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Gurditta Mal Vs. Bal Sarup - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 295 of 1976
Judge
Reported inAIR1980Delhi216a; 17(1980)DLT172; 1980RLR1
ActsDelhi Rent Control Act, 1958
AppellantGurditta Mal
RespondentBal Sarup
Advocates: Maehswar Dayal,; A.C. Mittal and; G.N. Aggarwal, Advs
Cases ReferredRushching Schmitz Private Limited v. P. T. Menghani and
Excerpt:
.....& 25(b), sub-section (2) (4) (5) & (6) iiird schedule--scope--wherever application for leave to contest to be filed within 15 days.; in the instant case, the tenant took the plea that there was no time limit laid down by the delhi rent control act under which the tenant was compelled to file an application for leave to contest the eviction proceedings filed against him. the landlord contended that an application for leave to contest has to be filed and leave obtained by the tenant within 15 days from the service of the summons on the tenant in respect of an application for eviction filed against him. chapter iii-a of delhi rent control act provided for summary trial of applications by landlords for recovery of possession filed on the grounds specified in clause (e) of..........default in obtaining leave results in the application for eviction being granted, and as order on leave application cannot promptly be passed with 15 days (as tenant may have apply on 15th day) it must mean' that second part of para 2 of the summons which emphasises that in default whereof the applicant will be entitled at any time after the expiry of said period of 15 days to obtain an order of eviction only refers to the non-appearance of the tenant within 15 days and not to the non filing of application. we cannot agree. it will be seen that 25b(4) prohibits a tenant to contest the application for eviction unless he files an affidavit to notice. the last part of form in third schedule further requires that leave to appear and contest the eviction application may be obtained on.....
Judgment:

Sachar, J.

(1) The question of law that has been referred to the larger bench is whether any time limit is laid down for a tenant to apply for leave to contest the application for eviction filed against him under Chapter Iii A of the Delhi Rent Control Act (hereinafter to be called the Act).

(2) The case of the petitioner/tenant is that there is no time limit laid down by the Act within which the tenant is compelled to file an application for leave to contest. The case of the landlord/respondent on the other side is that the time within which an application for leave to contest has to be filed by the tenant is 15 days from the service of the summons on the tenant of an application for eviction filed against him under Section 25B of the Act.

(3) Clause (e) of the proviso to sub-section (1) of Section 14 of the Act provides for a landlord to obtain an order for the recovery of possession from a tenant on the ground of bonafide need. By Parliament Act 18 of 1976 Section 14A was added by which right to recover immediate possession of premises belonging to him was given to a person in occupation of residential premises allotted to him .by the Central Government. Chapter Iii A was also added by the said Act and it provided for summary trial of applications by the landlords for recovery of possession filed on the ground specified in clause (e) of proviso to sub-section (1) of section 14 or under section 14A of the Act. Sub-section (2) of section 25B provides that the Controller shall issue summons in the form specified in the Third Schedule. Sub-section (4) lays down that the tenant on whom the summon is duly served in the form specified in Third Schedule Shall not contest .the prayer for eviction from the premises unless he files an affidavit staling the grounds on which he seeks to contest the application for eviction, and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, 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. Sub-section (5) provides for leave to be granted to the tenant and sub-section (6) provides that where leave is granted the Controller shall commence the hearing of application as early as practicable. The procedure to be followed under Chapter ill A is to be that of a Court of Small Cause. No appeal or second appeal is provided against an order for the recovery of possession of any premises and only the High Court is empowered to call for the records of the case to satisfy itself that the order made by the Controller under the Section is according to law. A rerence to Section 25B shows that no period is provided for in the said section within which an application has to be filed by the tenant to seek leave to contest the application for eviction. The Limitation Act provides for no time for an application under Section 25B. As it is, even Limitation Act is not applicable to proceedings under the Rent Control Act as held in Subhash Chander v. Rehmat Ullah I.L.R. 1973 (1) Del 181. If the position stood there the answer would be simple that no time limit is provided within which the tenant can enter appearance or to file an application for leave to contest. The position, however, takes a different hue when we make a reference to the form of summons provided in the Third Schedule in terms of Section 25B(2) of the Act. The language of the Summons after giving reference to the application for eviction having been filed against the tenant goes on to say that: '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.'

