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Gurdittamal Vs. Bal Sarup - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal Nos. 295 of 1976, 90 of 1977 and 91 and 92 of 1978
Judge
Reported inAIR1980Delhi216; 17(1980)DLT321; 1980RLR136
ActsDelhi Rent Control Act, 1958 - Sections 25B, 25B(4) and 25B(9); Code of Civil Procedure (CPC), 1908 - Sections 151 - Order 9, Rule 6 - Order 47
AppellantGurdittamal
RespondentBal Sarup
Advocates: Maehswar Dayal,; A.C. Mittal and; G.N. Aggarwal, Advs
Cases Referred(See Shiddappa v. Raghunath
Excerpt:
tenancy - sufficient cause - sections 25b, 25b (4) and 25b (9) of delhi rent control act, 1958 and section 151 and order 9 rule 6 and order 47 of code of civil procedure, 1908 - revision petition under section 25b (8) against eviction order passed by additional controller (ac) - tenant defaulted in making application for leave to defend within prescribed time - ac passed eviction order holding that statement made by landlord in eviction application deemed to have been admitted by tenant - ac not empowered to extend prescribed period under section 25b (4) - ac empowered to set aside eviction order on sufficient cause being shown by tenant - sufficient cause for delay in making application shown by tenant - impugned eviction orders liable to be quashed. - - rama devi, (1979) (1) rcr.....a.b. rohatgi, j.(1) these are four petitions of the tenants against the orders of the additional rent controller. after a brief adjourn in the division bench these cases have come back for disposal. (2) the common features of these cases are that in each case the landlord brought a petition for eviction of the tenant under the newly introduced procedure of section 25b of the delhi rent control act, 1958 (the act) on the ground that he required the premises bona fide as a residence for himself and members of the family dependent on him. the tenant was required to apply for leave to contest the application of eviction within 15 days from the date of the service of the summons. the tenant defaulted in making the applications within the said period. the additional controller, thereforee, made.....
Judgment:

A.B. Rohatgi, J.

(1) These are four petitions of the tenants against the orders of the Additional Rent Controller. After a brief adjourn in the division bench these cases have come back for disposal.

(2) The common features of these cases are that in each case the landlord brought a petition for eviction of the tenant under the newly introduced procedure of Section 25B of the Delhi Rent Control Act, 1958 (the Act) on the ground that he required the premises bona fide as a residence for himself and members of the family dependent on him. The tenant was required to apply for leave to contest the application of eviction within 15 days from the date of the service of the summons. The tenant defaulted in making the applications within the said period. The Additional Controller, thereforee, made an order of eviction against the tenant, holding that the statement made by the landlord in the application for eviction will be deemed to have been admitted by the tenant. From the order of eviction the tenants have filed petitions of revision under S. 25B(8) of the Act.

(3) At the outset V.S. Deshpande J. on November 28, 1977 referred to a larger bench the question whether any time limit is laid down by the Act for a tenant to apply for leave to contest the application for eviction filed against him under Chapter III-A of the Act. He doubted the correctness of Dr. Mukhtiar Ahmed v. Mashialla Begum (1977) (2) Rcr 642. In Avinash Chander v. Smt. Rama Devi, (1979) (1) Rcr 209 I had expressed the view that the period of 15 days is provided both for putting in appearance as well as for filing application for leave to contest. A division bench (R. Sachar and Harish Ghandra JJ) on October 19, 1979 answered the question affirming my view. Now these cases have to be decided.

