PRITHIPAL SINGH v. SATPAL SINGH (D) THROUGH LRS

Citation: [2009] 16 S.C.R. 736

Court: Supreme Court of India

Bench: TARUN CHATTERJEE, RAJENDRA MAL LODHA

Case summary

PRITHIPAL SINGH v. SATPAL SINGH (D) THROUGH LRS.pdf

Judgment text

[2009) 16 (ADDL. ) S. C. R. 736 PRITHIPAL SINGH v. SATPAL SINGH (D) THROUGH LRS. (Civil appeal No. 8501 of 2009) - DECEMBER 18, 2009 [TARUN CHATIERJEE AND R. M. LODHA, JJ. ] - Delhi Rent Control Act, 1958: s. 25-B and 14(1), proviso (e) - Petition for eviction of tenant u/s 14(1), proviso (e) on ground of bona fide requirement of landlord - Eviction ordered, as application of tenant for leave to file affidavit after eight days' delay to defend eviction proceedings was rejected by Addi. Rent Controller - However, eviction order set aside by Addi. Rent Controller on application of tenant under 0. 9, r. 13 rlw 0. 37, r. 4 and s. 151 '-" CPC - High Court affinning the order - HELD: Section 25-B ' is complete code by which the entire procedure to be adopted for eviction of a tenant on the ground of bona fide requirement of landlord as specified in s. 14(1)(e), has to be .. dealt with in accordance with the procedure specified in s.

25- - Rule 23, being a general rule, does not confer any power on Rent Controller to follow provisions of CPC for eviction of tenants of special classes of landlords, in view of s. 25-8 - ; Besides, an application for leave to contest having been rejected, may be on the ground of delay, could not be allowed when no application for condonation of delay could be entertained as provisions of Limitation Act could not be attracted - High Court acted illegally and with material irregularity in affinning order of Addi. Rent Controller allowing application of tenant - Order of Addi. Rent Controller directing . eviction of tenant restored and impugned orders of High Court and Addi. Rent Controller set aside - Delhi Rent Control Rules, 1959 - r. 23 - Code of Civil Procedure, 1908 - Or. 9, LRS. r. 13, 0. 37, r. 4 and s. 151 - Limitation Act, 1963.

In an eviction petition filed u/s 14(1), proviso (e) of the Delhi Rent Control Act, 1958, the application filed by the tenant for leave to file affidavit, after a delay of eight days, to defend the eviction proceedings was rejected by the Additional Rent Controller holding that he was not . , empowered to condone the delay in filing the application. ,, Consequently, eviction order in terms of s. 25-8(4) was passed by the Additional Rent Controller on 28. 2. 2001. However, on an application filed by the tenant under 0. 9, r. 13 read with 0. 37, r. 4 and s. 151 CPC, the Additional Rent Controller set aside the order dated 28. 2. 2001, restored the proceedings and granted the tenant leave to contest the eviction proceedings. The High Court dismissed the petition of the landlord filed under Article 227 of the Constitution of India.

- • In the instant appeal filed by the landlord, the questions for consideration before the Court were: (i) whether the Additional Rent Controller, exercising powers and jurisdiction under the Delhi Rent Control Act, 1958, which is a special Act, was justified in setting aside ~ the order of eviction which amounted to restoration of and allowing the application for leave to defend the eviction petition although such application was rejected ' earlier on the ground of delay; and (ii) whether the Additional Rent Controller was competent to recall orders of eviction on an application under 0. 9, r. 13 read with 0. 37, r. 4 and s. 151 of the Code of Civil Procedure, 1908 and condone the delay in applying for leave to defend when he was not conferred with such power to condone .....

the delay in filing the application for leave to defend the eviction proceedings under the Rent Act specially when such an affidavit (application for leave to defend) was earlier rejected by the Additional Rent Controller, on the ground of delay? Allowing the appeal, the Court HELD: 1. 1. The Legislature, by the 1976 amendment, inserting in the Delhi Rent Act, 1958, Chapter lllA, which consists of ss. 25A to 25C, introduced a special provision for summary trial of certain applications filed under the Act. Section 25-B is a complete code by which special procedure for disposal of applications for eviction of .... tenant on the ground of bona fide requirement filed at the • instance of the landlord uls. 14 or 14A or 148 or 14C or 14D of the Act has been laid down. From a close examination of s.

