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Aurobindo Mukerji Vs. S.G. Das - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 91 of 1983
Judge
Reported in24(1983)DLT136
ActsDelhi Rent Control Act, 1958 - Sections 14(1), 25B, 25B(4) and 25B(8); Limitation Act, 1908 - Sections 5; Evidence Act, 1872 - Sections 114; Code of Civil Procedure (CPC), 1908 - Sections 151
AppellantAurobindo Mukerji
RespondentS.G. Das
Advocates: R.N. Mathur and; P.P. Khurana, Advs
Cases ReferredGurditta Mal v. Bal Swarup
Excerpt:
in the instant case the petitioner did not file an application for leave to defend despite of receiving summons directing him to appear before the controller within fifteen days of the service and to obtain the leave of the controller to contest the application for eviction - the court adjudged that the petitioner was guilty of in action and negligence and was not entitled to any relief - it was also held that the delay was not to be condoned under section 25 -b (4) of the delhi rent control act, and section 5 of the limitation act. - - summons were directed to be issued to the petitioner in the form specified in the third schedule to the act by ordinary process as well as registered post. (5) the learned additional controller vide his impugned order disbelieving the contentions of the..........receive the same and was in the circumstances unable to file any affidavit or application seeking leave to defend and that fifteen days time for making the said application could be reckoned only from the date of the service of the copy of the annexure and the site plan. this application was supported by an affidavit of the petitioner. notice of this application was issued to the respondent who did not file any reply. (4) on may 19, 1982 the petitioner filed an application under section 25b of the act seeking leave to defend. in para 9 of the affidavit annexed to this application the pleas taken in the application dated april 12, 1982 were reiterated. in para 10 it was stated that he suffered from fever on april 19, 1982 and was confined to bed and was unable to move about and could not.....
Judgment:

G.C. Jain, J.

(1) This is a petition by the tenant under Section 25-B(8) of the Delhi Rent Control Act, 1958 (for short 'the Act') against the order of the Additional Controller dated August 10, 1982.

(2) The petitioner, Aurobindo Mukerji, is in occupation of entire house No. D-587, Chittaranjan Park, New Delhi, as a tenant under the respondent S.G. Das. On February 16, 1982 the respondent filed a petition under proviso (e) to Sub-section (1) of Section 14 read with Section 25B of the Act seeking eviction of the petitioner from the said premises. Summons were directed to be issued to the petitioner in the Form specified in the Third Schedule to the Act by ordinary process as well as registered post. The registered envelope was served on the petitioner on March 27, 1982. He was served by ordinary process on April 13, 1982.

(3) On April 12, 1982 the petitioner filed an application under Section 151 of the Code of Civil Procedure staling that on March 27, 1982 he had received an envelope by registered post containing summons and a copy of the application, without the copy of the annexure to the application, which contained the grounds of eviction or the copy of the plan referred to in para 8 of the application. He kept waiting for getting the copy of the annexure but did not receive the same and was in the circumstances unable to file any affidavit or application seeking leave to defend and that fifteen days time for making the said application could be reckoned only from the date of the service of the copy of the annexure and the site plan. This application was supported by an affidavit of the petitioner. Notice of this application was issued to the respondent who did not file any reply.

(4) On May 19, 1982 the petitioner filed an application under Section 25B of the Act seeking leave to defend. In para 9 of the affidavit annexed to this application the pleas taken in the application dated April 12, 1982 were reiterated. In para 10 it was stated that he suffered from fever on April 19, 1982 and was confined to bed and was unable to move about and could not meet his counsel to engage him in the case. On April 26, 1982 the attending Doctor diagnosed that he was suffering from enteric fever and advised complete rest in bed for fourteen days. He had a relapse thereafter and had to remain confined to bed under medical advice up to the date of the application. On account of illness he was unable to meet his counsel or engage him and thus he could not file the application for leave to defend in time.

