Disposed

Kancho Devi v. Saurabh Srivastava

Delhi HC4 Mar 2014RC.REV./341/2012

Case brief

AI extract

What is this about?

Petitioner challenged an eviction order made against her for failing to file a leave to defend within 15 days under the special summary procedure of Section 25-B(4) of the Delhi Rent Control Act. The High Court distinguished cases allowing condonation of delay under rent recovery provisions, holding that the strict summary procedure for bona fide necessity precludes condoning delay. However, due t

What did the court decide?

Petitioner granted time until December 31, 2015, to vacate the premises without subletting; no costs.

Kancho Devi Vs Saurabh Srivastava — Landlord and Tenant | Delhi HC (2014)

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. IN THE HIGH COURT OF DELHI AT NEW DELHI*

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% Order pronounced on : March 04, 2014 + RC.REV. 341/2012 & C.M. No.12585/2012

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KANCHO DEVI ..... Petitioner Through Ms.Deepali Gupta, Adv.

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versus

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SAURABH SRIVASTAVA ..... Respondent Through Mr.K.K.Srivastava, Adv.

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CORAM:

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HON'BLE MR. JUSTICE MANMOHAN SINGH

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MANMOHAN SINGH, J.

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By way of the present petition under Section 25B(8) of the Delhi Rent Control Act, 1958 (hereinafter referred to as “the Act”), the petitioner has assailed the eviction order dated 29^th March, 2012 of the learned Rent Controller whereby the leave to defend application filed by the petitioner was dismissed for the reason mainly that the same was not filed within the stipulated period prescribed under the Act.

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The respondent had filed an eviction petition against the petitioner under Section 14(1)(e) of the Act in respect of a room on the ground floor of the property bearing No. 1058, Gandhi Gali, Fathepuri, Delhi-6 (hereinafter referred to as the “tenanted premises”). As the petitioner did not file the leave to defend application in the said petition, an eviction order was passed by the impugned order.

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RCR No.341/2012 Page 1 of 15

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It is stated by the petitioner that summons of the eviction petition were sent to her on 25^th February, 2012. However, as the petitioner is an old widow lady living all alone and suffering from numerous ailments, she was not in a position to take any action in the said matter as she was bed-ridden being severely sick at that time. Hence she took help from one of her acquaintance and requested that some legal assistance may be provided to her. It has been further stated that on the date of hearing i.e. 29^th March, for 2012, the petitioner with the help of her acquaintance moved an application seeking free legal aid for defending her case. Though the learned Trial Court observed that she should have approached the Court for grant of legal aid within stipulated time and therefore, passed the impugned eviction order.

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As she was suffering from severe illness and was hence prevented from taking any steps for her rights, besides she was also not aware of the free legal services. It was only on seeking help from her acquaintance that she was able to present the application praying for free legal aid to be provided to her for contesting the matter.

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The learned Trial Court vide the impugned eviction order observed that the petitioner had been served summons as per Schedule III of the Act on 24^th February, 2012 and through registered post on 25^th February, 2012, however, no application for leave to defend was filed within the stipulated period.

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It was noticed by the learned Addl. Rent Controller that an application for grant of legal aid was filed by the petitioner, the learned Trial Court observed that had it been so that the petitioner required legal aid, she should approach the authority within stipulated period, however, she was directed

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to approach the District Legal Services Authority (North) at Tis Hazari Court. However, in the absence of appearance of the petitioner in pursuance of the summons or obtaining leave to contest the petition as provided under Section 25B(4) of the Act, the respondent was entitled for an eviction order.

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Accordingly, the impugned eviction order was passed by the learned Trial Court, and aggrieved thereof the petitioner filed the present petition. 8. The issue for consideration before this Court is whether Rent Controller was correct in rejecting the application for leave to defend after expiry of the prescribed period and on the ground that he had no power to condone the delay under the Act. In various cases decided from time to time it has been held that the Rent Controller has no other option but to pass an order of eviction.

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It is true that before this Court many revision petitions against the orders passed by the Rent Controller(s) are being filed on similar issue, it has been urged on behalf of the tenants that the law of limitation was not intended to extinguish the right of the parties which cannot be defeated for procedural laws. Thus passing of mechanical orders by the Rent Controller(s) to the effect that they have no jurisdiction to condone the delay in filing the application for leave to defend after the expiry of fifteen days would not only defeat the ends of justice but violate the basic purpose of Limitation Act, 1963.