(4) Now admittedly summons do require the tenant to appear before the Controller within fifteen days of date of service and if he defaults an order of eviction may be passed against him 3fter the expiry of said period of 15 days. It is important to note that though 25B (4) provides consequences for default of appearance by the tenant, it does not indicate any period for appearance and the same is only to be found in the Third Schedule. Because the period of fifteen days is mentioned in the Third Schedule, an argument was made by the counsel for the tenant that the time provided in the Third Schedule can have no relevancy and that if any limitation was to be provided for the same must be found in the enactment. But this argument ignores that the form in the Third Schedule is a part of the Act and thereforee the Third Schedule must be treated to be of some force as the main enactment and both of them must be read together for all purposes of construction. Of course if there is any inconsistency between the Schedule and the enactment, the enactment may prevail, vide Muneshwara Nand v. State : AIR1961All24 . But there is no inconsistency between 25B (4) and the form in Third Schedule. We say .this because a reference to 25B (4) will show that no period for appearance is mentioned therein, after which consequences of default will be attracted. That period is to be found only in the summons in Third Schedule which requires the tenant to appear before the Controller within 15 days of the service hereof and to obtain leave of the controller to contest the application for eviction. and in default whereof the landlord/applicant will be entitled to any time after the expiry of period of 15 days to obtain an order for eviction. Kapur, J. in Dr. Mukhtar Ahmed v. Smt. Masha Allah Begum 1977 (2) R.C.R. 642 has taken the view that the affidavit could be put in after 15 days of the date of service but even the learned judge accepted that in terms of the form in third schedule appearance has to be put in within 15 days. The only reason why the learned judge felt hesitant in accepting the period of 15 days for filing the application for leave to contest was because the same was not put in the suit. But as we have already said the third schedule is as much a part of the statute as the sections and has the same binding force in law. We may in' this connection note that Avadh Behari, J. in Avnash Chander v. Smt. Rama Devi 1979 (1) R.C.R. 209 has taken a different view and has held at the period of 15 days is both for the putting in appearance as well as for filing an application for leave to contest the eviction application.

(5) The recognition of urgency of the matter evidenced by the Chapter Iiia of the Delhi Rent Control Act and the social setting demanding summary proceedings, the nature of the subject matter and the option of the legislative diction which has been deliberately designed in incorporating 25 B (4) so much so that the Supreme Court has held that it is fallacy to approximate Section 25B(5) with Order 37 Rule 3 Civil Procedure Code vide Rushching Schmitz Private Limited v. P. T. Menghani and another : [1977]3SCR312 and the over-riding effect of Chapter Iii A over every other provision of Delhi Rent Control Act which is inconsistent with the provisions contained in' Chapter Iii is vide Shri Sarwan Singh and another v. Shri Kasturi Lal : [1977]2SCR421 will assist in interpreting the form in the third schedule because any interpretation which resuits in prolonging the conclusion, of the proceedings brought under Chapter Iii A must militate against the object and intention with which this chapter was introduced.