(4) It is not necessary to recite the facts of each case. I will take Civil Revision No. 295 of 1976 as typical of these cases. In this case the landlord filed the petition on January 7, 1976, for the eviction of the tenant on the ground of bona fide requirement under Clause (e) of the proviso to Sub-s. (1) of S. 14 of the Act. His petition was tried in accordance with the new procedure introduced by the Delhi Rent Control (Amendment) Ordinance 1975. The law requires that in such a case summons have to be issued in the form prescribed by the Third Schedule of the Act as laid down by Section 25B(2). By oversight these summons were issued in the ordinary manner. When the tenant appeared on 10th March, 1976, the mistake was discovered. On 10th March, 1976 itself the Additional Controller ordered the tenant to make an application for leave to contest the ejectment application within 15 days. The case was adjourned to 26th March 1976 for further proceedings. The tenant made an application for leave on 26th March, 1976. He was out of time by one day. The Additional Controller held that the leave application was time barred. He also took the view that the tenant had not offered any Explanationn as to why the application was not filed within 15 days. He dismissed the application for leave. He made an order of eviction holding that the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant.

(5) Now if the tenant fails to make an application for leave to defend the ejectment petition what is the proper course for the tenant to take? Is he without remedy? Has the controller power to set aside the order of eviction which he is bound to pass after the expiry of 15 days where the tenant has not applied for leave to defend as is provided by S. 25B(4)? Or, is the tenant's fate sealed? These questions raise a number of points.

(6) In these four cases the Additional Controller seems to have thought that when the tenant did not apply for leave within 15 days there was little that he could do for him. Counsel for the landlords have also adopted this posture. They say: 'The tenant has burnt his boats as he did not apply for leave within 15 days. The Controller can do nothing. It is for the legislature to remove the defect.' Rent Controller not a Court

(7) It is now well established that Rent Controller and the Additional Rent Controllers are not Courts. They are Tribunals having the trappings of a Court. These Tribunals are a substitute for Courts; they are known as the 'Court-substitute Tribunals.' They deal with a large segment of litigation and occupy a significant position in the machinery of justice in the country. They are required to act fairly and objectively. They decide disputes between private parties. They sift facts and weigh evidence. Because of their impartiality in relation to contesting parties before them they enjoy the confidence of the people.

(8) Section 50 of the Rent Act bars the jurisdiction of Civil Courts in respect of matters falling within their cognizance. This is the ouster clause ousting the jurisdiction of Civil Courts. Section 42 of the Rent Act says that 'an order made by the Controller.........shall be executable by the Controller as a decree of a Civil Court and for this purpose, the Controller shall have all the powers of a Civil Court.' In this sense the Controller exercises the 'inherent judicial powers of the State' (Associated Cement Co. v. P.N. Sharma, : (1965)ILLJ433SC ). He has the power to give binding and final decisions, subject of course to review by the appellate authority and superior Courts. Law of limitation

(9) It is equally well established that Limitation Act does not apply to the proceedings before the Rent Controller. (See Town Municipal Council, Athant v. Presiding Officer, Labour Court, Hubli and others etc., : (1969)IILLJ651SC and Nityanand M. Joshi und another v. The Life Insurance Corporation of India and others, : (1969)IILLJ711SC ). The Controller is not a Court, though S. 36(2) of the Act vests him with certain specified powers under the Code of Civil Procedure. The period of 15 days, if it is considered to be a period of limitation, can be extended only under S. 5 of the Limitation Act. But Section 5 of the Limitation Act cannot be invoked by the tenant as the Controller is not a Court: See Sushila Dem v. Ramanandan Prasad, : [1976]2SCR845 . To hold that the Controller can extend the time of 15 days will be to fly in the face of the statute.

(10) These propositions were settled by a division bench of this Court in Subhash Chander v. Rahmatullah, 2nd (1973) 1 DeL 181. This decision was accepted as laying down the correct law by five Judges in Shree Kedar Nath, Advocate, and ors. v. Smt. Mohani Devi and ors., 1974 Rcr 118 . A bench of three judges also referred to it with approval in Shri Jaitenira Kumar Aggarwal v. Shri Lakshmi Kant Mukt, 1974 Rcr 134 .

