Delhi District Court
Sh. Arun Kumar Sharma vs Smt. Alka Gupta on 18 April, 2016
IN THE COURT OF SHRI HEM RAJ: ADMINISTRATIVE CIVIL
JUDGE CUM ADDITIONAL RENT CONTROLLER (CENTRAL) :
DELHI
E87/2015
Unique ID No : 02401C0556182015
In the matter of:
Ram Kumar (Since deceased)
through LR
1. Sh. Arun Kumar Sharma,
S/o Late Sh. Ram Kumar Sharma,
R/o 1095, Gali Raja Ugrasen,
Kucha Harjas Mal, Bazaar Sita Ram,
Delhi110006.
Also at :
Shop No. 3535, Bazar Sita Ram,
Delhi110006. .....Applicant/Respondent no.1
Versus
Smt. Alka Gupta,
W/o Sh. Dinesh Gupta,
R/o 21/31, Mall Road Flats,
Timarpur, Delhi110054 ....Nonapplicant/Petitioner
ORDER:
1. This is the second round of the litigation in the present case. Vide order dated 24.9.2015 my Ld. Predecessor had allowed the eviction petition of the petitioner and passed an eviction order under section 14 (1) (e) of DRC Act in respect of the demised premises. The eviction order was passed E87/2015 Page 1/7 as the respondent had failed to apply for leave to contest the petition within the stipulated period of prescribed period in the DRC Act
2. The present application U/s 25 (B) (4) & (5), (8) and (9) of the Delhi Rent Control Act, 1958 r/w Section 37(5) CPC for grant of leave to defend and contest the eviction petition and for condoning of delay has been filed by applicant/respondent no.1, Sh. Arun Kumar Sharma.
3. The case of the applicant/respondent no.1 in the present application is that the applicant/respondent no.1 had never been served through ordinary process or by registered A.D. Post in the present case. He came to know about the order of eviction dated 24.09.2015 only through inspection of the records. The registered article was received by his wife on or about 03.06.2015 and on the registered article the next date of hearing was mentioned as 24.09.2015. The wife of applicant/respondent no.1 had been suffering from various ailments and is under regular medical treatment and kept the said registered article containing summons in a file. Unfortunately the same could not be delivered to applicant/respondent no.1 E87/2015 Page 2/7 and later on after about ten days his wife informed him about the said registered article, but still it was not traceable. The same was traced only on 20.09.2015 and the applicant/respondent no.1 was found that the said article is containing date as 24.09.2015.
4. Further, that the applicant/respondent no.1 came to the court on 24.09.2015 and it transpired that he was required to file leave to defend and contest application within 15 days from the receipt of summons and it further transpired that because of nonappearance, an eviction order has been passed against the applicant/respondent no.1. The petitioner has obtained an order of eviction by playing fraud and by concealment of material fact. After inspection of the file without further delay he filed an application for leave to defend as well as required affidavit. The delay in filing leave to defend and contest is neither intentional, nor deliberate.
5. Ld. Counsel for applicant/respondent no.1 has relied upon judgments delivered by Hon'ble High Court of Delhi in cases titled as Mohd. Quresh vs Roopa Fotedar 1990 RLR 112 and Gurditta Mal vs Bal E87/2015 Page 3/7 Sarup, AIR 1980 Delhi 216 in support of his contentions that the Controller can condone the delay in seeking leave to defend application.
6. In her reply it is stated by the petitioner that the present application is not maintainable in view of the judgments of Prithipal Singh vs Satpal Singh (dead) through its LRs reported as (2010) 2 SCC 15 and Bhim Sen Batra vs Shreyans Buildwell Pvt. Ltd, reported in (221) 2015 DLT 413. He contended that once the respondent has been served with the summons of the petition and service is in accordance with the Rule 23 of Delhi Rent Control Act & Rules and the provisions of Order 5 Rule 15 CPC are followed, and he has not filed the leave to defend application within the time provided by the statute then the same cannot be condoned by the controller as the same is not within the powers of the controller.
