Delhi District Court
Sh. Darshan Singh vs Sh. Diwan Chand on 19 August, 2013
IN THE COURT OF SH. TARUN YOGESH:
ADDITIONAL RENT CONTROLLER
PATIALA HOUSE COURTS: NEW DELHI
E09/13/13
Sh. Darshan Singh ... Petitioner
S/o Sh. Pritam Singh
R/o 70, Arjun Nagar, New Delhi 110 029.
Vs.
Sh. Diwan Chand ... Respondent
Tailor Shop, 70 Arjun Nagar
New Delhi
Also at :
206 A/4, Second Floor,
Arjun Nagar, New Delhi 110029.
JUDGMENT
1. Vide this order I propose to decide the application of respondent Sh. Diwan Chand filed under section 25B subsections (4) and (5) of the Delhi Rent Control Act, 1958 (hereinafter referred as DRC Act) seeking leave to contest the eviction petition filed by petitioner Sh. Darshan Singh under section 14 (1) (e) of DRC Act for his eviction from tenanted premises described as the Tailor Shop with mezzanine in property no. 70, Arjun Nagar, New Delhi, ad measuring 12 ft. X 11 ft., shown as red in the site plan, on the ground of bona fide requirement. E09/13/13 Darshan Singh Vs. Diwan Chand Page no. 1/11
2. Respondent's application under section 25B subsections (4) & (5) of DRC Act along with affidavit mentioning the grounds for leave to contest the eviction petition has been filed on record on 03.07.2013 and respondent has filed another application under section 5 of the Limitation Act read with section 151 CPC on 12.07.2013 seeking condonation of delay in filing his application for leave to defend. He has filed his own affidavit and affidavit of his counsel Adv. Sh. Dharmender Kumar along with photocopies of prescription, test and postoperative treatment schedule of his advocate for seeking condonation of delay in filing his application for leave to defend. Briefly stated facts of the case necessary for deciding the applications are discussed as under:
3. Petitioner Sh. Darshan Singh has filed his petition seeking eviction of tenant/ respondent Sh. Diwan Chand from tenanted premises i.e. tailor shop with mezzanine in property no. 70, Arjun Nagar, New Delhi, ad measuring 12 ft. X 11 ft. stating that the premises comprising one shop with mezzanine had been let out to tenant for running his tailoring shop upon monthly rent of Rs. 1500/ per month, excluding electricity charges. He has further stated that property no. 70, Arjun Nagar, New Delhi 110029 measuring about 200 sq. yds. situated in Khasra no. 71, 146 of Revenue Estate of Humayunpur, New Delhi29 was originally owned by his father late Sh. Pritam Singh, S/o Late Sukhdev Singh and his father at the time of his demise left behind a duly registered Will registered as document no. 1881 in additional book no. 3, Volume no. E09/13/13 Darshan Singh Vs. Diwan Chand Page no. 2/11 220, pages 87 to 88, in the office of SubRegistrar, New Delhi on 03.08.1982, bequeathing the property to him and his brother Sh. Gurnam Singh in equal shares which has been mutated in their names in the record of MCD, R.K. Puram, Sector IX, New Delhi, vide mutation letter no. TAX/RKP/SAU/2435 dated 16.03.2005. Respondent is stated to be an old tenant in the original property inherited by petitioner and his brother from their father and by means of partition deed dated 28.06.2010, property no. 70, Arjun Nagar, New Delhi has been mutually partitioned between them into two separate portions of 100 sq. yds. each and the portion of property admeasuring 100 sq. yds. adjoining property no. 69, Arjun Nagar has fallen in his share which has been shown in blue in the site plan. The tenanted shop forming portion of property no. 70, Arjun Nagar fell in his share and respondent having become his tenant started paying rent to him.
4. Petitioner has sought respondent's eviction from the tenanted premises stating that after his retirement from Delhi Transport Corporation w.e.f. 31.08.2012 he intends to start an electrical shop for gainfully employing himself by opening an electrical spare parts and repair shop dealing in electrical items and works and his wife may also help and assist him or carry on her own work from the demised premises for running their small time business/shop as part of their self employment. Petitioner has also mentioned that his son is a qualified Graphic Designer and holds a Bachelor's Degree in Fine Arts whose E09/13/13 Darshan Singh Vs. Diwan Chand Page no. 3/11 work profile primarily involves working on computer and designing books, magazine etc. which can be carried out by his son from the shop/ tenanted premises bearing no. 70, Arjun Nagar, New Delhi.
5. After filing of eviction petition on 17.04.2013, notice of the petition in form specified in Third Schedule has been directed to be issued for effecting service through ordinary process, registered post acknowledgement due and through speed post and as per the report of process server, respondent Sh. Diwan Chand has been served with the notice of the eviction petition filed under section 14 (1) (e) of DRC Act on 03.06.2013 at both his addresses. The acknowledgement cards sent along with registered cover for effecting service of notice has been received back duly signed and notice has also been served through ordinary process and bears the signature and mobile number of one Sh. Tara Chand.