(11) I thereforee, hold that the Controller has no power to extend the period of 15 days which is prescribed by the statute under Section 25B(4) read with Third Schedule. Ex parte 0: 9 Rule 13, Code of Civil Procedure

(12) Two other provisions may be noticed. One is 0. 9 Rule 13, Code of Civil Procedure and the other is Order 47 Rule I of the Code. Section 25B(7) of the Act lays down that the 'Controller shall, while holding an inquiry in a proceeding to which this Chapter applies, follow the practice and procedure of a Court of Small Causes, including the recording of evidence.' When we turn to Chapter Iv of the Provincial Small Causes Courts Act 1887 entitled as 'Practice and Procedure' we find that the Small Cause Court follows the procedure of the Code. The judge of Small Cause Court has the power to set aside an ex parte decree under Section 17 of the Provincial Small Causes Court Act. So has the Controller. But the question is: Has the Controller passed an ex parte of eviction on the tenant's failure to apply for leave to contest within 15 days? In my opinion it will not be right to call it an ex parte order.

(13) 0. 9 Rule 6 of the Code provides for ex parte decree. That provision applies where the plaintiff appears and the defendant does not appear when title suit is called on for hearing. 0. 9 Rule 6 does not and cannot contemplate a case where the defendant does not appear because in law he cannot appear and the law bars him from appearing. The idea underlying Order 9 Rule 6 is that the defendant could appear but in fact has not appeared. But when the defendant could not appear at all, when however anxious he might be to appear, he is precluded from appearing by law, it could not be said in the language of 0, 9 Rule 6(1) that the defendant did not appear. Under 0. 9 Rule 7, of the Code if an exparte hearing of a suit is adjourned and if the defendant appears at the adjourned hearing and assigns good cause for his non-appearance it is open to the Court to permit him to be heard in answer to the suit as if he had appeared on the date fixed for his appearance. Now surely the Controller cannot do this if he is trying the ejectment application under the accelerated procedure of S. 25B. He has no power to hear him either on the date fixed for the hearing or at any adjourned date of hearing if the tenant has not applied for leave to contest .the ejectment application within 15 days. Again, when we look at 0.9 Rule 13 it provides for an application for setting aside an ex parte decree and the two grounds on which an ex parte decree can be set aside are that the summons was not duly served or that the defendant was prevented from any sufficient cause from appearing. Whatever the position may be with regard to the first ground, clearly the second ground would not apply .if the tenant against whom an eviction order has been passed under Section 25B as a result of his failure to ask for leave applied to set aside that order.

(14) Take for example a case of summary suit under Order 3 7 of the Code. The defendant cannot apply under Order 9 rule 13 of the Code where he did not ask for leave within 10 days and the court passed a decree against him. The defendant cannot urge that he was prevented from. defending the suit because his mouth was shut, as it were by law, and he could not put forward his defense. Under Order 9 rule 13 of the Code he cannot apply to set aside the decree. Because he was not prevented by sufficient cause from appearing in suit. thereforee, the framers of the Code made an express provision in Order 37 rule 4 of the Code for such an eventuality. Now looking to the provisions of Order 9 rule 6 it seems to me clear that those provisions do not apply to the decree passed in a summary suit and that an application to set aside a decree in a summary suit is not regulated by Order 9 rule 13 but by Order 37 rule 4 of the Code. In other words. Order 37 rule 4 is a self-contained order which deals not only with the rights of the defendant to appear in a summary suit in which a decree has been passed if leave to defend is not given to him but also with the procedure to be followed if the defendant wishes to have a decree passed in a summary suit set aside : P.N. Films Ltd. Overseas Films Corporation Ltd., : AIR1958Bom10 and Desai J.).

(15) The same is the position under S. 25B of the Act. If the tenant fails to appear or fails to obtain leave within 15 days from the date of the service of the summons on him the Rent Controller cannot hear him. He will say to the tenant present before him on the date of hearing or on the adjourned date : 'I cannot hear you because you have not made the application for leave within the prescribed time'. This is what happened in this case. On 26th March 1976 the tenant was present before the Additional Controller ready with an application for leave in his hands. The Additional Controller told him : 'I cannot accept your leave application because you are out of time. I must pass the order of eviction.' The Controller is bound to apply the fiction of law which the legislature bids him to apply. The fiction is : '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 of eviction.' The reason is the statutory bar, namely, that the tenant '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'. But if he fails to appear or fails to obtain leave he cannot be heard. The order of eviction must follow if the petition discloses a cause of action and is otherwise in order. It must, thereforee, be held on the construction of the statute that the Rent Controller has neither the power to extent the period of 15 days nor to condone the delay. Nor has he power to hear the tenant unless he files an affidavit staling the grounds on which he seeks to contest the petition and obtains leave from the controller' It appears to me that the order of eviction passed as a consequence of the tenant's failure to apply for leave is not an ex parte order in the sense of Order 9 of the Code and thereforee the remedy of rule 13 of Order 9 of the Code is ill-suited.

