Delhi High Court
Pawan Kumar Goel vs Suresh Chander Gupta & Anr. on 29 April, 2013
Author: Veena Birbal
Bench: Veena Birbal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC.REV. 33/2013
% Date of Decision: April 29, 2013
PAWAN KUMAR GOEL ..... Petitioner
Through Mr.Rajshekhar Rao with Mr.Ankur
Mohindro, Advs.
versus
SURESH CHANDER GUPTA & ANR. ..... Respondents
Through Mr.J.P.Sengh, Sr.Adv. with
Mr.C.Prakash, Mr.Sumeet Batra &
Ms.Ankita Gupta, Advs.
CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL
VEENA BIRBAL, J.
*
1. By this revision petition a challenge has been made to the order dated 18th October, 2012 passed by the learned Rent Controller, Delhi whereby the application of the petitioner/tenant under section 25B(5) of the Delhi Rent Control Act, 1958 (hereinafter referred to as „the Act‟) seeking leave to contest the eviction petition under section 14(1)(e) read with section 25B of the Act, has been dismissed.
2. Briefly the factual background is as under:-
A petition for eviction under section 14(1)(e) of the Act was filed by RC.REV.No.33/2013 Page 1 of 8 the respondent herein i.e., petitioner before the learned trial court. After the service of summons, petitioner/tenant moved an application alleging therein the grounds for the grant of leave to contest the eviction petition. Along with the application a short affidavit was also filed. The reply to the same was filed by the respondent/landlord contending therein that the application for leave to contest was not maintainable as the same was not filed as per procedure given under section 25B(4) and (5) of the Act. It was contended that the petitioner/tenant had failed to file the mandatory affidavit disclosing the grounds on which respondents/landlord was not entitled for grant of relief claimed under section 14(1)(e) of the Act. It was further contended that section 25B of the Act is complete code for disposal of the application 14(1)(e) of the Act and as per section 25B(4) & (5) of the Act, it was mandatory for the petitioner/tenant to file an affidavit disclosing the ground for grant of leave to defend.
3. After hearing learned counsel for the parties, the learned Rent Controller dismissed the application by holding that affidavit filed by the petitioner/tenant was cryptic and vague and was not filed as per the requirements of law, as such, same could not be considered as an affidavit within the meaning of section 25B(4) of the Act and eviction petition was allowed vide impugned order dated 18th October, 2012.
4. Aggrieved with the same, present petition is filed.
5. Learned counsel for petitioner/tenant has submitted that after the receipt of summons, within 15 days petitioner/tenant had moved an application stating the grounds on which he was seeking leave to contest the RC.REV.No.33/2013 Page 2 of 8 eviction petition. The said application was supported by an affidavit as such the petitioner had complied with Section 25B(4) of the DRC Act. In support of his contention, petitioner/tenant has relied upon judgment of this court titled Gian Chand v. Roop Narain: 1979 RLR 469 and the order dated 19.3.2012 passed by this court in RC.Rev.No.438/2011 titled Arjun Rai Bhayana vs Santosh Hans.
6. Learned senior counsel appearing for respondent/landlord has contended that in the affidavit filed by the petitioner/tenant no grounds were mentioned on which he was seeking leave to contest the application for eviction though in the application for leave he had mentioned the grounds. It is contended that in these circumstances, petitioner/tenant cannot be allowed to contest the eviction petition. Learned counsel for respondent/landlord has relied upon Vinod Sharma v. Kasturi Devi : ILR (2010) VI Delhi 422 and has contended that the aforesaid judgment of this court is based on the judgment of Supreme Court in Prithipal Singh v. Satpal Singh (Dead) through LRs: 2009(14) SCALE 672 as such, the earlier two judgments relied upon by the petitioner cannot be considered.
7. I have heard the parties and perused the material on record.
8. It is admitted position that within 15 days from the receipt of summons the petitioner/tenant filed an application under Section 25B(4) of the Act for grant of leave to defend the eviction petition. In the said application petitioner/tenant has stated the grounds on which he is seeking leave from the learned ARC to contest the eviction petition. Along with this application an affidavit is filed wherein it is stated that the accompanying RC.REV.No.33/2013 Page 3 of 8 application for the grant of leave to defend the eviction petition may be read as part and parcel of the affidavit and the contents of accompanying application are not reflected therein for the sake of brevity. The affidavit of petitioner/tenant is not stating the grounds. However, it is stated in the affidavit that accompanying application for the grant of leave to defend the eviction petition be read as part and parcel of this affidavit and the contents of accompanying application are not reflected therein for the sake of brevity. It is also stated in the affidavit that the accompanying application has been drafted under his instructions and the same has been read over to him in Hindi, the vernacular language known to him. The learned ARC has held that the affidavit is vague and cryptic and there is no compliance of the provisions of the Delhi Rent Control Act.
