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2010 DIGILAW 153 (DEL)

KIRAN HAZRATI v. MEENA CHANDNA

2010-01-29

HIMA KOHLI

body2010
JUDGMENT HIMA KOHLI, J. 1. The present petition is directed against an order dated 28.7.2009 passed by the learned Additional Rent Controller, dismissing the application filed by the petitioner/tenant for leave to defend an eviction petition preferred by the respondent/landlady under Section 14(1)(e) of the Delhi Rent Control Act, 1958(for short `Act’) in respect of one shop on the ground floor portion of property bearing No.4/1, Subhash Nagar, New Delhi. 2. Counsel for the petitioner/tenant explaining the delay in preferring the present petition by stating that the delay occurred on account of the fact that due to bona fide inadvertence, the petitioner/tenant had assailed the impugned order before the Rent Control Tribunal, by filing an appeal in the month of August 2009, which was ultimately withdrawn by her, as recorded in the order dated 14.12.2009 passed by the Tribunal, certified copy of which is placed on the record. 3. A perusal of the impugned order shows that the leave to defend application filed by the petitioner/tenant was filed beyond the statutory period of 15 days. Though the learned ADJ observed that the court had no authority to extend limitation beyond the stipulated period as provided for, under the Act Delhi Rent Control Act, he proceeded to deal with the merits of the case and held that the petitioner/tenant had failed to raise any triable issue. 4. Counsel for the respondent submits that in view of the aforesaid observation of the learned Additional Rent Controller with regard to maintainability of the leave to defend application beyond the period of limitation as prescribed under the Act, the same was liable to be rejected on the said ground alone, without proceeding to deal with the merits of the case. There is merit in the aforesaid submission of the counsel for the respondent. If the learned Additional Rent Controller was of the opinion that the leave to defend application had been filed by the petitioner beyond the prescribed period of limitation, then the matter ought to have rested there and the Court ought not to have proceeded to examine the case on merits. 5. If the learned Additional Rent Controller was of the opinion that the leave to defend application had been filed by the petitioner beyond the prescribed period of limitation, then the matter ought to have rested there and the Court ought not to have proceeded to examine the case on merits. 5. At this stage, counsel for the petitioner states that the petitioner be given two weeks’ time to approach the learned Additional Rent Controller by filing an appropriate application under Order XXXVII Rule 4 of the Code of Civil Procedure, for seeking setting aside of the order of eviction passed on the ground that her leave to defend application was filed beyond the prescribed period under the Act. 6. It is settled law that in such circumstances, as noted above, the petitioner has a remedy available to her under Order XXXVII Rule 4 of the CPC, as observed by the Division Bench of this Court in the case of Mohd.Quresh Vs. Roopa Fotedar & Ors., reported as ILR 1990 Delhi 16 and reiterated in the case of Prithi Pal Singh Vs. Satpal Singh reported as 133 (2006) DLT 686. It was observed in Mohd. Quresh (supra) as below : “(33) We, hence, answer the question of law by holding that the Controller has no power to condone the delay made by the tenant in moving an application seeking leave to appear and defend an eviction case brought under Chapter III-A but after the eviction order is passed the Controller has the power under Order XXXVII Rule 4 of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure, to set aside the eviction order for some special reasons or in the interests of justice.” 7. In these circumstances, the present petition along with the pending applications are disposed of while granting liberty to the petitioner to file an application before the learned Additional Rent Controller, under the provisions of Order XXXVII Rule 4 of the Code of Civil Procedure, within three weeks with an advance copy to the counsel for the respondent. The parties are directed to appear before the learned Additional Rent Controller on 26.2.2010, for further proceedings. The learned Additional Rent Controller shall consider the aforesaid application of the petitioner and dispose of the same in accordance with law.