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2016 DIGILAW 338 (DEL)

BHAGWAN DAS v. MOHD. JAVED

2016-01-21

V.K.SHALI

body2016
JUDGMENT : V.K. SHALI, J. 1. This is a revision petition filed against the order dated 20.01.2015 passed by the Ld ARC, Tis Hazari Courts, Delhi in Eviction petition No.E-197/14 titled as ‘Mohd. Javed and Ors. v. Sh. Bhagwan Dass and Anr. whereby the leave to defend application of the petitioners was dismissed for not being filed within the statutory period of 15 days. 2. Briefly stated, the facts the case are that respondents were stated to be the owner/landlord of the Shop bearing No. 965, Ward No. XIV, Ground Floor, Pan Mandir, Sadar Bazar, Delhi-06 having inherited the same from their father. Eviction petition was filed by the respondents against the petitioners/tenants in respect the abovementioned tenanted shop for bonafide requirement of expanding their business for the purpose of accommodating their large family. 3. As per the report of the process server, both the petitioners were served on 01.06.2013, whereas as per averment made in Para No.1 of Leave to Defend Application, Petitioners were served on 28.05.2013. It has been observed by the ARC that the period of limitation to file the Leave to Defend application if counted from 28.05.2013 (i.e. the Petitioner’s date of service of summons) would end on 11.06.2013 and if counted from 01.06.2013 (i.e. the date of official service of summons) would end on 15.06.2013. However, the leave to defend application was filed on 01.07.2013 for the reason that the Civil Courts were closed for Summer Vacation from 10.06.2013 to 30.06.2013 and as such the leave to defend was filed on the re-opening day. 4. The Ld ARC has observed in Para 11 of the impugned order that during Summer Vacations the Courts were open with following duty roster of Ld. ARCs of (Central) Delhi: a. Sh. Satish Kumar Arora 10.06.2013 to 15.06.2013 b. Sh. Sidharth Mathur 17.06.2013 to 22.06.2013 c. Sh. Vivek Kumar Gulia 24.06.2013 to 29.06.2013 And on the basis of this the Learned ARC concluded that the leave to defend should have been filed during vacations and held that the since it has been filed after expiry of 15 days, the same cannot be entertained. 5. The petitioner has challenged this order contending that the Rent Controllers sitting during vacations were authorised to deal with only urgent matters i.e. deposit of rent under Section 15(1) of DRC, Act 1958 and taking of fresh matters under Section 44. 5. The petitioner has challenged this order contending that the Rent Controllers sitting during vacations were authorised to deal with only urgent matters i.e. deposit of rent under Section 15(1) of DRC, Act 1958 and taking of fresh matters under Section 44. It is further urged that as per Section 4 of the Limitation Act, 1963, if the prescribed period of limitation falls on a day when the court is closed, then such application can be filed on the re-opening. 6. I have considered the submissions of the parties and also perused the record. 7. The Supreme Court has observed that the leave to defend has to be filed within a period of 15 days statutorily and the failure to do so, invites an order of eviction because the Rent Controller does not have any power to condone the delay. But the question involved in the present case is whether the filing of the leave to defend application on the re-opening day after summer break will be treated to have been filed within limitation. 8. Although three Rent Controllers or Additional Rent Controllers were appointed for attending to urgent matters during vacation but the fact of the matter remains that what are the kind of urgent matters are to be dealt with by the Rent Controller, is not specified in the order. Therefore, this circular in itself becomes ambiguous as to whether it is only with regard to matters where deposit of rent is involved or where somebody's essential amenity is disconnected and an application for restoration is filed, that will be considered as an urgent matter. The question is whether the filing of the leave to defend application, which is required to be filed within a period of 15 days from the date of service, can be considered as an urgent matter or not, is not mentioned in the circular. This ambiguity gets further confounded because if that was the intention of the learned District Judge, who had issued the circular, then it ought to have been stated by way of a note or in the main body of the circular itself that for the purpose of limitation, the period of vacation will not be excluded. This ambiguity gets further confounded because if that was the intention of the learned District Judge, who had issued the circular, then