Director Directorate of Education & Anr v. Mohd. Shamim & Ors.

26. Supreme Court, in Prithipal Singh supra also noted that it was “not disputed by the respondent / tenant that no application for condonation of delay could be entertained by the Rent Controller as the provisions of Limitation Act, 1963 could not be attracted”. However earlier judgment in Ganpat Ram Sharma supra applying the Limitation Act to proceedings before the Rent Controller was not noticed.

27. Axiomatically it follows that with the change in law and the prevalent view being that the Limitation Act applies to proceedings before the Rent Controller, the self imposed bar to entertaining applications under Section 5 of the Limitation Act for condonation of delay in applying for leave to defend has also to be held to have disappeared.

28. Reference may also be made to Section 37(1) of the Rent Act which provides that no order which prejudicially affects any person shall be made by the Rent Controller without giving him a reasonable opportunity of showing cause against the order proposed to be made. Certainly, not granting an opportunity to the tenant to show that non-filing of leave to defend within the prescribed time was for reasons not attributable to him or for reasons beyond his control would amount to passing an order of eviction without an opportunity of hearing. Though owing to the non obstante clause in Section 25A, giving the provisions of Section 25B effect notwithstanding anything inconsistent therewith contained elsewhere in the Rent Act, Section 37(1) may not apply to the proceedings thereunder but I am intrigued to find Section 25B(7) providing as under: “(7) Notwithstanding anything contained in sub-section (2) of section 37, the Controller shall, while holding an inquiry in a proceeding to which this Chapter applies, follow the practice and procedure of a Court of Small Causes, including the recording of evidence.” Section 37(2) is as under: “(2) Subject to any rules that may be made under this Act, the Controller shall, while holding an inquiry in any proceeding before him, follow as far as may be the practice and procedure of a Court of Small Causes, including the recording of evidence.”

29. I have wondered, the need for Section 25B(7) inasmuch as it is otherwise settled law that once leave to defend is granted, the procedure to be followed in a petition for eviction under Section 14(1)(e) or 14A or 14B or 14C or 14D is the same as applicable to other proceedings before the Rent Controller. Section 25B(7) thus applies to enquiry at the stage of consideration of application for leave to defend and requires the Controller to follow the practice and procedure of a Court of Small Causes, including the recording of evidence. While under Section 37(2) following the said procedure is restricted to “as far as may be”, there is no restriction under Section 25B(7). The practice and procedure of a Court of Small Causes is provided in Chapter IV and Chapter V of the Provincial Small Cause Courts Act, 1887 and Section 17 where-under provides that the procedure prescribed in the Code of Civil Procedure shall, save insofar as otherwise provided by the Code of Civil Procedure or by the said Act, be the procedure followed in the Court of Small Causes.

30. Order 50 of the CPC prescribes the provisions thereof which shall not extend to the Small Causes Court and the provision of Order IX of the CPC are not found to be excluded.

31. Section 25B(7) also provides for recording of evidence in the manner applicable to the Small Causes Courts. It thus appears that the Rent Controller, while deciding the application for leave to defend also, is entitled to make an inquiry and which inquiry can extend to the delay in applying for leave to defend. Section 25B(7) remained to be noticed in any of the judgments. Notice may also be taken of Section 25B (9) which empowers the Rent Controller to exercise power of review in accordance with Order XLVII of the CPC. Order XLVII permits review on discovery of new and important material which, after exercise of the diligence could not be produced when order was made. Once the bar to power of the Rent Controller to condone delay is removed, a ground of leave to defend having not been filed within prescribed time for reasons not attributable to or beyond the control of tenant may also form ground for review.

32. Notice may also be taken of Om Prakash Vs. Ashwani Kumar Bassi (2010) 9 SCC 183, though in the context of East Punjab Urban Rent Restriction Act, 1949, reiterating that delay in applying for leave to defend cannot be condoned owing to non application of Section 5 of the Limitation Act but distinguishing Mukri Gopalan Vs. Cheppilat Puthanpurayil Aboobacker (1995) 5 SCC 5, reasoning that since the powers of Appellate Authority under the Kerala Buildings (Lease and Rent Control) Act, 1965 with which it was concerned, were being exercised by District Judges, they, even while functioning as Appellate Authority under the Rent Act were a Court and not a persona designata like the Rent Controller under the East Punjab Act, who were members of Punjab Civil Service, and therefore entitled to resort to Section 5 of the Limitation Act.

