The Rent Controller has inherent power to set aside an eviction order passed as a result of the tenant's failure to apply for leave to contest within 15 days, if the tenant can show that he was prevented from applying for leave for a sufficient cause.

Headnote:
RENT CONTROL - Eviction of Tenant - Bona fide Requirement - Failure to Apply for Leave to Contest - Inherent Power of Controller to Set Aside Eviction Order - Delhi Rent Control Act, 1958, Ss. 25b, 37(1), 50.
Fact of the Case:

Four petitions filed by tenants challenging eviction orders passed against them under the newly introduced procedure of Section 25b of the Delhi Rent Control Act, 1958 (the Act). The tenants defaulted in making applications for leave to contest the eviction applications within 15 days from the date of service of summons. The Additional Rent Controller, therefore, made orders of eviction against the tenants, holding that the statement made by the landlord in the application for eviction will be deemed to have been admitted by the tenant.
Finding of the Court:

1. The Rent Controller is not a Court but a Tribunal with the trappings of a Court. 2. The Limitation Act does not apply to proceedings before the Rent Controller. 3. The Controller has no power to extend the period of 15 days prescribed by Section 25b(4) read with the Third Schedule of the Act. 4. The Controller has inherent power to set aside an eviction order passed as a result of the tenant's failure to apply for leave to contest within 15 days, if the tenant can show that he was prevented from applying for leave for a sufficient cause. 5. 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.
Issues: 1. Whether the Rent Controller has the power to extend the period of 15 days prescribed by Section 25b(4) of the Act? 2. Whether the Controller has the power to set aside an eviction order passed as a result of the tenant's failure to apply for leave to contest within 15 days? 3. Whether the tenant can invoke the Controller's power of review under Section 25b(8) of the Act?
Ratio Decidendi: 1. The Controller has no power to extend the period of 15 days prescribed by Section 25b(4) of the Act, as the Limitation Act does not apply to proceedings before the Controller. 2. The Controller has inherent power to set aside an eviction order passed as a result of the tenant's failure to apply for leave to contest within 15 days, if the tenant can show that he was prevented from applying for leave for a sufficient cause. 3. The tenant cannot invoke the Controller's power of review under Section 25b(8) of the Act, as the scope of review is defined by Order 47 of the First Schedule to the Code of Civil Procedure 1908, and an ex parte decree cannot be set aside under Order 47 Rule 1 of the Code.
Final Decision: The eviction orders passed against the tenants were set aside. The tenants were directed to file affidavits for leave to contest, which would be considered by the respective Additional Controllers to decide whether to grant leave to contest the eviction applications.

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, therefore, 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 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 explanation 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 lea

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1979 Supreme(Del) 265

High Court Of DelhiGURDITTAMAL - AppellantVersusBAL SARUP - RespondentCivil 295 of 1976Decided On : 12/18/1979

The Rent Controller has inherent power to set aside an eviction order passed as a result of the tenant's failure to apply for leave to contest within 15 days, if the tenant can show that he was prevented from applying for leave for a sufficient cause.

Cases Referred (8)

High Court Of Delhi
GURDITTAMAL - Appellant
Versus
BAL SARUP - Respondent
Civil 295 of 1976
Decided On : 12/18/1979