it ought to have been stated by way of a note or in the main body of the circular itself that for the purpose of limitation, the period of vacation will not be excluded. Meaning thereby that the very fact that the period of vacation is not mentioned as a period to be excluded, leaves the person with an ambiguity as to whether he can file the leave to defend application on reopening or not. 9. The other vital aspect of the matter which also deserves to be considered is the fact that so far as the publicity of the circular is concerned, it is not known as to how or in what manner, the publicity has been given to the circular, whether it was published to the public at large and to the counsel in general, so as to makes them aware that the persons who have been served during vacation are required to file the leave to defend application within a period of 15 days even if the said period is expiring on the date of limitation. 10. I feel that this issue is squarely covered by the judgment passed by Hon'ble Justice Yogeshwar Dayal in M/s. Flowmore Pvt. Ltd. v. Keshav Kumar Swarup; AIR 1983 Delhi 143. In that case, the facts were somewhat similar; the petitioner was served with the summons in respect of eviction petition on 10.6.1980, the tenant had filed the application for leave to contest the eviction petition on 30.6.1980. The court of Rent Controller and Additional Rent Controller were closed during the period of 2.6.1980 to 29.6.1980 and they were only authorized to do certain specified urgent matters and applications for leave to appear and contest in eviction petition was not a matter which they were authorized to entertain during that period. It is not known from the facts as to whether in the said circular, leave to appear and contest the eviction petition was specifically excluded or not but I assume that it was specifically not mentioned in the circular and, therefore, the leave to defend application filed on the opening day after vacation was treated to have been filed within time. The present circular is in line with the circular which was issued in 1980 as is apparent from the facts. Nothing has been brought to my notice to the contrary by either the petitioner or the respondent to change my view in this regard. Because of these facts in M/s. Flowmore's case (supra), since the leave to defend was filed on 30.6.1980 and till 29.6.1980 the courts were closed, therefore, by virtue of Section 4 of the Limitation Act read with Section 10 of the General Clauses Act, it was observed that the leave to defend which was filed on reopening, was considered to be within limitation. This reasoning was based on the judgement of the Apex court in case titled (H. H. Raja) Harinder Singh v. S. Karnail Singh and others; AIR 1957 Supreme Court 271 wherein it was held that: “.......the object of Section 10 is to enable a person to do what he could have done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a Court or office, and that period expires on a holiday, then according to the section, the act should be considered to have been done within that period, if it is done on the next day on which the Court or office is open. For that section to apply, therefore, all that is requisite is that there should be a period prescribed, and that period should expire on a holiday.” Based on M/s. Flowmore’s judgment (supra) this court has already taken a similar view in case titled Sound Craft & Ors. Vs. Madhu Mala Properties Pvt. Ltd.; decided on 01.12.2015. 11. I, therefore, feel that the order passed by the learned Rent Controller is patently against the law laid down by Apex Court and followed by our own High Court as early as in 1980 and this judgment has not been taken note of by the learned Rent Controller as it seems that the said judgment was not pointed out by any of the parties. 12. I, accordingly, set aside the order of the learned Rent Controller passed on 20.01.2015. The learned Rent Controller shall decide the leave to defend application after giving an opportunity to the respondent/landlord to file reply to the leave to defend and decide the same on merits. 13. 12. I, accordingly, set aside the order of the learned Rent Controller passed on 20.01.2015. The learned Rent Controller shall decide the leave to defend application after giving an opportunity to the respondent/landlord to file reply to the leave to defend and decide the same on merits. 13. With the aforesaid directions, the petition stands disposed of. Expression of any opinion hereinabove may not be treated as an expression on the merits of the case. 14. Pending applications also stand disposed of. 15. Parties are direct to appear before the learned Rent Controller on 16.02.2016.