Delhi District Court
Kamlesh vs Jaipal Singh Jain on 7 October, 2023
IN THE COURT OF MS. RENU BHATNAGAR
PRINCIPAL DISTRICT & SESSIONS JUDGE:
SHAHDARA DISTRICT, KKD COURTS DELHI
RCT No.2/23
SMT. KAMLESH
W/o late Sh. Naresh Panwar
Permanent R/o
H.No.1/6282, Gali No.3,
East Rohtash Nagar,
Shahdara, Delhi-32.
...Appellant
Versus
SH. JAIPAL SINGH JAIN
S/o late Sh. Lala Kishan Lal Jain
Permanent R/o 295, Pocket-4,
Mayur Vihar, Phase-1, Delhi-91.
...Respondent
Date of filing : 27.02.2023
Date of arguments : 11.09.2023
Date of Judgment : 07.10.2023
JUDGMENT
1. Vide this judgment I shall decide the appeal filed under Section 38 of Delhi Rent Control Act, 1958 (in short "DRC Act") for setting aside the judgment dated 27.01.2023 in RC ARC No.168/2022, passed by the court of Ld. SCJ-cum-RC, Shahdara District, KKD Courts, Delhi (hereinafter referred to as "Ld. Trial Court), as well as the application for early hearing of the appeal RCT No.2/23 Smt. Kamlesh Vs. Jaipal Singh Jain Page 1 of 19 and for hearing on application for stay of the proceedings, filed during the intervening period on 15.09.2023.
2. The file was taken up on the said application for early hearing/pre-ponement of the appeal and for hearing pending stay application. During the interregnum, on 15.09.2023 notice of this application was issued to the other side. The counsel for respondent appeared and submitted before the court that he does not want to file reply to this application as well as to the appeal filed by the appellant and shall advance arguments straightway as the appeal is not maintainable before this court. Accordingly, I proceed to decide the appeal on merits after hearing both the sides.
Brief Facts.
3. The brief facts as stated in this appeal are that the appellant started residing as tenant in property / House No.1/6282 (old No.1324), Gali No.3, East Rohtash Nagar, Shahdara, Delhi, in the year 1995. Unfortunately, her husband passed away in the year 2004 during the treatment of HIV+ disease and that she is also suffering from HIV+ disease since then. That her bank account in State Bank of India, gas connection passbook, delivery challans from Nisha Enterprises, letter of MTNL, complaint to SHO, PS Gandhi Nagar regarding misplacement of the documents of the suit property, school certificate of Ms. Payal, Election I.D. Card of the appellant, show that she is residing in the said property. She has also filed her treatment papers.
RCT No.2/23 Smt. Kamlesh Vs. Jaipal Singh Jain Page 2 of 194. It is stated that the suit property was unfurnished at the time when they took possession as tenant and the appellant and her husband furnished the same. It is stated that between the year 1995 to mid year 2000, the appellant was occupying the premises as tenant, however, in the mid year 2000, the original owner late Sh. Rajender alongwith his nephew Sh. Anil Jain made an offer to her husband to purchase the suit property for a total consideration of Rs.2.50 lakhs. Her husband paid the entire consideration amount in cash in the year 2000 and came to acquire title over the suit property. It is stated that no written agreement of sale & purchase was executed between the parties. The agreement was oral in nature and founded upon good faith as the original owner and appellant's husband shared a very amicable relationship and they were in possession since long. It is stated that Sh. Anil Jain, nephew of the original owner, was a witness to the entire transaction.
5. It is stated that husband of the appellant did not apply for the change in the name of electricity and water connection for the sake of convenience and the appellant was also assured at the time of purchase of the property that there was no need for the name change in electricity and water connection as the respondent would continue to pay for all of them, relieving the appellant and her husband out of the trouble of going to pay the bills. It is stated that they continue to pay the bills to the original owner, the respondent or the son of the respondent Sh. Pradeep Jain, in cash and some via online transaction. After the death of the original owner, the bills RCT No.2/23 Smt. Kamlesh Vs. Jaipal Singh Jain Page 3 of 19 were paid through the respondent or his son Pradeep Jain.
