JUDGMENT
Bahri, J.
(1) In this civil revision brought under Section 25-B(8) of the Delhi Rent Control Act challenging the eviction order dated December 17, 1986, made by an Additional Rent Controller, on the ground of eviction covered by clause (e) of proviso to sub-section (1) of Section 14 of the Delhi Rent Control Act (hereinafter referred to as ‘the Act’), a learned Single Judge has made a reference on the question of law to be decided by this Bench. The relevant portion of the reference remembered order is reproduced as follows : “The learned Additional Rent Controller has relied on a judgment of this Court in ‘Food Corporation of India v. Smt. Usha Bhardwaj’ 1986(2) Rcj 52(1), for the proposition that the Rent Controller has no power to extend the period of limitation for putting in appearance and filing an application for leave to defend. I have been referred to two contrary judgments of this Court. The first one is by M. L. Jam, J., in Surinder Kumar v. Prem Kumar., 1980 Rlr 621(2), and the second one is by Rajinder Sachar, J., in V. N. Sood v. Dr. Gurbachan Singh 1981 Rlr (Note) 46(3), To the same effect is the judgment in Gurditta v. Bal Sarup’, 1980 Rlr 186(4). In all these cases it has been held that on the analogy of Order 37 Rule 3(7) and Rule 4, the Controller has got the power to extend time for putting in appearance and even after the decree has been passed. Thus, I find that there is a clear conflict of judicial opinion in this Court as to whether the Controller has the power to extend time on the analogy of sub-rule (7) of Rule 3 of Order 37. Such questions commonly arise and need determination by a Larger Bench.”
(2) We may notice the facts of the case before considering the question of law arising in the matter. In the petition brought under Chapter III-A of the Act, the landlord had sought eviction of the tenant on the ground of bonafide requirement for residence. Summons as prescribed in the IIIrd Sub-rule were issued and were served personally on the tenant. The tenant was in law required to move an application for leave to appear and defend the eviction case within 15 days. The tenant could not do so and later on he moved such an application before the Controller and also prayed that the delay made by him in moving the said application may be condoned. It is not necessary to refer to the grounds pleaded in the application seeking condensation of delay. The application was rejected by the Controller on the short ground that the Controller had no power to condone the delay and the Controller admitting the facts stated in the eviction petition proceeded to pass the eviction order.
(3) The learned counsel for the petitioner has contended that keeping in view the various provisions of the Act it must be held that the Controller is a Court .proper and thus, has the power to condone the delay by taking resort to provisions of Section 5 of the Limitation Act.
(4) The learned counsel for the respondents, on the other hand. has contended that it is now settled law that the Controller under the Act is not a court in the strict sense and the provisions of the Limitation Act are not applicable to the proceedings brought under’ the Act and more over the various provisions of the Acts would clearly indicate that the Parliament had vested the power with the Controller to condone the delay in some matters where it thought fit but the Parliament intentionally did not deem it necessary to vest the Controller with such a power in respect of the petitions to be dealt with in Chapter III-A.
(5) We may notice the various provisions of the Act in order to appreciate the above contentions. Section 12 of the Act prescribed the limitation for moving an application for getting the standard rent fixed. It provides for two years period for moving such an application from the date of letting. However. there is a proviso in the aforesaid Section which empowers the Controller to entertain such an application after the expiry of the said period of two years if he is satisfied that the applicant was prevented by sufficient cause from filing the application in time. In Section 13 of the Act which pertains to provisions regarding refund of rent, premium etc. which was not recoverable under the Act, the Act provides for a period of one year for moving an application for refund from the date of such payment. No similar proviso has been incorporated in this Section. Section 19 of the Act pertains to relief for recovery of possession or re-entry by the tenant and it lays down that a tenant can move an application for getting back the premises. if the landlord after obtaining an eviction order on particular grounds re-lets the premises within three years and the limitation prescribed for filing such an application is six months. No proviso has been provided in this particular provision which could enable the Controller to entertain such an application after the expiry of the period of limitation. Similarly, in Section 20 also a tenant has been given a right to move an application within a stipulated period for getting back the premises which has been taken by the landlord for effecting some repair or re-building and in this particular Section also there is no similar proviso. In Section 38 which, inter alia, prescribes the limitation for filing an appeal against the order of the Controller, a similar proviso exists that the Tribunal if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time may entertain such an appeal even after the expiry of the stipulated period.