33. Seen in this light, the power of Rent Controller under the Delhi Rent Act is exercised by the Civil Judges and they would also not be persona designata and be entitled to exercise power under Section 5 of the Limitation Act.

34. Applying the said reasoning, this Court exercising powers under Section 25B (8), would in appropriate cases be certainly entitled to condone the delay in applying for leave to defend.

35. For the aforesaid reasons I am of the view that at least this Court in exercise of powers under Section 25B(8) of the Rent Act is not denuded of the powers to set aside the order of eviction if finds that the delay in applying for leave to defend was justified.

36. I have also toyed with the idea of consideration on merits, of the leave to defend application, by this Court itself in the first instance and have enquired so from the senior counsel for the respondents.

37. The senior counsel for the respondents contends and which is my view also, that this Court in exercise of jurisdiction under Section 25B(8) of the Act would not be entitled to, in the first instance, consider the application for leave to defend itself.

38. The senior counsel for the respondents also refers to Madhu Gupta Vs. Gardenia Estates (P) Ltd. 2011 (184) DLT 103 holding that the procedure prescribed in Section 25B does not permit amendment of application for leave to defend and states that though Special Leave Petition was preferred thereagainst but the same was withdrawn.

39. It cannot be forgotten that premises which are let out to government / government agencies, as in the present case, with none having personal interest for protection thereof, are in a special position and it is for this reason only that notwithstanding the repeated observations of there being no special law of limitation for the government, consideration is still given to the factor of public loss being not caused by inefficiency and inaction of government officials, while adjudicating the applications for condonation of delay in filing appeals etc. by the government / government agencies.

40. However since there is already a view of the learned Single Judge of this Court in Kailash Devi supra, all the said aspects will have to be considered by a larger bench of this Court. ……

42. Let the file be placed before Hon‟ble the Chief Justice to consider the constitution of a Larger Bench for consideration of the following question: (A) Whether this Court, in exercise of powers under Section 25B (8) of the Act, is entitled to set aside an order of eviction under Section 14(1)(e) or 14A or 14B or 14C or 14D owing to the application for leave to defend having not been filed within the prescribed time, if finds sufficient grounds for non-filing of application for leave to defend and to condone the delay and remand the matter to the Rent Controller to consider the leave to defend application on merits. (B) Whether the Rent Controller, in exercise of powers under Section 25B(7) or 25B(9) is entitled to set aside an order of eviction under Sections 14(1)(e) or 14A or 14B or 14C or 14D owing to non-filing of application for leave to defend within the prescribed time, if finds sufficient grounds therefor.”

2. The senior counsel for the respondents was heard on 9th March, 2018. The senior counsel for the respondents as well as the counsel for the petitioners were further heard on 16th November, 2018. The senior counsel for the respondents and the counsel for the petitioners have been further heard on 26th July, 2019, when judgment was reserved.

