RC.REV. 33/2020 Page 1 of 8

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 26^th MAY, 2022

IN THE MATTER OF:

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RC.REV. 33/2020 & CM APPL. 2195/2020

ANIL KUMAR

..... Petitioner

Through:

Mr. Bharat Deep Singh, Mr. Ashish

Atkaan, Advocates.

versus

PRAMOD SHARMA

..... Respondent

Through:

Mr. Ankit Gupta, Advocate.

CORAM:

HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

SUBRAMONIUM PRASAD, J. (ORAL)

1.

The instant Revision Petition has been filed against the Order dated

09.08.2019,

passed

by

the

learned

ACJ-CCJ-ARC,

Shahadara,

Karkardooma Courts, Delhi, in ARC No.128/2018.

2.

The facts leading to the instant revision petition, shorn of unnecessary

details, are that an Eviction Petition had been filed by the Respondent herein

under Section 14(1)(e) of the Delhi Rent Control Act, 1958, in respect of a

shop located on the ground floor of property bearing no. 9/668, Subhash

Nagar, Gandhi Nagar, Delhi – 110031.

3.

It is stated that in pursuance of the summons served on the Petitioner

herein on 18.05.2018 after the filing of the said Eviction Petition, the

Petitioner herein filed his application seeking leave to defend on 31.05.2018,

i.e. within the prescribed period of 14 days, however, the affidavit filed

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RC.REV. 33/2020 Page 2 of 8

alongside the application was unattested. Accordingly, time was granted to

the Petitioner herein to the file attested affidavit within the period of

limitation, but the same was not filed even till the next date of hearing in the

Eviction Petition, i.e. 12.09.2018.

4.

Noting the fact that ample opportunity had been given to the

Petitioner herein to file the attested affidavit along with the leave to defend

application and that no cogent reasons had been provided to justify the delay

of 5 months, the Ld. Trial Court proceeded to dismiss the Petitioner’s

application seeking leave to defend and allowed the Eviction Petition filed

by the Respondent herein vide impugned Order dated 09.08.2019.

Aggrieved by the same, the Petitioner herein has approached this Court by

way of the instant revision petition.

5.

Learned Counsel for the Petitioner relies on a judgment passed by this

Court in Alka Kasana v. Indian Institute of Technology, 222 (2015) DLT

473, wherein this Court has held that filing an affidavit which is not attested

is a curable defect, and that object of prescribing procedure is to advance the

cause of justice. Learned counsel for the Petitioner further submits that the

position of law has changed inasmuch the Division Bench of this Court in

RC.REV. 279/2014, by a judgment dated 29.11.2019 titled as Director

Directorate of Education & Anr. v. Mohd. Shamim & Ors., has held that a

tenant can be permitted to file an application for leave to defend beyond the

period prescribed if proper reasons are given to substantiate such delay.

6.

Per contra, learned Counsel for the Respondent relies on a judgment

dated 12.03.2012, passed by this Court in R.C.R. No. 62/2010 titled as

Rakesh Gupta & Anr. v. Ashok Dilwali, wherein this Court has held that

filing an unattested affidavit with an application for leave to defend is not a

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RC.REV. 33/2020 Page 3 of 8

curable defect and leave to defend cannot be granted. The reason given in

the said judgment was that permitting attestation after filing an application

with an affidavit which is not attested would amount to extending the period

for filing the leave to defend application which is not permissible under law,

and therefore, filing of an unattested affidavit amounts to non-filing of

affidavit on record.

7.

The short question which arises in this case is whether an application

for leave to defend which has been filed with