(1.) This is an application for revision filed by the petitioner/tenant against the order of the Additional Rent . Controller dated 28.2.1980 by which he held that the leave application filed by the petitioner was beyond time, and, therefore, he was not entitled to ask for leave to defend the eviction application filed against him. Having done that he naturally further allowed the eviction petition and passed an order in favour of the respondent-landlord. The petitioner has come up in revision to this court.
(2.) The respondent-landlord filed an application for eviction on the ground of bonafide need. It is common case that the petitioner was served with the ummons on 7.11.1979. The proceedings by the respondent-landlord are canderd Chapter IIIA, Section 25B of Delhi Rent Control Act 1958 (to be sule the Act). Section 25B(4) requires that the tenant on which the summons are duly served shall not contest the prayer for eviction unless he files an affidavit staling the grounds on which he seeks to contest the application for eviction. The form provided requires the tenant to appear before the Controller within 15 days of service hereof and to obtain leave of the Controller to contest the eviction application. Undoubtedly the application for leave to contest filed on 10.12.1979 by the petitioner-tenant was beyond the period of 15 days. In view of Gurditta Mal v. Bal Sarup (1980(10) RLR 1) there is no jurisdiction in the Rent Controller to extend the period of limitation i.e. 15 days provided in the summons. The consequence which inevitably then follows is that an order of eviction has to be passed because leave has not been granted vide Section 25B(4). However, the question was still mooted whether notwithstanding that the Rent Controller may not have jurisdiction to extend the time of 15 days, mentioned in the summons, the tenant could invoke on the analogy of Order 37 Rule 4 (old) and new Order 37 Rule 3(7) Civil Procedure Code by which the court may for sufficient cause shown by the defendant excuse the delay of the defendant inentering an appearance or in applying for leave to defend the suit. Such a matter came before Avadh Behari,J. and in (1980(2) RLR135) Gurditta Mal v. Bal Sarup etc. the learned Judge held that Order 37 Civil Procedure Code could be invoked by a tenant to persuade the Rent Controller to set aside the decree if sufficient cause was shown by the tenant as to why he had not applied for leave within the period mentioned in summons i.e. 15 days. In a number of cases before the learned Judge he applied the principles of Order 37 Civil Procedure Code and though the leave application was filed beyond the period of 15 days he held that there was a sufficient cause and he set aside the order of eviction. This view of the learned Judge that the Controller has the discretion to give the benefit of provisions of Order 37 Rule 4 Civil Procedure Code to a tenant seeking leave to defend himself against the application for eviction filed by the landlord has been upheld in (1980 RLR 367) Jagdish Pershad v. Phoolwati Devi. The petition in law, therefore, is that though in the first instance the Rent Controller cannot extend the period of 15 days provided in the summons, for practical purposes the only result is that no doubt the Rent Controller will pass an order for eviction but immediately thereafter if the tenant applies and is able to satisfy the Rent Controller that there was sufficient cause for not moving him within the period of 15 days, benefit of Order 37 Rule 3(7) can be given to him, the result of which would be to set aside the order for eviction and thereafter consideration on merits of the tenant's application for leave to defend the eviction application. Now the Rent Controller following (1980 RLR 1) (supra), held that application for leave was filed beyond 15 days from the date of service, the only course open to it was to pass an order of eviction, as he had no power to condone the delay in filing the leave application beyond 15 days. In that of course the Additional Rent Controller may not be much at fault because the Judgment of Avadh Behari, J. was not brought to his notice and the Division Bench Judgment was given after the order of the Rent Controller. The Rent Controller having held that it was not within his power to condone the delay has no doubt casually observed that on merits he failed to find any reason as to why the petitioner who was served on 7. 11.1979 had not appeared or filed the leave application within 15 days of the service. But a reference to the impugned order will show the casual manner in which this aspect has been dealt with.
(3.) Now the reason given by the petitioner for condoning the delay was stated to be that the summons which was received in his office bore the date of 14.121979 which the petitioner, not being involved in any litigation before, naturally took it to be the date of hearing before the Court and he, therefore, kept the summons in his drawer as there was sufficient time. He then says that on 7.12.1980 when he went to his lawyer, who told him that under the special procedure the tenant is expected to file an application tor leave within 15 days from the service of summons. It is stated that he only then came to know of Special procedure and delay was bona fide and, therefore, the delay in filing the application for leave should be condoned. It was also mentioned that the service by registered A..D. post had not yet been effected and, therefore, there was no proper service. It is, however, important to note that the Rent Controller did not in any way comment on the explanation which was given by the petitioner that because of the date 14.12.1979 being put on the summons he took that to be the date of hearing and that is why he did not move an application earlier than that date. This was presumably because in view of the (1980 RLR 1) (supra). Rent Controller evidently considered any explanation to be of no use because even if the explanation is found satisfactory it would serve no purpose. This is in view of later decisions clarifying (1980 RLR 1) (supra) is a potent error of law and procedure resuiting in refusal to exercise jurisdiction vested in him.