3. The senior counsel for the respondents has argued, (i) that the jurisdiction of this Court, under the proviso to Section 25B(8) of the Delhi Rent Control Act, is only to satisfy itself that an order made by the Controller under Section 25B is according to law; (ii) that in exercise of this jurisdiction, this Court, if the leave to defend before the Controller has been filed within time, can only look at the correctness of the order of the Controller allowing or refusing leave to defend and nothing more; (iii) in exercise of the said jurisdiction, this Court, if the leave to defend has not been filed within the prescribed time, is only to see that the Controller has not condoned the delay in applying for leave to defend or dealt with the leave to defend on merits; (iv) that if the Controller, on non-filing of leave to defend within the prescribed time, deeming the statement made by the landlord in the application for eviction to have been admitted by the tenant, has ordered the eviction of the tenant and/or refused to condone the delay in applying for leave to defend following Prithipal Singh supra, then the order of the Controller following Prithipal Singh supra would be according to law and this Court under Section 25B(8) would have no jurisdiction to interfere therewith; (v) that the Delhi Rent Control Act is a special statute and if the same has not provided for condonation of delay in applying for leave to defend, this Court in exercise of its revisionary jurisdiction cannot condone the said delay; (vi) the third schedule to the Delhi Rent Control Act, 1958 prescribes the form of summons in a case where recovery of possession of premises is prayed for on the ground of bonafide requirement or under Section 14A and summons the recipient to appear before the Controller within 15 days of service thereof and to obtain a leave of the Controller to contest the application for eviction; use of the word „within‟ communicates to the recipient the need to apply for leave to defend before expiry of 15 days of the date of receipt; (vii) the language of Section 25B(4) of the Act is also indicative of there being no provision for condonation of delay in applying for leave to defend; (viii) that even otherwise, there can be no condonation of delay after the deeming provision provided for under Section 25B(4) has occurred i.e. after the tenant is deemed to have admitted the statement by the landlord in the application for eviction; (ix) Section 36 of the Act, enumerating the powers of the Controller, also does not empower the Controller to condone the delay in applying for leave to defend; (x) that Section 36(2) of the Delhi Rent Control Act also vests only such of the powers vested in the Civil Court under the Code of Civil Procedure, 1908 (CPC) in the Controller as are specified therein and which does not include the power to condone delay in applying for leave to defend; (xi) a reading of Rule 23 of the Delhi Rent Control Rules, 1959 also makes it abundantly clear that the Rent Controller is not a Civil Court; if the Controller was a Civil Court, there was no need for Section 36(2) and Rule 23; (xii) vide Section 25A of the Act, the provisions of Chapter IIIA i.e. Section 25B and 25C shall have effect, notwithstanding anything inconsistent therewith contained elsewhere in the Act or in any other law; (xiii) Supreme Court in Prakash H. Jain Vs. Marie Fernandes (2003) 8 SCC 431, while dealing with the provisions of the Maharashtra Rent Control Act, 1999, in the context of similar language as in Section 25A of the Delhi Rent Control Act, held that the provisions of Chapter VIII thereof stood apart, distinctly and divorced from rest of the Maharashtra Act except to the extent indicated therein itself and had been given overriding effect over any other provision of the Maharashtra Act or any other law for the time being in force and held that the competent authority constituted under the Maharashtra Act was not a Court and that the mere fact that such authority was deemed to be Court for limited and specific purpose, could not make it a Court for all or any other purpose; (xiv) that in the present case leave to defend application was filed after 18 days; (xv) while Section 25B (4) to (7) of the Act contemplate an enquiry in a case where leave to defend is filed, they do not contemplate any enquiry where leave to defend has not been filed within the prescribed time and require the Controller to deem the tenant to have admitted the statement of the landlord in the application for eviction; (xvi) the power of review under Section 25B(9) of the Act is also not of the High Court but of the Controller only and thus this Court cannot trace its power to condone the delay thereunder either; (xvii) if no leave to defend has been filed within the prescribed time, the order of the Rent Controller of eviction on the basis of deemed admissions under Section 25B(4) of the Act would be in accordance with law, not permitting any interference under Section 25B(8); (xviii) the Controller, if follows Prithipal Singh supra would be acting in accordance with law; (xix) the vires of Section 25B was upheld in Kewal Singh Vs. Smt. Lajwanti (1980) 1 SCC 290; (xx) Supreme Court recently in Gandhe Vijay Kumar Vs. Mulji (2018) 12 SCC 576, relying on the earlier judgment of the five Judges in Hindustan Petroleum Corporation Limited Vs. Dilbahar Singh (2014) 9 SCC 78 has held that the High Court in revisional jurisdiction (under the Rent Act of Andhra Pradesh) is expected to see only whether the findings are illegal or perverse in the sense that a reasonably informed persons will not enter such a finding and that none of the Rent Control Acts entitle the High Courts to interfere with findings of facts or to take a different view on reappreciation of evidence; it was held that revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a Court of First Appeal; (xxi) that question (B) framed in the order of reference to the Division Bench is reduntant; (xxii) that once the Supreme Court has dealt with the question of condonation of delay in Prithipal Singh supra, it is even otherwise not open to this Court to adjudicate the said question; (xxiii) attention is drawn to the judgment of one of us (R.S.Endlaw, J.) in Ravi Nath Sharma Vs. Jagdish Prasad Sharma & Ors. MANU/DE/7916/2017, holding that Ganpat Ram Sharma supra is the sole judgment holding the Limitation Act to apply to Rent Controller; else the consistent view of the Supreme Court has been that the provisions of the Limitation Act are not applicable to the Rent Controller; (xxiv) reference is also made to Sarla Ahuja Vs. United India Insurance Co. Ltd. (1998) 8 SCC 119 and Shiv Sarup Gupta Vs. Mahesh Chand Gupta (Dr) (1999) 6 SCC 222 holding that though the word revision is not employed in proviso to Section 25B(8) of the Act, from the language used therein it is evident that the power conferred is revisional power and which is different from the appellate power; that Section 25B is a self-contained provision; (xxv) reliance is placed on Commissioner of Customs and Central Excise Vs. Hongo India Private Ltd. 2009 (5) SCC 791 holding that in the absence of any provision in Section 35 (H) of the Central Excise Act, 1944 for condonation of delay in filing the reference application, the High Court did not have any inherent or plenary power to condone the delay; (xxvi) reference is made to Om Prakash Vs. Ashwani Kumar Bassi 2010 (9) SCC 183 holding that the Rent Controller under the East Punjab Urban Rent Restriction Act, 1949 being a creature of a statute can only act in terms of the powers vested in it by a statute and cannot entertain an application under Section 5 of the Limitation Act for condonation of delay in applying for leave to contest; (xxvii) reference is made to South Central Railway Employees Cooperative Credit Society Employees Union Vs. B. Yashodabai 2015 (2) SCC 727 to contend that once the Supreme Court in Prithipal Singh supra has pronounced on the issue the matter does not require reconsideration by any other Court; reference in this regard is also made to Suganthi Suresh Kumar Vs. Jagdeeshan 2002 (2) SCC 420 holding that it is impermissible for the High Court to overrule the decision of the Supreme Court on the ground that the Supreme Court did not consider the point canvassed before the High Court; reference in this context is also made to Sanjeev Kumar Vs. Govt. of NCT of Delhi & Ors. 2012 SCC OnLine Del 2684 (DB) and Indian Airlines Vs. Union of India 2006 (128) DLT 505 (DB) to the same effect; and, (xxviii) reliance is placed on Sanjay Mehra Vs. Sunil Malhotra 2010 (170) DLT 797 holding that the Rent Controller is required to confine the examination to the application for leave to defend and relying thereon it is contended that in the absence of leave to defend, nothing is to be considered by the Controller.