(5) The learned Additional Controller vide his impugned order disbelieving the contentions of the petitioner held that the petitioner had been duly served and he had failed to mike an application for leave to defend within fifteen days of the service of the summons. Consequently, he granted the eviction order under proviso (e) to Sub-section (1) of Section 14 of the Act in favor of the respondent against the petitioner who was allowed six months time to vacate the premises. The petitioner assails this order in this petition.

(6) Admittedly an application under Section 25-B(4) of the Act seeking leave to defend is required to be made within fifteen days of the service of the summons A Division Bench of this Court in Jagdish Pershad v. Phoolwati Devi, : 17(1980)DLT446 has held that the delay in making the application for leave to defend cannot be condoned under Section 5 of the Limitation Act. The said period could not be extended. However, the eviction order passed could be set aside by applying the analogy of Order 37 Rule 4 of the Code of Civil Procedure. Similar view was taken by a learned single Judge of this Court in Gurditta Mal v. Bal Swarup, : AIR1980Delhi216a . The relevant observations at page 220 read as under :-

'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 tribunal. The tribunal has an inherent power to recall or vacate any order. Every tribunal has inherent power to correct its own error provided the circumstances are such that the correction 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 the justice, or to prevent an abuse of its process. The question has to be decided in view of the circumstances attending 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.'

(7) Admittedly the application for leave to defend was made after 53 days of the service of summons by registered post and 36 days of the service of summons by ordinary process. The Additional Controller in these circumstances was bound to make an order for eviction.

(8) Learned counsel for the petitioner contended that the order was liable lo be set aside because the petitioner was not duly served either by registered post or in ordinary course. It has also been contended that in case it wag held that the petitioner was duly served in ordinary course then the order was liable to be set aside because of his serious illness from April 19, 1982 to May 19,1982.

(9) It is not disputed that the petitioner was served by registered post and he received the summons in the prescribed form as well as copy of the eviction petition. In column 18 of the eviction petition the respondent was required to give the grounds on which the eviction of the petitioner was sought. Against that column it was stated that the grounds arc stated in Annexure 'I'. The petitioner's case is that the copy of the annexure was not received and, thereforee, he was not duly served.

(10) A perusal of the file shows that on the process filed by the respondent a note had been appended that he was filing two copies and a registered A.D. cover. In view of this note the learned Additional Controller observed that it was not expected of the court official not to send the copy of the annexure. Under clause (e) of Section 114 of the Indian Evidence Act it haa to be presumed that judicial acts have been regularly performed. Under clause (f) a presumption has to be raised that the common course of business had been followed in particular cases. In common course the Ahlmad must have sent the entire copy including the annexure and, thereforee, learned Additional Controller was justified in raising the presumption that complete copy was kept in the envelope sent to the petitioner. The contention of the learned counsel for the petitioner is that the said presumption stood rebutted from the unrebutted affidavit of the petitioner. In my opinion, the self-serving affidavit of the petitioner is not sufficient to rebut this presumption. The respondent could have no knowledge about this fact and wag, thereforee, not in a position to file any affidavit on this point. This circumstance that he did not reply to this application or file a counter affidavit is of no consequence. In any case, I find no justification for disturbing this finding of the learned Additional Controller in revision.

(11) In clause 8 of the eviction petition the respondent was required to give details of the accommodation available together with particulars as regards ground area, garden and out-house, if any, and was also required to attach a plan. Against this column it was stated that 'the entire house consisting of one drawing room, two bed rooms, one dining room, one store room, one bath room and one latrine, one kitchen including courtyards both back and in front as delineated in the plan attached herewith' were in the tenancy of the petitioner. It was urged that reference has been made to the plan and, thereforee, the respondent was bound to supply a copy of the plan to the petitioner and in the absence of the plan it could not be said that the petitioner had been duly served. I do not agree. All the details, i.e. number of the house, building, details of the accommodation have been duly given and in such circumstances it was not necessary to supply the copy of the site plan in spite of the fact that a reference has been made to the same in the application. The petitioner was thus duly served on March 27, 1982 by registered post. He admittedly did not make any application for leave to defend within fifteen days and consequently the eviction order was not liable to be set aside.

