S. Kumar vs Bhagwant Singh
1991 Latest Caselaw 225 Del

JUDGMENT

P.N. Nag, J.

(1) This revision petition is directed against the order dated 9.11.1990 passed by Shri M.K.Gupta, Additional Rent Controller, Delhi vide which the application of the petitioner-tenant under Order 37 Rule 4 read with Section 151 of the Code of Civil Procedure, 1908 and Order 9 Rule 13 of the Code of Civil Procedure, 1908 has been dismissed.

(2) The facts giving rise to this revision petition are that the respondent- landlord filed a petition for eviction against the petitioner-tenant on bonafide requirements under Section 1(4)(e) read with Section 25B of the Delhi Rent Control Act. Summons were alleged to have been duly served on the petitioner tenant and since the petitioner-tenant did not put in appearance within the stipulated time and no application for leave to defend was filed on behalf of the petitioner-tenant, the order of eviction was passed by the Additional Rent Controller.

(3) The petitioner-tenant has filed the application under Order 37 Rule 4 read with Section 151 and under Order 9 Rule 13 of the Code of Civil Procedure, 1908 for setting aside the decree passed against the petitioner-tenant and restoration of the suit to its original number mainly on the ground that summons were never served on the petitioner-tenant and since there was no valid service of summons, consequently the order of eviction passed against him cannot be legally sustained and, therefore, requires to be set aside and the petition restored to its original number for fresh trial in accordance with the law.

(4) Learned counsel for the petitioner vehemently submits that no summons as ordered by the Rent Controller have been served on him. According to him, it appears his signatures have been forged by the postal authorities and by the process-server in collusion with the respondent-landlord.

(5) In order to satisfy myself whether or not the summons were served on the petitioner-tenant I have seen the signatures of the petitioner-tenant on the acknowledgement due card of the postal authorities and on the copy of the summons purported to have been received back duly served on the petitioner-tenant. After comparing the signature of the petitioner-tenant on the affidavits filed along with the revision petition and the summons and acknowledgement due card, I am of the opinion that it does create suspicion in the mind whether the summons were actually duly served on the petitioner-tenant although nothing conclusive can be said at this stage .unless an enquiry is held.

(6) Counsel for the respondent also has drawn my attention to annexure C filed with the reply to the civil revision on his behalf. According to him annexure C is a document written by the petitioner-tenant and addressed to the respondent-landlord. In annexure C signature of S. Kumar is also found and seems to be different from the signatures of the petitioner-tenant on the affidavit in the revision petition. Therefore, one thing is very clear that it is not free from doubt whether or not summons were duly served on the petitioner-tenant and that further whether the signatures of the petitioner-tenant on the summons as well as the acknowledgement due card of the postal authorities are genuine. Again, it may be stated that at this stage nothing can be said conclusively about the genuineness of the signatures of the petitioner on the summons as well as acknowledgement card in order to determine whether or not service has been duly effected on him and it requires an elaborate enquiry into the matter. In my opinion, the trial Court should have determined this question first while passing the impugned order, in the absence of which there is material irregularity in the exercise of jurisdiction and, therefore, the impugned order cannot be sustained.

(7) The impugned order is, therefore, set aside and the trial Court is directed to hold a proper enquiry into the matter as to whether or not the signatures of the petitioner-tenant on the summons and acknowledgement due card of the postal authorities are genuine and whether the petitioner was validly and duly served in the suit. This enquiry should be held after giving an opportunity to both the parties to adduce evidence in the matter. Such an enquiry shall be concluded by him within three months from the date the parties appear before him next. Parties are directed to appear-before the trial Court on 2nd April, 1991.

(8) Civil revision stands disposed of. No costs.