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The legal issue involved in the present case is the same as in RC. Rev. No.298/2013 and RC.Rev. No.363/2013. Almost same arguments were addressed in all three matters.

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It is submitted that in the matter of jurisdiction of the controller to extend the time for compliance of the provisions of Section 14(1)(a) for payment of rent and 14(1)(e) for obtaining leave to contest as required under the third Schedule to Chapter IIIA is the same and the Act does not contemplate different treatment between the said two provisions. A number of decisions rendered by this Court have been referred in this regard under which powers of the Controller to condone the delay in complying with the orders under Section 15(1) of the Act has been upheld. In the case of Rakesh Kumar vs. Gandharv Singh , 155 (2008) DLT 750, a Single Judge of this Court after referring to the judgment of the Supreme Court in the case of Ram Murthy vs. Bhola Nath , AIR 1984 SC 1392, held as under:

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“…… A perusal of aforesaid observations in the judgment would clearly show that the learned Additional Rent Controller or for that matter Tribunal is not powerless to condone the delay in a given case which may occur on account of the reasons which are beyond the control of the tenant to physically make the deposit within a period of one month as stipulated in law. The said paragraph gives various illustrations under which the tenant may be unable to deposit the rent. In all such contingencies the ARC would not be powerless to condone the delay. Therefore, in the light of the aforesaid facts, it could not be said that the learned Tribunal or the ARC did not have the power to condone the delay. However, so far as the question of actually delay being condoned in the present case is concerned, that aspect has to be seen as to whether the delay could have been condoned or not. In the instant case, there was no application filed by the petitioner for condonation of delay nor was such an application filed before the learned Additional Rent Control Tribunal therefore the delay could not be ipso facto condoned automatically by the learned Additional Rent Controller or by the Tribunal without there being an application. To that extent, I feel that the order of the learned

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Additional Rent Controller as well as that of the Tribunal cannot be found fault with.”

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In the case of Smt. Anit Maharani vs. Sh. Shashi Bhushan , decided by Valmiki J. Mehta, J., on 19^th April, 2011, while referring to the judgment of the Supreme Court in the case Ram Murthy vs. Bhola Nath (supra), this Court has held that the Controller has got the powers to condone the delay in case the tenant is able to show that the delay was on account of reasons which were beyond his control.

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In view of abovesaid decisions referred, it is argued that the provisions of Limitation Act, 1963 cannot selectively be applied to proceedings under the same Act as observed in the cases decided wherein the Courts have held that the Controllers have power to condone the delay in complying with the orders under Section 15(1) of the Act and in another provision of the same Section, it is being held that the Controller(s) have no power to condone the delay. It cannot be selectively applicable. Therefore, the Controller does possess the power to condone the delay if an application for leave to defend is filed after the prescribed period of 15 days in case the tenant is prevented from filing the same due to reasons which were beyond his control.

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Let me now consider the submissions made on behalf of three petitioners/tenants i.e. present revision petition and RC. Rev. No.298/2013 and RC.Rev. No.363/2013. Before dealing with their arguments, it is necessary to refer the relevant provisions of Section 25-B(4) in order to decide the issue in hand. The same reads herein as under:-

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“25. B Special procedure for the disposal of applications for eviction on the ground of bona fide requirement. - (4) The tenant on whom the summons is duly served (whether in the

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ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files and affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order for eviction on the ground aforesaid.”

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The provisions of Chapter III-A of the Act stood challenged in an earlier proceeding and the Supreme Court in Kewal Singh vs. Smt. Lajwanit , (1980) 1 SCC 290. In the said case, the classification on the class of landlords under Section 14 (1)(e) and the procedure applicable and as contained in Section 25-B of the Act had been questioned; submission was that the classification is not in consonance with the object sought to be achieved by the Act. The Supreme Court had answered this question in the following words:-