6. It is stated that the appellant by spending from her personal savings, has constructed new washroom, one additional room, painted all the rooms on each and every occasion. That the appellant was threatened to vacate the premises, for which she made number of complaints to the police, but of no avail. She later on filed one more complaint dated 20.03.2022 to National Women Commission. It is stated that appellant has been in long and continued possession of the suit property alongwith her two children since long. That one legal notice was sent by Sh. Pradeep Jain to the appellant, who has no locus standi to send the same.
Grounds of Appeal.
7. It is stated that in the impugned order Ld. Trial Court failed to decide the application filed under Section 5 of Limitation Act for condonation of delay in filing leave to defend. She is an old patient of TB and HIV+ disease, a widow lady and continuously ill. There has been a delay of only 10 days, excluding the period of winter vacations of the court, in filing leave to defend, which could have been condoned by the Ld. Trial Court. That rent control legislation are beneficial piece of social legislations and are meant primarily to give protection to the tenants against arbitrariness of the landlord and gives complete protection to the tenant, and the landlord has no vested right to seek eviction of the tenant on false and curved out grounds. Hence, it is prayed that the order dated 27.01.2023 be set RCT No.2/23 Smt. Kamlesh Vs. Jaipal Singh Jain Page 4 of 19 aside and the application under Section 5 of Limitation Act moved by the appellant before the Ld. Trial Court for condonation of delay in filing leave to defend, be allowed.
Arguments of Respondent.
8. No reply to the appeal is filed, as stated above, however, Ld. Counsel for respondent raised no objection to the application for condonation of delay in filing the appeal. Accordingly, without going into the enquiry with respect to causes of delay in filing the appeal, I allow condonation of delay application and proceed to decide the appeal on merits.
9. It is argued that the present appeal is not maintainable under Section 38 of DRC Act, as only right available to the appellant is as provided by proviso to sub Section (8) of Section 25-B of DRC Act. The case was decided on merits by Ld. Trial Court, as the appellant/respondent in the main petition did not file leave to defend in time, the eviction order was passed. The application of the respondent for condonation of delay was also dismissed by the Ld. Trial Court holding that it has no power to condone the delay. It is stated that against the said order of eviction, the only remedy available with the appellant is to move to the Hon'ble High Court and the Tribunal has no power to entertain this appeal against the impugned order. Ld. Counsel for respondent in support of his arguments has cited judgments of i) Pran Nath Kapur Vs. Ram Shiksh Mehta & Ors 18 (1980) DLT 300; ii) Kewal Singh Vs. RCT No.2/23 Smt. Kamlesh Vs. Jaipal Singh Jain Page 5 of 19 Lajwanti 1980 SCR (1) 854.
10. Ld. Counsel for respondent has also referred to the order passed by Hon'ble Justice Neena Bansal Krishna, Delhi High Court, the then Principal District & Sessions Judge, Rent Control Tribunal, South East, Saket Court, New Delhi, in which the above said two judgments are referred, while dismissing the appeal.
Arguments of Appellant.
11. On the other hand, Ld. Counsel for the appellant has argued that the delay in filing the application for leave to defend should be condoned keeping in view the fact that the appellant is a widow lady and is a patient of HIV+ disease. It is stated that a lenient view be taken against the appellant keeping in view her medical condition. In this regard he has referred to Gazette of India, Part-II, Section-1, dated 21.04.2017, New Delhi, issued by Ministry of Law & Justice (Legislative Department) on 'Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome' (Prevention & Control) Act, 2017. It is stated that the appeal is maintainable before this court, and in that regard he has referred to the judgment of Hon'ble Delhi High Court in Mohd. Quresh Vs. Roopa Fotedwar & Ors, ILR 1990 Delhi 16. Ld. Counsel has also referred to the law on the point of eviction on the ground of bonafide need under Section 14 (1) (e) and Section 25-B of DRC Act, as discussed by Hon'ble Mr. Justice Sanjay Kishan Kaul and Hon'ble Mr. Justice M.M. Sundresh in the case of Abid-ul-Islam RCT No.2/23 Smt. Kamlesh Vs. Jaipal Singh Jain Page 6 of 19 Vs. Inder Sain Dua, 2022 LiveLaw (SC) 353. He has also referred to the judgment of Director, Directorate of Education & Anr Vs. Mohd. Shamim & Ors RC.Rev.279/2014 & CMs No.16348/2012 (for stay), 10006/2014 (u/S 151 CPC), 15202/2017 (for directions) & 29048/2017 (u/S 151 CPC).