(16) Before the controller Order 9 rule 13 applies at the stage when the tenant absents himself after leave has been granted to him and the controller after he has commenced the hearing of the application for ejectment passes an order of eviction [(S,25B)(6)j. This is why the practice and procedure of small cause court which includes the power to set aside ex parte decree is mentioned in Sub-section (7) when, after leave, the 'inquiry' has begun. Reviews 0. 47, Code of Civil Procedure

(17) Section 25B(8) confers power of review on the rent controller. It says 'where no application has been made to the High Court on revision, the Controller-may exercise the power of review in accordance with the provisions of Order Xlvii of the First Schedule to the Code of Civil Procedure 1908'. The power of review is not an inherent power. It must be conferred by law specifically or by necessary implication : See Patel Narshi Thakershi and others v. Pradunan Singh Ji Arjun Singhji, : AIR1970SC1273 . So the legislature has conferred the power of review on the controller in express terms. But its scope is defined by Order of the Code. An ex parte decree cannot be set aside under Order 47 rule I of the Code. The scope of review was laid down by the Privy Council in Chhajju Ram v. Neki and others, A IR1922 Sc 112 and Basheshwar v. Parati Nath, Air 1934 Sc 213. The view of the full bench in Ghansham Singh v. Lal Singh, (1887) 9 All 61 taking a contrary view must be held to be overruled in view of the subsequent decision of the Privy Council in Chhajju v. Neki and others, supra. The words 'any other sufficient reason' in Order 47 rule I will not comprehend a case of ex parte decree. So is the case with an order of eviction passed as a result of the tenant's failure to apply for leave. The tenant cannot ask the controller to set aside the order of eviction in exercise of his power of review where he has defaulted in making the application for leave and on the face of the order he is unable to show any error. The words 'any other sufficient reason' used in rule I of Order 47 have been incorporated to mean 'any reasons sufficient on grounds at least analogous to those specified immediately previously.' That is an excusable failure to bring to the notice of the court new and important matters or error apparent on the face of the record. In Chhajju Ram's case (supra) it was held that rule I of Order 47 must be read as in itself definitive of the limits within which review is permitted. I am thereforee of the view that the tenant cannot invoke in these cases the controller's power of review. Inherent powers

(18) Where is the power to be found for the controller to do justice in such a case? The controller is not a court. He is a tribunal. The tribunal has an inherent power to recall or vacate any order. The tribunal has inherent power to correct its own error provided the circumstances are such that the corrections of that order is necessary in the interests of justice. Such inherent power is necessarily implied in every authority or tribunal who has the authority of deciding a matter. To deny such power to any tribunal would be to paralyse it. It would render that tribunal incapable of properly deciding the matters entrusted to it. The only limitation to this power is that this must be necessary for the ends of justice, or to prevent an abuse of its process. The question has to be decided in view of the circumstances attening the recall. Take a case where the tenant has not been duly served with summons. Or a case where for sufficient cause he was prevented from applying for leave to contest within 15 days, e.g. where he fell seriously ill and was unable to contact the lawyer. In exercise of the inherent jurisdiction the controller can set aside the order of eviction and rehear and redecide the case if the tenant can show that he was prevented from applying for leave for a sufficient cause. There is abundant authority for this view : See Jagir Singh Sobha Singh and another v. Settlement Commissioner Pepsu and others, , Metal Fabricators (India) v. B .D.Gupta and others, 1975 Lab. I. C. 1707 (Delhi), I.T. Officer v. Murlidhar, : [1975]99ITR485(Cal) and Dr. S.C. Jain v. Smt. Sushila Devi, 1974 Rcr 322.

