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Mukhtar Ahmed Vs. Masha Allah Begum - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 229 of 1977
Judge
Reported inILR1977Delhi641
ActsDelhi Rent Control Act, 1958 - Sections 14(l); Limitation Act, 1963 - Article 118
AppellantMukhtar Ahmed
RespondentMasha Allah Begum
Advocates: V.K. Srivastava, Adv
Excerpt:
.....an affidavit must be filed within fifteen days, the form cannot, any case, bring into operation a period of limitation. there has to be an express provisions in some statute which bars a person's remedy for a specified period. there must be some provision relating to or analogous to the limitation act which brings to an end the tenant's right to the file an affidavit. thereforee, the petitioner-tenant could file an affidavit for leave to appear and defend the case before the controller had decided the same. if the controller had decided it, then the tenant could not have put in appearance and could not have filed his affidavit.; further, that even if the ground(s) for eviction is established, there is a further condition of five years to be overcome by the landlord (landlady in this..........be revised was passed on 5th november, 1976, and as it was not passed on 2nd november, 1976, the tenant's application and affidavit could not have been legaly rejected. it could not been rejected because-(a) there was no limitation prescribed by law and (b) because none of the provisions of sub-sections of section 25b, as analysed above, place a limitation of time in respect of filing this application. thereforee, this part of the order is wrong and has to be set aside.(6) coming to the second question, which is equally important, it is pointed out that the sale deed is dated 8th may, 1972 and, if the landlady became an owner on that date, she could not maintain an eviction petition some time in november, 1976, because a' period of five years required under section 14(6) had not.....
Judgment:

D.K. Kapur, J.

(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(1)(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(1)(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. thereforee, 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 favor 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, thereforee, 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, thereforee, 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.

(4) It is, thereforee, necessary to examine the contents of the summons, and also, to see whether a limitation period analogous to that set out in Article 118 of the Limitation Act can be spelt out merely from the form of the summons. It is said in the summons :-

'WHEREASShri.................... -has filed an application. etc........................ you are hereby summoned to appear before the Controller within fifteen days of the service hereof and to obtain the leave of the Controller to contest the application for eviction on the ground aforesaid; in default whereof, the applicant will be entitled at any time after the expiry of the said period of fifteen days to obtain an order for your eviction from the said premises,.... Leave to appear and contest the application may be obtained on an application to the Controller supported by an affidavit as is referred to in sub-section (5) of Section 25B'.

Nowhere does this form say that the application for leave to appear supported by an affidavit must be filed within fifteen days, the form cannot in any case bring into operation a period of limitation. There has to be an express provision in some statute which bars a person's remedy for a specified period. There must be some provision relating to or analogous to the Limitation Act which brings to end the tenant's right to file an affidavit. There is no express provision and the only question which can seriously be considered is whether such a period can bs inferred from the nature of the form. To understand the reason for the form, it may be noted that the form corresponds to that which prevailed under Order 37, Rule 3 of the Code of Civil Procedure as it originally stood before the 1976 Amendment. At that time, the form required for serving a defendant in a suit brought on a negotiable instrument was similar to the one reproduced in the Third Schedule. That form also specified a period of ten days in which the appearance had to be put in. It must be understood in this connection that when an application for eviction is moved, the applicant is not given a date, because he cannot know of the day or date the tenant may put in appearance. The tenant is given a period of fifteen days after service to put in appearance. This means that the tenant may put in appearance on the first day, second day after service and so on, right up to the 15th day. The landlord who is the petitioner cannot be expected to await the appearance of the respondent. In fact, it means that the date on which the tenant puts in appearance is a date on which the landlord is absent. At that stage, he may either put in his affidavit or he may merely put in his appearance and file his affidavit later. The contents of the form show that in case appearance is not put in within fifteen days, then the landlord may obtain an order for eviction without the appearance of he tenant. It does not mean that the tenant cannot put in his affidavit after fifteen days, as seems to have been understood by the Additional Rent Controller.

(5) In the present case, the applicant-tenant was served on 15th October, 1976, and did not put in his application or affidavit within fifteen days. Apparently, he did not do so, because he was ill In any event, the Controller had not yet decided the case. If the Controller had decided the case, then the tenant could not have put in appearance and could not have filed his affidavit. But, the tenant actually applied on 2nd November, 1976, on which date the case was still pending. There was no bar in law to the filing of the affidavit or an application on that date. The order sought to be revised was passed on 5th November, 1976, and as it was not passed on 2nd November, 1976, the tenant's application and affidavit could not have been legaly rejected. It could not been rejected because-(a) there was no limitation prescribed by law and (b) because none of the provisions of sub-sections of Section 25B, as analysed above, place a limitation of time in respect of filing this application. thereforee, this part of the order is wrong and has to be set aside.

