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Sh. Prithi Pal Singh vs Sh. Satpal Singh on 30 October, 2006

Delhi High Court
Sh. Prithi Pal Singh vs Sh. Satpal Singh on 30 October, 2006
Author: S K Kaul
Bench: S K Kaul


JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner filed an eviction petition under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (herein after referred to as the Rent Act). The respondent filed an application for leave to defend albeit after delay of eight days. The application was rejected as beyond time and eviction order was passed in favor of the petitioner on 28.02.2001. The respondent thereafter filed an application for recall of the said order dated 28.02.2001 and for condensation of delay under Order 37 Rule 4 r/w Section 151 of the Code of Civil Procedure, 1908 (herein-after referred to as the said Code) which application has been allowed by the impugned order dated 07.12.2001

2. The trial court has found that in view of averments made in the application, there was explanation forthcoming whereby the application for leave to defend was liable to considered on merits.

3. The substratum of the submissions of the learned Counsel for the petitioner is that this Court ought to exercise jurisdiction under Article 227 of the Constitution of India in view of the fact that the trial court had fallen into a jurisdictional error while taking the aforesaid view since the trial court had no powers to re-open the issue having once passed the eviction order. It is further contended that there is no such power with the Rent Controller to condone the delay. In this behalf learned Counsel has referred in extentio to the judgment of the Apex Court in Prakash Jain v. Marie Fernandes 2004 Rajdhani Law Reporter 83 (SC) It was held in the context of the Maharashtra Control Act, 1999 that an application for leave to defend not filed within time fixed by law could not be entertained and the tenant cannot seek condensation of delay under Section 5 of the Limitation Act, 1963 as that Act is not applicable. It was further held that condensation can also not be sought under the inherent powers as the rent authority is not a civil court though the Rent Act provides for that authority to exercise certain powers under the said Code. It may be noticed at this stage that the provisions of the Rent Act relating to delay have been considered especially in view of the fact that the provisions under the Maharashtra Rent Act were analogous to the provisions of the Delhi Act especially as per the provisions of Section 25B of the Rent Act. It is thus the submission of the learned Counsel for the petitioner that in view of the clear exposition of law by the Apex Court, once a tenant does not file an application for leave to defend within time there is no remedy available to the tenant and an eviction order must follow.

4. Learned Counsel for the respondent on the other hand does not dispute the proposition that once an application for leave to defend is not filed within time, the provisions of the Limitation Act would not apply and the rent controller has no option but to pass an eviction order. Learned Counsel however contends that as per the impugned order the Rent Controller has rightly relied upon the judgment of the Division Bench of this Court in Mohd. Quresh v. Smt. Roopa Fatedar and Ors 1990 Rajdhani Law Reporter (DB) 112. A reference has been made in para 31 of the said judgment to the earlier Division Bench judgment of this Court in Subhash Chander v. Rehmat Ullah 1972 Rajdhani Law Reporter 236 to come to the conclusion that the Controller has inherent powers exercisable by civil court under Section 151 of the said Code and the source of this power has been found in Rule 23 of the said Code 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 said Code by virtue of Rule 23. It is submitted that the remedy which is available to a tenant like the respondent who fails to file an application for leave to defend within time is prescribed in para 33 of the judgment where it has been held that though the Controller has no power to condone the delay made by the tenant in moving the application seeking leave to appear and defend an eviction case brought under Chapter III-A of the Rent Act, after the eviction order is passed, the Controller has the power under Order 37 Rule 4 of the said Code r/w Section 151 of the Code to set aside the eviction order for some special reasons or in the interests of justice.

5. On consideration of the submissions of the learned Counsel for the parties, I am of the view that this Court is bound by the judgment of the Division Bench of this Court in Mohd. Quresh’s case (supra) and thus the mode and manner of exercise of power as per the impugned order is in accordance with law. I am unable to accept the contention of the learned Counsel for the petitioner that the judgment of the Apex Court in Prakash Jain’s case (supra) amounts to impliedly over-ruling the judgment of this Court in Mohd. Quresh’s case (supra). This is so since judgment in Prakash Jain’s case (supra) only re-iterates the earlier legal proposition which has also been followed by the Division Bench of this Court that the Controller cannot exercise power under the Limitation Act. The judgment says only that much.

6. Learned Counsel for the petitioner has also sought to emphasize that in Prakash Jain’s case (supra) a reference has been made to an earlier judgment of the learned single Judge of this Court in Gurditta Mal v. Bal Swarup to observe that the learned judge chose to infer conferment of powers under Rule 23 of the Delhi Rent Control Rules, 1959 though such powers were not conferred under the Statute. It has been held that having regard to the very nature of Section 151 of the Code and its inapplicability to the authorities other than ordinary courts, Section 151 of the Said Code would have no application. Learned Counsel for the petitioner states that in Mohd Quresh’s Case (supra) a reference has been made to the judgment in Gurditta Mal’s case (supra) and thus the very stratum on which the judgment of Mohd Quresh’s Case (supra) is based is no more good law in view of the judgment of the Apex Court in Prakash Chand’s case (supra).

7. It is no doubt true that in para 32 of the judgment in Mohd Quresh’s Case (supra) a reference has been made to Gurditta Mal’s case (supra). However, while concluding the matter the division bench has given the mode and manner whereby relief can be provided to a tenant who fails to file an application for leave to defend within the stipulated time and shows some special reasons or where such order is required in the interests of justice. The object is apparent which is to provide an avenue for a relief in an appropriate case and that a litigant is not left without a remedy. Thus while holding that in case an application for leave to defend not being filed within time the same has to be dismissed and an eviction order to follow, the avenue of relief is provided through process of a Controller exercising powers under Order 37 Rule 4 of the said Code. A conjoint reading of para 12 & 13 of the Judgment in Prakash Chand’s Case (supra) makes it clear that the question before the Supreme Court related to the power of the Rent Controller to be exercised in view of the provisions of the Limitation Act. In that context it was held that the Rent Controller, which is deemed to be a court for limited and specific purposes, cannot be treated as a court for purposes of attracting provisions of Limitation Act to the proceedings filed before the Controller. The authority is only law for that proposition.

8. In view of the aforesaid legal position I am of the considered view that there is no patent error or erroneous exercise of jurisdiction by the trial court.

9. In the end it must be noticed that this matter has been pending on this very issue before this Court for the last five years. In this much time possibly even the eviction petition could have been decided on merits. The eviction petition is five years old. It is thus directed that the Rent Controller should expedite the matter and preferably conclude the matter within a period of one year from the date of this order being brought to the notice of the Controller.

10. Dismissed with aforesaid observations.

CM No.11165/2004

1. No further directions are called for on this application.

The application stands disposed of.

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