(6) A reference to the form of summons in Third Schedule will show that the tenant is summoned to appear before the Controller within fifteen days and to obtain the leave to contest the application for eviction on the ground aforesaid. Now there can be no manner of doubt that the tenant has to appear before the Controller within 15 days of the service o? the summons. But the requirement on the tenant is not only to appear but also to obtain leave of the Controller to contest the application for eviction. The argument of the counsel for the tenant is that once the tenant has appeared within 15 days the further requirement of obtaining the leave can be fulfillled even subsequent to 15 days. Now this is not supported by the wording in the summons because it provides that in default thereof the applicant will be entitled at any time after the expiry of the said period of 15 days to obtain an order for eviction. This thereforee does contemplate a situation where the Rent Controller on the 16th day can be asked to pass an order of eviction in favor of the landlord. But the eviction order can only be passed if there is default of failure to appear and to obtain leave of Controller to contest. Now supposing appearing is made by the tenant within 15 days there will be no default according to the tenant arid the Rent Controller will not be able to pass an eviction order on 16th day because the tenant may file an application to contest the application subsequently (if there is no time limit). This will defeat the very object of summary proceedings provided under Chapter Iii A which is to see that the delay which normally takes place in normal litigation is not occasioned under this summary procedure. It is for that reason that 15 days have been provided for the tenant to appear. Now if the tenant is not also to file an affidavit. within that time to obtain leave it is apparent that the matter is being left in an uncertain state of affairs with no one even knowing whether the tenant will file an affidavit to obtain leave to contest 'or not. Taking it in a practical manner it would mean that on the day of first hearing fixed by the Rent Controller which necessarily will be after 4 to 6 weeks from the issue of summons, it would be open to the tenant to apply for leave to contest on that day. Now if there is no time limit it will mean that each case as to the justification or otherwise for the delay in applying and either permit or refuse the tenant to move an application for leave to contest. This would introduce unnecessary uncertainty and dilatoriness of the normal procedures. It was then contended that as default in obtaining leave results in the application for eviction being granted, and as order on leave application cannot promptly be passed with 15 days (as tenant may have apply on 15th day) it must mean' that second part of para 2 of the summons which emphasises that in default whereof the applicant will be entitled at any time after the expiry of said period of 15 days to obtain an order of eviction only refers to the non-appearance of the tenant within 15 days and not to the non filing of application. We cannot agree. It will be seen that 25B(4) prohibits a tenant to contest the application for eviction unless he files an affidavit to notice. The last part of form in third schedule further requires that leave to appear and contest the eviction application may be obtained on application to the Controller supported by an affidavit as is refrerred to in sub-section (5) of Section 25B. This clearly means that appearance and an application for leave to contest the eviction application has to be filed within the same period i.e. 15 days. It appears to us that the reasoning in. the referring order by Deshpande, J. (as his lordship then was) that the second part of third schedule demarcates the period during which the rights of the tenant and the fights of the landlord are to be exercised has great force. The right of the tenant is to be exercised within 15 days from the service of the summons while the right of the landlord has to be exercised after the expiry of the 15 days. If that be so it is apparent that whatever the tenant has to do he must do within 15 days from the date of service of summons because after that period the right of the landlord starts.

(7) One argument which is advanced against reading the time limit of 15 days for filing an application for leave to contest is said to be that in the normal course' the summons which is issued to the tenant is always for a date of hearing much later after the 15 days (normally 4 to 6 weeks) as it is not known when exactly the tenant will be served, and thereforee no carder for eviction can be passed prior to the next date of hearing. We do not think that that is necessarily so because the return of summons will indicate the date when service has been affected and if the landlord finds that within 15 days of that service appearance has not been put in or the application for leave to contest has not been filed he can move the Rent Controller to pass an order for eviction even. though this may happen to be earlier than the date originally fixed for hearing by the Rent Controller. It may be noticed that in the second part of the summons the default of the tenant which entitles the landlord to obtain an order for eviction is both with regard to the default of appearance of the tenant before the Controller within 15 days and the default of failing obtain leave of the Controller to contest the application for eviction. The form has taken the precaution even to provide that leave to appear and contest the application may be obtained on application to the Controller supported by an affidavit as is referred to in sub-section 5 of the sub-section 25B. Section 25B(4) prohibits the tenant to contest the prayer for eviction unless he files an affidavit seeking the leave and further provides that in default of his appear or his obtaining such leave the landlord shall be entitled to an order for eviction. Now it is not disputed that the apperance has undoubtedly to be made by the tenant before the Controller within 15 days of the service of summons and if leave to appear and contest the application can be obtained on filing an application before the Controller and further unless an affidavit is filed the tenant is prohibited from contesting the prayer for eviction, it would inevitably follow that this requirement must be done at the same point of time, i.e., within 15 days when undoubtedly the appearance has to be put in before the Controller. If only the appearance has to be put in within 15 days but an affidavit can be filed at any time subsequently the whole situation will become uncertain. It is true that the court may control the contumacious conduct of a tenant in delaying to file the affidavit but that would leave the matter to the uncertainties of each case which would be contrary to the compulsions of the urgency indicated by Chapter III-A. We also do not appreciate that if the application for leave to contest can be put in by the tenant either on the date of hearing given in the summons or even subsequently, where was the urgency in compelling the tenant to appear before the Rent Controller within 15 days of the service of summons even when' that inevitably will not happen to be the date of hearing. This requirement would serve no purpose nor expedite the conclusion of the proceedings. This would be putting an unnecessary burden on the tenant to put in his appearance on an extradate when he could as well have put in his appearance on the date of hearing. No benefit also accrues to the landlord by compelling the appearance to be made within 15 days because he cannot ask for an order for eviction if the argument of the counsel for the tenant was to be accepted that an application for leave to contest can be made subsequently and not necessarily within 15 days. In that view the landlord would not be in a position to obtain his remedy of eviction. Theoratically one may conceive of a tenant who may not be wanting to contest the eviction application and thereforee need not put in his appearance within 15 days in which case of course the landlord may obtain an order for eviction but this situation in these days of scarcity of housing accommodation is so unrealistic and so unimaginable as to be almost non-existant. Moreover, if there was a tenant who was not wanting even to apply for leave to contest the eviction application, we are doubtful whether in such a case the landlord would even have the necessity to file an eviction application because he would then have been given the possession of the premises by the tenant willingly. The whole purpose of requiring the tenant to appear and file the application for leave to contest is to put the whole proceedings within a framework of time and that can only be done if the tenant is put under an obligation not only to appear but also to file an application for leave to contest at the same time i.e. within 15 days. This alone can subserve and advance the purpose behind Chapter III-A.

