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Frank Anthony Public School Vs. Amar Kaur - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 580 of 1983
Judge
Reported in1984(6)DRJ47
ActsDelhi Rent Control Act, 1958 - Sections 25B
AppellantFrank Anthony Public School
RespondentAmar Kaur
Advocates: Arun Kumar and; H.S. Wadhwa, Advs
Cases Referred(R. v. Turner
Excerpt:
.....default whereof, the applicant will be entitled at any time after the expiry of the said period of fifteen days to obtain an order for your eviction from the said premises'.(14) what will the tenant think on getting the registered summons on 11-5-1982 and the ordinary summons on 12-5-1982 as happened in this case ? he will legitimately think that he will be well within time if he applies for leave to appear and contest the application within fifteen days from 12-5-1982. my reasons for this view are three. in view of the statutory sanction to the two modes of service the tenant is perfectly within his rights to say that he counted fifteen days from the second summons which he got on 12-5-1982. (18) it is not a question of wiping out any service, as was the view in kamal bhandari's case...........he came to the conclusion that the leave application made on 27-5-1982 was beyond time as fifteen days' time had expired on 26-5-1982. (5) the single point for decision in this case is whether fifteen days' time has to be computed from 11-5-1982 when service was effected by registered post or from 12-5-1982 when summons in the ordinary manner were served on the tenant. counsel for the tenant says that time has to be computed from the service of the second summons on 12-5-1982. counsel for the landlady, on the other hand, says that time has to be computed from the service of the first summons on 11-5-1982. (6) counsel for the landlady has brought to my attention a decision of sultan singh, j. in smt. kamal bhandari v. brig. shamsher singh malhotra : air1982delhi102 . the learned judge.....
Judgment:

Avadh Behari Rohatgi, J.

(1) No other act of the Indian legislature has shown such a high fecundity as the Rent Acts in producing complex problems for judges and lawyers to solve. A leading text book in England is dedicated 'to the draftsmen of the Acts with awe and affection' and to the judges who administer them 'with a sympathy as profound as it is respectful'. (Sir Robert Meggary : The Rent Acts).

(2) The facts of this case are not in dispute. The respondent landlady filed an eviction petition under Section 25B of the Delhi Rent Control Act, 1958 (the Act) seeking eviction of the tenant. The Frank Anthony Public School, from the first floor of house No. R-231, Greater Kailash, New Delhi. The School had taken these premises on rent from the landlady on a monthly rent of Rs. 747.00 per month. On the ground that premises were bona fide required by the landlady for herself and members of her family she sued the tenant for eviction. (Section 14(1)(e) of the Act).

(3) The Additional Rent Controller issued summons in the ordinary manner as well as by registered post. The tenant applied for leave to appear and contest the eviction case. The Additional Controller held that the leave application was barred by time. On 17th March, 1983 he made an order of eviction. From the order of eviction the tenant has filed this revision application under Section 25-B(8) of the Act.

(4) The tenant was served by registered post on 11-5-1982. In the ordinary manner the summons were served on the Principal on 12-5-1982. Counting fifteen days from 12-5-1982 the tenant applied for leave to contest the case on 27-5-1982. The Additional Controller held that the tenant was served on 11-5-1982 when the registered letter was delivered and period of fifteen days has to be computed from 11-5-1982. On this view he came to the conclusion that the leave application made on 27-5-1982 was beyond time as fifteen days' time had expired on 26-5-1982.

(5) The single point for decision in this case is whether fifteen days' time has to be computed from 11-5-1982 when service was effected by registered post or from 12-5-1982 when summons in the ordinary manner were served on the tenant. Counsel for the tenant says that time has to be computed from the service of the second summons on 12-5-1982. Counsel for the landlady, on the other hand, says that time has to be computed from the service of the first summons on 11-5-1982.

(6) Counsel for the landlady has brought to my attention a decision of Sultan Singh, J. in Smt. Kamal Bhandari v. Brig. Shamsher Singh Malhotra : AIR1982Delhi102 . The learned Judge took the view that 'if a tenant has been served by two modes and summons was duly served by both modes, the period of fifteen days will commence from the date on which he was first served'. He said : 'the first service is not wiped out by the second service', so fifteen days' time will commence from the first service. He held that the tenant's application for leave to appear was barred by time. So he dismissed the revision petition of the tenant and upheld the eviction order made against him by the Controller.

