Abdul Salam vs Hans Raj
1995 Latest Caselaw 911 Del

JUDGMENT

M. Jagannadha Rao, C.J.

(1) It is unfortunate that though the eviction petition of 1979 was allowed by the Rent Controller on 6-4-1981, the decree could not be executed for the last 14 years, because of the pendency of this reference.

(2) This is a reference to a Full Bench made by a learned Single Judge of this Court on 4-12-1981.

(3) The reference was made by the learned Single Judge for the purpose of deciding the correctness of the Division Bench ruling of the Court in Gurditta Mal vs. Bal Sarup 1980(IRCI 651(1) and whether another Single Judge of this Court, was right in dissenting from it in Gurditta Mal vs. Bal Sarup (1980) Rlr 136) (2). The Single Judge's view was in consonance with another Division Bench decision in Jagdish Prasad vs. Phoolwati Devi (1980 Rlr 367) (3). The question relates to the power of the Rent Controller to entert am an application for condensation of delay filed by the tenant along with the application for leave to defend. The referring order refers to the conflict in the reasoning of the learned Judges and requires the same to be resolved. That is how the matter has been referred to Full Bench. It appears that the matter was heard by a Full Bench in 1992. But for some reason, the reference could not be decided.

(4) Revising that even a assuming the Rent Controller has power to condone, delay, the finding absence of sufficient cause is one of the fact because of illness of petitioner not having been proved learned counsel for the petitioner has raised two new points:

(1)The summons received misled the petitioner as to the date of filing the application for leave to defend and hence there is sufficient cause.

(2) The summons did not contain the the description of property and must be defined to be void.

(5) The petitioner is the tenant. The revision is filed under Section 25-B of the Delhi Rent Control Act, read with Section 14(1)(e) of the said Act against the order of the Additional Rent Controller dated 6-4-1981. The respondent filed the eviction petition against the petitioner on 9-11-1979 and the petitioner filed an application seeking leave to defend the case. The .application was filed on 21-1-80 beyond the period of limitation with a prayer for condensation to delay on the ground of illness.

(6) The respondent landlord contested the application for leave to defend filed by the tenant and evidence was recorded. By Judgment dated 6-4-1981, the Additional. Rent Controller rejected the plea of illness set up by the tenant and dismissed the application filed by the petitioner tenant on the ground, that sufficient cause was not made out for condensation of delay in seeking leave to defend. It is the order that is questioned by the tenant in this revision.

(7) We are of the view that on facts, it is not necessary to decide the reference i.e. whether an application by the tenant for condensation of delay is maintainable or not while seeking leave to defend. We shall assume in favor of the petitioner that such an application is maintainable.

(8) As already stated, the plea of illness put forward at sufficient cause was not accepted by the Additional Rent Controller and learned counsel has not attacked the said finding of fact before us. He has argued the two new questions set out above. We shall now proceed to deal with them. Point 1

(9) The new contention raised for the first time in revision is that the date (21-1-80) written in hand in the summons at the right hand top and at the bottom misled the petitioner and that is why the application seeking leave to defend eviction was filed on 21-1-80. That is said to be proof of sufficient cause. This new contention is raised for the first time in the memorandum of revision as follows: (see para 2 of grounds of revision);

"THAT the respondent had filed an eviction petition under Section 25-B on the ground of bonafide requirement in which summons were issued to the petitioner which are incomplete and there were two dates mentioned for appearance of the petitioner. As required under law, one date should have been mentioned for filing the written reply and the other for apperance. However, the notice summons will reveal that only one date i.e. 21-1-80 has been mentioned. The summons was further incomplete as the number of premises in question was cot given in the said summons. Further no eviction petition and site plan was delivered to the petitioner along with the said summons. Seal of Court was not clear. The petitioner is an illiterate man and he can only read Urdu and sign in English. The petitioner was delivered incomplete summons in the Court premises Tis Hazari on 4th December, 1970 and fell ill due to rheumatic pains and could not meet and en- gape any counsel. Thereafter on 21st of January, 1980 he filed an application for leave to defend Along with an application for condensation of delay for non filing of leave to defend...."

(10) Learned counsel for the petitioner vehemently contended that on account of the above irregularity in the summons, which were served on 4-12-79, the petition was misled and could not file the application for leave to defend in time but could file it only on 21-1-80 and there was sufficient cause.

