The mandatory nature of Section 25B(4) and the requirement for the Controller to accept the landlord's statements if no application for leave to defend is filed.

Vipin Sanghi, J.

1. Under challenge in this Petition is the order passed by the learned Additional Rent Controller in E-647/2006 filed by the petitioner whereby the learned Additional Rent Controller has dismissed the petitioners aforesaid eviction Petition filed under Section 14(i)(e) of the Delhi Rent Control Act (the Act).

2. The Respondent tenant despite service in the prescribed form failed to file an application seeking leave to defend within the statutory period. In fact, even without applying for and obtaining the leave of the Controller, the written statement was directly filed, though beyond the 15 days period prescribed for filing the application for seeking leave to defend. Thereafter, an application for seeking condensation of delay in filing the application seeking leave to defend, and an application for treating the written statement as the application seeking leave to defend was filed by the respondent. Both these applications were dismissed by the learned Additional Rent Controller. This dismissal was never challenged by the Respondent. Thereafter, the learned Additional Rent Controller proceeded to examine the claim of bonafide requirement of the petitioner. By the impugned order he dismissed the Eviction Petition holding that the need projected by the petitioner was not bonafide and that he was already in occupation of accommodation sufficient for his needs and the needs of his family. Challenging the said order, this Petition has been filed.

3. The primary contention of the petitioner is that once an application seeking leave to defend is dismissed, or in a case where the same is not filed, the Controller has no jurisdiction to dismiss the Petition under Section 14(1)(e) and he must proceed to allow the Petition. In support of this submission, the petitioner relied on two decision of this court reported in 1987 (1) RCR 556, Shri Bachan Singh v. Shri Khem Chand and 1993 (3) RLR 133, Smt. Bhuvneshwari Devi v. Col. Kalyan Singh. In the first of the aforesaid two decisions, while interpreting Section 25B(4) of the Act this court held that the said provision is mandatory and if no application for leave to defend is filed, it is obligatory for the Rent controller to accept the statement made by the owner - landlord and order eviction. In the second decision as well, this court has held that if the tenant on whom the summons are duly served in the form specified in 3rd Schedule does not contest the prayer for eviction by filing an affidavit seeking leave to defend, the Controller is bound to take the statements made by the landlord in the application for eviction as correct. In Bhuvneshwari Devi (supra), the Additional Rent Controller, instead of taking the statements made by the petitioner in the Eviction Petition as correct, had proceeded to analyze the facts and came to conclusion that the grounds of eviction had not been made out. This Court upset that decision and allowed the landlords revision Petition.

4. Learned Counsel for the Respondent on the hand submits that the plan filed by the petitioner before this court is different from the one filed by him before the learned Additional Rent Controller and that the petitioner has sought to mislead this Court. He submits that this petition should be dismissed on this short ground, since the Court is exercising discretionary jurisdiction.

5. I do not find any merit in this submission. It has been pointed out by the learned Counsel for the petitioner that, in fact, he has moved an application under Order 41 Rule 27 CPC disclosing that the plan as filed before the learned Trial Court was inaccurate and, thereforee, he sought the leave of this Court to file the correct plan. He has also made averments disclosing the filing of a different plan before this court from the one filed before the ARC. Moreover, I have compared the plan as filed by the petitioner before the ARC (a certified copy thereof was shown to the court by the Respondent), and the one filed