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Subhash Anand Vs. Krishan Lal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 156 of 1983
Judge
Reported inAIR1985Delhi350; 27(1985)DLT269; 1985(8)DRJ178
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantSubhash Anand
RespondentKrishan Lal
Advocates: Y.P. Bhasin,; O.N. Vohra and; M.L. Kapur, Advs
Excerpt:
.....be served on his agent unless the summons are addressed to the agent. the limitation will start running against the tenant only after be has been served. - - (4) in this application for leave to appear and contest, it was inter alias stated on behalf of the tenant that he has not been served in accordance with law and is entitled to service of summons about this case but he is making this application only as a precautionary measure so that ends of justice may not be defeated behind his back. (7) it will be noticed that in the present case the learned' additional rent controller directed the summons to be issued in the form prescribed in schedule iii both by ordinary process as well as by registered cover......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 of 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.....
Judgment:

Yogeshwar Dayal, J.

(1) This revision petition under Sub-section (8) of Section 25-B of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Act) is directed against the order dated 17th January, 1983 passed by learned Additional Rent Controller, Delhi dismissing the application filed on behalf of the petitioner for leave to appear and contest the ejectment application filed by the respondents against him under the provisions of clause (e) to the proviso to Sub-section (1) of Section 14 read with Section 25-B of Delhi Rent Control Act, 1958 on the ground of their bona fide personal requirement.

(2) It appears that the respondents-landlord filed the aforesaid ejectment application on or, about 25th January, 1982. The petition came up before the learned Additional Rent Controller on 27th January, 1982 when it was directed to be registered and it was also directed that the notice under Schedule Iii be. issued to the respondent (petitioner herein) for 14th April, 1982 vide process fee and registered cover within a week. The staff of the Controller reported that the tenant has been served through Neelam Anand. It transpires from the record that matter was taken up by the learned Additional Rent Controller, Delhi on 14th April, 1982 and the counsel for the landlord wanted to argue on the point that service through Neelam Anand is sufficient service and the case was adjourned for arguments on the point to 14th May, 1982.

(3) It appears that the tenant-petitioner herein filed an application for leave to depend the ejectment application dated 2nd May, 1982 on or about 3rd May, 1982 and before the matter could be listed for arguments as desired by the Controller earlier in view of the leave application which appears to have been presented by the petitioner accompanied by his counsel, it was directed that the application for leave to defend the ejectment application will be taken up on 16th August, 1982 for reply and arguments.

(4) In this application for leave to appear and contest, it was inter alias stated on behalf of the tenant that he has not been served in accordance with law and is entitled to service of summons about this case but he is making this application only as a precautionary measure so that ends of justice may not be defeated behind his back.

(5) As stated earlier, by the impugned order the learned Additional Rent Controller held that there was valid service of summons through registered A/D post and accordingly since the application was not filed within 15 days of such service, the application was dismissed as barred by time and a decree was passed by the Controller.

(6) The procedure for disposal of an application filed, inter alia, on the ground contained in clause (e) to the proviso to Sub-section (1) of Section 14 of the Act is stated in Sub-sections (1) (2) (3) and (4) of Section 25B of the Act. For facility of reference, the aforesaid provisions are re-produced herreunder:

'25B(1)Every application by a landlord for the recovery of possession of any premises on the ground specified in Clause (e) of the proviso to Sub-section (1) of Section 14, or under Section 14A, shall be dealt with in accordance with the procedure specified in this section. (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 of 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 third Schedule shall not contest the prayer for eviction front 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 for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to an order turn eviction on the ground aforesaid.

It will be noticed from the provisions of Sub-section (1) of Section 25B of the Act that such application are required to be dealt with in accordance with the procedure specified in this Section. Sub-section (2) thereof contemplates that the summons shall issue in the form specified in the Third Schedule. Sub-section (3)(a) contemplates that 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 lire service at the place where the tenant or his agent actually and voluntarily resides... ..Sub-section (3)(a) also contemplates that if the circumstances of the case so require, the Controller shall also direct the publication of the summons in 3 newspaper.

(7) It will be noticed that in the present case the learned' Additional Rent Controller directed the summons to be issued in the form prescribed in Schedule Iii both by ordinary process as well as by registered cover. There was no service by ordinary process at all. What we find is that the summons in the form prescribed in Third Schedule were sent to the tenant by registered post acknowledgment due which were not served on the tenant but were served on the Neelam Anand.

