay man to fully understand what it all means and implies. He, therefore, allowed the revision and delay in putting in appearance and asking for leave was condoned.

(5) In the present case the explanation does not seem to be a made up one but stands corroborated by the date on 10.12.1979 even earlier than 14.12.1979. The reason why he did so is as mentioned by him that that on being told by his lawyer whom he contacted on 7th December that time for applying for leave was 15 days from the date of service, he was keen to file the application at the earliest, which he did on 10th December, 8th and 9th being holidays. I cannot understand why and what benefit could possibly have been derived by the petitioner in not moving the application within 15 days of the service if he understood the language of the summons correctly. The explanation of the petitioner that he took 14th December as the date when he was to enter appearance and apply for leave seems to me not only a reasonable and correct one but has the further merit of having been accepted in a series of decisions in this court. The petitioner is a tenant since 1960 and evidently it does not stand to reason that he would deliberately so act as not even to file an application for leave to contest the application for eviction, and thus incur such serious consequences. Mr. Seth's explanation of course is a very ingenuous one namely that the tenant on reading the eviction petition and knowing that eviction is sought on bona fide ground realised that there was no merit in his defense, and therefore wanted to delay the matter. This argument unrealistic and unacceptable. If delying the proceedings was the motive I do not understand why the petitioner moved the court earlier than 14.12.1979. He should rather have moved much later. In fact the petitioner had moved the court before 14th December, though of course mistaken in law that he could move the application in time prior to 14.12.1979. I must, therefore, find the explanation a genial and a reasonable one. Such an explanation was accepted by Avadh Behari, J. in (1980 Rlr 136) (Supra.). In one of the cases before the learned Judge the summons bore the date of 14.2.1977 and the tenant was served on 23.1.1977. Even on 14.2.1977 the counsel for the tenant appeared and requested for time and the application for leave was filed only on 16.2.1977. The learned Judge though noticing that the time had expired on 7.2.1977 held that the explanation given was sufficient for setting aside the order of eviction. I do not find any difference in the case before the learned Judge and in the instant case. Mr. Seth referred me to (1980 Rlr 367) (supra.) and stated that such an explanation was not accepted by the Division Bench. In my view the interpretatation given by Mr. Seth in this context is not correct. In that case the Division Bench did not accept the reason of illness, which was the only reason put forth in application for leave to contest. It was not during arguments that the counsel sought to raise the point that the tenant was misled because at the bottom of the summons the date 19.7 1977 was written. The Division Bench observed that this was a question of fact and had to be urged before the Controller and that it could not be urged in Revision which could only be a question of law. The Division Bench, therefore, never held that such an explanation was not acceptable one. What they held was that this explanation was not put forth before the Rent Controller, and could not be examined for the first time.

(6) Mr. Seth had sought to urge and referred to a number of authorities for showing that negligence of a party cannot entitle him to ask for condensation. The proposition as such is unexceptionable. If I was to find that the petitioner had no justification for applying for leave to contest on 10th December evidently the benefit of Order 37 Rule 3 (vii) could not be given to the tenant. But it is precisely because of the explanation of the tenant that he bona fide believed 14.12.1979 as the date by which the leave application could be filed and which explanation has been accepted by .me as a sufficient cause that there is justifiable reason to set aside the eviction order, which I do.

(7) I must, however, note alternative argument by Mr. Aggarwal. Mr. Aggarwal tried to persuade me to hold that as Section 25B(3) provides for service of sun mons on the tenant in the ordinary way as well as by registered A.D. post and as admittedly no registered A.D. summons were sent there is no proper service of summons and the question of 15 days time running from the said date cannot arise. He refers me in this connection to (1980 Rlr 612) Surinder Kumar v. Prem Kumar. In my view that authority is clearly distinguishable. In that case what happened was that service was effected on the tenant both by ordinary summons on 6.10.1979 and by registered A.D. on 10.10.1979. It was in that context that the learned Judge observed that as the registered A.D. was served on 10.10.1970 the tenant was entitled to count the period of 15 days from that date and so counting his application for leave to contest was within time. But that does not mean that if the tenant is served by ordinary summons and summons are not sent by registered A.D. as in the present case, there is no proper service on the tenant. No doubt the service by both registered A.D. and ordinary summons is provided for. But in the absence of any registered A.D. the service must be deemed to have been effected on the tenant on 7.11.1979. This argument has to be rejected. Having set aside the order of eviction, in the normal course I would remit the matter back to the Rent Controller who would then evidently call upon the respondent/landlord to file reply and then decide whether to grant the leave or not. Both the counsel however, have said that instead of sending the matter back, it would be better if the matter of grant of leave was decided here. I have gone through the leave application and though there is no counter the landlord's son is present and he has indicated broad lines of reply. Keeping all the circumstances in view I feel that this is not a case in which leave to contest could be refused. But I feel that leave should be given only on the grounds which are mentioned from paragraphs B onwards of leave application. I may note that there in para 20 the ground about the lack of notice of terminaion of tenancy is mentioned, this ground is no longer a valid ground and no leave is granted on this score. In para 22 is the objection about the service of summons not being proper. I have already dealt with that matter and leave is not being granted on that ground also. The tenant is, therefore, given leave on the limited ground mentioned above. The tenant has necessarily now to file the written statement because leave is being granted to him of course on the limited ground as mentioned above,

(8) In view of the fact that this excuse about the date of hearing having been given on the summons is likely to cause confusion or atleast be urged as an excuse for not filing the application in time the Rent Controller may consider whether instead of putting the date on the summons it may not be possible to attach a separate slip giving the next date of hearing but to make it clear that application for obtaining leave will have to be filed within the time mentioned in the body of the summons. I would suggest that this matter be looked into by the District Judge and necessary instructions be issued in that regard. A copy of this order may, therefore, be sent to the District Judge.

(9) I am fixing 20.4.1981 as the date when the parties are directed through their counsel to appear before the Rent Controller. The tenant will file his written statement in the court on that date. He will of course give an advance copy to the counsel for the landlord by 15.4.1981. If the landlord wishes to file any rejoinder he may do so by 20.4.1981 and give the copy of the same to the court as well as to the tenant. The Rent Controller thereafter will proceed to determine the matter in accordance with law and, considering ihat the petition has been pending for quite some time, will take steps to dispose it of very expeditiously.