PRITHI PAL SINGH Vs. SATPAL SINGH

JUDGEMENT

(1.) The petitioner filed an eviction petition under Section 14 (1) (e) of the Delhi Rent Control Act, 1958 (herein after referred to as the Rent Act). The respondent filed an application for leave to defend albeit after delay of eight days. The application was rejected as beyond time and eviction order was passed in favour of the petitioner on 28.02.2001. The respondent thereafter filed an application for recall of the said order dated 28.02.2001 and for condonation of delay under Order 37 Rule 4 r/w Section 151 of the Code of Civil Procedure, 1908 (herein-after referred to as the said Code) which application has been allowed by the impugned order dated 07.12.2001

(2.) The trial court has found that in view of averments made in the application, there was explanation forthcoming whereby the application for leave to defend was liable to considered on merits.

(3.) The substratum of the submissions of the learned counsel for the petitioner is that this court ought to exercise jurisdiction under Article 227 of the Constitution of India in view of the fact that the trial court had fallen into a jurisdictional error while taking the aforesaid view since the trial court had no powers to re-open the issue having once passed the eviction order. It is further contended that there is no such power with the Rent Controller to condone the delay. In this behalf learned counsel has referred in extentio to the judgment of the Apex Court in Prakash Jain v. Marie Fernandes; 2004 Rajdhani Law Reporter 83 (SC) It was held in the context of the Maharashtra Control Act, 1999 that an application for leave to defend not filed within time fixed by law could not be entertained and the tenant cannot seek condonation of delay under Section 5 of the Limitation Act, 1963 as that Act is not applicable. It was further held that condonation can also not be sought under the inherent powers as the rent authority is not a civil court though the Rent Act provides for that authority to exercise certain powers under the said Code. It may be noticed at this stage that the provisions of the Rent Act relating to delay have been considered especially in view of the fact that the provisions under the Maharashtra Rent Act were analogous to the provisions of the Delhi Act especially as per the provisions of Section 25B of the Rent Act. It is thus the submission of the learned counsel for the petitioner that in view of the clear exposition of law by the Apex Court, once a tenant does not file an application for leave to defend within time there is no remedy available to the tenant and an eviction order must follow.