(7) Counsel for the tenant, on the other hand, cites a decision of M.L. Jain, J. in Surender Kumar v. Prem Kumar : 18(1980)DLT255 . Jain, J. thought that service should properly be reckoned from the date of the later service. This judgment was cited before Sultan Singh, J. but he distinguished it on the ground that the facts, of the case before Jain, J. were different.

(8) Counsel for the landlady has raised three arguments before me. I will take them one by one. Modes of Service

(9) First he said that the view of Sultan Singh, J. should be followed in preference to the view of M.L. Jain, J. The reason he gave in support of his argument was that if the tenant is first served by registered post and then in the ordinary manner, the second service does not wipe out the first service. And once the tenant has been served it is good enough. The second service to all intents and purposes in meaningless.

(10) In my opinion Section 25B does not lend itself to the interpretation counsel contends for.

(11) The critical words in Sub-section 3(a) of Section 25B are 'in addition to and simultaneously with'. So the Controller is required to issue summons both in the ordinary manner as well as by registered post. These two modes of service are mandatory. He may also resort to the third method of service by publication in the newspaper 'if the circumstances of the case so require'. We are directly concerned in this case with service (1) in the ordinary manner and (2) service by registered post. If service is effected on the tenant in both these modes on different dates, the question is whether fifteen days' time for leave to contest has to be reckoned from the date of the first service or from the date of the second service.

(12) In the present case service by registered post was effected on 11-5-1982. Service in the ordinary manner was effected on 12-5-1982. The tenant thought that fifteen days will commence from 12-5-1982. The Controller held that they commence from 11-5-1982, In my opinion, the period of fifteen days will commence from the date of the second service, namely, 12-5-1982 when on that day the tenant was served in the ordinary manner by delivering the summons to the Principal.

(13) Both in the ordinary manner as well as by registered post summons have to be sent in the statutory form. The statutory form of summons is prescribed in the Third Schedule. When the tenant got the first summons on 11-5-1982 by registered post, he got the summons in the prescribed form. Again on the following day, i.e. on 12-5-1982 he got the summons in the prescribed from. In both these summons he was told :

'YOU are hereby summoned to appear before the Controller within fifteen days of the service hereof and to obtain the leave of the Controller to contest the application for eviction on the ground aforesaid; in default whereof, the applicant will be entitled at any time after the expiry of the said period of fifteen days to obtain an order for your eviction from the said premises'.

(14) What will the tenant think on getting the registered summons on 11-5-1982 and the ordinary summons on 12-5-1982 as happened in this case He will legitimately think that he will be well within time if he applies for leave to appear and contest the application within fifteen days from 12-5-1982. My reasons for this view are three.

(15) Firstly both modes of service, namely, ordinary service and service by registered post are the requirements of the stature. Summons have to be issued to the ten ant in both the modes. He may be served in both modes or in one or none. If he is 'duly served whether in the ordinary way or by registered post' the Controller can proceed to hear the leave application made to him within fifteen days from the service of summons. But if he is served in both ways the question arises : To which service-the first or the second- do we give primacy Remember the second service has also the sanction of the stature. The first service and the second service stand on an equal foot ing. They are of equal efficacy and equal weight. So why count fifteen days from the first. Why not from the second. The object of the statute is to issue summons in the two modes giving a direction to the tenant to appear before the Controller to answer the suit which has been brought against him. The tenant is notified that an action has been instituted against him, and that he is required to answer it at the time and place mentioned in the summons. He is required to apply for leave to appear and contest the claim by making an application to the Controller supported by an affidavit.

(16) The summons are a notice to the tenant that the action against him has been commenced by the landlord and that judgment will be given against him if he fails to apply for leave to contest 'within fifteen days of the service hereof'. In other words, the tenant is notified that he must apply within fifteen days from the service of summons, the statutory period designated in the summons itself, and make answer to the landlord's claim by applying for leave. So there is absolutely no difference between service in the ordinary manner and service by registered post. Both have the same message for the tenant. But dates are different. If he gets these summons on different dates will he not be entitled to say, 'I have come within fifteen days for leave to appear from the date of the second summons which I got on 125-1982'? This is what happened in this case. The object of the second service is the same as the first service. There is no difference, qualitatively at least. So why not count fifteen days from the date of the second service. In Kamal Bhandari the learned Judge said that it cannot be done from the second service because the second service does not 'wipe out' the first service. This is true. No one says that the first service is wiped out. At the same time the statute does not say that you disregard the second service. As I have said, both modes of service have been placed on par by the statute.

