Valmiki J. Mehta, J (Oral):--

1. This petition under Section 25-B(8) of the Delhi Rent Control Act, 1958 (in short ‘the DRC Act’) impugns the order of the Additional Rent Controller dated 14.5.2013 by which the Additional Rent Controller decreed the bonafide necessity eviction petition filed under Section 14(1)(e) of the DRC Act on the ground that the leave to defend application having been filed beyond the statutory period of 15 days therefore such leave to defend application cannot be considered inasmuch as delay in filing of the leave to defend application cannot be condoned in view of the judgment of the Supreme Court in the case of Prithipal Singh v. Satpal Singh (dead) through LRs (2010) 2 SCC 15.

2. Learned counsel for the petitioner argued before the Additional Rent Controller below, and which argument is also urged before this Court that even if leave to defend application is not filed, yet, if the eviction petition filed is without jurisdiction ie Section 14(1)(e) of the DRC Act could not at all have been invoked by the respondent-company, then in such a case an eviction petition cannot be decreed because the eviction petition itself was not maintainable.

3. It is true that if the Additional Rent Controller lacks the inherent jurisdiction to decide a case because the provision of Section 14(1)(e) of the DRC Act cannot be invoked, and that actually it is Section 22 of the DRC Act which will apply, then even if there is no leave to defend application, the Additional Rent Controller would be required to consider if the eviction petition itself was maintainable for being decreed under Section 14(1)(e) of the DRC Act. Putting it in other words, if the eviction petition is not maintainable as per the provision under which it is filed, then the special summary procedure provided for deciding that eviction petition under the provision as per which it is filed would not be available, and therefore for non-compliance of the special procedure in not filing the leave to defend application, the eviction petition cannot be decreed by deemed admission provided under Section 25 B(4) of the DRC Act.

4. I would like to state that where there is a position which shows ex facie that a petition is not maintainable because of lack of jurisdiction of the Additional Rent Controller or the provision invoked is on the face of it not maintainable, then in such a case the Additional Rent Controller can go into the aspect of lack of jurisdiction for deciding the decreeing of the bonafide necessity eviction petition by applying Section 25-B(4) of the DRC Act for deemed admission, but, where two views are possible, and factual issues are involved, and it cannot be said that ex facie the petition is not maintainable under Section 14(1)(e) of the DRC Act, then in such a case, in my opinion, the issue raised is not strictly a legal issue of lack of jurisdiction for an eviction petition not to be filed and decreed under Section 14(1)(e) of the DRC Act read with special procedure provided under Section 25(B) of the DRC Act. These observations are relevant in the present case because there are two views possible of the factual situation as to whether or not the respondent-company can or cannot invoke Section 14(1)(e) of the DRC Act and that it should have only invoked Section 22 of the DRC Act is not that ex facie clear. If therefore two views are possible that Section 14(1) (e) of the DRC Act could or could not be invoked, in such circumstances to argue this aspect that Section 14(1)(e) of the DRC Act definitely could not be invoked and only Section 22 of the DRC Act could be invoked, a leave to defend was required to be filed within the statutory period by petitioner/tenant, and since the leave to defend application was not filed within the statutory period, the Additional Rent Controller was justified in decreeing the petition under Section 25-B(4) of the DRC Act inasmuch as once leave to defend application is not filed within the statutory period of 15

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