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Om Prakash Vs. Brij Nath Sharma - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 134 of 1978
Judge
Reported in18(1980)DLT313
ActsDelhi Rent Control Act, 1958 - Sections 25B(3); Code of Civil Procedure (CPC), 1908 - Order 5, Rule 15
AppellantOm Prakash
RespondentBrij Nath Sharma
Advocates: H.L. Kapoor and; S.P. Manga, Advs
Cases ReferredAvinash Chander v. Rana Davi
Excerpt:
.....in this respect was against the mandatory requirements of law and surprisingly the additional rent controller failed to apply her mind to this elementary, clear and purposeful mandate of law and glossing over the same, went on to hold that the tenant-petitioner was duly served, a conclusion which cannot be arrived at all in law or on facts. this is all the more important in proceedings under section 25b of the act where a very valuable right of defense is mercilessly and unalterably taken away on failure to appear and plead on or before 15 days from the fateful day of service of summons and the rent control authorities can do precious little to help. i am afraid the facts as well as the conclusions of this judgment have no application to the present case and it is for these reasons..........the address at delhi as well as the address at agra. (2) on 20th may, 1977 the learned additional rent controller ordered issue of summons under schedule iii of the act, turnableonl2thjuly, 1977. the summons were issued on 23rd may 1977. (3) from the record it appears that whereas summons were taken through the process server at delhi, the same were sent by registered post at agra. the summons were not sent through the process-server at agra and through registered post at delhi. (4) on 31st may, 1977 when the process server called at the residence of the petitioner, the petitioner was not present and the summons were delivered to his son. raj kumar. as regards the registered cover sent to agra, it came back undelivered with an endorsement dated 1st june, 1977 to the effect that the.....
Judgment:

Harish Chandra, J.

(1) Shri Brij Nath Sharma, respondent filed a petition for the eviction of the petitioner on the ground contained in clause (e) of Section 14(1) of the Delhi Rent Control Act, 1958. The petitioner, though permanently residing in the premises in dispute at Shahdara Delhi had been posted for work at Agra and, thereforee, the respondent gave two addresses of the petitioner in the eviction petition itself, i.e., the address at Delhi as well as the address at Agra.

(2) On 20th May, 1977 the learned Additional Rent Controller ordered issue of summons under Schedule Iii of the Act, turnableonl2thJuly, 1977. The summons were issued on 23rd May 1977.

(3) From the record it appears that whereas summons were taken through the process server at Delhi, the same were sent by registered post at Agra. The summons were not sent through the process-server at Agra and through registered post at Delhi.

(4) On 31st May, 1977 when the process server called at the residence of the petitioner, the petitioner was not present and the summons were delivered to his son. Raj Kumar. As regards the registered cover sent to Agra, it came back undelivered with an endorsement dated 1st June, 1977 to the effect that the addressee was not at home and it could not be known when he would return. The Check Overseer of the Belanganj Post Office at Agra has verified the above report as correct and has added, by way of English translation of the said report 'left without address'.

(5) The eviction application was taken up on 12th July, 1977. On that day the petitioner filed an application for leave to contest supported by an affidavit. In the application the petitioner claimed to have come to know about the eviction petition only on 10th July, 1977 when he was visiting Delhi and was informed, for the first time, about the summons in the case having been received by the son on 31st May, 1977. The petitioner also filed a separate application for condensation of delay in which also he set up. the case that he was informed about the summons only on 10th July, 1977. In this application it was pleaded that the respondent 'dishonestly got service of summons served on a son of the respondent (petitioner) residing in the premises in dispute, although he knew that the respondent (petitioner) is not available at Shahdara, Delhi.....................'. It was further served in para 3 that, 'The respondent's son is a simpleton. He did not know the consequences of being served with the summons in the name of the respondent nor did he care to send the summons to the respondent at Agra or even to write to the been respondent at Agra that some summons have been received by him for and on behalf of the respondent.'

(6) In para 4, the petitioner contended that :

'That the respondent happened to come to Shihdara on 10th July, 1977. On his arrival he was confronted with the summons of the petition for his eviction......................'

In reply to the aforesaid averments relating to service of summions, the respondent landlord denied any dishonest intention by averring that both addresses, at Shadhara as well as at Agra had been given for service. It was further averred that in fact the petitioner remained in Delhi from 19th May, 1977 to 3rd June,. 1977 and documents were produced showing his presence in Delhi on 3rd June, 1977.

(7) In this background of facts and avermeats, the learned Additional Rent Controller proceeded to decide the disputed question of service of summons on the petitioner.

(8) After noting the case of the parties, the learned Additional Rent Controller noted in para 3 of the impugned order that :

'It has to be seen that the petitioner has given both the addresses of the respondent in the title of the petition itself and summons were served at both the addresses. Registered cover containing the summons and addressed to respondent at Agra were received back with the report dated 31.5.1977 to the effect that the respondent was out of station. On the same day summons sent to respondent at address of suit premises were served on him through his son. It is not the case of the respondent that he had any agent to accept services on his behalf. He was not found at the address of Agra. As .per his own allegations contained in the application under consideration the premises in dispute is his permanent residence. It is not his case that the son who received this summons is not adult. In these circumstances I find that service of summons on 31.5.77 is due service in view of the provisions of order 5, Rule 115 CPG.'