(6) Now coming to Chapter III-A, it may be noticed that Section 25-A of the Act gives an over-riding effect to the provisions of this Chapter as it has been mentioned therein “the provisions of this Chapter or any rule made there under shall have effect not with standing anything inconsistent therewith contained elsewhere in this Act or in any other law for the time being in force”. Section 25-B prescribes a special procedure for the dispersal of an application for eviction on the ground of bonafide requirement. Sub-sections (1) to (10) read with the proforma of summons contained in the Third Schedule is a complete Code on such matter. Hence. it is evident that the Parliament had not given any power to the Controller to condone the delay made by the tenant in moving any application seeking leave to appear and defend the case under Section 25-B(4). Even if it were to be held that Section 5 of the Limitation Act is applicable to the provisions of the Act even then in view of provisions of Section 25-A, the same would stand superseded by the provisions contained in Section 25-B read with the Third Schedule.
(7) At any rate, it is settled law that applications contemplated under Section 5 of the Limitation Act must be made to a court and it is only the court which has the power to condone the delay for sufficient reasons as laid down in Section 5 of the Limitation Act. In Nityanand M. Joshi & another v. The Life Insurance Corporation of India and others, , it has been authoritatively laid down as follows : “In our view Article 137 only contemplates applications to Courts. In the Third Division of the Schedule to the Limitation Act, 1963, all the other application mentioned in the various articles are application filed in a court. Further Section 4 of the Limitation Act, 1963, provides for the contingency when the prescribed period for any application expires on a holiday and the only contingency contemplated is “when the court is closed” Again under Section 5 it is only a court which is enabled to admit an application after the prescribed period has expired if the court is satisfied that the application had sufficient cause for not preferring the application. It seems to us that the scheme of the Indian Limitation Act is that it only deals with applications to courts, and that the Labour Court is not a court within the Indian Limitation Act, 1963.”
This view was again reiterated in Sakuru v. Tanaji. , in which it was held that the provisions of the Limitation Act, 1963, apply only to proceedings in “Courts” and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or executive authorities notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Courts under the Codes of Civil or Criminal Procedure. It was also emphasised in this judgment that even in such a situation where certain specified powers of courts under the Codes of Civil or Criminal Procedure are vested in such authorities even then the relevant special statute may contain an express provision conferring on the special authority the power to extend the prescribed period of limitation on sufficient cause being shown by laying down that provisions’ of Section 5 of the Limitation Act shall be applicable to such proceedings.
(8) The provisions of the Act, as above mentioned, clearly indicate that no such power has been conferred on the Controller to condone the delay by taking resort to Section 5 of the Limitation Act in respect of the proceeding being dealt with in Chapter III-A. Hence, it is evident that even if the Controller under the Act was held to be a court for the purposes of the Limitation Act even then the Controller would not have power to condone the delay in view of the special provisions of the Act, as enumerated above.
(9) However, it has been laid down by this Court in Subhash Chander v. Rehmat Ullah 1972 Rcr 977(7), that : “though the Controller under the Delhi Rent Control Act, 1958, may have some of the trappings of a Court, he is not a court strict to sense and so not within the meaning of the Limitation Act.” In the said case, one of the questions which arose for decision was as to whether the period of limitation laid down under Article 137 of the Schedule is applicable to an application moved before the Controller, under Order Ix Rule 13 of the Code of Civil Procedure, for seeking setting aside of ex-parte eviction order. After analysing the various provisions of the Act, it was held that the Controller is not a court and the provisions of the Limitation Act are not applicable to the Controller.