25-8, it would be evident and clear that in an application filed by a landlord for recovery of possession of any premises on the ground specified in Clause (e) of the proviso to sub-section (1) of s. 14, shall be dealt with in accordance with the procedure specified in this Section. [Para 9-10 and 21) [745-C-F; 748-8-D; 753-A-8] • - Kewal Singh vs. Smt. Lajwanti 1980 (1) SCC 290, relied on. 1. 2. From a careful perusal of sub-section (4) of s. 25- 8 of the Act, it would be clearly evident that the tenant shall not be permitted to contest the prayer for eviction unless he files an affidavit before the Controller stating the ground on which he seeks to contest the application ) for eviction and obtains leave from the Controller.

This section also clearly indicates that in default of tenant's appearance in compliance with the summons or his obtaining such leave, the statement made by the landlord in the eviction proceeding shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground mentioned in the eviction petition. [Para 14) [749-E-G] -I --- Ravi Dutt Sharma v. Ratan Lal Bhargava, AIR 1984 SC 967, relied on PRITHIPAL SINGH v. SATPAL SINGH (0) THROUGH 739 LRS. 2. 1. As regards applicability of provisions of the Code of Civil Procedure, 1908, by virtue of r. 23 of the Delhi Rent -. Control Rules, 1959, r. 23 does not specifically confer any power on the Rent Controller to follow the provisions of the Code in special classes of landlords. It is a general rule, by which the Rent Controller in deciding any question relating to procedure not specifically provided ..

by the Act and the rules shall, as far as possible, be guided by the provisions contained in the Code. Section 25-B having been inserted by the Legislature for eviction of a tenant of a certain classes of landlords, in which the entire procedure has been given, it cannot be said that r. 23 of the Rules can be applied in the instant case in view of the specific provisions provided in s. 25-B of the Act. Accordingly, r. 23 has no manner of application. [Para 23 and 24] [753-E-H] .... ,- ; 2. 2. Since r. 23 cannot be applied in the instant case because of applicability of s. 25-B, which is a special code and provides for specific procedure for eviction of tenant by a landlord on the ground of bona fide requirement, the courts below erred in holding that in view of r. 23 of the Rules, the provisions of the Code can be applied in the case.

The High Court acted illegally and \, with material irregularity in the exercise of its jurisdiction in affirming the order of the Additional Rent Controller allowing the application of the tenant for setting aside the .... _ order of eviction and allowing the tenant to file the affidavit for the purpose of defending the proceedings for eviction. [Para 25 and 30] [754-A-C] 2. 3. That apart, from a perusal of the impugned order --of the High Court and also of the Addi. Rent Controller, it would be evident that the High Court relied on the decision of the Delhi High Court in Mohd. Quresh* and held in favour of the tenant/respondent. In the said case, another decision of the Delhi High Court in Gurditta Mal '• was relied on to come to a conclusion that in view of r. 23 of the Rules, the Rent Controller was conferred with the power to entertain an application under 0. 37 r. 4 read with Section 151 of the Code.

The High Court, failed to notice that the decision in Gurditta Mal was considered in the subsequent decision of this Court in Prakash H Jain. The 8 provisions under the Maharashtra Rent Control Act and the provisions under the Delhi Rent Control Act are pari materia and, therefore, the decision in the case of Prakash H. Jain_practically overrules the decision of the Delhi High Court reported in Mohd. Quresh and Gurditta Mal. [Para 26 and 28) [754-C-E; 755-F-H; 756-A] Prakash H Jain v. Ms. Marie Fernandes AIR 2003 SC 4591, relied on. *Mohd. Quresh vs. Smt. Roopa Fotedar & Ors. 1990 (1) ILR 16; Gurditta Mal vs. Bal Sarup AIR 1980 Delhi 216, -stood overruled. 3. 1. There is another aspect of the matter.