(8) So far as the precedent for seeking leave to appear and defend the suit within' the same period of time is concerned we may notice that Order 37 Rule 3 (unamended) provided' that the court shall upon application by the defendant give leave to appear and to defend the suit. Form Iv in Appendix 'B' provided for a summon which summoned the defendant and asked him to obtain leave from the court within 10 days from the service thereof to appear and defend the suit. Article 118 of the Limitation Act provides for a period of 10 days from the date when the summons is served for leave to appear and defend the suit. Thus there is a precedent that a 10 days period from date of service of the summons is considered sufficient for a defendant not only to appear but also to apply for leave to defend the suit. It is relevant to note wording in Order 37 Rule 3 is 'leave to appear and defend a suit,' which is almost analogous requirement under section 25B(4) in so far as it requires an affidavit to be filed seeking leave to contest the eviction application. Form in Iii schedule gives a period of time which is provided by Article 118 of Limitation Act. So there is nothing unusual in providing a period of fifteen days both for appearance and for filing application for leave to contest, to the eviction application under Chapter Iii A. The counsel for the tenant has drawn our attention to the words 'to obtain leave to contest' and has contended that the requirement being to obtain' leave, the time limit of 15 days becomes impracticable and unrealistic and if the words have to be given weight and meaning, no time limit should be read as having been provided in respect of obtaining leave. The argument appears attractive, but we are afraid unacceptable. The words 'to obtain leave' in the context in which they appear must be understood to mean the making of an application to obtain leave and not the passing of an order of the court i.e. the Rent Controller, on the said application. What can be fastened as an application on the tenant is only that which he can do and not what the court has to do and thereforee the only way to interpret these words is by understanding them as the making of an appropriate application for obtaining leave to contest.

(9) The counsel for the tenant had some imaginary difficulties in seeking leave to contest on a date other than the date of hearing. The argument is only to be stated to be rejected because the practice under Order 37 Rule 3 (unamended) Civil Procedure Code for seeking leave to appear and to defend the suit has been in existence for such a long time and never has any one raised the point that it is neither practicable nor possible for the party to comply with both the requirements of appearance as well as applying for leave to defend the suit. It is well known that applications for leave to defend, even if it does not happen to be a date of hearing can even be handed over in the court personally. We cannot conceive of any reason why there should be any difficulty in complying with similar requirement under Chapter Iii A and must thereforee overrule this objection.

(10) The argument that there may be very genuine reasons for not filing affidavit within 15 days and if this requirement of time is read in the law it may work injustice can be given short shrift by the reply that there can be equally good reasons for a tenant not being able to appear within 15 days. If thereforee this time limit which is undoubtedly provided for and has to be complied with we see no injustice or anomaly in holding that Along with the appearance the tenant must also file an affidavit seeking leave to contest the eviction application within the same period of fifteen days.

(11) We would, thereforee, answer the reference by holding that the tenant is required within 15 days of the service of the summons not only to put in his appearance before the Rent Controller but also within the same period to file an application supported with an affidavit seeking leave to contest the application for eviction filed by the landlord and that if such an affidavit and application is not filed within the said period of 15 days, he would have defaulted in terms of section 25B(4) of the Act.

(12) We have answered the question of law which was referred to us. The case will now go back to the learned single Judge for decision on merits keeping in view the opinion given herein.

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