4. Per contra the counsel for the petitioner has contended, (i) that the Government Girls Senior Secondary School has been running in the subject property since the year 1958, imparting education in a slum area largely inhabited by the people of the Muslim community; (ii) that this school has more than 550 students; (iii) that the Government has been trying to defend and retain the school in the locality in public interest; (iv) that in the year 2010, major repairs costing the Government exchequer Rs.26,37,000/- were carried out in the building of the school premises; (v) that since there are multiple channels in the decision making process of the Government, appointment of a Government Counsel, the leave to defend remained to be filed within 15 days; (vi) that during the pendency of this case before this Court, the rent has been enhanced to the tune of Rs.1.[5] lacs and which is being paid; (vii) that the Government does not have any other suitable place to run the school in the subject locality and thus the Government has been continuing to pay exorbitant rent to run this school; (viii) Prithipal Singh supra merely lays down that the provisions of the CPC cannot be applied to a Section 25B proceeding; (ix) that in view of Section 37 of the Delhi Rent Control Act, the Rent Controller has a power under the Act to condone the delay; (x) Section 37 of the Act lays down that no order which prejudicially affects any person shall be made without giving him a reasonable opportunity of showing cause against the order proposed to be made and until his objections, if any, and evidence which he may produce have been considered; (xi) thus it is mandatory for the Controller to wait for a reasonable time till an affected person has filed his reply or evidences, if any, and the Rent Controller has been restrained from immediately passing an order of eviction on non-filing of leave to defend; (xii) what was for consideration in Prithipal Singh supra, was an application of the tenant under Order IX Rule 13 CPC and Order XXXVII Rule 4 of the CPC for setting aside of the ex parte order of eviction; (xiii) none of the judgments cited by the Senior Counsel for the respondent have considered Section 37 of the Delhi Rent Control Act; (xiv) that even if the Limitation Act is not applicable to the Rent Controller, the principles of the Limitation Act would apply; (xv) that the Rent Act does not use any negative language indicating that 15 days‟ time is the time limit within which the tenant is to appear; (xvi) speedy trial does not mean denial of opportunity of hearing, if the person is prevented by reasonable cause or legal disability; (xvii) there can be situations of death or the tenant being abroad or other legal disabilities and to provide for such eventualities only, Section 37 has been enacted; (xviii) that it has been held in M.P. Steel Corporation Vs. Commissioner of Central Excise 2015 (7) SCC 58 that where the Limitation Act does not apply, it does not mean that this principle would also not apply; and, (xix) the Legislature was conscious of the fact that the Rent Controller is a quasijudicial body and the provisions of the Limitation Act would not apply thereto and for this reason only added Section 37 to the Act.

