MARIE FERNANDES Vs. PRAKASH H JAIN

JUDGEMENT

(1.) BY this petition, the petitioner challenges the order dated 20th September 2001 passed by the Competent Authority (Rent Act), Konkan Division, Mumbai in case No. 31 of 2001. By that order, the Court has condoned the delay in filing an application for leave to defend. Admitted facts are that the petitioner has filed an application under Sections 42 and 43 of the Maharashtra Rent Control Act for an order of eviction against the respondent. It is also an admitted fact that an application for leave to defend which is required by Sub-section (4) of Section 43 of the Act to be filed by the respondent within a period of 30 days from the date of service of summons, was not filed by the respondent. It is also an admitted fact that the application for leave to defend was filed after a period of 30 days along with an application for condonation of delay and it is on that application that this order dated 20th September 2001 has been made by the Competent Authority, condoning the delay.

(2.) PERUSAL of the provisions of Sub-section (4) of Section 43 lays down that a tenant or licensee on whom summons is duly served shall not contest the prayer for eviction from the premises unless within 30 days of the service of summons on him as aforesaid he files an affidavit setting grounds on which he seeks to contest the application for eviction and obtain leave from the Competent Authority. Sub-section (4) further lays down the consequences of the tenant not seeking such a leave. In case the tenant does not seek leave or makes an application for leave but it is not granted, the consequence is that the landlord becomes entitled to an order of eviction. In the Act, there is no provision which empowers the Competent Authority to condone delay in making an application for leave to defend.

(3.) THE learned counsel appearing for respondent is not in a position to point out any provision in the Act or any other law which will vest power in the Competent Authority to condone delay in making an application for leave to defend. In this view of the matter therefore, it is clear that the order dated 20th September 2001 passed by the Competent Authority is an order made by the Authority without having jurisdiction to do so and therefore, the order is null and void and is therefore liable to be set aside. By another order dated 17th January 2002, the Competent Authority has also granted leave to defend. As the Competent Authority had no power to condone the delay, obviously it could not have entertained the application filed by the respondent for grant of leave to defend. In the result therefore, the present petition succeeds and is allowed, both the orders impugned in this petition viz. the order condoning delay and the order granting leave to defend are set aside. The competent Authority is directed to pass further orders on the application of the petitioner in accordance with law. Parties to act on the copy of this order duly authenticated by the Sheristedar/personal Secretary as true copy. Certified copy expedited.