12. I have heard the submissions of the both the sides and have perused the record.
Conclusion
13. Before deciding this appeal, it is relevant to note down the relevant provisions of law. In respect to application filed for eviction under Section 14 (1) (e) of DRC Act, a special procedure has been laid down under Section 25-B of DRC Act. Section 25-B of the Act was enacted by the Parliament to give some respite to landlords bonafide needing premises for themselves and not compel them to undergo the trials and tribulations of a full-fledged trial to seek eviction.
14. The purpose of enacting Section 25-B was to provide speedy remedy in cases where applications are filed for eviction of the tenants on the ground of bonafide requirement of the landlords. The effect of insertion of Section 25-B and Section 25A is that whenever any application for eviction of a tenant is filed by a landlord under Section 14A, or Section 14 (1) (e), the same was not to be tried according to the procedure laid down in Section 37 of the Act but was to be tried according to the procedure laid down in RCT No.2/23 Smt. Kamlesh Vs. Jaipal Singh Jain Page 7 of 19 Section 25-B of DRC Act.
15. Sub-section (1) of section 25B provides that every such application for eviction on the ground of bonafide requirement under Section 14A or under clause (e) of proviso to sub-section (1) of section 14 shall be dealt with in accordance with the procedure specified in the said Section. Sub section (2) requires the Controller to issue summons in the form specified in the Third Schedule in relation to every application which is so filed. Sub-section (3) (a) of section 25-B enjoins upon the Controller to direct summons to be served by registered post, acknowledgment due, in addition to the issue of summons for service in the normal manner. This sub- section further empowers the Controller to direct, if the circumstances so require, publication of the summons in a newspaper circulating in the locality in which the tenant is last known to have resided or carried on business or personally worked for gain. Sub-section (3) (b) of section 25-B states under what circumstance the Controller declare that there has been a valid service of summons. On the summons having been duly served, sub-section (4) of section 25-B, inter alia, provides that a tenant shall not contest the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction. The said sub-clause further provides that if there is a default in the appearance on the part of the tenant, or if such leave is not obtained, then the statements made by the landlord in the application for eviction are to be deemed to have RCT No.2/23 Smt. Kamlesh Vs. Jaipal Singh Jain Page 8 of 19 been admitted by the tenant and the landlord is, thereupon, entitled to an order for eviction on the ground of bona fide requirement. Sub-section (5) provides that the leave to contest would be granted by the Controller if the affidavit filed by the tenant disclosed such facts as would disentitle the landlord from obtaining an order for recovery of possession on the ground of bona fide requirement. If leave is granted, sub-sections (6) and (7) provide that the hearing will commence as soon as possible and the Controller is to follow the practice and procedure, while hearing such an eviction petition, of a Court of Small Causes. Sub-section (8) of section 25B takes away the right of appeal which is conferred on tenant under section 38 (to the Tribunal) and under section 39 (to the High Court against the order of the Tribunal) of the Act. The proviso to sub-section (8), however, enables the High Court to call for the records for the purposes of satisfying it self that the order made by the Controller under section 25B is in accordance with law, and the High Court is entitled to pass such orders in respect thereto as it thinks fit. Sub- section (9) gives an alternative remedy to the tenant. If the tenant chooses not to approach the High Court under sub-section (8) of section 25B, the tenant can approach the Controller requiring him to exercise his powers of review in accordance with the provisions of Order LXVII of the Code of Civil Procedure Sub-section (10) states that, save as otherwise provided in Chapter IIIA, the procedure for disposal of an application for eviction, on the ground of bona fide requirement, shall be the same as the procedure for the RCT No.2/23 Smt. Kamlesh Vs. Jaipal Singh Jain Page 9 of 19 disposal of the application by the Controller.