5. The senior counsel for the respondent has added that Section 25B(4) of the Act, by using the word “unless” and by using a deeming provision, has inserted negative language.

6. The senior counsel for the respondent, after the close of hearing, has also handed over Ganesan Vs. Commissioner, Tamil Nadu Hindu Religious and Charitable Endowments Board (2019) 7 SCC 108, highlighting paragraphs 53, 58, 59 and 63 thereof. The said judgment reiterates (a) that the suits, appeals and applications referred to in the Limitation Act are not suits, appeals and applications to be filed before a statutory authority but those filed in a Court; (b) operation of Section 29(2) of the Limitation Act is confined to suits, appeals and applications referred to in a special or local law to be filed in Court and not before a statutory authority; (c) however special or local law can make applicable the Limitation Act and which can be decided after looking into scheme thereof; and, (d) merely because the statutory authority is empowered to follow the procedure as nearly as may be in accordance with procedure under the CPC, does not make the statutory authority a Court.

7. We have considered the rival contentions. In Prithipal Singh supra the leave to defend application was filed after a delay of 8 days and was rejected as beyond time and an eviction order was passed in favour of the landlord Prithipal Singh. The tenant Satpal Singh thereafter filed an application before the Rent Controller for recall of the said order of eviction and for condonation of delay under Order XXXVII Rule 4 read with Section 151 of the CPC and which application was allowed by the Rent Controller holding that “there was explanation forthcoming whereby the application for leave to defend was liable to be considered on merits”. The landlord Prithipal Singh filed a petition under Article 227 of the Constitution of India to this Court contending that the Rent Controller had no power to reopen the issue having once passed the eviction order and no power to condone the delay. Reliance was placed on Prakash H. Jain supra holding in the context of the Maharashtra Rent Control Act, that an application for leave to defend not filed within the time prescribed by law could not be entertained and the tenant could not seek condonation of delay under Section 5 of the Limitation Act as the Limitation Act was not applicable and that condonation of delay could not be sought under the inherent powers also as Rent Authority was not a Civil Court. Per contra the tenant Satpal Singh relied on the judgment of the Division Bench of this Court in Mohd. Quresh Vs. Roopa Fotedar 1989 SCC OnLine Del 433 holding that the Rent Controller has inherent powers exercisable by a Civil Court under Section 151 of the CPC and the source of the said power was to be found in Rule 23 of the Delhi Rent Control Rules. This Court held that Prakash H. Jain supra could not be read as overruling the dicta of the Division Bench of this Court and following the dicta of the Division Bench of this Court in Mohd. Quresh supra, the landlord‟s petition was dismissed. The landlord appealed to the Supreme Court which framed the issues for adjudication as under:- “(i) Whether the Additional Rent Controller, exercising powers and jurisdiction under the Rent Act, which is a special Act, was justified in setting aside the order of eviction which amounted to restoration of and allowing the application for leave to defend the eviction petition although such application was rejected earlier on the ground of delay.

(ii) Whether the Additional Rent Controller is competent to recall orders of eviction on an application under Order 9 Rule 13 read with Order 37 Rule 4 and Section 151 of the Code and condone the delay in applying for leave to defend when he was not conferred with such power to condone the delay in filing the application for leave to defend the eviction proceedings under the Rent Act specially when such an affidavit (application for leave to defend) was earlier rejected by the Additional Rent Controller, Delhi on the ground of delay.”