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“We would, therefore confine ourselves to the validity of Section 14(1)(e) and the procedure prescribed to give relief mentioned in the aforesaid Section in Section 25B. Before discussing the relevant provisions of the Act it may be necessary to observe that the Rent Control Act is a piece of social legislation and is meant mainly to protect the tenants from frivolous evictions. At the same time, in order to do justice to the landlords and to avoid placing such restrictions on their right to evict the tenant as to destroy their legal right to property certain salutary provisions have been made by the legislature which give relief to the landlord. In the absence of such a legislation a landlord has a common law right to evict the tenant either on the determination of the tenancy by efflux of time or for default in payment of rent or other grounds after giving notice under the Transfer of Property Act. This broad right has been curtailed by the Rent Control Legislation with a

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view to give protection to the tenants having regard to their genuine and dire needs. While the rent control legislation has given a number of facilities to the tenants it should not be construed so as to destroy the limited relief W.P.(C) No.1801/2013 Page 10 of 13 which it seeks to give to the landlord also. For instance one of the grounds for eviction which is contained in almost all the Rent Control Acts in the country is the question of landlord's bonafide personal necessity. The concept of bonafide necessity should be meaningfully construed so as to make the relief granted to the landlord real and practical.”

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The scope of Chapter IIIA of the Rent Act has been elaborately discussed in the case of Ravi Dutt Sharma vs. Ratan Lal Bhargava , (1984) 2 SCC 75, in which this Court duly discussed the object of the Rent Act and also the insertion of Chapter IIIA of the same in the following manner:

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“7…..The dominant object of the act is to provide a speedy, expeditious and effective remedy for a class of landlords contemplated by Sections 14(1)(e) and 14-A and for avoiding unusual dilatory process provided otherwise by the Rent Act. It is common experience that suits for eviction under the Act take a long time commencing with the Rent Controller and ending up with the Supreme Court. In many cases experience has indicated that by the time the eviction decree became final several years elapsed and either the landlord died or the necessity which provided the cause of action disappeared and if there was further delay in securing eviction and the family of the landlord had by then expanded, in the absence of accommodation the members of the family were virtually thrown on the road. It was this mischief, which the Legislature intended to avoid by incorporating the new procedure in Chapter III-A. The Legislature in its wisdom thought that in cases where the landlords required their own premises for bona fide and personal necessity they should be treated as a separate class along with the landlords covered by Section 14-A and should be allowed to reap the fruits of decrees for eviction within the quickest possible time. It cannot, therefore, be said that the classification of such landlords would be an

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unreasonable one because such a classification has got a clear nexus with the objects of the Amending Act and the purposes, which it seeks to subserve. Tenants cannot complain of any discrimination because the Rent Act merely gave certain protection to them in public interest and if the protection or part of it afforded by the Rent Act was withdrawn and the common law right of the tenant under the Transfer of property Act was still preserved, no genuine grievance could be made.”

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In the case of Prithipal Singh vs. Satpal Singh (D) through legal heirs , 2010 (2) SCC 15, the Supreme Court, while dealing with the specific plea set up by the tenant as to whether the Addl. Rent Controller had the power to condone the delay of 15 days in seeking leave to defend, held as under:

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“23. As noted hereinearlier, Section 25-B(1) clearly says that any application filed by a landlord for recovery of possession of any premises, inter alia , on the ground of Section 14(1)(e) of the Rent Act, shall be dealt with in accordance with the procedure specified in Section 25-B of the Rent Act. Therefore, Sub-section (1) of Section 25-B makes it clear that if any application for eviction of a tenant is filed by the landlord, the special procedure indicated in Section 25-B has to be followed and Section 25-B(1) clearly stipulates that the application for eviction shall be strictly dealt with in accordance with the procedure specified in this Section. Apart from that, as we have noted herein earlier, Section 25-B itself is a special code and therefore, Rent Controller, while dealing with an application for eviction of a tenant on the ground of bona fide requirement, has to follow strictly in compliance with Section 25-B of the Act. Therefore, after insertion of Section 25-B of the Act, any application for granting eviction for a special kind of landlord, shall be dealt with strictly in compliance with Section 25-B and question of relying on Rule 23 of the

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Code, which also does not give full right to apply the provisions of the Code, could be applied.

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That apart, Rule 23 does not specifically confer any power on the Controller to follow the provisions of the Code in special classes of landlords. It is a general rule, by which the Controller in deciding any question relating to procedure not specifically provided by the Act and these rules shall, as far as possible, be guided by the provisions contained in the Code.

