Delhi High Court
Director Education And Anr vs Mohd Shamim And Ors on 16 August, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 16th August, 2017
RC.REV. 279/2014, CM No.16348/2012 (for stay), CM
No.10006/2014 (for directions) & CM No.15202/2017 (for
appropriate orders)
DIRECTOR EDUCATION AND ANR ..... Petitioners
Through: Mr. Santosh Kumar Tripathi &
Mr. Rizwan, Advs.
Versus
MOHD SHAMIM AND ORS ..... Respondents
Through: Mr. Sanjeev Sindhwani, Sr. Adv. with Mr. Sanjay Dua, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM No.10677/2017 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.RC.REV. 279/2014
3. This Rent Control Revision Petition under Section 25B(8) of the Delhi Rent Control Act, 1958 impugns the order [dated 24 th April, 2012 in E. No.04/2012 of the Court of Senior Civil Judge (SCJ)/Rent Controller (RC), North District, Tis Hazari Courts, Delhi] allowing the petition for eviction filed by the respondents under Section 14(1)(e) of the Act owing to the petitioners having not filed the application for leave to defend within 15 days from 23rd February, 2012 i.e. by 9th March, 2012 and having filed the same on 28th March, 2012.RC.REV.279/2014 Page 1 of 15
4. The petition was entertained and notice thereof ordered to be issued and execution of the order of eviction stayed.
5. Vide order dated 26th February, 2016 modified on 21st March, 2016, the petitioners, as a condition for continuation of the order of stay of order of eviction, were directed to pay use and occupation charges to the respondents at the rate of Rs.1.5 lacs per month with effect from 24th April, 2012 when the order of eviction became executable and during the continuance of the petition for eviction.
6. The counsel for the petitioners today states that steps are being initiated for having the property acquired since the same is being used for running a minority school and seeks adjournment to find out the status of the acquisition.
7. The senior counsel for the respondents controverts that any steps have been taken for acquisition of the property. He further states that the petitioners are not entitled to address arguments or to continuation of the order of stay of eviction, having not complied with the orders dated 26th February, 2016 and 21st March, 2016.
8. The counsel for the petitioners has shown to the Court a demand draft got prepared for the sum of Rs.94,50,000/- in favour of the Registrar, Delhi High Court.
9. A perusal of the order dated 26th February, 2016 shows the direction to the petitioners to be, to "pay" and not to deposit. In these circumstances, the demand draft in favour of the Registrar of this Court is of no avail.RC.REV.279/2014 Page 2 of 15
10. The counsel for the petitioners states that since the petitioners are also disputing the ownership and existence of relationship of landlord and tenant, the demand draft in the name of the Registrar, Delhi High Court has been got prepared.
11. Once the direction is to pay, these arguments cannot be urged and as far as the contentions of the petitioners are concerned, the payments during the pendency of this petition are without prejudice to the rights and contentions and subject to the final outcome of this petition and in the event of the petitioners succeeding, refundable by the respondents to the petitioners. Thus the petitioners ought not to fear.
12. The senior counsel for the respondents also controverts that any minority school is being run from the subject premises. He states that it is a government school only.
13. This petition being of the year 2012 (re-numbered in the year 2014), the adjournment sought by the counsel for the petitioners has been refused.
14. A perusal of the impugned order shows that the application of the petitioners for leave to defend has not been considered on merits, relying on Prithipal Singh Vs. Satpal Singh (dead) through its LRs.
(2010) 2 SCC 15.
15. I have enquired from the senior counsel for the respondents, that though the Rent Controller constituted under the Rent Act has no jurisdiction to condone the delay in applying for leave to defend, RC.REV.279/2014 Page 3 of 15 whether not this Court, in the event of finding a ground for condoning the delay, be entitled to condone the delay and remand the matter to the Rent Controller for consideration of the application for leave to defend on merits.
16. The senior counsel for the respondents refers to the dicta of another Single Judge of this Court in Kailash Devi Vs. Brij Pal Manocha 2014 (213) DLT 726 as under:
"2. Though counsel for the petitioner has sought to again argue that this Court has power to condone the delay in exercise of inherent powers of such powers which every High Court has to do justice, however, I refuse to allow the petitioner to raise such argument because if I permit so, it will be violating the direct ratio of the Supreme Court in the case of Prithipal Singh (supra) which says that neither the Additional Rent Controller nor the High Court has power to condone the delay of even one day inasmuch as neither the provision of Section 5 of the Limitation Act, 1963 nor the provisions of Code of Civil Procedure, 1908 (CPC) apply to the special procedure for eviction of the tenants on the ground of bona fide necessity."
