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B.K. Bali Vs. Sant Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 1143 of 1980
Judge
Reported in20(1981)DLT410; 1982(3)DRJ42; 1981RLR133
ActsDelhi Rent Control Act, 1958 - Sections 25B(2)(3)
AppellantB.K. Bali
RespondentSant Lal and ors.
Advocates: V.K. Makhija and; K.C. Kalra, Advs
Excerpt:
delhi rent control act, 1958 - section 25-b(2), (3)(a) and (4) service effected through publication in 'janyug'.; the words 'duly served' mean service in the ordinary way or by registered post. service effected through publication in an obscure newspaper 'janyug' is no service. the law requires that the newspaper should be one which has a circulation in the locality. - - (3) on the application for ejectment having been filed the trial court directed the issue of summons by ordinary process as well as by registered post. there is nothing to show that the trial court was satisfied that this newspaper is circulated in the locality in which the tenant was living......25-b of the delhi rent control act. (2) the respondents (herein referred to as the landlords) filed an application under section 14 for the eviction of the petitioner (hereinafter referred to as the tenant). this application was filed on 24th january, !979 under section 14(l)(e) read with section 25-b of the said act. (3) on the application for ejectment having been filed the trial court directed the issue of summons by ordinary process as well as by registered post. it appears that a number of attempts were made but service could not be effected on the tenant. on an application being filed under order 5 rule 20, c. p. c. the trial court on 27th november, 1979 ordered that the stmmons be published in 'janyug'. this publication was effected on 29th december, 1979. on the next date of.....
Judgment:

B.N. Kirpal, J.

(1) The short but important question which arises in this Civil Revision is with regard to the service of the summons under the Provisions of Section 25-B of the Delhi Rent Control Act.

(2) The respondents (herein referred to as the landlords) filed an application under Section 14 for the eviction of the petitioner (hereinafter referred to as the tenant). This application was filed on 24th January, !979 under Section 14(l)(e) read with Section 25-B of the said Act.

(3) On the application for ejectment having been filed the trial court directed the issue of summons by ordinary process as well as by registered post. It appears that a number of attempts were made but service could not be effected on the tenant. On an application being filed under Order 5 Rule 20, C. P. C. the trial court on 27th November, 1979 ordered that the stmmons be published in 'Janyug'. This publication was effected on 29th December, 1979. On the next date of hearing i.e. on 13th February, 1980 the tenant appeared in court. It was noted by the trial court in the order that the counsel for the tenant accepted service from today. A copy of the application under Section 14(l)(e) was given to the tenant's counsel on that day. The case was thereafter listed for 10th March, 1980 for further proceedings.

(4) Before the next date of hearing the tenant, on 26th February, 1980 applied to the Rent Controller for permission to contest the application for eviction. By the impugned order it was held that there had been valid service on the tenant on 29th December, 1979 when the summons were published in 'Janyug' and as the publication for leave to contest had not been filed within 15 days of the said publication the said application was barred by time. The trial court also observed that, as held by this court in 1980 Delhi 216, the delay in filing the application could not be condoned. After rejecting the application for leave to contest by the impugned order dated 4th October, 1980 the trial court ordered the eviction of the tenant.

(5) In the present petition under Section 25-B(8) the aforesaid order of the First Additional Rent Controller, Delhi, is sought to be challenged.

(6) Before dealing with the rival contentions it is necessary to refer to the relevant provisions of Section 25-B. The relevant provisions in the present case are sub-sections 2, 3(a) and 4 of Section 25-B which reads as under :

'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, acknowledgement 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. (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 Third Schedule shall not contest the prayer for eviction from the premises unless he files an affidavit slating the grounds on which he seeks to contest the application for eviction and obtain 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 for 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) The form of summons is specified in the Third Schedule. As per the said form of summons a copy of the application is required to be annexed to the summons. Sub-section (2) of Section 25-B requires the Controller to issue summons in the said form specified in the Third Schedule. This means that along with the summons it is obligatory on the Controller to see that a copy of the application for eviction is annexed. Under sub-section 3(a) of Section 25B the Controller could do three things. Firstly, he is required to issue summons for service on the tenant by ordinary process and is also required to direct the summons to be served by registered post. The said sub-section further enables the Controller, if the circumstances require, to direct the publication of the summons in a newspaper circulated in the locality. From a reading of the sub-section it would appear that the direction with regard to the publication of the summons in a newspaper was not mentioned to be a mode of service of the summons. This would be clear when reference is made to sub-section (4) of Section 25B. The opening words of this sub-section make it clear that the words 'duly served' would mean service in the ordinary way or by registered post. The words 'whether in the ordinary way or by registered post' occurring in the said sub-section after the words 'duly served, can only have one meaning that for the purposes of sub-section (4) publication in the newspaper which may have been ordered under sub-section 3(a) would not be regarded as due service of summons.

(8) I, however, refrain from giving any final decision on this aspect of the case, because even if it be assumed that service could be effected by publication in a daily newspaper, in my opinion in the present case this requirement had not been validly complied with. The requirement is of publication in a daily newspaper which is circulated in the locality. In the present case the publication was ordered to be effected in 'Janyug'. This is a newspaper of which I at least had never heard of before. There is nothing to show that the trial court was satisfied that this newspaper is circulated in the locality in which the tenant was living. It is not desirable for the courts merely to do lip-service to the provisions of the law. When the law requires service to be effected by publication in a newspaper it is not the intention that the publication should be in a obscure newspaper of which no one or very few people have heard. The law requires that the newspaper should be one which has a circulation in the locality. The aspect should not be lost sight of by the court while ordering substituted service by publication in the newspaper.

(9) As there was no service by ordinary way or by registered post and the service by publication was also not valid it must follow that the valid service took place only when the petitioner appeared in court on 13th February, 1980. The affidavit for leave to contest was admittedly filed within 15 days of the said appearance. This affidavit was filed within time. There was no delay in the said affidavit being filed and, thereforee, the trial court was wrong in holding that the affidavit was barred by time.

(10) I accordingly allow the revision and set aside the order dated 4th October, 1980 and direct the trial court to decide the request on behalf of the petitioner for leave to contest on merits. The parties to appear before the First Additional Rent Controller on 29th September, 1981.

(11) No costs.


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