(6) Coming to the second question, which is equally important, it is pointed out that the sale deed is dated 8th May, 1972 and, if the landlady became an owner on that date, she could not maintain an eviction petition some time in November, 1976, because a' period of five years required under Section 14(6) had not elapsed. The learned counsel for the petitioner contends that Section 14(6) of the Act reads as follows :-

'14(6)Where a landlord has acquired any premises by transfer, no aplication for the recovery of possession of such premises shall lie under sub-section (1) on the ground specified in clause (e) of the proviso thereto, unless a period of five years has elapsed from the date of the acquisition.'

It clearly appears that on 5th November, 1976, the period of five years had not elapsed. Assuming that the tenant had not put in an application for leave to defend and the case has had to be decided under Section 25B(4), did the Rent Controller have jurisdiction or authority to pass the order Could the Rent Controller overlook the period of limitation when it was revealed by the petitioning landlady herself I think, that the answer to this question is provided by Sections 25B(4) and (10). The provisions of sub-section (4) of this Section as far as relevant are :-

'25B(4)the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid.'

I have no doubt that if the facts are sufficient to maintain a petition, an order of eviction can be passed. But, suppose the andlord's case is not sufficiently made out from the contents of the application, or suppose, that there is a gap in the landlord's case as detailed in the eviction petition, is it, that even in such cases the eviction order must be passed I think, this is not so. All that sub- ' section (4) provides is that the statement of the landlord will be taken as admitted. The admission cannot go any further than what is stated in the eviction petition. And, if the landlord has not got ownership for five years, no eviction order can be passed. thereforee, whatever the position may be, the eviction order was not properly passed.

(7) The same result can be achieved on another line of reasoning. Under sub-section (10) of Section 25B, an eviction application under Section 14(l)(e) has to be disposed of under the same procedure as other applications. This means that there must be proof, as far as the Rent Controller is concerned, to justify the passing of ati eviction order. It must not be forgotten that Section 14(l)(e) is one of the several parts of a non-obtuse clause. The provisions of Section 14 are that notwithstanding anything to the contrary, no court or Tribunal is to pass an order or decree for recovery of possession of any premises and the proviso gives the cases in which an exception is made. The opening words of the proviso are :-

'PROVIDED that the Controller may on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only , . . . . .'.

Then follow all the grounds. thereforee, the Controller has to be satisfied that one of the grounds has been made out. Assuming that the ground is made out, there is a further limitation provided by Section 14(6), namely, that no eviction order can be made unless a period of five years has elapsed. Thus, even if the ground is established, this further restriction of five years has to be overcome by the petitioning landlady in some way. As the document of ownership is itself demonstrative of the fact that five years had not elapsed, the Rent Controller had no option but to reject the eviction petition. Of course, such a petition could be maintained after the lapse of five years.

(8) This Revision was filed on 19th March, 1977, against a decision recorded on 5th November, 1976. There is an office note that even allowing for the copying days, the application for revision is filed after 97 days and hence, is barred by time. There is an application for condensation of delay, C.M. No. 546 of 1977. In this application, it is stated that the certified copy was not given to the petitioner though he enquired for the same on 20th December, 1976. The applicant was informed to come on 4th January, 1977, when the copy was received. The copy was in fact ready on 25th December, 1976. The application is accompanied by a form issued by the Office of the District and Sessions Judge, Copying Agency. The dates mentioned in the application are confirmed from the entries made in that form. Clearly, the delay from 25th December, 1976 to 4th January, 1977 is not on account of the petitioner's fault. It is prayed that the application be deemed to have been ready on 4th January, 1977 and the difference of about ten days should be counted as a period requisite for obtaining the copy. I think, this application has to be allowed because of the delay being on account of the Copying Agency's directions and not on account of the petitioner's fault. Accordingly, I condone the delay, if any. This condensation of delay is allowed on the footing that the limitation period is 90 days even for Revisions under Section 25(8) of the Delhi Rent Control Act, 1958.

(9) As I have now held the Revision to be within time as extended, it is now necessary to pass orders on the same. I have already held that the eviction petition was not maintainable as five years had not expired. Now, on 12th May, 1977, the period of five years has elapsed and the landlady can maintain a petition. She may, thereforee, file a fresh petition, if she desires. As far as the eviction petition under consideration is concerned, it was pre-moture and, thereforee, the eviction order passed by the Rent Controller has to be set aside. I thus allow this Revision leaving the parties to bear their own costs throughout.


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