Hardev Singh Sokhi v. Varsha Sehgal

V.B.GUPTA, J. mw

* HIGH COURT OF DELHI : NEW DELHI RC Rev. No. 173/2010 & CM No. 13397/2010 (stay) % Judgment reserved on: 30th July, 2010 Judgment delivered on: 4th August, 2010 Sh. Hardev Singh Sokhi S/o Sardar Laxman Singh Sokhi Shop No.2, Back Side, H-30-A, Rajouri Garden, New Delhi – 110027 Through Attorney Sh.Surinder Singh Madan S/o Sh. Gurcharan Singh Madan R/o EC-144, Tagore Garden, New Delhi -110027 ….Petitioner. Through: Mr. C.P.Vig, Advocate. Versus Ms. Varsha Sehgal D/o Late Sh. Chaman Lal Sehgal R/o H-30/A, Ground Floor Main Market, Rajouri Garden New Delhi-110027 ….Respondent Through: None Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. 1. Petitioner has filed this petition under Section 25 B (8) of Delhi Rent Control Act, 1958 (for short as "Act") praying for setting aside order dated 7.7.2010 passed by Additional Rent Controller (for short as "Controller"), Delhi, vide which applications under Section 25 B of the Act, under Section 5 of the Limitation Act, 1963 and under Section 151 of the Code, were dismissed and for recalling of eviction order dated 30.1.2010, passed by the Controller. 2. The brief facts of this case are that respondent/landlord filed an eviction petition under Section 14 (1) (e) and 25 B of the Act, against petitioner/tenant, through his attorney. Notice under Section 25 B of the Act, was issued to the petitioner through his attorney which was duly served upon the attorney on 29.12.2009. No leave to contest application was filed within the statutory period. Hence, vide order dated 30.1.2010, eviction order was passed against the petitioner. 3. It is contended by learned counsel for the petitioner that summons in relation to the eviction petition were required to be sent in the form specified in Third Schedule of the Act which do not prescribe mentioning of the next date of hearing. However, in the summons next date of hearing i.e. 30.1.2010 was mentioned which misled the attorney of the petitioner. As such no leave to contest application could be filed. Another contention raised by learned counsel is that after receiving the summons, attorney contacted the petitioner who is in England and sought his instructions. Hence, attorney could not file leave application within the specified period. 5. In support, learned counsel has cited judgment of this Court in V.N.Sood vs. Dr. Gurbachan Singh 1981 Rajdhani Law Reporter 4, where the court observed; "If mention of next date on the summons misleads tenant and he omits to apply for leave to defend within limitation, then delay may be condoned." 6. Though, it is correct that summons specified in Third Schedule of the Act do not prescribe for mentioning of next date of hearing. Nevertheless, summon issued under Third Schedule of the Act cannot be read in isolation. It is clearly mentioned on the summon that tenant is to appear before the Controller within fifteen days of the service thereof and to obtain the leave of the Controller to contest the application for eviction. 7. Thus, there is no force in this argument. Even assuming for arguments sake that petitioner was misled by the next date of hearing which was mentioned on the summons, even on that date petitioner did not file any application for leave to contest. Application for leave to contest was filed only on 3.2.2010 i.e. after expiry of the statutory period. As no application for leave to contest was filed within fifteen days from the date of service, trial court rightly passed the eviction order. 8. Supreme Court in Prithipal Singh v. Satpal Singh (Dead) through LRs, 2009 (14) SCALE 672 observed; "14. 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 Controlle