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In view of our discussions made hereinabove that Section 25B has been inserted by the Legislature for eviction of a tenant of a certain classes of landlords, in which the entire procedure has been given, it is difficult for us to hold that Rule 23 of the Rules can be applied in the present case in view of the specific provisions provided in Section 25B of the Rent Act. Accordingly, we are of the view that Rule 23 has no manner of application.

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That being the position, if Rule 23 cannot be applied in the present case because of applicability of Section 25B, which is a special code and specific procedure for eviction of a tenant by a landlord on the ground of bona fide requirement, we cannot agree with the courts below that in view of Rule 23 of the Rules, the provisions of the Code can be applied in the present case and, therefore, we are of the view that the High Court had acted illegally and with material irregularity in the exercise of its jurisdiction in setting aside the order of eviction and in allowing the affidavit filed by the tenant for the purpose of defending the proceedings for eviction.

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That apart, from a perusal of the order of the High Court and also of the Rent Controller, it would be evident that the High Court had relied on a decision of the Delhi High Court in the case of Mohd. Quresh vs. Smt. Roopa Fotedar & Ors. [1990 (1) ILR 16] and held in favour of the tenant/respondent. In Mohd. Quresh (supra), another decision of the Delhi High Court in the case of Gurditta Mal Vs. Bal Sarup [AIR 1980 Delhi 216] was relied on to come

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to a conclusion that in view of Rule 23 of the Rules, the Rent Controller was conferred with the power to entertain an application under Order 37 Rule 4 read with Section 151 of the Code.”

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The Division Bench of this Court in the case of Olive Marques vs. Union of India , 2013 (199) DLT 727, has discussed the implications and consequences of non-filing of application for leave to defend in the prescribed time in para 8 of the judgment which reads as under:

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“8. The elaborate submission of the learned counsel for the petitioners on this score being that the last four lines in the said sub- clause are the offending lines. This envisages a situation where if the tenant does not file his defence within the stipulated period, the statement made by the landlord in his eviction petition shall be deemed to be admitted by the tenant and the landlord would straightway be entitled to a decree of eviction; this impinges upon the power of judicial review which the Courts have; there could be cases where the landlord has filed an eviction petition which is based purely on a fraud and merely because of an inadvertent mistake or error on the part of the tenant in not being able to file his application for leave to defend within the time frame as contained in Section 25-B (4), such a landlord would also be entitled to a decree straightway which could not have been the intention of the legislature. This principle is in fact opposed to the principles of natural justice; it denies a right to be heard to the tenant. Submission being that this so called summary procedure is in fact a flagrant abuse of right of equality before the law and equal protection which is guaranteed under Article 14 of the Constitution; such a legislation can in no manner be sustained. The vehement submission of learned counsel for the petitioners being that Section 4 of the Evidence Act contains a rebuttable presumption giving a right to the opposing party to rebut such a presumption but the language of Section 25-B (4) has gone beyond that point; it has embodied within itself a conclusive proof which is draconian in character and is

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liable to be struck down. Learned counsel for the petitioners has taken us through Article 31-C of the Constitution of India; submission being that last three lines of the said Article "and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy" had been declared as invalid by the Supreme Court in Keshavananda Bharati Vs. The State of Kerala (1973) Supp SCR 1. Learned counsel for the petitioners by relying upon this Article seeks to draw a parallel with his submission that the last four lines contained in Section 25-B (4) also need to be invalidated.”

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Similar view was also taken by the Supreme Court of India as well as by this Court that the Court has no power to condone the delay in filing the application for leave to defend in the following cases.

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(i) In the case of Rakesh Gupta & Another vs. Ashok Dilwali , reported in 2012 (1) RCR (Rent) 342, it was held that the tenant seeking permission to contest the eviction petition filed under Section 14(1)(e) of the Rent Act, is supposed to file an affidavit within 15 days from the date of receipt of summons pleading such facts as would disentitle the landlord from obtaining an eviction order. Failure to file the affidavit has to result in the passing of an eviction order against the tenant. It was further held that period of 15 days is not extendable even for a day.