16. It is held in the case of Prithpal Singh Vs. Satpal Singh (D) through LRs, 2010 (2) SCC 15, by Hon'ble Apex Court that:-
"23. As noted herein earlier, Section 25B(1) clearly says that any application filed by a landlord for recovery of possession of any premises, inter alia, on the ground of Section 14(1)(e) of the Rent Act, shall be dealt with in accordance with the procedure specified in Section 25B of the Rent Act. Therefore, sub-section (1) of Section 25B makes it clear that if any application for eviction of a tenant is filed by the landlord, the special procedure indicated in Section 25B has to be followed and Section 25B(1) clearly stipulates that the application for eviction shall be strictly dealt with in accordance with the procedure specified in this Section. Apart from that, as we have noted herein earlier, Section 25B itself is a special code and therefore, Rent Controller, while dealing with an application for eviction of a tenant on the ground of bona fide requirement, has to follow strictly in compliance with Section 25B of the Act. Therefore, after insertion of Section 25B of the Act, any application for granting eviction for a special kind of landlord, shall be dealt with strictly in compliance with Section 25B and question of relying on Rule 23 of the Code, which also does not give full right to apply the provisions of the Code, could be applied".
17. It is now well settled in catena of judgments of Hon'ble Delhi High Court as well as Hon'ble Supreme Court of India that a Rent Controller has no power to condone the delay in moving application for leave to defend or to allow the application for setting aside the eviction order and restore the application for leave to defend. Even a delay of one day cannot be condoned by the Controller (reference can be drawn to the judgment titled Om Prakash Vs. Ashwani Kumar Bassi, AIR 2010 SC 3791; Aster RCT No.2/23 Smt. Kamlesh Vs. Jaipal Singh Jain Page 10 of 19 Publishing Vs. Niwas Aggarwal, 2011 (177) DLT 747; Rakesh Gupta & Anr Vs. Ashok Dilwali, 2012 (1) RCR (Rent) 342; Shiv Gopal & Anr Vs. Shipra Singh & Ors, 186 (2012) DLT; Ramesh Tuli Vs. Sharda Kapoor, 153 (2008) DLT 302).
18. Now the question is whether this appeal is maintainable under Section 38 of DRC Act before this Tribunal or not? In the case of Kewal Singh Vs. Lajwanti (supra), the Hon'ble Supreme Court has observed that the status puts personal necessity of a landlord as a special class requiring special treatment for quick eviction of the tenant and to cut out all delays plugs all the loopholes which may cause delay in getting the relief by the landlord. By virtue of Sub Section 8, first and second appeal has been barred before the Tribunal and remedy by way of revision to the High Court against the order has been provided. It was further observed that the legislature has not taken away the right of the tenant in cases falling within the ambit of Section 14 A and 14 (1) (e) of the Act but has limited it to a right to file revision.
19. The question whether High Court has the power to decide the filing of leave to defend beyond time and to condone the delay and whether Controller has any such power, came up before High Court of Delhi in the case cited by the appellant herself, titled as Director, Directorate of Education & Anr Vs. Mohd. Shamim & Ors (Supra), where the matter was referred to a larger Bench by Hon'ble Justice Sahai Endlaw of Hon'ble Delhi High Court, on following two points:-
RCT No.2/23 Smt. Kamlesh Vs. Jaipal Singh Jain Page 11 of 19"(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 nonfiling 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 nonfiling of application for leave to defend within the prescribed time, if finds sufficient grounds therefor."
