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Kamal Bhandari Vs. Shamsher Singh Malhotra - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 662 of 1979
Judge
Reported inAIR1982Delhi102; 20(1981)DLT380; 1981(2)DRJ260
ActsDelhi Rent Control Act, 1958 - Sections 25B(4); Limitation Act, 1963 - Sections 5
AppellantKamal Bhandari
RespondentShamsher Singh Malhotra
Advocates: M.S. Sahni,; R.K. Makhija and; Alok Kumar, Advs
Cases ReferredSurinder Kumar Jain v. Prem Kumar
Excerpt:
.....1979 filed an application seeking eviction of the petitioner-tenant under section 14(l)(e) read with section 25b of the delhi rent control act, 1958. summons were ordered to be issued in the ordinary manner as well as by registered a. ordinary summons was served on 25th march, 1979. the tenant endorsed on the back of the summons, received with copy. by ordinary process as well as registered post on 25th march, 1979 and 2nd april......on 13th april, 1979 filed an application under section 25b of the act seeking leave to defend the eviction application together with an application under section 5 of the limitation act for condensation of delay. he stated that he was served with the summons on 25th march, 1979 by ordinary process and by registered a.d. on 2nd april, 1979. the additional rent controller dismissed the application for leave to defend on the ground that it was barred by time and passed an order of eviction. the tenant has filed this revision. it is not disputed that the petitioner-tenant was duly served by both the processes i.e. by ordinary process as well as registered post on 25th march, 1979 and 2nd april. 1979 respectively. i he dispute is, from which date the period of 15 days will commence for.....
Judgment:

Sultan Singh, J.

(1) The respondent-landlord on 15th March, 1979 filed an application seeking eviction of the petitioner-tenant under Section 14(l)(e) read with Section 25B of the Delhi Rent Control Act, 1958. Summons were ordered to be issued in the ordinary manner as well as by Registered A.D. post. Accordingly the same were issued in the form prescribed i.e. Third Schedule to the Act. Ordinary summons was served on 25th March, 1979. The tenant endorsed on the back of the summons, 'received with copy. Signed Mrs. Bhandari. 25-3-1979'. The registered cover containing the summons was sent by the Additional Controller on 31st March. 1979 and was served upon the petitioner-tenant on 2nd April, 1979.

(2) The petitioner-tenant on 13th April, 1979 filed an application under Section 25B of the Act seeking leave to defend the eviction application together with an application under Section 5 of the Limitation Act for condensation of delay. He stated that he was served with the summons on 25th March, 1979 by ordinary process and by Registered A.D. on 2nd April, 1979. The Additional Rent Controller dismissed the application for leave to defend on the ground that it was barred by time and passed an order of eviction. The tenant has filed this revision. It is not disputed that the petitioner-tenant was duly served by both the processes i.e. by ordinary process as well as registered post on 25th March, 1979 and 2nd April. 1979 respectively. I he dispute is, from which date the period of 15 days will commence for filing the application for leave to defend. The form prescribed in Third Schedule requires the tenant to appear within 15 days from the service thereof and obtain the leave to contest the eviction application. Section 25B prescribes the mode of service of eviction application on the tenant. The first models by ordinary process. The second mode prescribed is by registered acknowledgement due post and the third is by publication in newspaper. Section 25B(4) of the Act reads as under :

'S. 25B(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 stating 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 for eviction shall be deemed to be admitted by the tenant and the application shall be entitled to an order for eviction on the ground aforesaid.'

(3) Under this sub section a tenant who is served in either of the two modes is required to obtain leave to defend by filing the affidavit and if he fails to do so the statement made by the landlord in the application for eviction is deemed to be admitted by the tenant and the landlord is entitled to an order of eviction. Under Sub-section (4) if a tenant has been duly served by either of the two modes the period of limitation is to commence from the date of service. Learned counsel for the petitioner submits that when two modes of service have been prescribed the period should commerce from the later date of service. I do not agree. When the Statute provides that leave to defend application is to be filed when the summons is duly served in either of the two ways, the first service is not wiped out by the second service. In other words, if the tenant has been served in the ordinary process and he is served again by registered post the service by registered post does not wipe out first service. It is thereforee held 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, In the present case admittedly the petitioner was served on 25th March, 1979 and thereforee the period of 15 days will commerce from that date. The application for leave to defend filed on 13th April, 1979 is, thereforee, barred by time.

(4) Learned counsel for the petitioner submits that he made an application under Section 5 of the Limitation Act for extending the period of 15 days for filing the application for leave to defend. This matter stands concluded by the Division Bench in Jagdish Pershad v. Smit. Phoolwati Devi : 17(1980)DLT446 wherein it has been held as under :

'(A) Section 5 of the Limitation Act is not applicable to extend the period of limitation prescribed by the Third Schedule to the Delhi Rent Control Act, 1958. (b) The benefit on the analogy of Order 37, Rule 4, Civil Procedure Code, can, however, be given to the tenant if the special circumstances of the case justify it'.

(5) Thus the application under Section 5 of the Limitation Act is not maintainable.

(6) Learned counsel for the petitioner referred to the judgment in Surinder Kumar Jain v. Prem Kumar, 18 (1980) DLT 225 wherein an observation has been made that when two simultaneous modes of service have been prescribed, and if in both there is due service but on different dates, then the tenant can contend that the time should run from the later of the two. The tenant was served on 6th October, 1979 in the ordinary process and the application for leave to defend was filed on 24th October, 1979. The tenant contended that the registered cover was tendered to him on 12 October, 1979. Learned single Judge after going into the facts of the case accepted the finding given by the Additional Controller that the service of summons was effected on 6th October, 1979. The case was remanded for, consideration of the request of condensation of delay. The facts of that case are different. The revision petition is dismissed with no order as to costs.


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