An application for leave to contest having been rejected, may be on the ground of delay, could not be allowed when it is not disputed by the tenant that no application for condonation of delay could be entertained by the Rent J Controller as the provisions of the Limitation Act, 1963 could not be attracted. [Para 30) [756-C-D] 3. 2. The order of eviction passed by the Additional Rent Controller on 28th of February, 2001 stands restored, the impugned order of the High Court as well as the order of the Additional Rent Controller are set aside and the application filed by the landlord uls14(1), proviso (e) of the ~__... Rent Act stands allowed. [Para 32 and 34) [756-G-H] Case Law Reference: AIR 1984 SC 967 relied on para 19 LRS. ' 1980 (1) sec 290 relied on para 21 AIR 2003 SC 4591 relied on para 27 1990 (1) ILR 16 stood overruled para 26 AIR 1980 Delhi 216 stood overruled para 26 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8501 of ~ 2009. From the Judgment &Order dated 30. 10.

2006 of the High Court of Delhi at New Delhi in C. M. (Main) No. 65 of 2002. Satinder Singh Gulati, Kamldeep Gulati and Dr. Kailash Chand for the Appellant. Rajesh Tyagi and Atishi Dipankar for the Respondents. " " The Judgment of the Court was delivered by TARUN CHATIERJEE, J. 1. Leave granted. 2. This is an appeal arising out of a Judgment and order dated 30th of October, 2006 passed by the High Court of Delhi at New Delhi in C. M. No. 65 of 2002, whereby the High Court had dismissed the petition filed by the landlord/appellant and - upheld the order passed by the Additional Rent Controller, ' Delhi. The order of the Additional Rent Controller holding that he is conferred with power to set aside an ex-parte order for eviction in the exercise of its jurisdiction under Order 9 Rule 13 read with Order 37 Rule 4 and Section 151 of the Code of Civil Procedure (in short, "the Code") was thereby affirmed by the High Court in appeal. . - 3.

The brief facts leading to the filing of this appeal may be stated as follows in a nutshell :- The landlord/appellant filed an eviction petition under Section 14(1)(e) of the Delhi Rent Control Act, 1958 (in short • "the Rent Act") before the Rent Controller, Delhi for eviction of the Tenant/Respondent from No. 1-C/46, Ramesh Nagar, Namdhari Colony, New Delhi (in short "the tenanted premises"). \ After filing of the eviction proceeding, summons was issued in compliance with Section 25(3) (a) of the Rent Act to the tenant/ respondent to appear before the Rent Controller on a specified date for the purpose of defending the eviction proceeding. The tenant/respondent filed an affidavit by way of an application • praying for leave to defend the eviction proceeding after delay of 8 days from the date of service of notice upon him.

By an order dated 28th of February, 2001, the Affidavit (the application for leave to defend) was rejected by the Additional Rent Controller as it was filed 8 days beyond the date mentioned in the summons. Since there was a delay of 8 days, Additional Rent Controller held that under the Rent Act, he was ,,. not conferred with any power to condone the delay in filing such • affidavit. Since the prayer for leave to defend the proceeding was rejected as a follow up action, an eviction order was passed by the Additional Rent Controller, Delhi in favour of the ,. ___ landlord/appellant on 28th of February, 2001 in compliance with sub-section (4) of Section 25 B of the Rent Act. 4. Feeling aggrieved, the tenant/respondent filed an application for setting aside the aforesaid order dated 28th of ..

February, 2001 passed by the Additional Rent Controller, Delhi under Order 9 Rule 13 read with Order 37 Rule 4 and Section 151 of the Code and also prayed for leave to defend the eviction proceeding after condoning the delay in filing the same. By an order dated 7th of December, 2001, the application for setting aside the ex-parte order of eviction passed on 28th of February, 2001 was allowed and the eviction proceeding was -. restored to its original file by the Additional Rent Controller, Delhi. The Additional Rent Controller, by the aforesaid order, also allowed the prayer of the tenant/respondent by granting leave to contest the eviction proceeding in compliance with Section 25(8)(4) of the Rent Act. ~ 5. Aggrieved by the aforesaid order of the Addi. Rent Controller, Delhi, the Landlord/Appellant filed an application under Article 227 of the Constitution, which came to be registered as CM No. 65/2002, before the High Court of Delhi at New Delhi.

