Sham Murari v. Rajneesh K. Kashyap & Anr.

Shiv Narayan Dhingra, J.— The petitioner has assailed an order passed by learned ARC dated 13th May, 2008 whereby an application under Section 25(B) along with an application under Section 5 of Limitation Act seeking leave to defend and condonation of delay in filing leave to defend were dismissed.

2. Counsel for the petitioner relied on Ramesh Basandara v. Moti Ram, 105 (2003) DLT 713 wherein this Court refused to interfere in an order passed by the Additional Rent Controller on an application under Order 9 Rule 13 read with Order 37 Rule 4 and Order 37 Rule 3(7) setting aside the eviction order in Abdul Salman v. Hans Raj, 1996 RLR (FB) 71 and argued that the application for condonation of delay was maintainable. In Ramesh Basandara case, this Court has categorically observed that provisions of limitation act being inconsistent with the time prescribed under Section 25B(4) would not be available to the Controller for condoning delay. It was also observed that Clause 25A of Rent Control Act being non obstante clause prevents the application CPC or Limitation Act to the special provisions of Rent Control Act.

3. It was not laid down in the above case that the Rent Controller can condone delay. Similarly in Abdul Salman (supra) reference was made to Full Court to decide the question relating to power of Rent Controller to entertain an application for condonation of delay filed by the tenant along with an application for leave to defend. The Full Court did not return the reference with answer to the issue and in light of facts and circumstances of that case observed that it was not necessary to decide the reference and Court presumed in favour of the petitioner that such an application was maintainable. Both the decisions cited by the petitioner are not helpful in the case. However, the issue had specifically arisen before the Supreme Court in Prakash H. Jain v. Marie Fernandes, (2003) 8 SCC 431, where the similar provision of Maharashtra Rent Control Act was under consideration and Supreme Court had occasion to consider the applicability of Limitation Act or condonation of delay as well as inherent powers of the Rent Controller and Supreme Court observed as under:

“12. The provisions of Chapter VIII stand apart, distinctly and divorced from the rest of the Act, except to the extent indicated therein itself and for that matter has been given an overriding effect over any other provisions in the very Act or any other law for the time being in force, though for enforcement of other remedies or even similar remedies under the provisions other than Chapter VIII, altogether different procedure has been provided for. It is unnecessary to once again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority constituted thereunder is not “Court” and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose or either making the provisions of the Limitation Act, 1963 attracted to proceedings before such competent authority or clothe such authority with any power to be exercised under the Limitation Act. It is by now well settled by innumerable judgments of various Courts including this Court, that when a statute enacts that anything shall be deemed to be some other thing the only meaning possible is that whereas the said thing is not in reality that something, the legislative enactment requires it to be treated as if it is so. Similarly, though full effect must be given to the legal fiction it should not be extended beyond the purpose for which the fiction has been created and all the more, when the deeming clause itself confines, as in the present case, the creation of fiction for only a limited purpose as indication therein. Consequently, under the very scheme of provisions enacted in Chapter VIM of the Act and the avowed legislative purpose obviously made known patently by those very provisions, the competent authority can by no means be said to be “Court” for any and every purpose and that too for availing of or exercising powers under the Limitation Act, 1963.

13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provision of law under which the competent authority itself has been created. Clause (a) of Sub-section (4) of Section 43 mandates that the tenant or licensee on whom the summons is duly, served should contest the prayer for eviction by filing, within thirty days of service of summons on him, an affidavit stating the grounds on which he seeks to contest the application for eviction and obtain the leave of the competent authority to contest the application for eviction as provided therefor. The Legislature further proceeds to also provide statutorily the consequences as well laying down that in default of his appearance pursuant to the summons or obtaining such leave, by filing an application for the purpose within the stipulated period, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant or licensee, as the case may be, and the applicant shall be entitled to an order for eviction on the ground so stated by him in his application for eviction. It is only when leave has been sought for and obtained in the manner stipulated in the statute that a hearing is envisaged to be commenced and completed once again within the stipulated time. The net result of an application/affidavit with grounds of defence and leave to contest not having been filed within the time as has been stipulated in the statute itself as a condition precedent for the competent authority to proceed further to enquire into the merits of the defence, the competent authority is obliged, under the constraining influence of the compulsion statutorily cast upon it, to pass orders of eviction in the manner envisaged in Clause (a) of Sub-section (4) of Section 43 of the Act. The order of the learned Single Judge of the High Court under challenge in this appeal is well merited and does not call for any interference in our hands.”

4. In Delhi Rent Control Act as well Chapter IIIA was added by way of an amendment in 1976 and this Chapter was made to have overriding effect. Clause 25-A provided that the provisions of this Chapter or any Rule made there under shall have effect notwithstanding with any inconsistent therewith contained elsewhere in this Act or in any other law for the time being in force.

5. I consider that in view of the non obstante clause and in view of the para material provisions in Maharashtra Rent Control Act, 1999 and above decision of Supreme Court, an application for condonation of delay in filing leave to defend is not maintainable and if leave to defend is not filed within 15 days, the Rent Controller is bound to pass an order. In Prakash H. Jain (supra) Supreme Court also observed as under:

“In Gurditta Mal… v. Bal Swarup…., a learned Single Judge of the said High Court chose to infer conferment of power under Rule 23 of the Delhi Rent Control Rules, 1959, though such power was not conferred under the statute, by relying upon Section 151, CPC which in our view could not have been, having regard to the very nature and content of power under Section 151 and its inapplicability to authorities other than ordinary Courts.”

6. I therefore find no force in the petition. The petition is hereby dismissed.

Petition dismissed.