9. The facts of the case relied upon by the learned counsel for petitioner/tenant reported in Gian Chand v. Roop Narain: 1979 RLR 469 are similar to the present case wherein the petitioner/tenant on the receipt of summons of an eviction petition under Section 14(1)(e) of the Act had filed an application stating the grounds on which he was seeking leave to contest the eviction petition. The said application was supported by a short affidavit. In the said affidavit the tenant had stated that the accompanying application for leave to contest had been read over and explained to him and the facts stated therein were according to the best to his knowledge and information received and believed to be true. It was further stated that the facts stated in the application had not been reproduced in the affidavit for the sake of brevity. In such circumstances, this court has held as under:-
RC.REV.No.33/2013 Page 4 of 8"In this case the tenant made an application as required by the summons. He made an affidavit in support of his application but it was a short one. In the affidavit he made a specific reference to the grounds set out in the application. For the "sake of brevity" he did not reproduce them in the affidavit. But it does not mean that the tenant‟s application should be rejected only for the reason that he did not reproduce the grounds in the affidavit over again. The Additional Controller, I think, took too technical a view. This has resulted in denial of justice."
10. Following the aforesaid judgment, again this court, in RC.Rev.No.438/2011 Arjun Rai Bhayana vs. Santosh Hans decided on 19.3.2012, wherein the leave to contest application filed by the tenant was not taken on record as the tenant instead of filing a leave to defend application had filed a written statement accompanied by an affidavit. In the said affidavit it was stated that the contents of written statement may be read as part and parcel of the affidavit and the same were not reproduced for the sake of brevity. This court applying the ratio of Gian Chand v. Roop Narain (supra) has held that ARC had committed an illegality in not treating the written statement which was really an application for leave to defend on record. The impugned judgment in the said case decreeing the eviction on the said ground was set aside.
11. The learned senior counsel for respondent has relied upon Vinod Sharma vs Kasturi Devi: ILR (2010) VI Delhi 422. In the aforesaid judgment reliance has been placed on the judgment of the Supreme Court in Prithipal Singh v. Satpal Singh (Dead) through LRs : 2009(14) SCALE
672. The question before the Supreme Court was as under:-
RC.REV.No.33/2013 Page 5 of 8"(i) Whether the Additional Rent Controller, exercising powers and jurisdiction under the Rent Act, which is a special Act, was justified in setting aside the order of eviction which amounted to restoration of and allowing the application for leave to defend the eviction petition although such application was rejected earlier on the ground of delay.
(ii) Whether the Additional Rent Controller is competent to recall orders of eviction on an application under Order 9 Rule 13 read with Order 37 Rule 4 and Section 151 of the Code and condone the delay in applying for leave to defend when he was not conferred with such power to condone the delay in filing the application for leave to defend the eviction proceedings under the Rent Act specially when such an affidavit (application for leave to defend) was earlier rejected by the Additional Rent Controller, Delhi on the ground of delay."
12. The question before the Supreme Court was different as such the judgment relied upon by learned counsel for respondent/landlord is of no help to him.
13. Further the Division Bench of this court in Jijar Singh v. Mohinder Singh: AIR 1979 Delhi 245 wherein the question referred to the larger Bench was as under:-
"The question referred to the larger Bench is briefly whether the affidavit required to be filed under Section 25B read with the Third Sch. of the Delhi Rent Control Act, 1958 (the Act), as amended, shall itself contain the grounds and the facts on the basis of which leave to contest the application for eviction is sought or whether the said grounds and facts having been recited in the accompanying application the affidavit may only refer to the statements made in the application and say that these statements are true to the knowledge of the deponent. The question arises in this way."RC.REV.No.33/2013 Page 6 of 8
14. The Larger Bench of this Court while answering the aforesaid question has held that where a reading of the affidavit shows that the facts in the application were read over to the deponent and it is these facts which have been sworn to be true by him then there is sufficient compliance of law. The relevant portion of the judgment is as under:-
"XXXXX XXXXX XXXXX XXXXX XXXXX
XXXXX XXXXX XXXXX XXXXX XXXXX
It may be very desirable in practice to make the affidavit itself self contained, but the question before us is whether this is absolutely necessary. The argument of the learned counsel for the respondent is that the construction of, the affidavit made by the trial court is correct. Had the observation of the Addl. Controller been based on evidence as a finding of fact this argument would have had substance. We are, however, unable to go to the length which the Addl. Controller has gone because we would thereby be imposing on the tenant a degree of obligation which is not the minimum compliance with the provisions of law, but which is merely a desirable practice. In our view, a plain reading of the affidavit shows that the facts stated in the application were read over to the deponent and it is these facts which have been sworn to be true by him. If this were not the correct position even the verification under R. 15 of 0. VI, C.P.C. would be liable to be attacked as an insufficient verification because what is stated in the pleading is not reproduced in the verification clause. If the verification under R.1-5 of O.VI is a sufficient affirmation of the facts stated in the pleading we do not see how the verification or the oath taken by way of affidavit is not a sufficient affirmation of the facts stated in the application."
15. In view of above discussion, the Additional Rent Controller has committed illegality in not treating the application accompanied by short affidavit as an application for leave to defend. The impugned judgment RC.REV.No.33/2013 Page 7 of 8 decreeing the eviction petition is set aside. The application of the petitioner/tenant is taken on record. The Additional Rent Controller shall proceed further in accordance with law.
16. With these directions, the petition is disposed of.
17. The parties shall appear before the learned ARC on ................
CM No.1160/2013 (stay) In view of the order on the main petition, no orders are required on this application.
The same stands disposed of accordingly.
VEENA BIRBAL, J APRIL 29, 2013 ssb/kks RC.REV.No.33/2013 Page 8 of 8