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High Court Of Delhi
SUBASH MALHOTRA - Appellant
Versus
M.L.KAPUR - Respondent
Civil 368 of 1981
Decided On : 11/18/1981
DELHI RENT CONTROL ACT, 1958 - SECTION 25-B(4), 25-B(5), THIRD SCHEDULE - LEAVE TO CONTEST EJECTMENT APPLICATION - AFFIDAVIT BY TENANT - MINIMUM REQUIREMENT - FILING WITHIN 15 DAYS - STRICT COMPLIANCE WITH SUMMONS - INTERPRETATION OF STATUTORY PROVISIONS - REVISION PETITION - DELAY IN FILING AFFIDAVIT - NO BONA FIDE MISTAKE - DISMISSAL OF PETITION.
Fact of the Case:
Tenant filed an application for leave to contest ejectment application supported by an affidavit of his wife, not his own. Landlord objected, arguing that the wife had no locus standi and that the tenant had not complied with the requirements of Section 25-B(4) of the Delhi Rent Control Act, 1958. The Rent Controller dismissed the application, and the tenant filed a revision petition.
Finding of the Court:
The court held that the tenant was required to file an application for leave to contest the eviction application within 15 days and that application had to be supported by an affidavit as referred to in Sub-section (5) of Section 25-B of the Act within that period. The affidavit contemplated by Sub-sections (4) and (5) of Section 25-B of the Act was the affidavit of the tenant himself. The court further held that the tenant had not disclosed any reason to the trial court as to why he could not file the affidavit and that he had not made any attempt to file his own affidavit even after the landlord's objection and despite several adjournments. The court also noted that the tenant had filed the affidavit in the revision petition only after a long delay.
Issues: 1. Whether the tenant was required to file an affidavit of his own in support of the application for leave to contest the ejectment application. 2. Whether the tenant had complied with the minimum requirements of Section 25-B(4) and the Third Schedule of the Delhi Rent Control Act, 1958. 3. Whether the Rent Controller erred in dismissing the application for leave to contest the ejectment application.
Ratio Decidendi: 1. The court relied on the provisions of Section 25-B(4) and 25-B(5) of the Delhi Rent Control Act, 1958, and the Third Schedule of the Act, as well as the decisions of the Delhi High Court in Jijar Singh v. Mahender Kaur and Shri Gurditta Mal v. Shri Bal Sarvp etc. etc. 2. The court held that the minimum requirement for obtaining leave to contest the eviction petition was that the tenant should file an application as well as an affidavit within 15 days. 3. The court held that the tenant had not brought to the notice of the Rent Controller any reason as to why the affidavit could not be filed, and that it was neither appropriate nor expedient to interfere in revision in the facts of the case.
Final Decision: The revision petition was dismissed, and the tenant was allowed six months to vacate the premises on the condition that he paid arrears of rent and continued to pay rent regularly.
( 1 ) THIS petition for revision under proviso to Sub-sec. (8) of Section 25-B of Delhi Rent Control Act, 1958 (hereinafter referred to as "the Act ,) has been filed on behalf of the tenant against the order of the learned Addl. Rent Controller, Delhi, dated 29. 11. 1980 dismissing the application of tenant-petitioner for leave to defend the ejectment application filed on behalf of their respondent-landlord under proviso (e) to Sub-sec. (1) of Section 14 of the Act and passing an order for ejectment against the tenant-petitioner.
( 2 ) THE respondent, Shri M. L. Kapur, is the owner-landlord of premises No. G-42, Friends Colony, New Delhi and the petitioner is tenant in a portion of this house.
( 3 ) ACCORDING to the application for ejectment, the premises were let out to the tenant for residential purposes and are now required bona fide by the respondent-landlord for his own residence and for the residence of the members of his family dependent upon him and that he has "no reasonably suitable accommodation".
( 4 ) THE petitioner-tenant was served with the summons as prescribed by the third schedule of the Act.
( 5 ) THE petitioner-tenant filed an application for leave to contest the ejectment-application on 17-5-1980.
( 6 ) THE application for leave to contest the ejectment application was not supported by any affidavit of the tenant but instead was supported by the affidavit of Mrs. Renu Malhotra, wife of the tenant. It was stated in the affidavit of Mr. Malhotra that she was conversant with the facts of the case and was competent to swear the affidavit.
( 7 ) THE respondent-landlord, in reply to the application and the affidavit of the wife of the tenant, filed an affidavit controverting various facts stated in the application for leave to contest and the affidavit.
( 8 ) IN reply to the application for leave to contest and the affidavit in support thereof, it was specifically stated that "smt. Renu Malhora has got no locus standi to swear the affidavit on behalf of the respondent (tenant ). The petitioner (landlord) are entitled to a decree of eviction forthwith as the respondent (tenant) has not complied with the requirements of Section 25-B (4) of the D. R. C. Act. "
( 9 ) THE aforesaid affidavit was filed by the landlord as far back as 28th August, 1980. Along with the affidavit, various documents were filed by the landlord including the lease-deed entered into between the landlord and the tenant stating, inter alia, that the lessee shall use the premises for his residence only.
( 10 ) THE case was thereafter adjourned for arguments on 8-10-1980 on which date the matter was adjourned for arguments to 10-10-1980. Again, on 10-10-1980 the matter was adjourned to 27-11-1980. On 27-11-1980 some documents were filed on behalf of the tenant and the matter was again adjourned for arguments to 29-11-1980.
( 11 ) ON 29-11-1980 the impugned order was passed.
( 12 ) THE learned Addl. Rent Controller dismissed the application for leave to contest the ejectment-application on the ground that no affidavit had been filed by the tenant as contemplated by Section 25-B (4) of the Act and there is no material on which the tenant-petitioner can contest the ejectment application and the affidavit of Mrs. Renu Malhotra, who is neither the tenant in this case nor she is the authorised attorney of her husband-tenant to file any such affidavit, could not be looked into. As there was no material which could be considered for granting leave to the tenant to contest the ejectment-application, the aforesaid order was passed.
( 13 ) THE tenant, being dissatisfied, has come up in revision.
( 14 ) BEFORE I deal with the submissions of the learned counsel for the parties, I may mention that I have perused the original summons served on the tenant along with the copy of the application for eviction. This original summons is in complete consonance with the statutory form of summons prescribed by the third schedule of the Act and was personal
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