(19) For the view that the tribunal has an inherent jurisdiction to set aside an eviction order there is ample warrant in S. 37(1) of the Act. That section says:

'NO order which prejudicially affects any person shall be made by the controller under this Act without giving him a reasonable opportunity of showing cause against the order proposed to be made and until his objections, if any, and any evidence he may produce in support of the same have been considered by the controller.'

(20) This is the source and fountain of the controller's power. This is the legislative recognition of the doctrine of natural justice in clearest terms. Every tribunal is bound to follow the principles of natural justice. Section 37 is the procedural guideline. Procedure is of the greatest importance. The Tribunal has the power to regulate its own procedure provided it observes the norms of fair hearing or rules of natural justice. The controller is at liberty to devise his own procedure to perform his task. In the realm of procedure he is the master. But he must give a fair hearing while determining issues before him.

(21) The power to recall or vacate an order is inherent in the constitution of every tribunal. So with the controller. He can in the workshop of his judicial carpentry fashion or forge his own procedure to meet the demands of justice. This is what 'legal smithy' means, to use a happy phrase of Maitland. The failure of the tenant to apply for leave is a case very much equal to a case where an order is passed in the absence of a party. In both cases on showing sufficient cases relief can be given. The tenant can be given an opportunity to apply for leave to contest the application. This is my conclusion. The Draftsman's Handiwork

(22) But in the mechanism of Section 25B this power does not work smoothly. There are two difficulties. Firstly the controller has no power to extend the period of 15 days. Secondly he is bound to pass an order of eviction on the tenant's failure to apply for leave within the period of 15 days. Such is the rigour of Section 25B(4). Because the door of defense has been narrowed down by a chain of stiff provisions. Even if the tenant appears before the order of eviction is made he cannot be heard because within 15 days he has not applied for leave. It does not matter that the order of eviction has not been passed till that time. The fiction stands in the way. The controller's hands are bound. He has to apply the fiction. He has to make an order of eviction on the deeming provision. thereforee, the only remedy seems to be a circuitous one. The tenant can apply for setting aside the order of eviction after it has been passed. He will have to show that he was prevented by a sufficient cause from applying for leave within the prescribed period.

(23) The analogy of such a procedure is to be found in Rule 4 of 0. 37 of the Code. S. 25B of the Act is modelled on the provisions of 0. 37. But the draftsman, I venture to think, has forgotten to enact a provision analogous to Rule 4 of 0. 37 in the new procedure he was introducing in the Rent Act in 1975. The Act is silent. The result is that he has produced a complexity. There is a ruck in the texture of the Act. Not unjustifiably have the Rent Acts been called masterpieces of obscurity. It would have been much simpler if the draftsman had given power to the controller to set aside the order of eviction. He could have provided in terms that after the order of eviction, the controller may, under special circumstances, set aside the order of eviction and if necessary stay or set aside execution and may give leave to the tenant to appear and to defend the petition, if it seems reasonable to the controller so to do and on such terms as he thinks fit. This is what Rule 4 does in the case of summary suits under 0. 37 of the Code. The same could have been done in Section 25B to bring the provision in line with the summary procedure. In Bombay the experiment of summary procedure in ejectment suits appears to have been tried in 1947: See Ram Karan Das v. Bhagwan Das, : [1965]2SCR186 . But in the Bombay Rents Hotel and Lodging House Rates (Control) Act 1947 the draftsman extended the provisions of 0. 37 of the Code and thus Rule 4 of 0. 37 was available for setting aside the decree where the tenant was not able to place his side of the case at the hearing.

(24) In O. 37 the legislature has made a significant amendment by Act 104 of 1976 by enacting Rule 3(7) which says :

'THE Court or judge may for sufficient cause shown by the defenment excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit.'