The learned Additional Rent Controller also noted that the petitioner was present in Delhi on 3rd June, 1977 and from this concluded that his averment of having come to know of this summons only on 10th July, 1977 when he was in Delhi was not believed.

(9) In the result, the petitioner having been so held to have been served on 31st May, 1977 the application for leave to contest was not entertained and thereupon, on the same day the learned Additional Rent Controller proceeded to order eviction of the petitioner. It is this composite order of 19th October 1977 which is impugned before me.

(10) Rule 22 of the Delhi Rent Control Rules, 1959 framed under the the Delhi Rent Control Act, 1958 provides that :

Rule 22. 'Service of notice etc, Unless otherwise provided by the Act, any notice or intimation required or authorised by the Act. to be served on any person shall be served. (a) By delivering to the person; or (b) by forwarding it to the person by registered post with acknowledgment due.'

(11) This Rule would apply only if procedure of service has not otherwise been provided in the Act. As this procedure has been provided in Subsections (3) (a) & (b) of Section 25B, it is this which would apply to proceedings under Section 25B. The two Sub-sections are reproduced below :

25B(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. 25B(3)(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 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 their has been a valid service of summons.'

Even a plain reading of the aforesaid provisions makes it clear that the Controller is duty bound to (1) issue summons for service by the ordinary process and (2) simultaneously by registered post A/D, at the place where the tenant actually and voluntarily, resides or carries on business or personally works for gain.

(12) With the respondent-landlord himself showing two addresses of the petitioner in the petition, the Controller was duty-bound to order the above two processes at each of the two addresses. The record shows this was not done. Summons were issued at the Delhi address but no attempt was made to also serve the summons through registered post A/D at this address and summons were not issued through the ordinary process for service at Agra though an attempt for such service was made at Agra through registered post, A/D.

(13) The summons issued for service at Delhi were not served on the petitioner, which is the requirement of law. Instead the same were given to the son of the petitioner, which is not a legal substitute for the former and cannot be regarded as service on the petitioner.

(14) The entire procedure followed in this respect was against the mandatory requirements of law and surprisingly the Additional Rent Controller failed to apply her mind to this elementary, clear and purposeful mandate of law and glossing over the same, went on to hold that the tenant-petitioner was duly served, a conclusion which cannot be arrived at all in law or on facts. The learned Additional Rent Controller pressed in aid order 5, Rule 15 of the Code of Civil Procedure for clutching upon the provision therein, that '........................service may be made on any adult, member of the family, whether male or female, who is residing with him.'

(15) In the face of the clear procedure for service of summons set out inSub-s-'ctions(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.

(16) Even assuming that the provisions of Order 5 Rule 15 can be read as supplementing the provisions in the Rent Act and Rule 22 relating to service of summons, the same have no application to the facts of this case as the pre-requisite condition of 'there is no likelihood of his being found at the residence within a reasonable time.........' was not found as a fact on record before permitting service on an adult if such an adult can at all, in the circumstances of this case) can be said to be residing with the petitioner.

(17) It cannot be emphasised enough that, save in circumstances, expressly provided in law, service of summons has to be personal. It is common knowledge that the landlords are often tempted to cut short the due process of law by taking service of summons on the tenant and it is not only salutary but indeed necessary for the Rent Controller to probe their cord deeply and meticulously to insure that the summons have been duly served before proceeding further. This is all the more important in proceedings under Section 25B of the Act where a very valuable right of defense is mercilessly and unalterably taken away on failure to appear and plead on or before 15 days from the fateful day of service of summons and the Rent Control authorities can do precious little to help.

(18) Reliance was placed on the judgment of H.L. Anand J., in Jagat Ram Khullar v. Battu Mm, A. 1. R. 1976 Delhi 1111, to invoke the presumption of service contained in Section 27, General Clauses Act. Suffice it to say that the pre-conditions in which the presumption can be raised do not exist here and the aforesaid judgment has, thereforee, no application. Reliance was also placed on the judgment of Avadh Behari J., in Avinash Chander v. Rana Davi reported as 1979 Rajdhani Law Reporter 98. This judgment was based on the fact that a tenant had evaded service by a registered post and in these circumstances service by postal certificate and by pasting and affixing a copy of the summons at the premises was considered sufficient service for the purposes of service under Section 106 of the Transfer of Property Act. I am afraid the facts as well as the conclusions of this judgment have no application to the present case and it is for these reasons that I do not consider it necessary to discuss the above two judgments in any detail.

(19) In conclusion, the impugned order dated 19th October, 1977 is set aside and the learned Additional Rent Controller is directed to proceed with the matter from the stage on the petitioner having filed the application for leave to contest and the respondent having filed a reply thereto.

(20) The petition is allowed with costs. Counsel's fee Rs. 300.00 . Petition allowed.


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