The High Court, by the impugned judgment, had dismissed the petition filed by the landlord/appellant holding that there was no patent error or erroneous exercise of jurisdiction by the Trial Court in setting aside order of eviction thereby restoring the affidavit filed by the tenant/respondent for leave to contest the eviction proceeding. However, the High Court observed in the impugned Judgment that the Additional Rent Controller may not have power to condone the delay in seeking leave to defend, but once the eviction decree was passed, the Addi. Rent Controller can set aside an order of eviction and restore the prayer for leave to defend the eviction proceeding by resorting to Order 9 Rule 13 read with Order 37 Rule 4 and " Section 151 of the Code. 6. Against the aforesaid order of the High Court, a Special Leave Petition was filed, wf1ich on grant of leave, was heard in presence of the learned counsel for the parties.

Before us, the pivotal issues which were raised by the learned counsel for the parties, may be stated as follows :- (i) Whether the Additional Rent Controller. exercising "' powers and jurisdiction under the Rent Act, which is a special Act, was justified in setting aside the order of eviction which amounted to restoration of and allowing the application for leave to defend the eviction petition although such application was rejected earlier on the ground of delay.

(ii) Whether the Additional Rent Controller is competent to recall orders of eviction on an application under Order 9 Rule 13 read with Order 37 Rule 4 and Section 151 of the Code and condone the delay in applying for leave to defend when he was not conferred with such power to condone the delay in filing the application for leave to defend the eviction proceedings under the Rent Act specially when such an affidavit (application for leave to defend) was earlier rejected by the Additional Rent Controller, Delhi on the ground of delay. 7. We have heard Mr. Gulati, learned counsel appearing for the Landlord/Appellant and Mr. Tyagi, learned counsel appearing on behalf of the tenant/ Respondent. We have carefully examined the impugned order of the High Court as well as the order of the Addi. Rent Controller, Delhi.

Before we take up the aforesaid issues for our decision, it would be useful for us to refer to some of the relevant provisions of the Rent Act read with Third Schedule of the Rent Act and relevant Rules of the Delhi Rent Control Rules, 1959 (in short, "the Rules"). 8. Chapter Ill of the Rent Act deals with control of eviction of tenants. Section 14 of the Rent Act protects a tenant from eviction. Section 14 (1)(e) of the Rent Act says that when the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member in his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation, the Rent Controller may, on the application made to him in the prescribed manner, make an order for recovery of possession.

By an amendment dated 1st of February, 1975, Section 14 was amended so far as the classes of landlords are concerned. Section 14A confers right on a landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority, which is required to be vacated on the notice issued by such authority. Section 148 was inserted for the purpose of conferring right on the landlords who are members of Armed forces to recover immediate possession of the premises on the ground of bona fide requirement. This amendment of Section 14 of the Act was brought by the Legislature on 1st of February, 1988. Section 14C was introduced by another amendment conferring power on a landlord who is a Central Government or a Delhi ~ Administration employee to recover immediate possession from a tenant. Section 140 deals with the right of a widow of a landlord to recover immediate possession of a tenanted premises for the bona fide requirement of a widow.

All these amendments were brought into force by the Legislature on 1st of January, 1988. 9. Now comes Chapter lllA of the Rent Act which consists of Sections 25A to 25C and inserted by Act of 1976, i. e. , w. e. f. · ' 1st of February, 1975. By introduction of Chapter lllA, a special provision was introduced by the Legislature for summary trial of certain applications filed under the Rent Act. Section 25A of the Act clearly says that this provision of Chapter lllA to have overriding effect notwithstanding any inconsistency thereof contained elsewhere in this Act or any other law for the time being in force. Section 258 is the provision by which special , procedure for disposal of applications for eviction on the ground of bona fide requirement filed at the instance of the landlord under Section 14 or 14A or 148 or 14C or 140 of the Act has been laid down. Since we are concerned primarily with Section 258 of the Rent Act, by which the procedure ha 33.

Considering the facts and circumstances of the present case, we grant time to the tenanUrespondent to vacate the tenanted premises within a period of six months from this date provided the tenanUrespondent files an usual undertaking in this Court within one month. 34. In the event, if no undertaking is filed within a month mentioned hereinabove, it will be open for the landlord/appellant to proceed and take delivery of possession in accordance with law. 35. The appeal is thus allowed. There will be no order as to costs. R. P. Appeal allowed. ..