V.K. Saboo And Anr. vs Additional Collector And Ors.
2004 Latest Caselaw 907 Bom

JUDGMENT

A.P. Deshpande, J.

1. This Letters Patent Appeal is at the behest of a tenant who is in occupation of house premises situated at Ramdaspeth, Nagpur. The said premises are owned by respondents No. 2 to 4 and they are the landlords. The landlord filed an application seeking permission of the Rent Controller under Clause 15 of the C.P. and Berar Letting of Premises and Rent Control Order, 1949, to terminate the tenancy on various grounds. The Rent Controller issued notices twice but as the appellant/tenant could not, in the opinion of the Rent Controller, be duly served, he chose to take recourse to the provisions in regard to the substituted service and issued directions accordingly. The Process Server noticing that the present appellants are absent, effected the substituted service by pasting the notice on the conspicuous part of the premises. The appellants were proceeded ex parte and final order came to be passed by the Rent Controller granting permission to the respondents to terminate the tenancy of the appellants. After obtaining the permission under the Rent Control Order, the landlord terminated the tenancy of the appellants and filed a civil Suit.

2. It is the case of the present appellant that he found suit summons lying in his premises on 17-4-1990 and hence within a period of 30 days he moved an application for setting aside the ex parte order granting permission in favour of the landlord to terminate the tenancy. The Rent Controller allowed the application by an order dated 3-8-1991 and aggrieved thereby an appeal came to be filed by the present respondents before the appellate authority viz. Additional District Collector. The appellate authority reversed the order passed by the Rent Controller whereby the application for setting aside the ex parte order was allowed and thereby restored the earlier order dated 2-6-1987. Dissatisfied by the order of the appellate authority the present appellants filed a writ petition which came to be heard and decided by the learned Single Judge of this Court. The learned Single Judge by a judgment and order dated 11-7-1996 dismissed the writ petition and confirmed the order passed by the appellate authority. Aggrieved by the judgment of the learned Single Judge, the present L.P.A. has been filed.

3. It may not be out of place to state at this juncture that the suit filed by the landlord based on the permission granted by the Rent Controller came to be decreed by the Additional Judge of the Small Causes Court. Dissatisfied with the decree for eviction, the appellants preferred an appeal before the District Court who in turn dismissed the appeal and thereafter appellants moved this Court by filing a revision and the revision petition also came to be dismissed.

4. Two-fold submissions are made by the learned counsel by Shri Parchure appearing for the appellants (i) that the only mode permissible for effecting service of notice as per Clause 18 A of the Rent Control Order is to serve the respondent by registered post acknowledgment due and no other mode is permissible. In the present case, substituted service has been effected and (ii) that the appellant/tenants were not served with the suit summons in the matter pending on the file of the Rent Controller and as such the ex parte order ought to have been set aside.

5. No doubt perusal of Clause 18-A (2) reveals that every notice issued by the Rent Controller to the parties shall be by registered post. In view of this provision, it is amply clear that as the Statute provides for mode of service, no other mode is capable of being adopted except the one prescribed by the Statute. This by itself does not advance the case of the appellants any further, the reason being that the Rent Controller did issue notices in the first and second instance but both the notices could not be duly served on the appellants/tenants. The copy of the order sheet dated 17-11-1986 which is placed on record at page 36 reads thus :

'Applicant by counsel. Notice received back with remark out of station. Case for fresh notice to N. As. For notice after payment of P.F.'

The order sheet dated 22-1-1987 reads thus :

'Applicant by counsel. Second notice received back unserved with remark out of station. Case for fresh notice by peon, through the Tahsildar, Nagpur after payment of P.F.'