8. The Supreme Court held, (i) “from a careful perusal of sub-section (4) of Section 25B of the Rent Act, it would be clearly evident that the tenant shall not be permitted to contest the prayer for eviction unless he files an affidavit before the Controller stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller. This Section also clearly indicates that in default of his appearance in compliance with the summons or his obtaining such leave, the statement made by the landlord in the eviction proceedings shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground mentioned in the eviction petition”; (ii) Section 25B itself is a special code and the Controller, while dealing with an application for eviction of a tenant on the ground of bonafide requirement, has to follow strictly in compliance with Section 25B of the Act; (iii) Section 25B has been inserted by the Legislature for eviction of a tenant of a certain classes of landlords; (iv) in view of the specific provisions provided in Section 25B of the Act, it is difficult to hold that Rule 23 can be applied; thus Rule 23 has no application to a proceeding under Section 25B; (v) if Rule 23 cannot be applied owing to Section 25B being a special code, the judgment of the High Court could not be sustained; (vi) Mohd. Quresh relied on Gurditta Mal Vs. Bal Swarup AIR 1980 Delhi 216 to come to a conclusion that in view of Rule 23, the Rent Controller was conferred with the power to entertain an application under Order 37 Rule 4 of the CPC; (vii) however, Gurditta Mal supra had been considered in Prakash H. Jain supra and not approved of;

(viii) the High Court was thus not right in following Mohd. Quresh supra;

(ix) High Court had thus wrongly held the Controller to be empowered under Rule 23 when the Controller was not conferred with any such power in a proceedings under Section 25B; (x) as the provisions of the Limitation Act were not attracted, no power for condonation of delay in applying for leave to defend could be entertained; and, (xi) that even otherwise the reason given by the tenant Satpal Singh could not be considered to be a special reason within the meaning of Order XXXVII Rule 4 of the CPC.

9. As would be evident from the analysis aforesaid of Prithipal Singh supra, what was laid down therein was in answer to the issues framed therein. The Supreme Court therein was concerned only with the power of the Rent Controller in a proceeding under Section 25B of the Act, to consider an application for recall of the order of eviction in exercise of powers under Order XXXVII Rule 4 of the CPC read with Rule 23 of the Delhi Rent Control Rules. Section 37 of the Act was not for consideration therein.

10. Section 37(1) of the Act prohibits the Controller from making any order which prejudicially affects any person, without giving such person a reasonable opportunity of showing cause against the order proposed to be made and which opportunity extends to consideration of the objections and the evidence produced in support of such objections.

11. The dicta of the Supreme Court in Prithipal Singh supra that Rule 23 does not apply to a proceeding under Section 25B of the Act owing to the same being a special code, does not apply to Section 37 of the Act. Though Section 37(2) of the Act provides that the Controller while holding an enquiry “in any proceeding before him” and which would include a proceeding under Section 25B, shall follow as far as may be the practice and procedure of a Court of Small Causes, including the recording of evidence, Section 25B(7) as aforesaid mandates the Controller to follow the practice and procedure of a Court of Small Causes, including the recording of evidence and not just “as far as may be”.

12. Even though Section 37 exists in the Act since enactment thereof in the year 1958 and Chapter IIIA containing Sections 25A, 25B and 25C were inserted by Amendment of the Act in the year 1976 but it has been held in Ramesh Basandara Vs. Moti Ram 2003 SCC OnLine Del 570 and Vinod Kumar Chowdhry Vs. Narain Devi Taneja (1980) 2 SCC 120 that the existing provisions of the Act unless excluded from application to the amended provisions, extend to the amended provisions as well. Section 25A merely gives the provisions of Section 25B and 25C an overriding effect notwithstanding anything inconsistent contained elsewhere in the Act. However, the provisions of Section 37 are not only expressly recognized in Section 25B(7) but are also not inconsistent with the provisions of Section 25B. Though Section 37(2) makes application of practice and procedure of a Court of Small Causes subject to any Rule made under the Act but Section 25(B)(7) mandates application of such practice and procedure to inquiry under Section 25B, notwithstanding Section 37(2) i.e. not subject to any Rule made under the Act.

13. Not only so, once the Controller while exercising powers under Section 25B has been mandated to follow the practice and procedure of a Court of Small Causes, and which procedure as mentioned in the referral order is the same as the procedure provided by the CPC, it cannot be said that what has been held in Prithipal Singh supra qua Rule 23 would apply to Section 37 as well.

14. Section 17 of the Provincial Small Cause Courts Act, 1887 provides that the procedure prescribed shall, save insofar as is otherwise provided by the CPC or by the Provincial Small Cause Courts Act itself, be procedure followed by the Court of Small Causes. Order L Rule 1 of the CPC lists (i) Order II Rule 1, (ii) Order X Rule 3, (iii) Order XV, (iv) Order XVIII Rules 5 to 12, (v) Orders XLI to XLV, (vi) Order XLVII, Rule 2, 3, 5, 6 and 7, and, (vii) Order LI, which do not extend to the Courts of Small Causes. Exclusion of said provisions has no relevancy to the matter in issue herein.

