THARIA RAM Vs. CHITRA DEVI

JUDGEMENT

(1.) Section 25B as introduced in the Delhi Rent Control Act, 1958, provides special procedure for the disposal of applications for eviction on the ground of bona fide requirement. On an application being moved by a landlord under these provisions summons have to go in a specified form to the tenant. On service being completed as provided for, the tenant cannot contest the prayer for eviction from the demise unless he files an affidavit within fifteeen days, staling the grounds on which he seeks to contest the eviction and obtains leave from the Rent Controller. In default of his appearance in pursuance of the summons or his obtaining such leave the statement made by the landlord in the eviction petition has to be deemed as admitted by the tenant and an eviction order passed. However if the tenant's affidavit discloses such facts as would disentitle the landlord from obtaining eviction the Controller has to allow leave to contest to the tenant.

(2.) These provisions are substantially analogous to those contained in Order 37 of the Code of Civil Procedure for summary trial of suits. However, unlike Order 37 Rule 3(7) of the Code, which permits the Court for sufficient cause shown by the defendant to excuse the delay in his entering appearance or applying for leave to defend the suit or 0rder 37 Rule 4 entitling the Court to set aside the decree under special circumstances, Section 25-B of the Rent Act does not provide for such extension or setting aside. Recourse to Section 5 of the Limitation Act is as well not available as it now well settled that the Rent Controller is not a Court. (See in this regard the decisions reported as Town Municipal Council, Athani v. P.O. Labour Court, AIR 1969 SC 1335, Nityanand M. Joshi v. L.I.C., AIR 1970 SC09, Sushila Devi v. Ramanandan, AIR 1976 SC 177, Subhash Chander v. Rehmatullah, 1972 Rajdhani Law Reporter 154, Kedar Nath v. Mohani Devi, 1973 Rajdhani Law Reporter 701, and Jaitendra Kumar v. Lakshi Kant, 1974 RCR 134). A tenant can also not avail the provisions of Order 9 Rule 13 of the Code of Civil Procedure for setting aside of ex-parte decree where he is confronted with an ejectment order passed on his failure to make appearance within the time stipulated and obtaining leave of the Controller. (See in this regard the decision reported as Gurditta Mal v. Bal Sarup, 1980 Rajdhani Law Reporter, 136, and P.N. Films Ltd. v. Overseas Films Corp., AIR 1958 Bombay 10. However, it has now been recognised that the tenant can avail the exercise of inherent powers if it is necessary to do so in the interest of justice. (See Gurditta Mal v. Bal Sarup (supra) and PritamSingh v. BhajanLal, 1980(1)DRJ118. A Division Bench of this Court has further in the decision reported as Jagdish Persad v. Phoolwati Devi, 1980 Rajdhani Law Reporter 367, observed that since the Rent Controller has to follow the practice and procedure of the court of Small Causes vide Section 25-B(7) and 37(2) of the Rent Act, it has to be taken that benefit of Order 37 Rule 4 of the Code is not excluded by any provision of the Rent Act, and, herefore, discretion to give the benefit of setting aside the decree under pecial circumstances can be exercised by the Controller.

(3.) What transpired in the present case was that the tenant was served with the summons issued under Section 25-B on 2-11-1980. He could nave, therefore, filed an. affidavit disclosing circumstances for leave to contest upto 17-11-80. The tenant instead of filing such affidavit, moved an application under Section 25-B on 15-1 1-1980, and sought leave to defend on the grounds mentioned therein . This was signed by his counsel only. Subsequently an application under Section 151 Civil Procedure Code . was moved by the tenant on 27-1-1981 seeking condonation of delay in the filing of his affidavit. It was mentioned that the affidavit had been duly prepared on 14-11-1980 and attestation from Oath Commissioner obtained. The same was handed over long with the application for leave to defend and the power of attroney by the tenant's counsel to his clerk for being filed. That clerk later informed that he had filed them on 15-11-1980. However, on 3-12-1980, the counsel for the tenant learnt that the affidavit for leave to defend which had been prepared on 14-11-1980, was not filed and had been inadvertantly left in the case file by a bona fide mistake of the clerk. In the meanwhile, the clerk of the counsel left the service on 27-11-1980. The counsel, therefore, hastened to file the affidavit before the Rent Controller on 3-12-1980. No application was moved with this affidavit, but the stamps on backside of each page shows its filing on 3-12-1980, and purports to bear the initial of the Additional Rent Controller.