RAMESH BASANDARA Vs. MOTI RAM

JUDGEMENT

(1.) The petitioner, who is landlord, has filed this petition under Section 115 of the CPC assailing an order of an Additional Rent Controller dated 18.2.2002 by which he has set aside the order of eviction passed against the respondent tenant under Sub-section (4) of Section 25B of the Delhi Rent Control Act (for short the Act) and has fixed the application/affidavit of the tenant filed for obtaining leave to contest the application filed by the petitioner landlord for recovery of possession of the tenancy premises from him under Clause (e) of Section 14(1) of the said Act for consideration on merit.

(2.) . This petition is purported to have been filed under Section 115 of the CPC against an order of the Additional Rent Controller (Controller). The Rent Controller is not a Civil Court. It is a Tribunal though it has all the trapping of a Civil Court. The order of the Controller are not revisable by the High Court in exercise of its jurisdiction under Section 115 of the CPC. This petition which was filed in April, 2002 has been heard on merit and it will be travesty of justice if it is rejected now on technicalities. The present petition may, therefore, be considered by the High Court under its supervisory jurisdiction under Article 227 of the Constitution of India. However, the jurisdiction of the Court under Article 227 is limited to seeing whether the Civil Courts and the Tribunals function within the limits of their jurisdiction and not to correct the error of law. In a recent judgment the Supreme Court in Sugarbai M. Siddiq & Ors. v. Ramesh S. Hankare (D) by LRs., VII (2001) SLT 31=JT 2001 (8) SC 239, has held that the High Court under Article 227 has to see whether the lower Courts/Tribunal has jurisdiction to deal with the matter and if so, whether the impugned order is vitiated by procedural irregularity; in other words, the Court is concerned not with decision but with decision making process.

(3.) . In the backdrop of the above cited principles of law the facts of the present case may be noticed. Shorn of all unnecessary details the relevant facts are that the petitioner filed an application for recovery of the possession of the tenancy premises from the respondent under Clause (e) of Section 14(1) of the Act. The summons prescribed in Schedule III was served on the respondent but he failed to appear and file affidavit within 15 days of the receipt of the summons by him in accordance with Sub-section (4) of Section 25B of the Act. But before the Controller could pass an order for eviction against him the tenant appeared and presented an application for leave to contest before him. He also filed an application under Section 5 of the Limitation Act. The Controller holding that it had no power and jurisdiction to condone the delay rejected the application and passed an eviction order against the tenant under Clause (e). Thereafter, the respondent filed an application under Order 9 Rule 13, CPC read with Section 37 Rule 4, CPC and Section 151 of the CPC, inter alia, stating the reason which prevented him for appearing and filing affidavit for obtaining leave to contest the eviction petition within 15 days from the date of the sendee of the summons on him. It was accompanied by an application under Section 5 of the Limitation Act. Both the applications were resisted by the petitioner on diverse pleas including that the application is not maintainable and the impugned order dated 3.12.2001 was not an ex parte order and the Court had also become functus officio, etc.