Najmuddin vs Khatija Begum And Ors.
1994 Latest Caselaw 447 Del

JUDGMENT

Sat Pal, J.

(1) ADMITTED.

(2) This is a petition filed on behalf of the tenant Under Section 25B(8) of the Delhi Rent Control Act 1958 (hereinafter referred to as the Act) and in this petition it has been prayed that the impugned order passed by the Additional Rent Controller on 19th August, 1992 be set-aside.

(3) Briefly stated the facts of the case are that the respondents/landlords had filed a petition under Section 14(l)(e) of the Act and the notice of this petition was ordered to be issued on 8th October, 1990 to the petitioner/ tenant for 7th January, 1991. It is stated in the impugned order that the petitioner/tenant was served through his wife on 12th October, 1990 and through his brother on 4th November, 1990 by ordinary process. It has also been stated in the impugned order that the registered cover addressed to the tenant was received back with the remarks that the postman had visited the petitioner/tenant many times, but he had refused to take delivery. It has also been stated that since no application seeking permission for grant of leave to defend was filed by the tenant inspite of service, the eviction order was passed on 7th January, 1991. Thereafter the petitioner moved an application for setting aside the ex-parte judgment which has been rejected by the impugned order.

(4) Mr. Ansari, learned counsel appearing on behalf of the petitioner has drawn my attention to the Regd. covers sent to the petitioner and submitted that one registered cover addressed to the petitioner contains the remarks" no such person is residing" and other registered cover addressed to the petitioner contains with the remarks that" Baar BaarltlaDeneper Nahin Milta". He further submitted that the findings of the learned trial court were perverse in as much as the learned trial court had held that the Registered covers addressed to the petitioner were received back with the remarks that he refused to accept the service. He, therefore, contended that the impugned order should be set-aside.

(5) Mr. Aggarwal, learned counsel appearing on behalf of the respondents, however, submitted that though the finding of the learned trial court with regard to the refusal to accept' registered cover were not correct, but the petitioner/ tenant had been served by ordinary process through his wife at one place and through his brother at another place. He, therefore, contended that there was no merit in this petition and the same should be rejected. Mr. Aggarwal further submitted that though Mr. Ansari, learned counsel for the petitioner had stated that he was aware of the proceedings before the Slum Court, but in fact he never appeared before that Court. In support of his contention, learned counsel for the respondents placed reliance on two judgments of this Court reported in the case of Krishan Lal VS. Mukund Lal. 1981 Rlr 182 and Dr.H.S.Gandhl VS. Smt. Abha Arora, 1982 Rlr 273.

(6) I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records. From the records, I find that the finding of the trial court that the postman had visited the petitioner/ tenant many times, but he had refused to take delivery is contrary to records as from the Regd.covers it is clear that the petitioner was not available when the postman has gone there and as such the question of refusal to take delivery did not arise. The impugned order further shows that the petitioner had alleged that his wife and his brother were never served and their alleged signatures were forged ones. In view of these allegations and the facts that the petitioner had not refused service, learned trial court ought to have held the enquiry as to whether the all edged signatures of the brother and wife of the petitioner were forged and thereafter should have decided the application of the petitioner for setting aside the ex-parte decree.

(7) In view of the above discussion, the impugned order is set-aside and the case is remanded to the trial court with the direction to hold a proper enquiry into the matter as to whether the signatures of the wife and brother of the tenant/ petitioner on the summons were genuine and whether the service on the petitioner was proper and in accordance with law. Such an enquiry shall be concluded within three months from the date the parties appear before the trial Court. The view I have taken is supported by a judgment of this Court reported in the case of S.Kumar VS. Bhagwant Singh, . The parties are, however, left to bear their own costs.

(8) Parties are directed to appear before the learned trialcourton25th July, 1993. The lower courts records be sent back forthwith. With this order petition stands disposed of.