(17) The Controller is required to issue summons by registered post 'in addition to and simultaneously with' the ordinary summons. If both modes of service have got equal efficacy there is no reason to disregard the second service on the tenant. We cannot ignore the second summons. We cannot treat second service as of no importance. Summons are after all a call of authority. It is a document issued by the office of a Court of Justice or a Tribunal calling upon the person to whom it is directed to attend before the Judge or the Tribunal for a certain purpose. In view of the statutory sanction to the two modes of service the tenant is perfectly within his rights to say that he counted fifteen days from the second summons which he got on 12-5-1982.

(18) It is not a question of wiping out any service, as was the view in Kamal Bhandari's case. The fallacy in that reasoning, if I may say so with great respect, is that it overlooks the effect and the efficacy of the second summons. It just disregards it, even though the statutory sanction is attached to it. The legislature commands the Controller : 'you shall issue summons by registered post in addition to and simultaneously with the summons in the ordinary form'. The tenant can well say if he gets the two summons on different days : 'I will court fifteen days from the later summons which I received on 12-5-1982'.

(19) We are not wiping out the first service. Nor the second. What Kamal Bhandari has done is that it has wiped out the effect of the second service. It has given an over riding importance to the first. It belittles the importance of the second. In fact nothing has to be obliterated, nothing to .be erased, nothing to effaced. The first service does not blot out the second. Nor the second will have the effect of cancelling the first. The legislature for good reasons commands that service be effected in both the modes. So both modes must be considered as of equal importance. One is not superior to the other. The second summons have the same potency, the same power, the same quality as the first.

(20) Secondly, I think there is no reason to hold that the period of of fifteen days will commence from the date on which the tenant is first served. He gets summons twice over in the same statutory form. When he gets the second summons the Controller does not issue any warning : Mr. tenant, disregard the second summons if you ever get it. You must go by the first service of summons'. No signal. No signpost. If there is no warning signal to him to disregard the second summons he is perfectly entitled to think that both summons have equal value and equal weight because they are after all issued by the same authority and under the same statute. There is nothing to indicate in the second summons that time will be counted from the first service or that the second service shall be disregarded.

(21) THIRDLY-AND it is a corollary of the second-it will be unjust to the tenant if fifteen days' time is counted from the first service. Not only will it be against the law, it will also be against the principles of justice, equity and fair play if the Controller tells the tenant, 'I will count fifteen days from the first service. You were misled by my second summons. You ought to have disregarded them altogether'. Law then becomes not an instrument of justice but a trap for the unwary. Many will be ensnared. A salutary provision will prove the undoing of many simple 'tenants uninitiated into the complexities of law. This case illustrates it.

(22) It is ambiguous, this double service. Judges have to see that it does not degenerate into double-dealing. It should not mean easy walkover for the landlord and a defenseless state for the tenant. Necessitous men, as these tenants are, are not, truly speaking, free men. To answer a present exigency they will submit to any terms that the landlords may impose upon them. Reason, safety, and justice dictate that we count fifteen days from the service of the second summons. This is what 'hereof' means. ''Hereof' means the starting point, the critical juncture, from which to count. It is a strong word. It is a word of alert and caution. It is a terminus a quo. Surely it does not mean that second service is of no practical utility as the tenant has already been served once.

(23) The legislature has devised a ''special procedure for the disposal of the application for eviction on the ground of bonafide requirement'. It is modelled on Order xxxvII of the Code of Civil Procedure. The object is to reduce delays in litigation. The object is to introduce a 'summary trial' in place of full length trial. But it is not the object of the legislature that you deny to the tenant an opportunity to apply for .leave to contest on the mere ground that he ought not to have been misled by the second summons. The delay was of one day in this case. The object is not to throw out tenants in these harsh times on the specious reasoning that first service is never wiped out and that second service is of no consequence.

(24) The reasoning in Kamal Bhandari is based on the premise that service is effected once and only once and if there is a second service it is of no value. The statute attaches the same importance to the two modes of service in which summons are to be issued by the Controller. It is his statutory duty. The first service is not wiped out. Nor the second. Nothing is obliterated from the scene. Both services are good and effective services. The statute attaches the same importance to both. Time ought to the counted from the second service which comes later in point of time. . Because summons use the phrase 'within fifteen days from the service hereof.' This means fifteen days from the second summons which he receives on a later date. How can we disregard the preemptory words of the statute It is an abuse of language to say that 'hereof' means 'thereof', which it must mean if time is counted from the first service and not the second. So we wipe out nothing. We add nothing and substract nothing. 'Hereof' means in plain English 'fifteen days from the date of service of this summons', though it be the second summons.