15. Section 148 of the CPC, applicability whereof to Court of Small Causes is also not excluded by Order L of the CPC, vests the Court with a discretion to, from time to time, enlarge the period fixed or granted by the Court for the doing of any act prescribed or allowed by the CPC. Thus, the practice and procedure of a Court of Small Causes includes a practice and procedure of extension of time limited for doing any act. Section 25B(7) having mandated the Controller to in an inquiry under Section 25B follow the practice and procedure of a Court of Small Causes would in our opinion vest the Controller with a discretion.

16. In this context, it is worth mentioning that the practice and procedure of a Court of Small Causes includes the application of the law of limitation. The Full Bench of this Court in Subhash Chander Vs. Rehmat Ullah 1972 SCC OnLine Del 237 held that a Controller has inherent power like that of a Civil Court. It was reasoned that if Section 37(2) had not required the Controller to follow the CPC, he would have still had to devise his own procedure to perform his task and so be the master of it; Section 37(2) merely restricts his freedom but does not destroy it. Thus, it was concluded that the Controller has inherent power. It was however held that the Limitation Act is not applicable to the Controller. However as far as the Court of Small Causes is concerned, the practice and procedure whereof is mandated to be followed by the Controller in an inquiry under Section 25B of the Act, Supreme Court in Shakuntala S. Tiwari Vs. Hem Chand M. Singhania (1987) 3 SCC 211, in the context of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 held the provisions of Limitation Act to be applicable because the practice and procedure of a Small Cause Courts Act was to be followed. To the same effect is Kashi Ram Vs. Rakesh Arora (1987) 4 SCC 84 reasoning that the procedure of the Court of Small Causes having been adopted, the law of limitation would be attracted.

17. Section 141 of the CPC, applicability whereof to Small Causes Court is not excluded by Order L of the CPC, provides that the procedure provided in the CPC with regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction. Thus, the procedure for disposal of miscellaneous applications in a suit is also the same as a procedure for disposal of suits.

18. At this stage, I may deal with the contention of the Senior Counsel for the respondent, of this Court being precluded from considering the question owing to the Supreme Court having pronounced thereon in Prithipal Singh supra.

19. Supreme Court in Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. (2003) 2 SCC 111, Union of India Vs. Dhanwanti Devi (1996) 6 SCC 44, Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate (2005) 2 SCC 489, In Re. Natural Resources Allocation (2012) 10 SCC 1 and Punjab National Bank Vs. R.L. Vaid (2004) 7 SCC 698 has held that a judgment is a precedent on what was for adjudication and not what can be logically deduced or inferred therefrom. Applying the said principle, what was for adjudication in Prithipal Singh supra was as set out in the issues framed therein and thus Prithipal Singh supra is a precedent on the power of the Controller to recall the order of eviction and to consider the application for leave to defend filed belatedly. The Supreme Court in Prithipal Singh supra was not concerned with the power of this Court under Section 25B(8).

20. It is significant that the proviso to Section 25B(8) uses the words “according to law” and not the words “according to this Act”. Thus the jurisdiction of this Court under the proviso to Section 25B(8) is to satisfy itself that an order made by the Controller under Section 25B is according to law. Needless to state that the word „law‟ has much wider ambit than the word „Act‟, meaning the Delhi Rent Control Act. The jurisdiction of this Court under the proviso to Section 25B(8), in the judgments cited by the Senior Counsel for the respondent also, has been held to be akin to revisionary jurisdiction. It has been held in Hindustan Petroleum Corporation Limited supra, Shiv Sarup Gupta supra, Boorugu Mahadev and Sons Vs. Sirigiri Narasing Rao (2016) 3 SCC 343, Gandhe Vijay Kumar supra and Ravinder Jeet Singh Vs. Kanta Vadhera 2018 SCC OnLine Del 13329 that the function of the High Court while exercising revisionary jurisdiction extends to ensuring that no injustice is being done by the order impugned before it by way of revision. The High Court thus, when approached in exercise of its jurisdiction under the proviso to Section 25B(8) against an order of eviction under Section 25B(4), on failure of tenant to within the prescribed time apply for leave to defend, would be entitled to consider whether there is any substantial ground which prevented the tenant from, within the prescribed time, applying for leave to defend and any substantial reason which disentitles the landlord from an order of eviction on the ground of requirement of premises on deemed admission of such requirement by the tenant.

