Maharashtra Rent Control Act - Affidavit Mandatory For Application Seeking Leave To Defend Under Sec 43(4) : Bombay High Court

The petitioner had argued that the day on which the limitation period expired was a Sunday and therefore a holiday. In such a case, Section 4 of the Limitation Act would apply and he would get the benefit of one extra day. Accordingly, the leave to defend filed by him must be admissible. The Application to Leave to Defend reads as under:

"VERIFICATION

I MR. LAXMAN DADASAHEB JAGTAP, Room No.24, D3, E wing, 5th floor, Sahyadri Nagar, Charkop, Kandivali (West), Mumbai 400 067, do hereby state and declare on solemn affirmation as whatever stated hereinabove is true and correct to the best of my knowledge and belief.

Sd/- Respondent.

Dated : 25/11/2019 Mumbai."

The single-judge bench of the Bombay High Court examined the petitioner's argument in light of Section 4 of the Limitation Act and Section 43(4)(a) and (b) of the Maharashtra Rent Control Act, 1999. 

Section 43 (4) (a) of the Rent Control Act provides that "the tenant or licensee on whom the summons is duly served in the ordinary way or by registered post in the manner laid down in sub-section (3) shall not contest the prayer for eviction from the premises, unless within thirty days of the service of summons on him as aforesaid, he files an affidavit stating grounds on which he seeks to contest the application for eviction and obtains leave from the Competent Authority 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 or the licensee, as the case may be, and the applicant shall be entitled to an order for eviction on the ground aforesaid".

The question for the Court's consideration were: 

1. Whether petitioner can place reliance on Section 4 of the Limitation Act
2. Whether application seeking leave to defend, could be termed to be an application, in the eyes of law, in the absence of an affidavit or even a verification not affirmed before an oath administering authority.

The judgment observes that Section 4 of the Limitation Act would apply to the petitioner's case since the 30^th day of the limitation period was a Sunday and therefore a non-working day. However, the Court observes that no evidence has been placed to show that the Application for Leave to Defend was supported by an affidavit that was sworn before an oath administering authority or notary. 

Placing reliance on Amitabh s/o. Ramsharan Nigam v. Amit Raghunandan Saran Sharma & Ors  [2020 (3) All M.R. 188], the Court concludes that an application without mandatory affidavit would not satisfy the requirement of Section 43 (4) (a) of the Maharashtra Rent Control Act. It notes:

"In view of the above, it is obvious that Exh.-8, without the mandatory affidavit, would not be an application, which is within the strict prescription of law. In fact, the language used in Section 43(4)(a) requires an affidavit to be filed and not a mere application. As such, though Section 4 of the Limitation Act may have rescued the petitioner, the absence of an affidavit, which is mandatory, would render the said application non-existent in the eyes of law." (Para 14)

Case Title: Laxman Dadasaheb Jagtap v Additional Commissioner, Konkan

Coram: Justice Ravindra Ghughe

Citation : 2022 LiveLaw (Bom) 21

Read/Download the Judgement here