7. I have heard the Ld. Counsel for the parties and perused the record.
8. Section 25B of the DRC Act, 1958 provides for the special E87/2015 Page 4/7 procedure for the disposal of the applications for eviction on the ground of bonafide requirement. It would be evident and clear from the close examination of section 25 B sub section (1) that in a petition filed by the landlord on the grounds mentioned in 14 (1) (e), 14A, 14B, 14C or 14D shall be dealt with in accordance with the procedure specified in the section. Section 25B (4) read with III schedule makes it mandatory for a tenant upon whom summons have been served in the prescribed manner, to appear and ask for leave to contest the eviction proceedings within 15 days from the date of service of notice and if he fails to do so, automatically, an order of eviction in favour of landlord on the ground of bonafide requirement shall be made.
9. Ld. Counsel for the applicant/respondent no.1 has relied upon the judgments of Mohd. Quresh (Sapra) and Gurditta Mal (Sapra). The aforesaid two authorities relied upon by Ld. Counsel for the applicant/respondent no.1 were discussed by the Hon'ble Supreme Court in the judgment of Prithipal Singh (Sapra). The Hon'ble Supreme Court noted that the judgment of Gurditta Mal (Sapra) was discussed in the E87/2015 Page 5/7 judgment of Prakash H. Jain Vs. Ms. Marie Farnandes (AIR, 2003 SC
451), wherein it was held that conferment of power under Rule 23 of DRC Rules, by relying upon Section 151 CPC by Delhi High Court in the judgment of Gurditta Mal (Sapra) was not appropriate as such power was not conferred under the statute. It was further held that there was no inherent power of the court to condone delay in proceedings before court/authority. In Prithipal Singh (Sapra), the Hon'ble Supreme Court stated that Prakash H. Jain (Sapra) could not be differentiated, merely because that decision was rendered under the Maharashtra Rent Control Act. Observing that the provisions under the Maharashtra Rent Control Act and Delhi Rent Control Act are pari materia and therefore, Prakash H. Jain (Sapra) practically overrules the decision of Delhi High Court in Mohd. Quresh (Sapra) and Gurditta Mal (Sapra).
10. In Prithipal Singh (Sapra), the Hon'ble Supreme Court discussed the relevant provisions and the scheme of Delhi Rent Control Act and held that Section 25B of the Act is the complete code by which the entire procedure to be adopted for eviction of a tenant on the ground of E87/2015 Page 6/7 bonafide requirement filed by the landlord in respect of the premises shall be followed. It was further held that the Rent Controller does not have any power to condone the delay in grant of leave to contest the eviction petition on the ground of bonafide necessity U/s 14 (1) (e) of DRC Act. The similar proposition was laid down by Hon'ble High Court in the case of Bhim Sen Batra Vs. Shreyansh Buildwell Pvt. Ltd., 221 (2015) DLT 413.
11. In view of the aforesaid discussions and the judicial pronouncements of the superior courts, this Court is of the considered opinion that this Court cannot condone delay in filing application for leave to defend and cannot review its order dated 24.09.2015 whereby the eviction order was passed. Accordingly, the application of the applicant/respondent no.1 U/s 25 (B) (4) & (5), (8) and (9) of DRC Act r/w Section 37(5) CPC is dismissed.
File be consigned to Record Room.
Announced in the open court (Hem Raj)
on 18.04.2016 Administrative Civil Judgecum
Additional Rent Controller (Central)
Delhi
E87/2015 Page 7/7
E87/2015
18.04.2016
Case taken up today as 14.04.2016 was holiday being Dr. B.R. Ambedkar Jayanti.
Present : None.
Vide separate order of even date of mine, the application U/s 25 (B) (4) & (5), (8) and (9) of the DRC Act, 1958 r/w Section 37(5) CPC for grant of leave to defend and contest the eviction petition and for condoning of delay filed by applicant/respondent no.1, Sh. Arun Kumar Sharma is dismissed.
File be consigned to Record Room.
(Hem Raj) ACJ/ARC (Central) Delhi/18.04.2016 E87/2015 Page 8/7