6. It is nowhere the grievance made by the present appellants that the earlier notices were not issued by registered post acknowledgment due. Even otherwise, the order sheet is capable of being so read that the earlier notices were issued by registered A.D. The original record is not available as the same is reported to have been destroyed. In the absence of any averments either in the application for setting aside the ex parte order or in the writ petition that notices were not sent by registered A.D. by the Rent Controller, it will have to be presumed that the Rent Controller has issued notices in accordance with law and has performed the duties as expected by the Statute. Hence we hold that earlier two notices were issued by Registered A.D. The question now that arises for consideration is as to whether is the Rent Controller having jurisdiction, power and authority to order service of notice by some other mode, if the service is not being effected by following the mode that is laid down under the C.P. and Berar Letting of Premises and Rent Control Order, 1949. A statute cast an obligation on the authority to grant an opportunity of hearing to the respondents and if the Rent Controller finds himself unable to make available such an opportunity to the respondents by adhering to the only mode provided for under the Act, no exception could be taken to alternative mode being adopted by the authority exercising judicial or quasi judicial powers. We read the power to effect substitute service in the Rent Controller exercising powers under C.P. and Berar Letting of Premises and Rent Control Order, 1949 as an inherent power and it will have to be so read as the same is in furtherance of principles of natural justice. The focus has to be on achieving larger goal i.e. making available an opportunity to the respondent to participate in the proceedings. If notice sent by Registered A.D. is not being served the Rent Controller would be well within his powers to direct substitute service. What flows from the provision is that, without following the mode prescribed for effecting service, no other mode of service should be resorted to. The Process Server has pasted the notice on the conspicuous part of the premises and this is how the substituted service has been legally effected. If this is so, then the date on which the substituted service is effected, will be the date on which the appellants will be deemed to have knowledge of service of notice. The Rent Controller has rightly passed order on 2-6-1987 relying on the substituted service treating the appellants as served.

7. The application for setting aside the ex parte order is moved on 25-4-1990. The said application was obviously moved much beyond the period of limitation and as such the application ought to have been accompanied by an application for condonation of delay. It is not in dispute that no application for condonation of delay came to be filed along with the application for setting aside ex parte order, as it has been all through the case of the appellant that the application for setting aside was moved within the period of limitation from the date of knowledge of the order and according to the appellant the date of knowledge is the date on which he found the suit summons lying in his premises on 17-4-1990. As recorded by us hereinabove, the date of knowledge shall be deemed to be 26-2-1987 viz. the date of effecting a substituted service. In this view of the matter, we have no iota of doubt that the appellants ought to have moved an application seeking condonation of delay in filing the application for setting aside the ex parte order. Shri Choube, the learned counsel for the respondents has contended that though the Rent Controller is possessed of powers to condone the delay, the said powers can only be exercised provided the same is invoked by a party and not otherwise. He points out that in the present case as no application was moved by the appellant invoking power to condone the delay, the Rent Controller had no jurisdiction to condone the delay. The delay is not even explained in the application for setting aside the ex parte order. The submission appears to be well merited. He places reliance on the Division Bench judgment of this Court reported in 1997(2) Mh.L.J. 168, M.M. College of Science v. R.T. Borkar and Ors.

8. We hold that as no application for condonation of delay was filed by the appellants, the Rent Controller was not justified in setting aside the ex parte order. Delay has to be explained. The Rent Controller's order impugned by the respondents before the appellate authority was rightly set aside.

9. It is not in dispute that at the relevant point of time i.e. in the year 1986-87, the appellant was out of station for a period of about 2 years and had gone to Calcutta and as such could not be duly served with the notice sent by Registered A.D. This is one more reason why we find that the substituted service was properly ordered and effected. The learned Single Judge has rightly dismissed the writ petition filed by the appellants/tenants and we concur with the reasonings recorded by the learned Single Judge in holding that the appellate order which reverses the order passed by the Rent Controller impugned before it, is very much legal and proper. No interference in this L.P.A. is called for.

10. In the result, L.P.A. fails and is dismissed. No order as to costs.

11. At this stage Shri Parchure, the learned counsel appearing for the appellants states that the interim stay operating in the appeal be continued for a period of four weeks. We find the said request just and reasonable and direct that the interim order operating in this L.P.A. shall continue for a period of four weeks from today.