17. However the senior counsel for the respondents fairly admits that though the learned Single Judge, for holding that neither the Rent Controller nor the High Court has power to condone the delay of even one day in applying for leave to defend relied on Prithipal Singh supra but a reading of Prithipal Singh does not show so.
18. I have today again read Prithipal Singh supra with the assistance of the senior counsel for the respondents and do indeed find the Supreme Court to have not held so. Moreover, the question for RC.REV.279/2014 Page 4 of 15 consideration in Prithipal Singh supra was, whether the provisions of Order XXXVII Rule 4 of the CPC are applicable to the Rent Act as had consistently been held by this Court since Gurditta Mal Vs. Bal Swarup AIR 1980 Del 2016 and Mohd. Quresh Vs. Roopa Fotedar ILR (1990)1 Del 16 and it was held that they are not. My reading of Prithipal Singh supra does not show the Supreme Court to have directly considered, whether in exercise of powers under Section 25B (8) of the Act, this Court, if finds sufficient grounds for the delay caused in applying for leave to defend, can set aside the order of eviction, condone the delay in applying for leave to defend and remand the matter to the Rent Controller for consideration on merits of the leave to defend application.
19. To me, it is unpalatable that for failure to apply for leave to defend within 15 days, the tenant can have no recourse and would be ejected summarily.
20. The failure to apply for leave to defend a petition for eviction under Sections 14 (1) (e) or 14A or 14B or 14C or 14D can be for diverse reasons including for reasons not attributable to the tenant or beyond the control of the tenant. If it were to be held that whatever may be the reasons, if leave to defend is not filed within prescribed time, the consequences, provided under Section 25B(4) i.e. of the statement made by the landlord in the petition for eviction being deemed to be admitted by the tenant and the landlord being entitled to an order for eviction, shall follow, and that neither the Rent Controller nor this Court can go into the question whether the failure of the RC.REV.279/2014 Page 5 of 15 tenant to apply for leave to defend within the prescribed time was for reasons not attributable to him or for reasons beyond his control, then the same would lead to the tenant being evicted from the premises without having had an opportunity to have his reasons for failure to file the leave to defend within time, heard before any Court and which in my opinion would be without due process of law and will result in the tenant being evicted from the premises, for protecting his eviction wherefrom the Rent Act was enacted.
21. It cannot be lost sight of that vide section 25B(8) no appeal or second appeal lies against an order for recovery of possession made by the Rent Controller in accordance with the procedure specified in Section 25B.
22. The proviso to Section 25B(8) however empowers this Court to, for the purpose of satisfying itself that the order made by the Rent Controller in accordance with law, call for the records of the case and pass such order in respect thereto as it thinks fit. In my view, this Court cannot be said to have been satisfied that the order made by the Rent Controller under Section 25B is in accordance with the law if were to find that the non filing of the leave to defend within the prescribed time was for reasons not attributable to or beyond the control of the tenant.
23. Significantly Section 25B does not contain any negative language to the effect that if the leave to defend is not filed within the time of 15 days from service of the notice of the petition of eviction, it RC.REV.279/2014 Page 6 of 15 cannot be filed later or that the delay cannot be condoned. Supreme Court in Union of India Vs. Popular Construction Co. (2001) 8 SCC 470 in the context of the proviso to Section 34 of the Arbitration and Conciliation Act, 1996 held the court to be not having power to condone the delay in applying under the said Section 34 owing to the negative language used therein. There is even otherwise no bar in Section 25B or otherwise in the Rent Act to condone the delay in applying for leave to defend. The provision in Section 25B(4), that in default of appearance in pursuance to the summons or obtaining leave, the statement made by the landlord in the petition for eviction shall be deemed to be admitted, cannot, in my view be construed as „negative‟, implying exclusion of an application for condonation of delay in applying for leave to defend.
24. The reason for which it was held that the Rent Controller is not entitled to entertain an application for condonation of delay in applying for leave to defend was that the provisions of Limitation Act, 1963 were held to be not applicable to the Rent Controller which was not a Civil Court. It was so held in i) Town Hall Municipal Council Athani Vs. Presiding Officer, Labour Court, Hubli AIR 1969 SC 1335; ii) Nityanand M. Joshi Vs. Life Insurance Corporation of India AIR 1970 SC 209; and iii) Sushila Devi Vs. Ramanandan Prasad AIR 1976 SC 177 (182). However thereafter Supreme Court in Ganpat Ram Sharma Vs. Gayatri Devi (1987) 3 SCC 576 held that a petition for eviction under Section 14(1)(h) of the Rent Control Act is governed by the provisions of Limitation Act and held the said RC.REV.279/2014 Page 7 of 15 time to be limited to 12 years from the date when the ground of eviction accrued. Though not expressly, Supreme Court vide the said judgment held the Limitation Act to be applicable to the Rent Controller. Thereafter this Court in Modi Spinning & Weaving Mills Co. Ltd. Vs. Krishna Wanti 2012 SCC Online 1102 and in Maheshwar Dayal (Deceased) Vs. Shanti Devi 2012 (128) DRJ 338 has been applying the provisions of Limitation Act to the proceedings under the Rent Control Act.
