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IN THE HIGH COURT OF DELHI AT NEW DELHI
SACHIN DATTA, J.
NIRANJAN MAJUMDAR – Petitioner
Versus
TEJPAL – Respondent
R.C. REV. No. 184 of 2022, C.M. APPL. No. 33470 of 2022 (Stay)
Decided On : 10-03-2023
Eviction Petition - Ex-parte Proceedings - Delhi Rent Control Act, 1958, Section 25B (4) - The court discussed the application of the orders passed by the Supreme Court in Re: Cognizance for Extension of Limitation, the exclusion of the period from 15.03.2020 till 28.02.2022 for the purpose of limitation, and the impact of the pandemic conditions on the petitioner's non-appearance before the court. The court found that the eviction order was passed prior to the expiry of the time afforded under law to the petitioner to file the leave to defend application, and accordingly set aside the impugned judgment/order dated 02.12.2021 and remanded the case to the ARC for fresh summons and directions.
Fact of the Case:
The petitioner failed to file a leave to defend application within the statutory period of 15 days as per Section 25B (4) of the Delhi Rent Control Act, 1958. The petitioner subsequently filed an application under Order 9 Rule 13 of the Code of Civil Procedure seeking to set aside the ex-parte judgment/order dated 02.12.2021.
Finding of the Court:
The court found merit in the petitioner's contentions, particularly regarding the exclusion of the period from 15.03.2020 till 28.02.2022 for the purpose of limitation, as prescribed by the orders passed by the Supreme Court in Re: Cognizance for Extension of Limitation. The court set aside the impugned judgment/order dated 02.12.2021 and remanded the case to the ARC for fresh summons and directions.
Issues: The primary issue was the petitioner's failure to file a leave to defend application within the statutory period, and the subsequent application under Order 9 Rule 13 seeking to set aside the ex-parte judgment/order.
Ratio Decidendi: The court's decision was influenced by the application of the orders passed by the Supreme Court in Re: Cognizance for Extension of Limitation, specifically the exclusion of the period from 15.03.2020 till 28.02.2022 for the purpose of limitation, and the impact of the pandemic conditions on the petitioner's non-appearance before the court.
Final Decision: The impugned judgment/order dated 02.12.2021 was set aside, and the case was remanded to the ARC for fresh summons and directions.
JUDGMENT :
SACHIN DATTA, J.
1. The present revision petition assails the judgment/order dated 02.12.2021, passed by the ACJ-cum-CCJ-ARC (South East District), Saket Courts, New Delhi (“ARC” in short) in Eviction Petition No. 50/2020, whereby the ARC had allowed the eviction petition, after holding that the petitioner/tenant be proceeded ex-parte, on the ground that despite opportunity the petitioner did not file its leave to defend application during the statutory period of 15 days as per Section 25B (4) of the Delhi Rent Control Act, 1958 (“DRC Act” in short).
2. The petitioner also assails the order dated 11.04.2022, whereby the petitioner’s application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (“CPC” in short) seeking setting aside of the aforesaid ex-parte judgment/order dated 02.12.2021 was dismissed.
3. The order dated 16.02.2021, passed by the ARC, records that the petitioner was served with summons through e-mail on 16.01.2021. However, the petitioner did not file its leave to defend application as contemplated under Section 25B (4) of DRC Act, within the statutory period of 15 days. Notwithstanding, however, in view of the order 08.03.2021 passed by the Supreme Court in Re: Cognizance for Extension of Limitation, Sou Motu W.P. (C) No. 3 to 2020, whereby the period from 15.03.2020 to 14.03.2021 stood excluded for the purpose of computation of period of limitation in any suit/application/other proceedings, vide order dated 16.03.2021 it was held by the ARC that the period of 15 days for filing the leave to defend application had not expired and accordingly, the petitioner was given further time to file its leave to defend application. The relevant portion of the said order dated 16.03.2021 reads as under:
“......Now, as per record, the respondent in this case was served through whatsapp and email on 15.12.2020. Even thereafter, counsel for respondent admitted that he was served on 16.01.2021. But, since the Hon'ble Supreme Court of India has directed exclusion of period from 15.03.2020 to 14.03.2021 in computation of period of limitation in any suit, appeal, application or proceedings, in my opinion, failure to file leave to defend application with affidavit by the respondent shall not lead to passing of orders of eviction under section 25B (4) of DRC Act. The period till 14.03.2021 shall have to be excluded or period of limitation shall have to be treated to have not begun till such date i.e. 14.03.2021. In other words, in my opinion, if I consider the spirit of the order passed by the Hon'ble Supreme Court of India in the aforesaid matter, benefit shall accrue to the respondent so as to treat that even though the respondent was served on 15.12.2020 [through e-mode] and again on 16.01.2021 [as admitted by counsel for respondent] the period of limitation of 15 days for filing of leave to defend shall only begun to run w.e.f. 15.03.2021.
Thus, considering the same, no eviction orders as prayed can be passed at this stage. Let leave to defend alongwith affidavit, if any, be filed by the respondent as per law.”
4. Despite the aforesaid order dated 16.03.2021, the leave to defend application was not filed by the petitioner within a period of 15 days thereof. The matter was next taken up by the ARC on 27.03.2021, on which date it was adjourned to 13.04.2021. However, it is submitted that the matter could not be taken up on 13.04.2021 due to onset of second wave of Covid-19 and consequently was adjourned. On the subsequent dates when the matter was taken up by the ARC i.e. on 28.07.2021, 18.18.2021, 15.09.2021 and 01.11.2021, there was no appearance on the part of the petitioner. It is in this background that the impugned judgment/order was passed on 02.12.2021.
5. The petitioner thereafter filed an application under Order 9 Rule 13 CPC seeking setting aside of the ex-parte judgment/order dated 02.12.2021.
6. The justification that was given by learned counsel for the petitioner for not filing the leave to defend appl
AI
The exclusion of the period from 15.03.2020 till 28.02.2022 for the purpose of limitation, as prescribed by the orders passed by the Supreme Court in Re: Cognizance for Extension of Limitation, and t....
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The court reaffirmed that substituted service under the Code of Civil Procedure does not constitute adequate service, necessitating substantiation of claims in applications for condonation of delay.
The law of limitation does not extend for defendants who have actively participated in litigation and have previously availed concessions; negligence in filing a written statement bars admission.
The main legal point established in the judgment is that the limitation to challenge an award continued during the COVID-19 pandemic, and there was no need to file an application for condonation of d....
The Court can only condone a delay if there is a "sufficient cause" behind such delay, and the reasons provided for the delay must not be non-serious or lacking in diligence.
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