(25) thereforee convenience and the language of the section point the same way. Full effect must be given to the words of the statute used in the third schedule. There is no reason to decry the second service on the ground that it cannot wipe out the first service. M.L. Jain, J. said 'Why should the tenant not have the right to have time counted against him from the later date ?' To this question there is no answer. Meaning of 'within Fifteen Day's from the Service Hereof'

(26) The expression 'day' has been understood in different ways by different nations in different times. Lord Coke said :

'THEJewes, the Chaldeans, and Babylonians, begin the day at the rising of the sun: the Athenians at the fall; the Umbri in Italy beginner at midday: the Egyptians and Romanes from midnight; and so doth the law of England in many cases'. The English day begins as soon as the clock begins to strike twelve p.m. of the preceding day. Williams v. Nash 28 L J. Ch. 886'.

In Halsbury's Laws of England, third edition. Vol. 37, P 84 it is said :

'THE term 'day' is, like the terms 'year' and 'month', used in more senses than one. A day is strictly the period of time which begins with one midnight and ends with the next. It may also denote any period of twenty-four hours, and again it may denote the period of time between sunrise and sunset.'

(27) Counsel for the landlady argues that time ought to be counted from 12-5-1982 and the period of fifteen days expired on 26-5-1982. In any event he says the leave application made on 27-5-1982 was barred by time. I have no hesitation in rejecting this argument. The question is what is meant by the phrase 'within fifteen days from the service hereof'. In my opinion, on a proper reading of the third schedule, the word 'day' should be read as meaning a 'calendar day'. I propose to found my decision R. v. Turner (1910) 1 K.B. 346 and Chambers v. Smith (1843) 152 E.R. 1085 and to decide that the phrase means fifteen clear days exclusive of the day of service. The words ' within fifteen days of the service hereof' in the form of summons prescribed in third schedule must be construed as meaning fifteen consecutive periods of twenty-tour hours after the service of the summons.

(28) It is well known maxim that the law disregards fractions. By the Calendar the day commenced at midnight, and most nations reckon in the same manner. The English do it in this manner. We too have adopted the same. In the space of a day all the twenty-four hours are usually reckoned, the law generally rejecting all fractions of a day, in order to avoid disputes. If anything is to be done within a certain time of) from, or after the doing or occurrence of something else, the day on which the first actor occurrence takes place is to be excluded from the computation. (Williams v. Burgess (1840) 113 E.R. 955) unless the contrary appears from the context. (Hare v. Gocher (1962) 2 Q.B. 641). The ordinary rule is that where a certain number of days are specified they are to be reckoned exclusive of one of the days and inclusive of the other. (R. v. Turner, supra p. 359).

(29) Fraction of a day has not to be counted. So I would disregard 12-5-1982, the day on which the ordinary summons were delivered to the Principal. Fifteen days will commence from 13-5-1982. Counting in this way the application was made on the last day, i.e. 27-5-1982. The application for leave to appear and contest is within time. I thereforee hold that the tenant was entitled to count fifteen days from the receipt of the second summons on 12-5-1982. Authority of the Principal

(30) Counsel for the landlady raised this point by way of preliminary objection. He said that the Principal of the Frank Anthony Public School has brought the revision petition without any authority. This argument must be rejected straight way. The landlady herself brought the petition in this form, namly. 'The Frank Anthony Public School through Mr. G.W. Mayer, its Principal'. The summons were served on the Principal on 12-5 1982. He made the application and the affidavit for leave to appeal and contest the eviction case. The Controller refused leave and made an order of eviction against him. He has brought the present revision petition in the same form in which was sued, namely, 'The Frank Anthony Public School through Col. Tullettee, its Principal'. How can the landlady object to the authority of the Principal to bring the petition The principle of estoppel will prevent her from raising this objection. I see no merit in this argument. I reject it.

(31) For these reasons the revision petition is accepted. The order of eviction dated 17th March, 1983 is set aside. The parties will appear before the Third Additional Rent Controller on 11-10-83. He will decide the application for leave on merits. The parties are left to bear their own costs.


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