25. I may however notice that subsequently, Supreme Court in Prakash H. Jain Vs. Marie Fernandes (2003) 8 SCC 431, in the context of an application for leave to contest under the Maharashtra Rent Control Act, 1999 and without noticing Ganpat Ram Sharma supra, held that the Competent Authority constituted under the Rent Act is not a Court and has no power to condone the delay.
26. Supreme Court, in Prithipal Singh supra also noted that it was "not disputed by the respondent / tenant that no application for condonation of delay could be entertained by the Rent Controller as the provisions of Limitation Act, 1963 could not be attracted". However earlier judgment in Ganpat Ram Sharma supra applying the Limitation Act to proceedings before the Rent Controller was not noticed.
27. Axiomatically it follows that with the change in law and the prevalent view being that the Limitation Act applies to proceedings before the Rent Controller, the self imposed bar to entertaining RC.REV.279/2014 Page 8 of 15 applications under Section 5 of the Limitation Act for condonation of delay in applying for leave to defend has also to be held to have disappeared.
28. Reference may also be made to Section 37(1) of the Rent Act which provides that no order which prejudicially affects any person shall be made by the Rent Controller without giving him a reasonable opportunity of showing cause against the order proposed to be made. Certainly, not granting an opportunity to the tenant to show that non- filing of leave to defend within the prescribed time was for reasons not attributable to him or for reasons beyond his control would amount to passing an order of eviction without an opportunity of hearing. Though owing to the non obstante clause in Section 25A, giving the provisions of Section 25B effect notwithstanding anything inconsistent therewith contained elsewhere in the Rent Act, Section 37(1) may not apply to the proceedings thereunder but I am intrigued to find Section 25B(7) providing as under:
"(7) Notwithstanding anything contained in sub-section (2) of section 37, the Controller shall, while holding an inquiry in a proceeding to which this Chapter applies, follow the practice and procedure of a Court of Small Causes, including the recording of evidence."
Section 37(2) is as under:
"(2) Subject to any rules that may be made under this Act, the Controller shall, while holding an inquiry in any RC.REV.279/2014 Page 9 of 15 proceeding before him, follow as far as may be the practice and procedure of a Court of Small Causes, including the recording of evidence."
29. I have wondered, the need for Section 25B(7) inasmuch as it is otherwise settled law that once leave to defend is granted, the procedure to be followed in a petition for eviction under Section 14(1)(e) or 14A or 14B or 14C or 14D is the same as applicable to other proceedings before the Rent Controller. Section 25B(7) thus applies to enquiry at the stage of consideration of application for leave to defend and requires the Controller to follow the practice and procedure of a Court of Small Causes, including the recording of evidence. While under Section 37(2) following the said procedure is restricted to "as far as may be", there is no restriction under Section 25B(7). The practice and procedure of a Court of Small Causes is provided in Chapter IV and Chapter V of the Provincial Small Cause Courts Act, 1887 and Section 17 where-under provides that the procedure prescribed in the Code of Civil Procedure shall, save insofar as otherwise provided by the Code of Civil Procedure or by the said Act, be the procedure followed in the Court of Small Causes.
30. Order 50 of the CPC prescribes the provisions thereof which shall not extend to the Small Causes Court and the provision of Order IX of the CPC are not found to be excluded.
31. Section 25B(7) also provides for recording of evidence in the manner applicable to the Small Causes Courts. It thus appears that the RC.REV.279/2014 Page 10 of 15 Rent Controller, while deciding the application for leave to defend also, is entitled to make an inquiry and which inquiry can extend to the delay in applying for leave to defend. Section 25B(7) remained to be noticed in any of the judgments. Notice may also be taken of Section 25B (9) which empowers the Rent Controller to exercise power of review in accordance with Order XLVII of the CPC. Order XLVII permits review on discovery of new and important material which, after exercise of the diligence could not be produced when order was made. Once the bar to power of the Rent Controller to condone delay is removed, a ground of leave to defend having not been filed within prescribed time for reasons not attributable to or beyond the control of tenant may also form ground for review.
