Skip to content


H.S. Gandhi Vs. Abha Arora - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision No. 609 of 1981
Judge
Reported inAIR1983Delhi288; 21(1982)DLT384; 1982(3)DRJ180; 1982RLR273
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantH.S. Gandhi
RespondentAbha Arora
Advocates: Vikramjit Sen and; D.K. Sayal, Advs
Cases ReferredJagdish Pershad v. Phoolwati Deoi
Excerpt:
.....14(l)(e), 25(b)publication of the summons in a newspaper under section 25(3)(a) is not a valid service. summons have to be served in the ordinary way as provided by order 5 rule 15 c. p.c. or by registered post under section 5b (3)(a). issurance of summons in the ordinary way is ordered not in exercise of powers under sub-section 3(a) but it is ordered in exercise of the powers under sub-section (2) of section 25b, service on a male member (son) of the tenant is a valid service under sub-section (2). - - (4) the additional rent controller took the view that as within 15 days of the service, which had been effected on the son of the tenant, an application for leave to contest bad not been filed it must be presumed that the statements made in the eviction petition were..........filed seeking ieave to contest the eviction petition but it was contended that there has been no valid service of the summons on the tenant. the counsel for the tenant also intimated to the court that the tenant himself was out of india and was in sri lanka. (4) the additional rent controller took the view that as within 15 days of the service, which had been effected on the son of the tenant, an application for leave to contest bad not been filed it must be presumed that the statements made in the eviction petition were deemed to be admitted. after going through the averments made in the eviction the trial court allowed the same and passed an order of eviction against the tenant. the tenant was, however, given six months' time to vacate the premises. (5) the aforesaid decision is.....
Judgment:

B.N. Kirpal, J.

(1) The challenge in this revision petition under section 25B(8) is to the eviction order which has been passed against the petitioner tenant on an eviction petition having been filed by the landlady.

(2) The landlady filed a petition under Section 14(l)(e) read with section 25B of the Act against the tenant, who is occupying the first floor of premises No.F-18, Geetanjali Enclave New Delhi. The landlady herself is residing on the ground floor of the said house. Summons were issued by the Additional Rent Controller, Delhi, under the Third Schedule, to the tenant. The tenant could not be personally served. The summons were received by his son. Though, as per the record, summons were also directed to be issued by registered Ad, but there is nothing on record to show that such direction was complied with.

(3) On the date which was fixed for hearing, namely, 23rd February, 1981 acounsel appeared on behalf of the tenant. I was admitted that affidavit had not been filed seeking ieave to contest the eviction petition but it was contended that there has been no valid service of the summons on the tenant. The counsel for the tenant also intimated to the court that the tenant himself was out of India and was in Sri Lanka.

(4) The Additional Rent Controller took the view that as within 15 days of the service, which had been effected on the son of the tenant, an application for leave to contest Bad not been filed it must be presumed that the statements made in the eviction petition were deemed to be admitted. After going through the averments made in the eviction the trial court allowed the same and passed an order of eviction against the tenant. The tenant was, however, given six months' time to vacate the premises.

(5) The aforesaid decision is challenged in the present revision petition. It is contended by the learned counsel, while replying upon the case of Om Prakash Sharma v. Brij Nalh Sharma 1980 D.L.T. 313, that in order that there should be valid service of summons the same must be served on the tenant himself.

(6) An important question which arises in this case is with regard to the mode and manner of service of summons which is issued under Section 25B of the Act. The relevant provisions of Section 25B, in this behalf, are set out below:

'25B(2)The Controller shall issue summons, in relation to every application referred to in sub-section (1), in the form specified in the third schedule. 3(a) The Controller shall, in addition to, and simultaneously with the issue of summons for service on the tenant, also direct the summons to be served by registered post, acknowledgment due, addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works for gain and may, if the circumstances of the case so require, also direct the publication of the summons in a newspaper circulating in the locality in which the tenant is last known to have resided or carried on business or personally worked for gain. (b) When an acknowledgment purporting to be signed by the tenant or his agent is received by the Controller or the registered article containing the summons is received back with an endorsement purporting to have been made by a postal employee to the effect that the tenant or his agent had refused to take delivery of the registered article, the Controller may declare that there has been a valid service of summons. 4. The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the in the Third Schedule shall not contest the prayer for eviction from the premises unless he files an affidavit staling 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 turn 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.'