20. In that regard, the Hon'ble Delhi High Court has answered question (A) in following words:-
"19. Supreme Court in Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. (2003) 2 SCC 111, Union of India Vs. Dhanwanti Devi (1996) 6 SCC 44, Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate (2005) 2 SCC 489, In Re. Natural Resources Allocation (2012) 10 SCC 1 and Punjab National Bank Vs. R.L. Vaid (2004) 7 SCC 698 has held that a judgment is a precedent on what was for adjudication and not what can be logically deduced or inferred therefrom. Applying the said principle, what was for adjudication in Prithipal Singh supra was as set out in the issues framed therein and thus Prithipal Singh supra is a precedent on the power of the Controller to recall the order of eviction and to consider the application for leave to defend filed belatedly. The Supreme Court in Prithipal Singh supra was not concerned with the power of this Court under Section 25B(8).
20. It is significant that the proviso to Section 25B(8) uses the words "according to law" and not the words "according to this Act". Thus the jurisdiction of this Court RCT No.2/23 Smt. Kamlesh Vs. Jaipal Singh Jain Page 12 of 19 under the proviso to Section 25B(8) is to satisfy itself that an order made by the Controller under Section 25B is according to law. Needless to state that the word „law‟ has much wider ambit than the word „Act‟, meaning the Delhi Rent Control Act. The jurisdiction of this Court under the proviso to Section 25B(8), in the judgments cited by the Senior Counsel for the respondent also, has been held to be akin to revisionary jurisdiction. It has been held in Hindustan Petroleum Corporation Limited supra, Shiv Sarup Gupta supra, Boorugu Mahadev and Sons Vs. Sirigiri Narasing Rao (2016) 3 SCC 343, Gandhe Vijay Kumar supra and Ravinder Jeet Singh Vs. Kanta Vadhera 2018 SCC OnLine Del 13329 that the function of the High Court while exercising revisionary jurisdiction extends to ensuring that no injustice is being done by the order impugned before it by way of revision. The High Court thus, when approached in exercise of its jurisdiction under the proviso to Section 25B(8) against an order of eviction under Section 25B(4), on failure of tenant to within the prescribed time apply for leave to defend, would be entitled to consider whether there is any substantial ground which prevented the tenant from, within the prescribed time, applying for leave to defend and any substantial reason which disentitles the landlord from an order of eviction on the ground of requirement of premises on deemed admission of such requirement by the tenant".
21. The court further held that:-
"25. We, therefore, hold that merely because the Controller has passed an order of eviction in a proceeding governed under Section 25B, on failure of the tenant to, within the prescribed time, apply for leave to defend and merely because the Controller vide Prithpal Singh supra has been held to be not empowered to recall the said order, would not prevent this Court from, in exercise of powers under proviso to Section 25B(8), considering once a case for the landlord to be not entitled to an order of eviction to be deemed admission following nonfiling of leave to RCT No.2/23 Smt. Kamlesh Vs. Jaipal Singh Jain Page 13 of 19 defend within the prescribed time, the said order cannot be said to have been made according to law and would qualify as being contrary to law and liable to be set aside.
26. Having held so, we answer the question no.(A) framed in the referral order in the affirmative and with the condition that this Court would be empowered to set aside the order of eviction only if the tenant passes the dual test of prevented by reasons beyond control from applying for leave to defend within the prescribed time (as distinct from every default) and if makes out a substantial case for consideration of the application for leave to defend. We, however, in deference to Prithipal Singh supra choose/opt to not answer the question (B) framed in the referral order".
22. Hence, in view of above judgments, it is clear that no appeal against any order made in an eviction petition under Section 14 (1)
(e) is maintainable under Section 38 and 39 of DRC Act, and the only right available to the appellant is provided under proviso to Sub Section (8) of Section 25-B of the Act.
23. Ld. Counsel for the appellant has argued on the strength of the judgment of Mohd. Quresh Vs. Roopa Fotedwar & Ors (supra) that this Tribunal has the power to set aside the eviction order for some special reasons and in the interest of justice. He has referred to para 33 of the above mentioned judgment, wherein it is observed as under:-
"33. We, hence, answer the question of law by holding that theController has no power to condone the delay made by the tenant in moving an application seeking leave to appear and defend an eviction case brought under Chapter IIIA but after the eviction order is passed the RCT No.2/23 Smt. Kamlesh Vs. Jaipal Singh Jain Page 14 of 19 Controller has the power under Order xxxvii Rule 4 of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure, to set aside the eviction order for some special reasons or in the interests of justice".