(25) This power has not been given to the controller by the statute and this has caused all the trouble. This is a defect. But I simply cannot fold my hands and blame the draftsman. The answer must be found. The answer is in the interstices of procedure. Rule 23 of the Delhi Rent Control Rules, 1959 says that on question relating to procedure not specifically provided by the Act or the Rules, the Controller shall be guided by the provisions contained in the Code of Civil Procedure. Section 151 of the Code saves the inherent power. On this storehouse of judicial power the Rent Controller can draw. Delay and laches

(26) There remains to consider one further point. The controller has inherent power to set aside an eviction order on the tenant's application where he finds that there was sufficient cause for the tenant's default in making an application for leave. So much is clear. But within what period lias the tenant to apply? The Limitation Act has no application. The rule that ought to guide the controller was enunciated as long ago as 1890. He will give to the words 'sufficient cause' a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the tenant (Krishna v. Chathappan (1890) 13 Mad. 269 followed in State of West Bengal v. Howrah Municipality, : [1972]2SCR874a . The controller can reject the application to set aside the eviction order on the ground of unexplained delay or laches. The bar of limitation and the bar of laches are two different concepts. An application to set aside an eviction order is not founded on any right conferred by statute. If the Limitation Act does not apply the landlord cannot claim that he has acquired any vested right on the ground that the tenant did not apply for leave within 15 days. Delay, of course, the tenant has to explain. But there is no question of acquisition of a vested right by the landlord: See Dr. S.C. Jain's case supra. Now I turn to the individual cases. C.R. 295 of 1976

(27) In this typical case there was delay of one day. This was one of the first cases under the Rent Ordinance of 1975. Undoubtedly a large number of litigants may not be familiar with the rigorous provisions of S. 25B and some indulgence may in a proper case have to be shown if the litigant's conduct is explicable on the basis that he was not aware of the consequence and the risk which he was incurring by not taking the proper step under S. 25B. There is no lack of bona fides, no excusable delay. One day's delay ought to be condoned. (See Shiddappa v. Raghunath, Air 1956 Pun. 596). C.R. 91 and 92 of 1978

(28) The facts of these two cases are more or less identical. The landlord purchased the property in 1972. He sued the tenants for ejectment. In C.R. 91 of 1978 the first ejectment case against the tenant brought in 1976 was dismissed on May 23, 1977. On June 1,1977 the second case was brought by the landlord against the tenant on the ground of bona fide requirement. Summons was served on June 9, 1977. The date of hearing '(DOH)' was July 28, 1977, 15 days from service of summons expired during vacation. The application for leave ought to have been made on July 4, 1977 when the Courts reopened after the summer recess.

(29) The tenant actually made the application on July 6, 1977. His case was that during vacation his lawyer had gone to the hills and he could not contact him. On July 4, 1977, he developed light fever. On July 5, 1977 he went to the lawyer, and or July 6, 1977 he made the application under S. 25B of the Act, Section 5 of the Limitation Act and S. 151 of the Code. The Additional Controller on October 30, 1977 dismissed the tenant's application for condensation of two days' delay. She passed the order of eviction against the tenant on the deeming provision.

(30) Now the tenant had pleaded in expiation that he was misled by the date of hearing ('DOH 28.7.77') noted in the summons, and by the new procedure the Rent Act had introduced because he had known only the old procedure under which he had fought the first case with the landlord. The first case was dismissed on May 23, 1977 and the second case under S. 25B was brought on June 1, 1977. This perplexed the tenant. His past experience was that he was to file written statement on the date fixed But the new procedure required him to apply for leave within 15 days. He said the signpost of 'DOH 28.7 77' misguided him. Then he pleaded that in the summer vacation his lawyer was not available. The Additional Controller rejected the ground by saying that he could have engaged some other lawyer in Delhi there was no dearth.