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(ii) In the case of Om Prakash vs. Ashwani Kumar Bassi , 2010 (2) RLR 289, it was held that wherein the application for leave to contest, there was a delay of one day in filing the application, the Rent Controller has no jurisdiction to condone the delay. The eviction order has been rightly passed as the Rent

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Controller being a creature of statute can only act in terms of the powers vested in him by statute and cannot therefore entertain an application under Section 5 of the Limitation Act for condonation of delay since the statute does not vest him with such power.

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(iii) Shiv Gopal & Anr. vs. Shipra Singh & Ors. , reported in 186 (2012) Delhi Law Times 194, wherein it was held that the Rent Controller has not been conferred with power to condone delay even for one day.

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(iv) Ramesh Tuli vs. Sharda Kapoor , reported in 153 (2008) Delhi Law Times 302, wherein it was held that in view of Prithi Pal Singh ’s case, 133 (2006) DLT 686, Court of Additional Rent Controller had no jurisdiction to entertain application under Section 25B which is filed beyond period of 15 days. It was further held that the provisions of Limitation Act are not applicable.

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In view of settled law on the issue in hand, there is no force in the submissions of the petitioner to the effect that in view of the law laid down by the Supreme Court wherein it is held that despite of time stipulated under Section 15(1) read with Section 14(1)(a) and 14(1)(2) of the Act, the Tribunal is not powerless to condone the delay in a given case, therefore, those decisions would also apply in the same manner, as there is a delay in filing of the application for leave to defend in the petition filed under Section 14(1)(e) of the Act when there can be circumstances which may be beyond the control of the tenant which may prevent the tenant from

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complying with the order under Section 15(1) of the Act. However, this Court is of the considered opinion that the said decisions have no application in the situation when the eviction orders are passed under Section 14(1)(e) of the Act on failure of filing the application for leave to defend beyond the time prescribed. The main reasons are that the eviction sought by the landlord under the provision of Section 14(1)(e) is to be treated as summary proceedings and in view of the special procedure provided under sub-section (4) of Section 25B which mandates that in default of tenant’s appearance pursuant to the summons or in obtaining such leave, the statement made by the landlord in the application for leave to eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order of eviction on the grounds stated in the eviction petition. Such deeming provision is not prescribed in the provision and procedure under Section 14(1)(a) if the arrears of rent are recoverable. Therefore, the arguments addressed by the petitioner cannot be accepted in the absence of such deeming provision available in the eviction petition under Section 14(1)(a) for recovery of rent.

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For the aforesaid reasons as explained and in view of settled law on the issue involved and in existence of special provision for bonafide requirement under Section 25(B) sub-section (4), this Court under the inherent and plenary powers is not empowered to take different view by exercising discretionary jurisdiction and to mould the statutory and mandatory provisions even in the cases where the tenant is able to make a sufficient case for filing the application beyond the period of time. All the decisions rendered by the Courts on the issue in hand are binding and my view is also the same. However, I am of the considered opinion that in order

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to provide justice in these nature of the cases where the eviction orders are passed without having considered the defence of tenant, some reasonable time should be granted to evict.

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Considering the overall facts and circumstances of the case, I am of the view that at least the petitioner is entitled for sufficient time to vacate the tenanted premises without deciding the case of the petitioner on merit due to the reasons that the application for leave to defend has not been filed by the petitioner.

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In the case of Mohd. Ayub vs. Mukesh Chand, (2012) 2 SCC 155, it was observed that “ the hardship Appellants would suffer by not occupying their own premises would be far greater than the hardship the Respondent would suffer by having to move out to another place. We are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. We have noted that the Respondent is in occupation of the premises for a long time. But in our opinion, in the facts of this case that circumstance cannot be the sole determinative factor. That hardship can be mitigated by granting him longer period to move out of the premises in his occupation so that in the meantime he can make alternative arrangement. ” 24. In view of the hardship shown by the petitioner, coupled with the fact that as the petitioner is an old widow lady of about 80 years of age and is living all alone, she is suffering from numerous ailments and in the interest of justice, equity and fair play, the petitioner is granted time till 31^st December, 2015 to vacate the tenanted premises. During this period, the petitioner shall not sublet or create any third party interest in the tenanted premises and after the expiry of said period, the petitioner shall hand over

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the peaceful and vacant possession of the tenanted premises to the respondent.

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