6. Submissions upon application filed under section 25B (4) & (5) DRC Act and the other application filed under section 5 of the Limitation Act read with section 151 CPC for condoning the delay in filing the application beyond 15 days time from the date of service of notice of eviction petition as prescribed in the Third Schedule has been addressed by Adv. Sh. Sanjay Goswami for petitioner and Adv. Sh. Dharmender Kumar for respondent.
E09/13/13 Darshan Singh Vs. Diwan Chand Page no. 4/11
7. Adv. Sh. Sanjay Goswami has addressed his submissions upon the application filed by respondent seeking condonation of delay in filing the application under section 25 B (4) &(5) of DRC Act for leave to defend stating that as per notice under the Third Schedule of DRC Act, 1958 served upon respondent, 15 days time had been given to respondent to appear before Controller to obtain leave to contest the eviction petition failing which the applicant/ petitioner shall be entitled after the expiry of the period of 15 days to obtain an order of eviction. He submits that the application filed under section 5 of Limitation Act read with section 151 CPC seeking condonation of delay is not maintainable and is liable to be dismissed as it is not the question of court exercising its discretion to condone delay in filing application under section 25 B (4) & (5) of DRC Act along with affidavit, rather the court has no power to extend the time beyond the period of 15 days prescribed for filing application seeking leave to contest the eviction petition. Adv. Sh. Sanjay Goswami, learned counsel for petitioner has relied upon the judgment of the Division Bench of Hon'ble Supreme Court of India delivered in case titled Preet Pal Singh Vs. Sat Pal Singh and the other judgment pronounced by Hon'ble Ms. Justice Indermeet Kaur, Judge, Delhi High Court in case titled Ram Kishan & Sons Vs. Mohd. Haroon Japanwala 2012 (188) DLT 364 in support of his contention.
8. Adv. Sh. Dharmender Kumar per contra has prayed for condoning E09/13/13 Darshan Singh Vs. Diwan Chand Page no. 5/11 the delay in filing application under section 25B (4) & (5) DRC Act seeking leave to contest the eviction petition submitting that summons of the case had been received by respondent on 01.06.2013 and he was required to file his application seeking leave to defend within 15 days from the date of receipt of summons, nonetheless same could not be filed within time as the court remained closed from 08.06.2013 to 01.07.2013 on account of summer vacation and respondent could not file his leave to defend on 01.07.2013 as he (learned counsel himself) had been suffering from eye ailment/cataract problem in both his eyes, restricting his movement which was detected upon medical advise on 01.06.2013 and as per doctor's advice he got operated on 05.07.2013 and though the application for leave to defend was prepared within time, same was sent to petitioner on 24.06.2013. Learned counsel for respondent has referred to his own affidavit and that of respondent besides referring to the photocopies of test, medical prescription and postoperative treatment schedules for praying to condone the delay in filing the application for leave to defend.
9. Hon'ble Supreme Court of India in the case titled Prithi Pal Singh Vs. Sat Pal Singh (dead) through its LRs I (2010) SLT 116 has noted that Additional Rent Controller has no power to condone the delay of eight days in filing the application seeking leave to defend for holding that since the application seeking leave to defend was not filed within stipulated period of 15 days, it could not be taken on record and E09/13/13 Darshan Singh Vs. Diwan Chand Page no. 6/11 necessary corollary being that the eviction decree followed in the hands of the landlord. In another decision of the Hon'ble Supreme Court of India passed in (2010) 9 SCC 183, Om Prakash Vs. Ashwani Kumar Bassi, the Hon'ble Apex Court has reiterated that ARC has no power to condone the delay in the filing of an application for leave to defend. The relevant extract of the observations of the Hon'ble Apex Court is reproduced as follows: The views expressed by the High Court also formed the subject matter of the decision in Prithipal Singh's case (supra), though in the context of the Delhi Rent Control Act, 1958, and the rules framed thereunder. This Court was of the view that section 25 B of the Rent Control Act was a complete code by itself and other provisions could not, therefore, be brought into play in such proceedings. In the instant case, the same principle would apply having regard to the fact that the Rent Controller had not been conferred with power under Order 9 Rule 13 C.P.C. to recall an exparte order passed earlier.