(8) In reply to the averments of the tenant in his application for leave that he has not been served in accordance with law, the landlord stated that the tenant has been duly served by summons by registered post acknowledgment due and this is enter from the letter addressed by the wife of the tenant dated 10th February, 1982 on receipt of the summons with the copy of the application for eviction. The letter dated 10th February, 1982 purported to has been sent by Neelam Anand to the learned Additional Rent: Controller as follow;

'10TH Feb. '82 Sardar Kuldip Singhji, Addl Rent Controller Tis Hazari Court Room B No. ; 21, Delhi. Dear Sh. Kuldip Singhji, I acknowledge receipt of your summons on behalf of Shri Subhash Anand under Reference Suit No. E46/82 petitioner Shri Krishan Lal versus Respondent Shri Subhash Anand. I, Smt. Neelam Anand hereby say that Shri Subhash Anand is out on a business tour and shall be back by the end of March, 1982. The referred summons will be delivered to Shri Subhash on his arrival. Till that time I would request your honour to kindly grant him sufficient time and oblige. Thanking you, in the meantime I remain, Vours faithfully, Neelam ANAND'.

(9) It will be noticed that no summons Were either taken out of directed by the Controller to be served on any agent of the tenant empowered to accept service of summons. The provisions of Sub-section 3(a) and 3(b) read together contemplate that the summons sent by registered post acknowledgment due have to be addressed to the tenant or his agent em powered to accept service. The summons, which are not addressed to the agent of the tenant empowered in this behalf are not to be served on the agent. If it only the summons addressed to the agent of the tenant empowered to accept the service. Which may be served on such agent. Merely, because Neelam Anand, who is wife of the tenant, accepts registered letter containing summons sent to her husband, it does not mean that the summons were addressed to her as an agent empowered in this behalf within the meaning of Sub-section (3)(a) and that they were accepted.

(10) A combined reading of Sub-sections (2) and (3)(a) and (b) postulate (1) that the summons have to be issued in the form specified in the Third Schedule not only by ordinary process, but as a'IS8 to be directed to be issued by the registered post acknowledgment due; (ii) The summons which are issued by registered post acknowledgment due have to be addressed to the tenant or his agent empowered to accept service (iii) It is the discretion of the Controller to direct publication of the summons in a newspaper, it the circumstances of the case so required (iv) If the summons are addressed to the tenant, the postal acknowledgment due cannot be signed by anybody except the tenant. The agent empowered to accept service can only accept the notice and sign acknowledgment due if the summons are addressed to such agent.

(11) This procedure in detail has been prescribed because a limitation is prescribed for the tenant to obtain leave of the Controller to contest the application for eviction and the period of limitation is very short, namely, 15 days. The short period is prescribed because of the urgency in disposal of the eviction application based on the ground of bona fide personal requirement. But when the urgency is there, the legislature has taken rains to also provide that decrees are not passed ex-parte without the tenant being served personally or the agent of the tenant who is empowered to accept service is served so that the tenant has full knowledge of the nature of the proceedings and his duty to apply for leave to contest. The legislature does not expect this knowledge to be imparted to him through any male or female number of his family or a stranger.

(12) In the present case the summons were not addressed to any agent empowered to accept service on behalf of the tenant. They were certainly not received be any agent empowered to accept service. There was no plea by the landlords in their reply application that Neelam Anand was the agent empowered to accept service.

(13) Mr. O.N. Vohra, learned counsel for the landlords submitted that it was something in special knowledge of the tenant and he should have made the averment. It will be noticed that the period of limitation starts after proper service of the tenant. The due service is to be checked by the Controller. In fact, it is his pious duty what the tenant was required to submit, he has submitted in his leave application that he has not been served in accordance with law As I have noticed earlier, the agent is empowered to accept service only when the summons sent by registered post acknowledgment due are addressed to the agent empowered in this behalf. Summons addressed to the tenant, who is an individual person, cannot be served on his agent empowered unless the summons are addressed to the agent.

(14) In the circumstances, the learned Additional Rent Controller gravely erred in assuming due service of the petitioner herein so that limitation will start running against him for the purpose of filing application for leave to contest. Since the limitation for filing the application for leave has not yet begun, the application for leave to contest could not be dismissed on the ground that it was barred by time. The impugned order of learned Additional Rent Controller, Delhi, is accordingly, set aside and the Additional Rent Controller is directed to decide the application for leave to contest in accordance with law. Records, should be sent back forthwith.

(15) The civil Revision is disposed of accordingly.

(16) Parties are directed to appear before the learned Additional Rent Controller on 15th February, 1985.


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