(10) In Jaitendra Kumar Aggarwal v. Lakshmi Kant, 1974 Rcr 134(8), a question which arose for decision was whether the Rent Controller as well as the Tribunal under the Act are courts within the meaning of Section 195 of the Code of Criminal Procedure. In the said judgment delivered by a Bench comprising of three Judges the case of Subhash Chander (supra) was noticed and it was held that that decision pertained to the question, whether the Controller was a court in strict sense for the purpose of application of Limitation Act. The question for decision before the Full Bench was different and thus, there could not arise any occasion for the Full Bench to consider the correctness or otherwise of the decision given by the Division Bench in the case of Subhash Chander (supra).
(11) However, in Shree Kedar Nath, Advocate and others v. Smt. Mohani Deviand others, 1974 Rcr 118(9), a decision given by a Bench comprising of five Hon’ble Judges, the judgment given by the Division Bench in the case of Subhasn Chander (supra) was noticed and it was held that the Full Bench agreed with the said view of the Division Bench.
(12) So, it must be held that the Controller is not a court in strict sense for the purpose of Section 5 of the Limitation Act. Hence, the Controller has no power to condone the delay by taking resort to the provisions of Section 5 of the Limitation Act.
(13) The learned counsel for the petitioner has made reference to Virindar Kumar Satyawadi v. The State of Punjab. , particularly to the observations made in paragraph 6 of the judgment in which essential characteristics. of a court have been enumerated : “There has been considerable discussion in the Courts in England and Australia as to what are the essential characteristics of a Court as distinguished from a tribunal exercising quasi-judicial functions….. It is unnecessary to traverse the same ground once again. It may be stated broadly that what distinguishes a Court from a quasi-judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court.”
(14) He has also made reference to Sardari Lal v. Ram Rakha, 1984 Rajdhani Law Reporter 333, where a Division Bench of this Court also noticed the aforesaid ingredients which must be kept in view for deciding whether a particular authority is a Court or not and in which it was held that the Rent Control Tribunal fulfills those ingredients and thus, is a Court within the meaning of Contempt of Courts Act, 1971.
(15) The learned counsel for the petitioner has argued that the Controller also fulfills all those characteristics and thus, should be held a Court. It may be that the Controller is also a Court when the definition of the Court is taken in the broader sense but it is not a Court in the strict sense so as to be covered by the provisions of the Limitation Act.
(16) The legal question, subject-matter of this reference, came up for consideration also in Jagdish Pershad v. Phoolwati Devi, 1980 Rajdhani Law Reporter 367(12). It appears that this case was not brought to the notice of the Honble Single Judge, who has referred the matter though it is a decision by a Division Bench. In the said case, it has been clearly held that the Controller has no power to condone the delay under Section 5 of the Limitation Act in respect of any application moved by the tenant. seeking leave to defend after the prescribed period of 15 days. We agree with the reasons given in this judgment for coming to the aforesaid conclusion.
(17) Counsel for the petitioner has made reference to Section 29 of the Limitation Act and has contender that as Delhi Rent Control Act is a special Act and the period of limitation has been prescribed in this Act read with third Schedule for moving an application seeking leave to defend the eviction case, thus, the provisions of Section 5 of the Limitation Act would become immediately applicable. Section 29(2) reads as follows “Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal of application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.”
A bare reading of the Section indicates that if any period of limitation has been prescribed in the special statute which is different from the period of limitation prescribed in the Limitation Act, then the provisions of Sections 4 to 24 would become applicable. It is evident that no period of limitation stands prescribed under the Limitation Act with regard to application to be moved for seeking leave to appear and defend the eviction case. Hence, it cannot be said that any different period of limitation had been prescribed in the special statute.
(18) It is true that in Rai Chopra v. Smt. Shanno Devi & Others. , a Division Bench of this Court had taken the view that if special Act provides a period of limitation different from what has been prescribed in the Limitation Act, then by virtue of Section 29 the provisions of Section 5 of the Limitation Act would become applicable to the applications being moved under the special statute even though such applications are not necessarily moved before a court.