32. Notice may also be taken of Om Prakash Vs. Ashwani Kumar Bassi (2010) 9 SCC 183, though in the context of East Punjab Urban Rent Restriction Act, 1949, reiterating that delay in applying for leave to defend cannot be condoned owing to non application of Section 5 of the Limitation Act but distinguishing Mukri Gopalan Vs. Cheppilat Puthanpurayil Aboobacker (1995) 5 SCC 5, reasoning that since the powers of Appellate Authority under the Kerala Buildings (Lease and Rent Control) Act, 1965 with which it was concerned, were being exercised by District Judges, they, even while functioning as Appellate Authority under the Rent Act were a Court and not a persona designata like the Rent Controller under the East Punjab Act, who were members of Punjab Civil Service, and therefore entitled to resort to Section 5 of the Limitation Act.
RC.REV.279/2014 Page 11 of 1533. Seen in this light, the power of Rent Controller under the Delhi Rent Act is exercised by the Civil Judges and they would also not be persona designata and be entitled to exercise power under Section 5 of the Limitation Act.
34. Applying the said reasoning, this Court exercising powers under Section 25B (8), would in appropriate cases be certainly entitled to condone the delay in applying for leave to defend.
35. For the aforesaid reasons I am of the view that at least this Court in exercise of powers under Section 25B(8) of the Rent Act is not denuded of the powers to set aside the order of eviction if finds that the delay in applying for leave to defend was justified.
36. I have also toyed with the idea of consideration on merits, of the leave to defend application, by this Court itself in the first instance and have enquired so from the senior counsel for the respondents.
37. The senior counsel for the respondents contends and which is my view also, that this Court in exercise of jurisdiction under Section 25B(8) of the Act would not be entitled to, in the first instance, consider the application for leave to defend itself.
38. The senior counsel for the respondents also refers to Madhu Gupta Vs. Gardenia Estates (P) Ltd. 2011 (184) DLT 103 holding that the procedure prescribed in Section 25B does not permit amendment of application for leave to defend and states that though RC.REV.279/2014 Page 12 of 15 Special Leave Petition was preferred thereagainst but the same was withdrawn.
39. It cannot be forgotten that premises which are let out to government / government agencies, as in the present case, with none having personal interest for protection thereof, are in a special position and it is for this reason only that notwithstanding the repeated observations of there being no special law of limitation for the government, consideration is still given to the factor of public loss being not caused by inefficiency and inaction of government officials, while adjudicating the applications for condonation of delay in filing appeals etc. by the government / government agencies.
40. However since there is already a view of the learned Single Judge of this Court in Kailash Devi supra, all the said aspects will have to be considered by a larger bench of this Court.
41. Option has been given to the senior counsel for the respondents, of remanding the matter to the Rent Controller and having application for leave to defend considered on merits in a time bound manner, with the petitioners continuing to pay the charges as already directed but the senior counsel for the respondents, under instructions, states that he cannot consent thereto.
42. Let the file be placed before Hon‟ble the Chief Justice to consider the constitution of a Larger Bench for consideration of the following question:
RC.REV.279/2014 Page 13 of 15(A) Whether this Court, in exercise of powers under Section 25B (8) of the Act, is entitled to set aside an order of eviction under Section 14(1)(e) or 14A or 14B or 14C or 14D owing to the application for leave to defend having not been filed within the prescribed time, if finds sufficient grounds for non-filing of application for leave to defend and to condone the delay and remand the matter to the Rent Controller to consider the leave to defend application on merits.
(B) Whether the Rent Controller, in exercise of powers under Section 25B(7) or 25B(9) is entitled to set aside an order of eviction under Sections 14(1)(e) or 14A or 14B or 14C or 14D owing to non-filing of application for leave to defend within the prescribed time, if finds sufficient grounds therefor.
43. The demand draft of Rs.94,50,000/- supra in favour of the Registrar, Delhi High Court has been returned to the counsel for the petitioners.
44. Subject to the petitioners, on or before 23rd August, 2017 handing over to the counsel for the respondents a demand draft in the name of the respondent no.1 as desired by the counsel for the respondents, for the amounts due till the end of the month of August, 2017 in terms of the orders dated 26th February, 2016 and 21st March, 2016 supra and further subject to the petitioners continuing to pay to the respondents, the amount of Rs.1.5 lacs per month with effect from RC.REV.279/2014 Page 14 of 15 the month of September, 2017, in advance for each month by the 10th day of the month, the stay of the order of eviction shall continue. Else, the respondents shall be entitled to execute the order of eviction.
RAJIV SAHAI ENDLAW, J AUGUST 16, 2017 „gsr‟..
RC.REV.279/2014 Page 15 of 15