24. The aforementioned observations refers to the power of the Controller before whom the application under Order 37 Rule 4 r/w Section 151 CPC is filed by the tenants and not to the Tribunal. Admittedly, in the present case no such application under Order 37 Rule 4 r/w Section 151 CPC was filed before the Controller.
25. Further, the power of the Controller to be exercised under Order 37 Rule 4 was also considered by Division Bench of Hon'ble Delhi High Court in the case of Director, Directorate of Education & Anr Vs. Mohd. Shamim & Ors (supra), wherein the Court has observed as under:-
"7. We have considered the rival contentions. In Prithipal Singh supra the leave to defend application was filed after a delay of 8 days and was rejected as beyond time and an eviction order was passed in favour of the landlord Prithipal Singh. The tenant Satpal Singh thereafter filed an application before the Rent Controller for recall of the said order of eviction and for condonation of delay under Order XXXVII Rule 4 read with Section 151 of the CPC and which application was allowed by the Rent Controller holding that "there was explanation forthcoming whereby the application for leave to defend was liable to be considered on merits". The landlord Prithipal Singh filed a petition under Article 227 of the Constitution of India to this Court contending that the Rent Controller had no power to reopen the issue having once passed the eviction order and no power to condone the delay. Reliance was placed on Prakash H. Jain supra holding in the context of the Maharashtra Rent Control Act, that an application for leave to defend not filed RCT No.2/23 Smt. Kamlesh Vs. Jaipal Singh Jain Page 15 of 19 within the time prescribed by law could not be entertained and the tenant could not seek condonation of delay under Section 5 of the Limitation Act as the Limitation Act was not applicable and that condonation of delay could not be sought under the inherent powers also as Rent Authority was not a Civil Court. Per contra the tenant Satpal Singh relied on the judgment of the Division Bench of this Court in Mohd. Quresh Vs. Roopa Fotedar 1989 SCC OnLine Del 433 holding that the Rent Controller has inherent powers exercisable by a Civil Court under Section 151 of the CPC and the source of the said power was to be found in Rule 23 of the Delhi Rent Control Rules. This Court held that Prakash H. Jain supra could not be read as overruling the dicta of the Division Bench of this Court and following the dicta of the Division Bench of this Court in Mohd. Quresh supra, the landlord‟s petition was dismissed. The landlord appealed to the Supreme Court which framed the issues for adjudication as under: "(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."
8. The Supreme Court held, (i) "from a careful perusal of sub section (4) of Section 25B of the Rent Act, it would be clearly evident that the tenant shall not be permitted to contest the prayer for eviction unless he files an affidavit before the RCT No.2/23 Smt. Kamlesh Vs. Jaipal Singh Jain Page 16 of 19 Controller stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller. This Section also clearly indicates that in default of his appearance in compliance with the summons or his obtaining such leave, the statement made by the landlord in the eviction proceedings shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground mentioned in the eviction petition"; (ii) Section 25B itself is a special code and the Controller, while dealing with an application for eviction of a tenant on the ground of bonafide requirement, has to follow strictly in compliance with Section 25B of the Act; (iii) Section 25B has been inserted by the Legislature for eviction of a tenant of a certain classes of landlords; (iv) in view of the specific provisions provided in Section 25B of the Act, it is difficult to hold that Rule 23 can be applied; thus Rule 23 has no application to a proceeding under Section 25B; (v) if Rule 23 cannot be applied owing to Section 25B being a special code, the judgment of the High Court could not be sustained; (vi) Mohd. Quresh relied on Gurditta Mal Vs. Bal Swarup AIR 1980 Delhi 216 to come to a conclusion that in view of Rule 23, the Rent Controller was conferred with the power to entertain an application under Order 37 Rule 4 of the CPC; (vii) however, Gurditta Mal supra had been considered in Prakash H. Jain supra and not approved of;
(viii) the High Court was thus not right in following Mohd. Quresh supra;
(ix) High Court had thus wrongly held the Controller to be empowered under Rule 23 when the Controller was not conferred with any such power in a proceedings under Section 25B; (x) as the provisions of the Limitation Act were not attracted, no power for condonation of delay in applying for leave to defend could be entertained; and, (xi) that even otherwise the reason given by the tenant Satpal Singh could not be considered to be a special reason within the meaning of Order XXXVII Rule 4 of the CPC.