(7) Under sub section (2) the Controller is required to issue summons of an application filed under Section 14(l)(e). Sub Section 3(a) enables the Controller to direct the issuance of summons by registered post, acknowledgment due. This is to be in addition to the summons of service which are directed to te issued under Sub section (2). Sub section 3(a) also enables the Controller to direct the publication of summons in a newspaper circulating in the locality in which the tenant is last known to have resided or carried on , business etc. Sub Clause (b) of Sub-Section 3, inter-alia, provides I hat the Controller may declare that there has been a valid service of summons after an acknowledgment purported to be signed by the tenant or his agent is received or an endorsement by a postel employee is received to the effect that the tenant or his agent has refused to take delivery. It is pertinent to note that though under Sub-Section 3(a) the Controller is empowered to direct the publication of sunimons, in addition to the summons being issued in ordinary way and by registered post, sub clause (b) of Sub-section 3 recognises valid service having been effected only after the registered post is delivered in the manner provided in the said sub clause Sub clause (b) does not recognise the publication of the summons in the newspaper by itself, to be a valid and sufficient service.

(8) Sub section 4 provides that on summons being duly served, whether in the Ordinary way or by registered post, a tenant is required to file an affidavit seeking leave to contest if he wants to oppose the application for eviction. Reading of sub section 4 also shows that the publication of the summons in a newspaper under Section 25B(3)(a) is not regarded as a valid service. This would flow from the fact that in sub section 4 the expression 'summons is duly served' is, in effect, clarified to mean 'whether in the ordinary way or by registered post'. If the publication of the summons in a newspaper under sub section 3(a) was to be regarded as due service then the words appearing in bricket namely 'whether in the ordinary way or by registered post' would have been unnecessary. These words have been inserted with a view to exclude the publication of the suromons in the newspaper under sub section 3(a) as being regarded as a valid service.

(9) The question, however, arises as to whether the summons sent in the ordinary way have to be served on the tenant himself or can be served in the manner provided by Order 5 Rule 15 Civil Procedure Code . In the case of Om Prakash v. Brij Nath Sharma 1980 DL.T. 313 Harish Chandra J. has taken the view that the service of summons in accordance with Order 5 Rule 15 cannot be regarded as a valid service if the summons are served on a male member of the tenant. In this connection the learned Judge observed as follows :

'INthe face of the clear procedure for service of summons set out in Sub-sections (3)(a) and (b) of Section 25B, no other provision of law in derogation of the same can be pressed in aid or relied upon. Under Sub-section (3)(b), the Controller can declare valid service of summons only in the two events described therein and not otherwise'.