21. It is not as if a mere expression of requirement of the premises for own use by the landlord has been constituted as a ground of eviction under Section 25B. For a landlord to be entitled to eviction of tenant on the ground of own requirement of the premises, the requirement has to be bonafide, for occupation of the premises by the landlord or for member of his family and further that the landlord has no other reasonable suitable accommodation. Thus, a tenant is entitled to leave to defend if able to demonstrate that the requirement pleaded by the landlord is not bonafide or that the landlord has another suitable residential accommodation. It cannot be lost sight of that the applicability of the Rent Act, as far as Delhi is concerned, now is mostly confined to premises let out decades back, at the rate of rents which are now paltry in comparison to the prevalent rents of the said properties. Eviction of such tenants being prohibited by the Rent Act save on the grounds specified, the ground of requirement for own use is often found to be invoked by the landlord(s) to seek eviction of such old tenants paying paltry rents, even though the landlord, in real sense has no requirement or bonafide requirement of the premises for own use or has other alternate suitable premises available to him. The tenant, if able to demonstrate the requirement to be not bonafide or availability of other premises, can thwart such action for eviction.

22. Thus, when Section 25B(7) states that the procedure of a Court of Small Causes shall be followed while holding any inquiry in a proceeding under Section 25B, even though the Controller may pass an order on deemed admission, the High Court would certainly be entitled to set aside the said order if the petitioner, under proviso to Section 25B(8), is able to rebut the said deemed admission and/or make out a case for being given an opportunity for rebutting the same.

23. Mention in this regard may also be made of Ramesh Kumar Vs. Kesho Ram 1992 Supp (2) SCC 623 holding a deemed admission to be different from an actual admission.

24. The matter can be looked at from another point of view. Section 25B(3)(b) of the Act empowers the Controller to declare that there has been valid service of summons issued under Section 25B(3)(a) of the Act when an acknowledgement “purporting to be signed by the tenant or his agent” is received back by the Controller or when the registered article containing the summons is received back with an endorsement “purporting to have been made by a postal employee” to the effect that the tenant or his agent has refused to take delivery of the registered article. Thereunder the Controller is empowered to declare that there has been a valid service merely when there is an appearance of service or refusal. However Section 25B(4) empowers the Controller to order eviction on failure of the tenant so served to apply for leave to defend only when the summons is “duly served”. A summon purporting to be served or refused cannot be said to be “duly served” if it is shown that what was purporting to be signed by the tenant was indeed not signed by the tenant and / or what was purporting to be refusal of the tenant was indeed not refusal of the tenant. An order of eviction passed on purported service if allowed to stand notwithstanding being shown to be not duly served would be in violation of Section 37(1) prohibiting the Controller from passing any order without giving reasonable opportunity to show cause thereagainst and would also be in violation of the practice and procedure of a Court of Small Causes. For this reason also in our view Prithipal Singh supra cannot be read as closing all doors or remedy at least before this Court.

25. We, therefore, hold that merely because the Controller has passed an order of eviction in a proceeding governed under Section 25B, on failure of the tenant to, within the prescribed time, apply for leave to defend and merely because the Controller vide Prithpal Singh supra has been held to be not empowered to recall the said order, would not prevent this Court from, in exercise of powers under proviso to Section 25B(8), considering once a case for the landlord to be not entitled to an order of eviction to be deemed admission following non-filing of leave to defend within the prescribed time, the said order cannot be said to have been made according to law and would qualify as being contrary to law and liable to be set aside.

26. Having held so, we answer the question no.(A) framed in the referral order in the affirmative and with the condition that this Court would be empowered to set aside the order of eviction only if the tenant passes the dual test of prevented by reasons beyond control from applying for leave to defend within the prescribed time (as distinct from every default) and if makes out a substantial case for consideration of the application for leave to defend. We, however, in deference to Prithipal Singh supra choose/opt to not answer the question (B) framed in the referral order.

27. We answer the reference accordingly.

28. List before the Roster Bench for decision in accordance with this judgment on 16th December, 2019.

RAJIV SAHAI ENDLAW, J. CHANDER SHEKHAR, J. NOVEMBER 29, 2019 „bs/ak‟