9. As would be evident from the analysis aforesaid of Prithipal Singh supra, what was laid down therein was in answer to the issues framed therein. The Supreme Court therein was concerned only with the power of the Rent Controller in a RCT No.2/23 Smt. Kamlesh Vs. Jaipal Singh Jain Page 17 of 19 proceeding under Section 25B of the Act, to consider an application for recall of the order of eviction in exercise of powers under Order XXXVII Rule 4 of the CPC read with Rule 23 of the Delhi Rent Control Rules. Section 37 of the Act was not for consideration therein.
10. Section 37(1) of the Act prohibits the Controller from making any order which prejudicially affects any person, without giving such person a reasonable opportunity of showing cause against the order proposed to be made and which opportunity extends to consideration of the objections and the evidence produced in support of such objections.
11. The dicta of the Supreme Court in Prithipal Singh supra that Rule 23 does not apply to a proceeding under Section 25B of the Act owing to the same being a special code, does not apply to Section 37 of the Act. Though Section 37(2) of the Act provides that the Controller while holding an enquiry "in any proceeding before him" and which would include a proceeding under Section 25B, shall follow as far as may be the practice and procedure of a Court of Small Causes, including the recording of evidence, Section 25B(7) as aforesaid mandates the Controller to follow the practice and procedure of a Court of Small Causes, including the recording of evidence and not just "as far as may be".
12. Even though Section 37 exists in the Act since enactment thereof in the year 1958 and Chapter IIIA containing Sections 25A, 25B and 25C were inserted by Amendment of the Act in the year 1976 but it has been held in Ramesh Basandara Vs. Moti Ram 2003 SCC OnLine Del 570 and Vinod Kumar Chowdhry Vs. Narain Devi Taneja (1980) 2 SCC 120 that the existing provisions of the Act unless excluded from application to the amended provisions, extend to the amended provisions as well. Section 25A merely gives the provisions of Section 25B and 25C an overriding effect notwithstanding anything inconsistent contained elsewhere in the Act. However, the provisions of Section 37 are not only expressly recognized in Section 25B(7) but are also not inconsistent with the provisions of Section 25B. Though Section 37(2) makes application of practice and procedure of a Court of Small Causes subject to any Rule made under the Act but Section 25(B)(7) mandates RCT No.2/23 Smt. Kamlesh Vs. Jaipal Singh Jain Page 18 of 19 application of such practice and procedure to inquiry under Section 25B, notwithstanding Section 37(2) i.e. not subject to any Rule made under the Act.
13. Not only so, once the Controller while exercising powers under Section 25B has been mandated to follow the practice and procedure of a Court of Small Causes, and which procedure as mentioned in the referral order is the same as the procedure provided by the CPC, it cannot be said that what has been held in Prithipal Singh supra qua Rule 23 would apply to Section 37 as well".
Final Decision
26. Accordingly, in view of the law as enunciated by the Hon'ble Delhi High Court and Hon'ble Supreme Court in the above judgments, appeal filed by the appellant is not maintainable before this court under Section 38 and 39 of DRC Act. Accordingly, the present appeal is hereby dismissed.
27. Appeal file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT On 7 th October, 2023 (RENU BHATNAGAR) PRINCIPAL DISTRICT & SESSIONS JUDGE, SHAHDARA DISTRICT, KKD COURTS: DELHI RCT No.2/23 Smt. Kamlesh Vs. Jaipal Singh Jain Page 19 of 19