(19) However, this judgment would not apply to the provisions of the Act because, firstly, the provisions of the Limitation Act have been held inapplicable completely to the provisions of the Act by pronouncement of a Division Bench in the case of Subhash Chander (supra) which view has been endorsed by the Full Bench in the case of Shree Kedar Nath (supra) and more over a perusal of the various provisions of the Act also makes it evident that the Parliament did not intend that the provisions of Section 5 of the Limitation Act should become applicable to the applications being moved seeking leave to appear and defend in the eviction case in proceedings brought under Chapter III-A of the Act.
(20) It may also be noticed that a different view to Raj Chopra (supra) has been taken by a Division Bench of the Mysore High Court in Bando Banaji Mutalik v. Bhaskar Balaji Kulkarni Air 1972 Mysore 311(14). With regard to the applicability of Section 5 of the Limitation Act by virtue of Section 29(2) of the Limitation Act even to the proceedings brought under the special Act before any special forum being not a court. It was held that Section 29(2) would apply only where any proceedings are brought in a court.
(21) But, it is not necessary for us to express any considered view on this conflicting point of law because in the present case, as held above, the consideration of various provisions of the Act and particularly the provisions of Section 25-A clearly exclude the applicability of Section 5 of the Limitation Act to proceedings brought under Section 25-B of the Act.
(22) A contention has been raised that as the Controller under the Act is also authorised to follow the procedure incorporated in the Code of Civil Procedure by virtue of Rule 23 of the Delhi Rent Control Rules, the Controller is thus, on the analogy of Order xxxvii Rule 3(7) of the Code of Civil Procedure, empowered to condone the delay as a court trying a summary suit under Order xxxvii of the Code of Civil Procedure has been conferred with such power by incorporation of the said provision by virtue of Act 18 of 1976. Tt appears that this reasoning persuaded a Single Judge of this Court to take this view in Surinder Kumar v. Prem Kumar, 1980 Rajdhani Law Reporter 621. The Single Hon’ble Judge did notice the ratio laid down in the case of Jagdish Pershad (supra) but still he held that by virtue of Order xxxvii Rule 3(7) of the Code of Civil Procedure, the Controller can condone the delay in such matters.
(23) One of us (Leila Seth, J.) in Chaman Lal Talwar v. Trilok Chand & others, 1987(1) Rent Control Reporter 675, (15) condoned the delay on the facts as the application for condensation had been rejected on merits by the Additional Rent Controller and set aside the eviction order and remanded the case to the Controller for deciding the leave to defend application. There is no discussion under which provision of law the application for condensation was entertained by the Additional Rent Controller.
(24) However, it is pertinent to mention that the Division Bench in the case of Jagdish Pershad (supra) had clearly held that after the passing of the eviction order the Controller could, by virtue of Order xxxvii Rule 4 of the Code of Civil Procedure, set aside the eviction order on special grounds. So, the question which needs decision is whether the Controller before passing an eviction order can take resort to provisions of Order xxxvii Rule 3(7) of the Code of Civil Procedure for condoning the delay made by the tenant in moving an application seeking leave to appear and defend the eviction case. It is evident that at the time the Delhi Rent Control Act came into force and also at the time Chapter III-A was brought on he statute book, the unamended Order xxxvii of the Code of Civil Procedure was applicable. The mere fact that subsequently Order xxxvii of the Code of Civil Procedure has been amended and the amended provision does not indicate that it has any retrospective effect, would not make the new provision introduced in Order xxxvii of the Code of Civil Procedure applicable to the provisions of the Delhi Rent Control Act unless and until the Legislature had intended otherwise.
(25) In Secretary of State v. Hindustan Cooperative Insurance Society Ltd.. it has been laid down that : “IT is an accepted. rule of construction that where a statute is incorporated by reference into a second statute, the repeal of the first statute does not affect the second, and thus. where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition.”