10. In the next judgment titled Ram Kishan and Sons Vs. Mohd. Haroon Japanwala (supra) referred by petitioner's counsel, the judgment/order of eviction dated 12.07.2011 passed by the Rent Controller upon its finding that there being a delay of one day in filing E09/13/13 Darshan Singh Vs. Diwan Chand Page no. 7/11 the application for leave to defend, the Rent Controller had no power to condone the delay and the application could not be taken on record had been challenged by respondent/ tenant by filing revision petition, which nonetheless has been dismissed by Hon'ble Ms. Justice Indermeet Kaur by holding that the impugned order dated 12.07.2011was justified and needs no interference as Additional Rent Controller has no power to condone delay of even one day.
11. In the present eviction petition filed by petitioner Sh. Darshan Singh against respondent Sh. Diwan Chand, notice in the form prescribed under the Third Schedule of DRC Act has been served upon respondent through ordinary process/ process server on 03.06.2013. Respondent/ applicant in his application filed under section 5 of the Limitation Act read with section 151 of CPC has stated to have received summons on 01.06.2013 requiring him to file his application seeking leave to defend within 15 days from the date of receipt of the summons. The acknowledgement cards bearing signatures of Sh. Diwan Chand and one Sh. Harsh sent along with the registered cover and speed post have been filed on record bearing the date of 31.05.2013 upon the stamp affixed on their reverse side.
12. Having been served with notice in the form prescribed under the Third Schedule of DRC Act on 01.06.2013, application under section 25 B (4) & (5) of DRC Act ought to have been filed by respondent within E09/13/13 Darshan Singh Vs. Diwan Chand Page no. 8/11 15 days of service of notice. Once the time for filing application has begun to run, no subsequent disability or inability to make an application stops it and in case where the prescribed period for an application expires on a day when the court is closed, the application must be made on the day when the court reopens. (Refer to section 4 and section 9 of the Limitation Act, 1963). Even otherwise the averment/ contention raised by respondent/ applicant in his application filed under section 5 of the Limitation Act read with section 151 CPC for condonation of delay in filing application for leave to defend is incorrect as the court of Rent Controller/ Additional Rent Controller was not closed during summer vacation but remained open for disposing of urgent matters under the Delhi Rent Control Act, 1958 from 10.06.2013 to 29.06.2013, except on second Saturday, Sundays and other holidays, if any, during the Summer Vacation in terms of Order of the Office of District & Sessions Judge (New Delhi District), Patiala House Courts: New Delhi, No. 721548/ Judl./ NDD/ PHC dated 30.05.2013.
13. In view of the law laid down through judgments titled Preetipal Singh Vs. Sat Pal Singh and Ram Kishan and Sons Vs. Mohd. Haroon Japanwala (supra) referred and relied upon by petitioner and similar observation made by Hon'ble Ms. Justice Indermeet Kaur in case titled Madhu Gupta Vs. Gardenia Estates (Pvt.) Ltd., after insertion of Chapter IIIA of DRC Act providing for summary trial of certain E09/13/13 Darshan Singh Vs. Diwan Chand Page no. 9/11 applications, any application seeking grant of eviction shall be dealt with strictly in accordance with the procedure as contained in Section 25B of the Act and no extension of time for filing application under section 25B (4) of DRC Act, supported by affidavit mentioning the grounds seeking leave to contest the petition can be granted beyond 15 days. Hence in view of the law laid down by Hon'ble Courts of Record as discused above, respondent's application filed under section 5 of Limitation Act read with section 151 CPC for condonation of delay in filing application seeking leave to defend the eviction petition being not maintainable stands dismissed.
14. Similarly, respondent's application and affidavit filed under section 25B (4) & (5) DRC Act having been filed beyond 15 days of the receipt of summons/ notice of the eviction petition in the form prescribed under the Third Schedule, statement made by the petitioner/landlord Sh. Darshan Singh in his eviction petition shall be deemed to be admitted by respondent/ tenant Sh. Diwan Chand and petitioner/ applicant shall be entitled to an order for eviction. Hence the application filed by respondent Sh. Diwan Chand under section 25B (4) & (5) of DRC Act along with his affidavit does not require any detailed discussion for the reason of having not been filed within 15 days of service of notice.
15. Accordingly respondent's application filed under section 25B (4) & (5) of DRC Act stands dismissed and an eviction order is passed E09/13/13 Darshan Singh Vs. Diwan Chand Page no. 10/11 against respondent/ Sh. Diwan Chand in respect of tenanted premises i.e. Tailor Shop with mezzanine in property no. 70, Arjun Nagar, New Delhi ad measuring 12 ft. X 11 ft. as shown red in the site plan. However, as provided under section 14 (7) of DRC Act, petitioner shall not be entitled to obtain possession of the suit premises before expiry of period of six months from today and respondent Sh. Diwan Chand is granted six months time to vacate the premises. File be consigned to record room. Announced in the open court on 19.08.2013. (Tarun Yogesh) Additional Rent Controller Patiala House Courts New Delhi : 19.08.2013 E09/13/13 Darshan Singh Vs. Diwan Chand Page no. 11/11