Final Order 5

Order Details: COPY OF ORDER
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RCT No. 1/2026
Subhash Chand vs. Gian Chand Jain & Anr.
06.06.2026.
Present: Ms. Gian Mitra, Advocate for the appellant.
Sh. Nitanshu Rana, Advocate for the respondents.
In this appeal under Section 38 of DRC Act filed by
tenant/appellant against the eviction order dated 28.01.2026
passed in the petition under Section 14 (1) (e) of the Act moved
before ld. ARC by respondent/landlord, a question arose whether
this appeal is maintainable in this court or appellant was required
to file revision in the Hon’ble High Court under Section 25B (8)
of the Act.
The impugned order dated 28.01.2026 shows that the
landlord filed an eviction petition qua one shop on the ground of
bonafide requirement in which the leave to defend was firstly
allowed to appellant but thereafter on the basis of evidence led,
ultimately the petition was allowed and the appellant was
directed to vacate the tenanted shop after six months.
Section 25B of DRC Act falling under Chapter III-A
prescribe the special summery procedure for the disposal of the
applications for eviction on the ground of bonafide requirement
as well as certain other rights for immediate recovery of the
tenanted premises. Section 25A says that provisions of this
chapter or any rule made thereunder shall have effect
notwithstanding anything inconsistent therewith contained
elsewhere in this act or in any other law for the time being in
force.
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Section 25B in various sub clauses describe the procedure
from the stage of filing of an eviction application till the disposal
of the same and further mention provisions relating to filing of an
appeal, review etc. Sub clause 4 puts an obligation upon tenant to
apply for leave to defend, otherwise the averments made by the
landlord shall deem to be admitted.
Sub clause 6 deals with the stage where such leave is
granted by Controller and Sub clause 7 mention what kind of
practice and procedure including the recording of evidence is to
be followed by him thereafter. Sub clause 8 specifically mentions
that no appeal or second appeal shall lie against an order for the
recovery of possession of any premises made by the Controller.
However, the High Court can interfere to find out whether the
order passed by the Controller regarding recovery of possession
is in accordance with law or not. It clearly means that where the
eviction order for recovery of possession is passed, no appeal is
maintainable and only revision has to be filed in the Hon’ble
High Court. Sub clause 9 authorizes Controller to entertain
review application, if no revision in the High Court is filed.
If the sequence of different Sub clauses of Section 25B are
taken into consideration, then it shows that firstly tenant has to
apply for leave to contest the eviction case and if it is granted by
the Controller, then procedure for conducting inquiry as well as
recording of evidence as per Sub clause 7 has to be followed.
Thereafter, if an order for recovery of possession is passed then
no appeal or second appeal lies but only revision in High Court is
maintainable according to Sub clause 8. The sequences of Sub
clauses clearly lead to the conclusion that whenever an eviction
order is passed after the final conclusion of the case on the basis
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of evidence wherein even the leave to defend was granted at one
stage, the tenant has no right to file any appeal and maximum he
can approach the Hon’ble High Court in revision or to seek
review of the order itself before the Rent Controller concerned.
Hence, the present appeal filed in this court appears to be not
maintainable and appellant was required to approach Hon’ble
High Court in revision.
Counsel for appellant argued that once leave to defend is
granted, the summery eviction procedure is halted and the case
proceeds to a formal and ordinary trial and thus, the eviction
order passed becomes appealable under Section 38 of DRC Act.
According to counsel, since the leave was granted, so the
summery procedure prescribed under Section 25B stands
exhausted due to existence of triable issues and thereafter, matter
is governed by the ordinary principles of trial and adjudication.
However, I am not convinced with these submissions and is of
the view that bar of Sub clause 8 of Section 25B applies even at
final stage of the case where eviction order is passed on the basis
of evidence despite granting leave to defend at earlier stage.
Hon’ble Supreme Court in case Prithipal Singh vs.
Satpal Singh AIR 2010 SC (Supp) 249 found that leave to
defend application was not allowed due to delay and exparte
eviction order was passed but lateron on application under Order
9 Rule 13 CPC moved by the tenant, that exparte order was set
aside and leave to contest was granted. Hon’ble Supreme Court
held that Section 25B of the Act is a complete code by which the
entire procedure to be adopted for eviction of a tenant on the
ground of bona fide requirement filed by the landlord in respect
of a premises shall be followed. Thus, the order passed by Rent
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Controller setting aside the exparte order was overruled. It means
that even after passing of eviction order, no appeal lies in order to
set aside such eviction order.
In case before Hon’ble Delhi High Court in case Bata
India Ltd. vs. Sarla Sharma CM (M) 558/2020 decided on
22.04.2021, an application under Order 9 Rule 13 CPC was
dismissed by Controller and eviction order was passed on
bonafide requirement ground. Appeal was filed before Rent
Control Tribunal under Section 38 of DRC Act which was
dismissed. Hon’ble High Court while relying upon the decision
of Hon’ble Supreme Court in case Vinod Kumar Chowdhry vs.
Smt. Narain Devi Taneja (1980) 2 SCC 120 held that the order
covered under Sub clause 8 would be a final order disposing of
an application on a conclusion of the proceedings under Sub
clause 4 or 7 of Section 25B. Thus, upon dismissal of application
under Order 9 Rule 13 CPC, the court held that consequences of
the same is that an order for recovery of possession of tenanted
premises is passed and accordingly no appeal u/s 38 of DRC Act
is maintainable.
In another case Mohd. Arshad vs. Syed Mohd. Yahaya
Nizami AIR Online 2024 Del 1319 rejection of leave to
defend application was upheld upto Hon’ble Supreme Court.
Thereafter, in execution petition, tenant filed objections which
were dismissed and then tenant filed appeal before RCT u/s 38 of
DRC Act. However, High Court held that even in such situation,
appeal is not maintainable and revision under Section 25B of
DRC Act has to be filed.
This court even while deciding two appeals bearing RCT
ARCT No. 11/2025 titled as Manak Chand Tyagi vs. Jaswant
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Kaur and RCT ARCT No.12/2025 titled as Manak Chand Tyagi
vs. Jaspal Singh has already held vide orders dated 17.04.2026
that where the leave to defend is rejected and eviction order is
passed, then the tenant is required to approach the Hon’ble High
Court under Section 25B (8) of the DRC Act. Though, in these
two cases, the leave to defend was allowed by ARC and the
landlord has challenged those orders in appeal before this court
but after interpreting the provisions especially Sub clause 8, it
was held that where leave to defend is rejected and eviction order
is passed, then appeal of the tenant is not maintainable before
RCT but where the leave to defend is allowed, then the appeal of
the landlord under Section 38 of the Act is maintainable.
Counsel for the respondent referred to some other
decisions also in his written submissions but I feel no need to
discuss the same as above discussion is sufficient to hold that
appeal filed by tenant/appellant is not maintainable in this court
and he was required to approach Hon’ble Delhi High court in
revision u/s 25B (8) of DRC Act. Once the eviction order is
passed against tenant, then all subsequent proceedings even in
execution proceedings or even for setting aside that eviction
order are challengeable only in Hon’ble High Court in revision.
Accordingly, this appeal is hereby rejected. Appellant is at liberty
to approach Hon’ble High Court in revision as per law. File be
consigned to record room.
(Ashwani Kumar Sarpal)
Principal District & Sessions Judge
East District, KKD Delhi/06.06.2026..
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