The above statement of law clearly applies in the present case. So, any amendment made to the Code of Civil Procedure subsequent to the enforcement of the Act and its amendments would not by itself become applicable to the provisions of the Act unless the Legislature expressly provided for the same. In Gurditta Mal v. Bal Sarup, 1980 Rajdhani Law Reporter 136, a Single Judge of this Court had taken the view that the amended Order xxxvii Rule 3(7) of the Code of Civil Procedure introduced by Amendment Act 104 of 1976 would not be applicable to the Controller under the Act.
(26) In Dr. H. S. Gandhi v. Smt. Abha Arora, 1982 Rajdhani Law Reporter 273, (17) the law laid down by a Division Bench in the case of Jagdish Pershad (supra) was followed and it was held that the Controller has power to set aside an eviction order on the analogy of Order xxxvii Rule 4 of the Code of Civil Procedure.
(27) In Aurobindo Mukerji v. S. C. Das, , (18) another Single Judge of this Court has also followed the ratio laid down in the case of Jagdish Pershad (supra) and held that the Controller has no power to condone the delay but can set aside the eviction order by taking resort to provisions of Order xxxvii Rule 4 of the Code of Civil Procedure.
(28) In Food Corporation of India v. Smt. Usha Bhardwaj, 1986(2) Rent Control Journal 52, the learned Single Judge of this Court noticed the view expressed by another Single Judge in the case of Surinder Kumar (supra) and held that the same was in conflict with the ratio laid down by the Division Bench in the case of Jagdish Pershad (supra).
(29) In V. N. Sood v. Or. Gurbachan Singh, 1981 Rajdhani Law Reporter (Note) 46, the ratio laid down in the case of Jagdish Pershad (supra) appears to be followed.
(30) It is. because. of the conflicting view expressed by the Single Judge of this Court in the case of Surinder Kumar (supra) after the ratio had been laid down by a Division Bench in the case of Jagdish Pershad (supra) that the learned Single Judge in the present case deemed it proper to refer this question again for decision by a larger Bench. We endorse the view expressed in the case of Jagdish Pershad (supra) and hold that the Controller has no power to condone the delay either taking resort to provisions of Section 5 of the Limitation Act or to provisions of Order xxxvii Rule 3(7) of the Code of Civil Procedure. As discussed above, there is clear intendment of the Parliament not to confer any power of condensation of delay on the Controller in respect of proceedings brought under Chapter III-A. So, the inherent powers under Section 151 of the Code of Civil Procedure cannot be invoked.
(31) In the case of Subhash Chander (supra), a Division Bench of this Court has already held that the Controller has the inherent powers exercisable by civil court under Section 151 of the Code of Civil Procedure. The source of this power has been found by the Division Bench particularly in Rule 23 of the Code of Civil Procedure inasmuch as the Controller not only is bound to follow the practice and procedure of the Judge Small Cause Court but is also entitled to follow the Procedure prescribed in the Code of Civil Procedure by virtue of Rule 23. We entirely agree with this view.
(32) Even in the case of Gurditta Mal (supra), a Single Judge of this Court has expressed the same view. However, resort to the provisions of Section 151 of the Code of Civil Procedure can be made only on the well settled principles applicable which need not be enumerated here because the question whether the eviction order should be set aside or not by taking resort to provisions of Order xxxvii Rule 4 of the Code of Civil Procedure or Section 151 of the Code of Civil Procedure would be decided by the Single Judge Ob merits.
(33) We, hence, answer the question of law by holding that the-Controller has no power to condone the delay made by the tenant in moving an application seeking leave to appear and defend an eviction case brought under Chapter III-A but after the eviction order is passed the Controller has the power under Order xxxvii Rule 4 of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure, to set aside the eviction order for some special reasons or in the interests of justice.
(34) The matter may now be listed before the . Single Judge for further proceedings.