(10) With respect, the learned Judge has overlooked that the proced are for service specified in Sub-section 3(a) and (b) is with regard to the issuence of summons by registered post or by publication in the newspaper. Issuance of summons in the ordinary way is ordered not in exercise of powers under sub section 3(a) but is ordered in exercise of Controller's powers under subs ection 2 of Section 25B Reading sub sections 2, 3(a) and (b) and sub section 4 together it is clear that section 25B postulates summons being issued in three ways It has to be issued in the ordinary way, as provided by sub section 2, it is also required to be issued by registered post as provided by sub section 3(a) and it may also be issued by publication in a newspaper in the manner again specified by sub section 3(a). It is only the summons sent by registered post which requires that the acknoweagment should be signed by the tenant or his agent. The word 'acknowledgment' occurring in Section 25B(3)(b) has reference to the words 'acknowledgment due' occurring in the previous sub clause, namely, sub clause 3(a) The acknowledgment referred to in sub section 3(b) is postal acknowledgment which is sent along with the registered post. The word 'acknowledgment' referred to in sub sectjon 3(b) is not the acknowledgment of the summons issued under sub section.(2). It is this confusion which led to the aforesaid observations being mide by Harish Chandra, J. In that judgment reference has not been made to the provisions of sub section (2) and sub section (4) of Section 25B. Sub section (4) of Section 25B puts the matter beyond all doubt. The use ofthe words ''in the ordinary way' clearly implies the manner in which the service is effected under the provisions of the Code of Civil Procedure. If the reasoning in the 0m Prakash's case is correct then it will lead to the conclusion that a tenant who deliberately aoeids service can never be served because, as I have already observed. Section 25B does not recognise service by publication ordered under sub section 3(a) as being a valid service. The view which I have taken, however, would make the section workable. The Controller is obliged, as I read the section, to order the issuance of summons inordinary way as well as by registered post. If the tenant is served by either of the two ways then the service is deemed to be complete which would thereupon enable the tenant to apply for leave to contest the eviction petition. If the service is not affected by registered post then summons which are issued in the ordinary way may be served in the manner provided under Order 5 including Rule 15 thereof.

(11) Applying the aforesaid principles to the present case, it is clear that there was a valid service of the summons through the son of the tenant. The tenant did not, admittedly, apply within 15 days of the said service for leave to contest. The Controller, now it has been held, has no jurisdiction to apply the provisions of Section 5 of the Limitation Act and condone the delay. For the aforesaid reasons I would have been inclined to dismiss the revision but Mr. Sen has sought to invoke the dictum laid down in the case of Jagdish Pershad v. Phoolwati Deoi, 1980 Raj. L.R. 367, wherein it has, interalia, been held that though the delay in filing an application for leave to contest cannot be condoned, the Controller nevertheless has the power, after passing an order turn eviction, to apply the analogy of Order 37 Rule 4 Civil Procedure Code . and to set aside the eviction order. In that case a Division Bench of this court observed that even though such an application was not moved before the Rent Controller the said plea can be raised in a revision. The court, however, cautioned that an order of remand requiring the Controller to deal with such a plea should not be lightly passed and the court should see whether the circumstances which are disclosed arc such which rncessitates reconsideration of the case by the Controller.

(12) The circumstances in the present case are that the landlady and the tenant are living in the same premises. The notice terminating the tenancy was issued on 25th April, 1980. The tenant left India on 3rd September, 1980 on deputation to the World Health Organisation. He was posted in Sri Lanka. It is thereafter that the present petition was filed on 18th December, 1980. At that lime the tenant was admittedly out of the country. The service of the summons was affe ted on the tenant's son. He, however, could not, under sub section (4) of Section 25B, file an affidavit praying for leave to contest. Such an affidavit could have been filed only by the tenant himself. It is clear under these circumstances that the tenant could not put in appearance and apply for leave to contest within the prescribed period of 15 days. In his affidavit it has been stated by the tenant that it takes atleast 7 days C for letters from Delhi to reach Kalutara in Sri Lanka, which place is about 30 miles from Colombo. Even if the, summons had been forwarded by the son of the tenant on the very day on which he received the same, there is little livelihood of the tenant being able to get the requisite legal advice and to send back an affidavit seeking leave to contest to be filed in Court within P 15 days of service. lam, thereforee, satisfied that circumstances has been. disclosed which would necessitate reconsideration of the case by the Additional Rent Controller.

(13) For the aforesaid reasons, the revision is allowed. The plea of the tenant to exercise powers under Order 37 Rule 4 is entertained. The case is, however, remanded to the Additional Rent Controller to decide is to whether, on the fact and circumstances of the case, the order of eviction should be set aside and leave to contest granted on the analogy of Order 37 Rule 4 C.P.C. The parties to appear before the Additional Rent Controller on 14th April 1982. Parties to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //