IN THE COURT OF SH. [ENTITY], CCJCUMARC, CENTRAL, DELHI. E55/2008 1. Sh. [ENTITY] s/o. Late Sh.[ENTITY] r/o.2720, Gali Arya Samaj Bazar [ENTITY] Delhi6. 2. Sh. [ENTITY] s/o.Late [ENTITY] r/o. 2096, Ward no.VIII Katra Gokul Nath Bazar [ENTITY], Delhi6. Petitioners Versus Sh. [ENTITY] s/o. Late Ram Ditta Mal 24, Ram Vihar, Delhi Also at: c/o. Three Star Publishers Pvt. Ltd. 148487, Gali Arya Samaj Bazar [ENTITY], Delhi6. Respondent ORDER
30.08.2011
1. Vide this order, I shall dispose of the application filed on behalf of respondents for grant of leave to defend under [SECTION] of [ACT] alongwith application u/[SECTION] [ACT] for condoning the delay in the filing the leave to defend application.
2. Brief facts which are relevant for the disposal of applications in hands are that petitioners have filed the present eviction petition under [SECTION] of the [ACT] against the respondent on the averments that they are the coowners/landlords of the suit premises i.e. house no.2096, Ward No.VIII, Katra Gokul Shah Bazar [ENTITY], Delhi6 and one room on the ground floor of suit premises had been let out to respondent on 11.10.1967 by their mother Smt. [ENTITY]. The suit premises was purchased by the father and mother of petitioner namely Sh.[ENTITY] and Smt.[ENTITY] and after death of their parents, the property was inherited by the petitioners alongwith other LR's. The tenanted premises came to the share of the petitioners in a oral family partition entered amongst other LR's of Sh.[ENTITY] and Smt.[ENTITY]. The petitioners require the tenanted premises for their own residence as they have a large family consisting of themselves and their family members dependent upon them. The petitioners have no other suitable residential accommodation available to them in Delhi except the properties mentioned in the petition.
3. Since, there is delay in the filing the leave to defend application, the application u/[SECTION] [ACT] for condonation of delay has been filed by respondent wherein it is submitted by the respondent that summons of the petition were served upon the firm Three Star Publication at its office address bearing no. 1484 87, Gali Arya Samaj, Bazar [ENTITY], Delhi6 by regd. post on 23.12.2008 and by ordinary mode on 29.12.2008. However, no service of summons has been effected on the respondent personally or at the address of the suit premises.
It is further submitted that Director of the company Three Star Publication left the Delhi for business purposes to Bangalore on 29.12.2008 and could not hand over the papers received to the respondent. It is only on 21.01.2009 that the said employee reached back at Delhi and handed over the said papers to the respondent and after that the present application alongwith leave to defend application are accordingly filed.
In view of above, it is submitted that non filing of the application for leave to defend within stipulated time is neither intentional nor deliberate. Hence, the delay be condoned.
4. In reply, it is submitted by the petitioners that respondent has not mentioned any sufficient reason/ground in the application for condonation of delay. It is further submitted that this Court has no jurisdiction, authority or power to condone the delay in filing the application for leave to defend.
5. I have already heard the arguments. During course of arguments, counsel for respondent has cited [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT].
6. I have perused the entire material available on record carefully.
7. Counsel for respondents has cited the judgments of Superior Courts in [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT] to show that 'Controller has inherent jurisdiction to condone delay in filing leave application'. I feel that facts and circumstances mentioned in said judgments are distinguishable from the facts and circumstances of the present case. In the present case, it is an admitted fact that summons of present petition have been served through regd. post on 23.12.2008 and by ordinary mode on 29.12.2008. The application for leave to defend was filed on 22.01.2010. Hence, the respondent has to show that what circumstances were prevented him to file the application for leave to defend within 15 days from date of service i.e. 23.12.2008 and 29.12.2008. Respondent has taken the ground that summons through regd. post have been served upon firm Three Star Publication at its office address bearing no. 1484 87, Gali Arya Samaj, Bazar [ENTITY], Delhi6 on 23.12.2008 and by ordinary mode on 29.12.2009 by Director of said firm namely [ENTITY] who left the Delhi for business purposes to Bangalore on 29.12.2008. By this it means that [ENTITY] had left the Delhi after six days from the date of receiving the summons through regd. Post on 23.12.2008. The respondent has not mentioned any reason as to why said [ENTITY] had not delivered the summons to him during said period of 6 days. So far as, the other ground of respondent that said [ENTITY] had left the Delhi to Bangalore on 29.12.2008 and only after coming back to Delhi, he handed over the same to respondent on 21.01.2009, is concerned, the respondent has not filed any document i.e. copy of Air Ticket or Boarding Pass etc. to show that said [ENTITY] had left the Delhi to Bangalore on 29.12.2008 and came back to Delhi on 21.01.2009.
In view of above, the grounds taken by respondent for condoning the delay in filing the leave to defend are rejected.
8. Moreover, it is a settled proposition of law that the Additional Rent Controller has no power to condone the delay in filing the leave to defend application. I am supported by judgment of Hon'ble Supreme Court in [PRECEDENT] in which it has been held that delay of even a single day cannot be condone by the Controllers. In [PRECEDENT] it has been held by the Hon'ble Delhi High Court that Rent Controller has no power to condone delay even for one day.
9. In view of above, the application filed by respondent u/[SECTION] for condonation of delay in filing application for leave to defend is dismissed. Consequently, application for leave to defend is also dismissed being barred by limitation and not liable to be entertained on merits. Accordingly, eviction order is hereby passed in favour petitioners and against the respondent with regard to tenanted premises i.e. one room situated on the ground floor of property no.2096, Ward No.VIII, Katra Gokul Shah Bazar [ENTITY], Delhi6 as shown in red colour in the site plan exhibited as Ex.X. It is made clear that this order will not be executable till expiry of six months from today. File be consigned to record room.
Announced in open court [ENTITY] th on 30 August, 2011 CCJcumARC(Central) THC: DELHI