R S BAKSHI Vs. H K MALHARI

JUDGEMENT

(1.) By this petition the petitioner landlord has challenged an order of Additional Rent Controller dated 17th March 2001 whereby an application for leave to defend filed under sub-section (4) of Section 25B of Delhi Rent Control Act (for short the Act) was allowed and the tenant (respondent No. 1) was permitted to contest the petition filed by the petitioner for his eviction under clause (e) of Section 14(1) of the Act.

(2.) At the outset, an objection was; raised by Shri R.K. Gupta, counsel for the respondent that this petition filed under Article 227 of the Constitution of India was not maintainable. He argued that an order allowing application for leave to defend filed by a tenant under sub-section (5) of Section 25B of the Act may be challenged only in a revision petition. Conversely, petitioner No. 1 in person who argued for himself and petitioner No. 2 controverted this argument and stated that the petition filed by him was maintainable. In the alternative, he requested that the instant petition may be converted into a civil revision petition. It is interesting to note that this controversy survived (though'for no valid reasons) even after a reference was made by a learned single Judge in this case for a decision by a Larger Bench the question of maintainability of the petition under Article 227 of the Constitution of India by a landlord assailing an order whereby leave to contest is granted to the tenant in a petition under clause (e) of Section 14(1) of the Act. The reference order is dated 7th December 2001 and was a consequence of the learned Single Judge finding difference in the view of the Supreme Court in two judgments titled Vinod Kumar Chaudhary v. Smt. Narain Devi Taneja, 1980 (2) SCC 120 and Major D.N. Sood and Another Versus Shanti Devi, (1997) 10 SCC 428. The Division Bench by its order dated 21.12.2001 in CM (M) 221 of 2001 answered the reference as follows :

(3.) According to petitioner No. 1, the precise question before the Division Bench was whether the landlord can file a petition challenging the order of the Additional Rent Controller by which the leave is granted to a tenant to contest an eviction petition under clause (e) of Section 14(1) of the Act and that the question before the court was not as to whether a civil revision or a petition under Article 227 of the Constitution of India was the remedy available to the landlord. Conversely, the argument of the counsel for the respondent is that in Vinod Kumar Chaudhary's case (supra) the Supreme Court had rejected the contention of the tenant that the revision petition was not envisaged against the Border granting tenant leave to defend an eviction petition under clause (e) of Section 14(1) of the Act. In other words, he urged that the revision petition and not a petition under Article 227 of the Constitution of India was the remedy available to the landlord against such an order.