J.D. Jain, J.
(1) This revision petition is directed against the order of eviction dated 4th January, 1983 passed by an Additional Rent Controller against the petitioner on the ground of bonafide personal necessity of the respondent falling under Clause (e) of proviso to Section 14(1) of Delhi Rent Control Act (for short 'the Act').
(2) The undisputed facts of the case are that the respondent landlord filed an eviction petition against the petitioner under Clause (e) of proviso to Section 14(1) read with Section 25B of the Act for eviction of the petitioner on the ground that he being owner landlord required the demised premises in question as residence for himself and members of his family. He inter alias averred that the premises in question had been let to the petitioner for residential purpose only. After service of summons in the prescribed form the petitioner made an application under Sub-section (4) of Section 25B of the Act for leave to defend. It was supported by an affidavit sworn by the petitioner. He sought leave on three grounds viz. (a) that the premises in question had been let for commercial-cum-residential purposes by its erstwhile owner Smt. Rafiqan and as such he had been manufacturing card boxes find umbrella therein since 1930; (b) he was tenant Under Smt. Rafiqan and as such relationship of landlord and tenant did riot exist between the respondent and the petitioner who was not the owner of the property in question and (c) that the respondent had sufficient reasonably suitable residential accomodation with him at House No. 7271, Mohalla Qasabpura Where he was residing with his family.
(3) The application for leave to defend was vehemently opposed by the respondent. However, vide order dated 29th September, 1981 the Additional Rent Controller granted limited leave to the petitioner to contest the eviction petition. Leave was restricted to ground (c) only. Thus the parties went on trial on point (c) alone.
(4) The learned counsel for the petitioner has canvassed with considerable fervour that order dated 29th September, 1981 of the Additional Rent Controller granting leave restricted to point (c) alone was bad in law and as such the subsequent order of eviction was vitiated as it led to grave mis-carriage of justice. In other words it is urged that the petitioner was not given proper opportunity to defend himself against eviction. Reliance in this context is placed by him on the judgment of the Supreme Court in Precision Steels Engineering Works and another v. Prem Deva Niranjan Deva Taval : 1SCR498 .
(5) The learned counsel for the respondent has on the other hand raised an objection of a preliminary nature namely that the revision petition having been filed after about two years of the impugned order is liable to be dismissed on the ground of unreasonable delay. He has urged that even though no limitation is prescribed for a revision petition provided for in Sub-section 8 of Section 25B of the Act, the same must be filed within a reasonable time of the order sought to be assailed. The answer of the counsel for the petitioner to this contention simple is that even though no specific period of limitation has been prescribed for revision petition under Sub-section 8 of Section 25B of the Act, the same will Be governed by the residuary Article 137 of the Limitation Act. The said Article is residuary in nature and applies only to such applications as are not provided for elsewhere in the Third Division of the Schedule to the Limitation Act. In the Kerala State Electricity Board, Trivandrum v. T P. Kunhallumma : 1SCR996 it was held by the Supreme Court that :
'THE words 'any other application' under Article 137 cannot be said on the principle of adjusted generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period when Court is closed and extension of prescribed period if applicant or the appellant satisfies cause for not preferring the appeal or making the application during such period'.
(6) In the said case the applications contemplated under Section 16(3) of the Telegraph Act were applications to the District Judge and it was observed that the District Judge was a court as he . had to act judicially, Following this authority Sultan Singh, J. held in jai Perkash and others v. Jean Correa, 1981 (1) Rent Law Reporter 25 that the revision petition under the proviso to Sub-section 8 of Section 25B of the Act is governed by Article 137 of the Limitation Act. I am in respectful agreement with this view. Hence, the revision petition having been filed within time, the objection raised by the learned counsel for the respondent is not tenable.
(7) As far the legality of order dated 29th September, 1981 granted restricted leave, the submission made by the counsel for the petitioner appears to be unassailable in view of the observations made by the Supreme Court in precision Steel & Engineering Works and another (supra) to the effect that while the court can grant conditioned leave or leave limited to the issue under Order 37 Rule 3(5) of the Civil Procedure Code. there is no such power conferred Ob the Controller under Sub-section (5) of Section 25B. This observation was made while enunciating the scope and ambit of the discretionary power Conferred on the Rent Controller by Sub-section 5 of Section 25B of the Act. The Supreme Court further said that :
'THE Controller has to confine himself to the affidavit filed by the tenant under Sub-section (4) and the reply, if any. On perusing the affidavit filed by the tenant and the reply if any filed by landlord the Controller has to pose to himself the only question: Does the affidavit disclose, not prove, facts as would disentitle the landlord from obtaining an order for the recovery of possession on the ground specified in Clause (e) of the proviso to Section 14(1)? The Controller is not to record a finding on disputed questions of facts or his preference of one set of affidavits against other set of affidavits. That is not the jurisdiction conferred on the Controller by Sub-section (5) because the Controller while examining the question whether there is a proper case for granting leave to contest the application has to confine himself to the affidavit filed by the tenant disclosing such facts as would prima facie and not on contest disentitle the landlord from obtaining an order for recovery of possession.'
(8) Applying this criterion to the facts of the instant case there can be no manner of doubt that the petitioner was entitled to leave to defend on grounds (a) and (b) also. It bears repetition that he had made a specific averment that the premises in question had been let to him by Smt. Rafiqan for both commercial-cum-residential purposes and that he had been manufacturing card boxes and umbrella in the premises since 1930. The learned Additional Rent Controller refused leave on this point on the following ground:-
'THE plea regarding the purpose of letting is residence-cum-commercial is not well founded because the survey report of the house shows that the premises is residential. Moreover the respondent has made vague statement regarding purpose of letting as he did not file any document to show that he is registered with any government authorities or any license has been granted to him. So to my mind the plea regarding tenancy being residence-cum- commercial is not valid'.
(9) Obviously the finding given by the Additional Rent Controller on the basis of the affidavits and the documents filed by both the parties is contrary to the foregoing observations of the Supreme Court. He was not competent to decide the issue merely on affidavits and documents placed on record without affording an opportunity to the petitioner to lead evidence in support of his defense. Moreover, purpose of letting and not the nature of the premises i.e. whether it is residential or not is relevant under Clause (e) but obviously the learned Additional Rent Controller overlooked this vital ingredient of Clause (e). Under the circumstances, there is considerable merit in the contention of the learned counsel for the petitioner that refusal on the part of the Additional Rent Controller to grant leave on this ground has resulted in prejudice and mis-carriage of justice to him. Similarly the plea of the petitioner that Smt. Rafiqan was the owner landlady from whom he had obtained the premises in question and that the respondent was neither owner nor landlord ought to have been considered by the Additional Rent Controller. Unfortunately, however, he did not make even a passing reference to this plea in his order dated 29th September, 1981. No doubt the petitioner subsequently admitted in his deposition that he was tenant under the respondent but that is hardly enough because it was incumbent on the respondent to prove that he was its owner also.
(10) The upshot of the whole discussion, thereforee, is that the impugned order of eviction cannot be sustained as it directly flows from the restricted leave to defend granted to the petitioner. He was thus denied fair opportunity to contest the eviction petition on other grounds mentioned above. Hence, this revision petition is allowed, the impugned order is set aside and the case is remanded to the trial court for fresh decision after allowing opportunity to both the parties to adduce evidence on the remaining two points viz. (a) and (b) adverted to above. Since the case is very old the Additional Rent Controller shall dispose of it within six months from the date both the parties appear before him. They are directed to appear in the court of the Additional Rent Controller, Delhi on 12th April, 1985.