MUKHTIAR AHMED Vs. MASHA ALLAH BEGUM

JUDGEMENT

(1.) (Oral).-This is a Revision under Section 25B, sub-section (8), of the Delhi Rent Control Act, 1958, arising from an eviction petition brought under Section 14(l)(e) which, was tried under the new procedure. The Additional Rent Controller rejected the application for leave on the ground that it was belated. He then held that as there was no permission to defend the eviction petition, the provisions of Section 25B (4) had to apply and hence, eviction had to follow. There are two objections to the procedure adopted by the Additional ]Rent Controller. Firstly, it is submitted that the application for leave to defend was belated because the tenant was ill and hence, the application could not be filed within 15 days. It is submitted that the period could be extended. Regarding the other point, it is submitted that even if Section 25B(4) is applicable, still, the eviction order should not have been passed. For this purpose, reliance is placed on the fact that the sale-deed was dated 8th May, 1972, and hence, no eviction petition could be maintained on the ground of bona fide personal requirement for a period of five years from the date of the sale. Hence, in any event the eviction petition had to be dismissed.

(2.) For reasons I will set out, I am of the view that both the points raised on behalf of the tenant have to be accepted. Although the questions raised are of great importance, I regret that the respondent has not p*ut in appearance to oppose this petition in spite of service. I deal with the first question regarding the limitation period of 15 days as it is a matter of some importance regarding the procedure to be followed in these cases. I may first say that there is no limitation period fixed in the Act for filing the affidavit. The reason for this conclusion is that Section 25B sets out the procedure which has to be followed. Each one of the sub-sections has to be interpreted in order to get a true view of how a summary trial has to be held under the new procedure. Sub-section (1) of this Section states that the procedure will apply to applications under Section 14A or Section 14(l)(e) ; both these provisions are applicable when eviction is sought for personal need. Sub-section (2) states that the summons will be issued in the form specified in the Third Schedule. I shall presently refer to that form. The third sub-clause states the manner in which the service of the summons is to take place. It is mandatory to send the summons by ordinary means and also through registered post. It is also stated in this sub-section that if an acknowledgement is received purporting to have been signed by the tenant or purporting to show that service had been refused, it would be good service. In sub-section (4) it is stated that the tenant who has been served shall not contest the eviction unless he files an affidavit statig the grounds for contesting the application and also obtains leave from the Controller. It is said that in default of appearance or getting such leave, the statement made by the landlord in the application for eviction will be deemed to be admitted and the applicant shall be entitled to an order for eviction. It is not stated in this subsection that the affidavit must be filed within 15 days. The 5th subsection states that the Controller will not give leave unless the tenant discloses such facts as would disentitle the landlord from obtaining an order of eviction. Therefore, in deciding such cases, the Controller has to examine the contents of the affidavit whether facts are disclosed as would disentitle the landlord from getting an order of eviction. The 6th sub-section states that if leave is granted, the Controller will commence the hearing as early as practicable, and the 7th sub-section says that the hearing shall be according to the practice and procedure of a Court of Small Causes. The 8th sub-section provides that no appeal shall lie and only a revision may lie to the High Court against an order directing recovery of possession in favour of the landlord. The 9th sub-section gives a power of review if no revision is filed, and the 10th sub-section provides that in other respects the Controller's power will be the same as in the case of other eviction petitions. None of the sub-sections places a limitation point on the period in which the affidavit has to be filed. It is, therefore, very important to find out why the Controller has come to the conclusion that the affidavit has to be filed within 15 days, otherwise the leave has to be refused. This is a very important point.

(3.) Under the Limitation Act, in suits under the summary procedure where leave is sought to appear and defend, the leave application has to be made within ten days of the date of service. It is provided by Article 118 of the Limitation Act. This provision is not applicable to eviction petitions. It is, therefore, a matter of conjecture as to whether the period of 15 days on which the Controller seems to rely has to be applied. This is not a part of any substantive law, but appears to be taken from the form of the summons.