(12) Admittedly ihe petitioner was served in ordinary course on April 13, 1982. At that time he admittedly received a copy of that application as well as the annexure. thereforee) he was duly served on that date. As observed above, the fact that he did not receive copy of the site plan would not make any difference.

(13) The contention of the learned counsel for the petitioner is that so far as the second service is concerned the application could not be made in time because of petitioner's illness. Learned Additional Controller has not recorded a finding about the illness and for that reason it was strenuously urged that the case be sent back to the learned Additional Controller with directions to record a finding about the illness of the petitioner. As observed by the Division Bench in the case of Jagdish Pershad (supra), an order of remand should not be lightly passed unless the Court is convinced that the circumstances disclosed are such as necessitated a reconsideration of the case by Controller resulting in the order of eviction and granting leave to defend. In the present case, the learned Additional Controller has held that the petitioner was duly served on March 27, 1982 by registered post which finding has been confirmed and, thereforee, there was no question of remand. In any case, the evidence regarding illness is not very satisfactory. The self- serving affidavit regarding illness is not of much consequence. According to the medical certificate filed by him the petitioner was under the treatment of Dr. Ashok Bhattacharya from April 26, 1982 and was advised rest for fourteen days. According to the second medical certificate dated May 10, 1982 from the same Doctor the petitioner had a relapse and was advised complete bed rest for a further period of ten days. According to the affidavit of the petitioner he got fever on April 19, 1982 and the attending Doctor diagonised on April 26, 1982 that the said fever was enteric fever. These averments suggest that the petitioner was under the treatment of Dr. Bhattacharya prior to April 26, 1982. However, according to the said certificates the petitioner was under the treatment of Dr. Bhattacharya only since April 26, 1982. Again in neither of these two certificates it has been stated by the Doctor that the petitioner was unable to move or talk to his counsel or give instructions to him. These certificates, thereforee, are not of much consequence.

(14) Inherent powers can be invoked when no negligence or inaction or want of bona fide is imputed to the tenant. In the present case the petitioner admittedly was served with summons on March 27, 1982 with a copy of the application without copy of the annexure according to the contention. He engaged a counsel and filed an application under Section 151 of the Code of Civil Procedure on April 12, 1982. On that date his application for leave to defend, if filed, would have been well within the time because 10th and 11th April 1982 were holidays. He, however, did not care to file the application for leave to defend in spite of the fact that in the summons admittedly served he had been directed to appear before the Controller within fifteen days of the service thereof and to obtain the leave of the Controller to contest the application for eviction. In the summons it was also stated that the respondent has sought his eviction from premises No. 587 Chittaranjan Park, New Delhi. In the copy of the application which was admittedly received it has been clearly mentioned that the eviction was sought under proviso (e) to Sub-section (1) of Section 14 of the Act. Ordinarily the petitioner in such circumstances could hive filed an application for leave to defend instead of filing an application under Section 151 of the Civil Procedure. Again he was served in ordinary course on April 13, 1982. At that time he received copy of Annexure also. He had already engaged a counsel for moving an application under Section 151. It does not stand to reason as to why he did not immediately or soon thereafter contact his counsel for moving an application for leave to defend. A week's time was at his disposal before he allegedly fell ill on April 19, 1982. It cannot be believed that he became so serious on the first day itself that he was unable to contact his counsel or to give him the necessary instructions. The petitioner was guilty of negligence and inaction- may be his intention was to prolong the disposal of the eviction petition. In my view, he was not entitled to any relief in exercise of inherent powers.

(15) I, consequently, find no merit in the revision petition and dismiss the same. The petitioner is, however, allowed six months time to vacate the premises.


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