CHAMAN LAL GORVER Vs. BRIJ LAL DHAMIJA

JUDGEMENT

(1.) The petitioner who is the owner and landlord of premises bearing No XIV/1229 Gali Giarha, Sdar Bazar, Delhi filed petition for eviction against respondent No. I in respect of these premises under Section 14(1) (e) read with Section 25-B of the Delhi Rent Control Act (herein after referred to as the Act). The petitioner is this petition asserted that the premises were required for his bonafide personal need and the needs of his family members The respondent No. I was served with the summons under Section 25B of the Act on 27th March 1983 and he filed an application for leave to defent under Section 25B(4) of the Act on 3rd May, 1983. An objection was taken by the petitioner that the application for leave to defent was time barred since it was filed beyond 15 days of the service of summons. By order dated lst December 1983 the Rent Controller dismissed the application for leave to defend as being beyond the period of limitation and further passed an order of eviction under Section 14 (1) (e) of the Act and granted six months time to respondent No I to vacate the .premises A revision petition was filed by respondent No. I in the High Court being C. R. No. 195 of 1984 This revision petition was dismissed by the High Court on 9th May, 1984. However, further time two months ,was granted to respondent No I to vacate the premises. Thereafter, on 2nd June, 1984 respondent No. I filed an application before the Rent Controller under Rule 23 of the Delhi Rent Control Rules, 1959 read with Order 37 Rule 4 and Section 151 of the Code of Civil Procedure for setting aside and quashing the order of eviction dated 1st December, 1983 The petitioner contested this application However, the Rent Controller on 12th July 1985 allowed the application and set aside the order of eviction dated 1st December, 1983. It is this order of the Rent Controller Delhi dated 12th July, 1985 which is challenged by the petitioner in this petition under Article 227 of the Constitution of India.

(2.) It was contended by the learned counsel for the petitioner that the Additional Rent Controller had no jurisdiction to entertain an application of the respondent under Order 37 Rule 4 read with Sec. 151 of the Code of Civil 286 Procedure once the revision petition filed by the respondent was dismissed by the High Court. It was submitted that under Section 25B (9) only when no application has been made to the High Court on revision the Controller can exercise the powers of review in accordance with the provisions of Order 37 of the Code of Civil Procedure and since the respondent had already availed of the remedy of a revision petition in the High Court the remedy under Section 25b(9) was not available to him. It was further contended that once the High Court was apprised of the matter and had dismissed the revision petition the order of the Additional Rent Controller got merged with the order of the High Court. Thus if the respondent wanted to seek any further relief the only remedy open to him would be to file a petition for leave in the Supreme Court or a review petition special in the High Court. Learned counsel referred to M/s. Gojer Brothers (P) Ltd. v. Shri Rattan Lal Singh, AIR 1974 SC 1386 in support of this contention. On merits, it was contended that the learned Additional Rent Controller erred in coming to the conclusion that since respondent No. 2 was illiterate he could not read the summons and, therefore, he could not move the application for leave to defend within 15 days as required under the law. It was submitted that respondent No. I in his application had stated that he got the summons read from an advocate who told him about the next date of hearing and thus he could not plead that the notice was misleading.

(3.) On the other hand, it was contended by the learned counsel for the respondent that the power of the High Court in a revision under Section 25B(8J the Act is very limited and is not as wide as in appeal thus though he High Court had dismissed the revision petition filed by respondent No. 1 the High Court bad considered only the question of law regarding maintainability of the application of the respondent for leave to defent after the statutory period of 15 days had expired. It was submitted that as per the settled law at the time the original order was passed, the Rent Controller did not have the power to extend the time fixed by the stature and thus the remedy open to the respondent was to either file a revision petition in the High Court or file an application under Section 25-B(9) before the Rent Controller because the final decree was already passed. .Learned consel submitted that after the High Court dismissed the revision petition the respondent had filed a Special Leave Petition to the Supreme Court which is still pending, however as he and also the choice of moving an application under Section 25B(9) he chose to get the order of the Rent Controller, Delhi dated 1st December 1983 reviewed. It was submitted that the revision was dismissed by the High Court in limine without assigning any reasons mainly because the High Court felt that the Rent Controller was right in dismissing the application for leave to defent since he had no power to condone the delay. It was submitted that since the revisional power ot the High Court under Section 25B(8) is restricted an application for review under Order 37 Rule 4 read with the Rule 23 and Section 25B(9) of the Act was maintainable even after the revision petition was dismissed by the High Court It was further submitted that since the High Court had exercised its revisional jurisdiction and not appellate jurisdiction the order did not get merged with that of the High Court. Learned counsel relied on Dr. Mukhtar Ahmed v. Smt. Masha Allah Begum, 1979 (1)R.C.R 284, Gurdittamal v.Bal Sarup, 17(1980) DLT 321 and Onkar Singh v. Shanti Devi, 19(1981) DLT 463 in. support of his contention.