(31) In my opinion this was a fit case where the Additional Controller should have set aside the order of eviction. The delay was of 2 days. The immediate past experience of the tenant where he had won the case and the introduction of the new procedure under which the second case was filed in quick succession was indeed an intriguing situation -which could perplex any one except the consummate lawyer. The tenant naturally wanted to engage the same lawyer who had secured him victory earlier. The intervention of summer vacation and the non-availability of the lawyer, ignorance of the new procedure in the background of the immediate past were a sufficient cause for the delay of 2 days.

(32) True it is that the controller was bound to make the order of eviction in the first instance. But the next moment she could have set aside the order. This exercise under the new procedure is indeed inevitable. It is a lamentable waste of time because the draftsman has given the controller no power to extend the time or to excuse the delay. But in the interests of justice the order of eviction can be set aside and the tenant can be heard.

(33) In C.R. 92 of 1978 the landlord sued another tenant. He brought the petition on June 1, 1977 while a previous case of ejectment instituted by him in 1975 was still pending. This made the confusion worse confounded. Summons under S. 25B were served on the tenant on June 12, 1977. 'DOH.' was July 26, 1977. Counsel during vacation could not be contacted. On July 5, 1977 the tenant went to the lawyer. On July 6, 1977 he made the application. His application also met the same fate. On October 30, 1977 he was ordered to vacate.

(34) This case is a glaring instance where the tenant was served with summons when the first ejectment case was also pending against him. Summons were served on June 1, 1977. The first case was dismissed on September 20, 1977. That the tenant was misled by the new procedure in the utter confusion of two cases one after another coupled with the nonavailability of the lawyer are in my opinion good grounds to set aside the order of eviction. A tribunal can take a sympathetic attitude if the circumstances of a case so require because it is not a Court and is free from the technicalities of Court procedures. An orderly procedure is of course essential for right adjudication because the prescription of procedure makes the proceedings clear and orderly. The Tribunals are playing a major role in the judicial spectrum of the country. They are our generation's answer to the inadequacy of the judicial process. They enable the ordinary man to obtain a cheap, fair and expeditious hearing. C.M. (M) 90 of 1977

(35) In this case the ejectment application was made on January 17, 1977. The 'DOH' was February 14,1977. The tenant was served with summons on January 23, 1977.

(36) On February 14, 1977 counsel for the tenant appeared before the Additional Controller and requested for time. The controller declined to adjourn. He made an order of eviction taking the view that 15 days time 'in no case can be extended.'

(37) On February 16, 1977 the tenant made an application for leave to contest the case under S. 25B(1), S. 5 of the Limitation Act with a medical certificate dated February 5, 1977 showing that the tenant had acute pain in back and leg and had been advised rest for 10 days. The landlord opposed. The controller dismissed the application on August 12, 1977 taking the view 'that neither the delay can be condoned nor is there any good ground for condensation of delay.'

(38) In this case the ground was illness. The delay was of 9 days. Summons were served on January 23, 1977. Time expired on February 7, 1977. The application for selling aside the order of eviction was made on February 16, 1977. In my opinion the tenant had shown sufficient cause. The doctor's certificate without disbelieving the doctor could not be rejected. Conclusion

(39) S. 25B(4) is the kingpin of the entire scheme of Chapter III-A. The truth is that in all these cases the Additional Controller completely misunderstood the scope of S. 25B(4). The orders show a complete misapprehension of his powers. He had the power to set aside the order of eviction on sufficient cause being shown. He thought that Subhash Chander's case (supra) prohibited him from extending the time under S. 5 as the Limitation did not apply to the Rent Controller. This was a misreading of that case. In so far as he held that 15 days time could not be extended he was right. But he misconceived the inherent powers of the Tribunal which he possessed in ample measure. Subhash Chander's case had affirmed the existence of inherent power. In the new setting of Section 25B only the judicial technique was to be different.

(40) I, thereforee, set aside the eviction orders in all the four cases. The tenants have filed the affidavits for leave to contest. These will now be considered by the respective Additional Controllers. They will decide whether to give leave to the tenant to contest the application for eviction or not.

(41) The parties are directed to appear before the respective Additional Controllers on January 14, 1980.


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