(11) It is true that the summons served on the petitioner contained reference to a date mentioned in handwriting as 21-1-80. This is mentioned at the top right hand corner. It is also so mentioned at the bottom of the summons. But it is not denied that in the body of the summons it is clearly stated that "You are hereby summoned to appear before the controller within fifteen days of the service thereof and to obtain the leave of the controller to contest the application for eviction on the ground aforesaid in default whereof, the applicant will be entitled at any time after the expiry of the said period of fifteen days to obtain an order for your eviction from the said premises".

(12) The body of the summons therefore required the application for leave to be filed within 15 days of service of summons. On that basis, he should have filed the application for leave within 15 days of service i.e. 15 days from 4-12-79, by 19-12-79. We shall now examine the plea of the petitioner being misled.

(13) In our view, this new contention raised for the first time this revision is devoid of any force. In the application for leave dated 19-1-1980, filed on 21-1-1980, the tenant did not raise any contention that he was misled by the date 21-1-80 occurring at the top and the bottom of the summons. No such contention was raised in paragraph 8 of the application seeking condensation of delay. This is what is stated in the paragraph 8 of the application:-

"8. That tile respondent could not file the application for leave to defend the contents as the respondent was suffering from Rehu mates and disease and was unable to move from the bed after service of summons from the Hon'ble Court and the medical certificate in lieu of that is attached with the application and as such the respondent has sufficient ground for the condensation of the delay in filing the petition."

Thus there is no plea of being misled by the date mentioned in the summons.

(14) Coming to the oral evidence adduced by the tenant as Aw 2, there is not one word that he was misled by anything appearing on the summons. In the absence of any allegation in the application and in his evidence, it must be held that the new contention of his being misled by any date appearing in the summons, is clearly an after-thought and cannot be accepted for the first time in revision. Therefore, this contention is rejected. Point 2

(15) This contention is more peculiar. It was not raised in the lower court nor even in the grounds of revision. The contention is to the effect that in the summons there is no reference to the house number from which the tenant is sought to be evicted. It is contended that it is mandatory under law to give the description of the property and if that is not found in the summons, then the summons should be treated as a "void" document.

(16) A leading of the summons would no doubt show that after the words "for your eviction from." the actual description of the house is not mentioned. But just above that it is written in hand that the address of the tenant is "Sh. Abdul Salam, S/o Sh. Imam Shah, House No. 1489. (first floor). Aziz Gani. Ashok Gali, Bahadurgarh Road. Delhi-6". There is no dispute that the above said description of the place where the tenant is residing contained in the very summons is in fact the description of the premises from which the tenant is sought to be evicted. There is also no dispute before us that a copy of the eviction petition accompanied the summons. The said eviction petition clearly mentions that the eviction is in respect of the house bearing House No. 1489 First Floor, Aziz Ganj, Ashok Gali, Bahadnrgarh Road, Delhi. It is therefore, clear that the tenant had no difficulty in understanding as to from which premises he was sought to be evicted. In fact, in the application for leave to defend there was no plea raised that the tenant was in any way misled and could not know from which premises he was sought to be evicted, nor was any such evidence adduced by the tenant. The application and the oral evidence of the tenant proceed on the premises that the tenant clearly understood which house was the subject matter of evicion. Further, this is the only house for which the petitioner happens to be a tenant of this landlord.

(17) We are therefore, of the view that the tenant was nowhere misled by the fact that the relevant portion in the summons relating to the description of the property was not filed up.

(18) Learned counsel for the petitioner, however, contended that irrespective of any prejudice, it is mandatory under Section 25 Bread with Iii Schedule that the description of the property should be specified in the summons itself. In this. context, we invited the attention of learned counsel for the petitioner to the recent decision of the Supreme Court in Krishan Lal vs. State of J & K 1994 (4) Ssc 4221 (4). In that decision it was clearly held that the fact that a statute contained a mandatory provision did not necessarily lead to the result that any action taken in disregard of the mandatory provision was null and void. The Supreme Court pointed out that there are certain mandatory provisions which can be waived by the affected party and in that event non-compliance of the mandatory provisions will not vitiate the action taken. However, if the mandatory provision is intended, not for the benefit of an individual, but for the public benefit, then it cannot be waived. The Supreme Court posed the problem as follows :

"As to when violation of a mandatory provision makes an order a nullity has been the subject-matter of various decisions of this Court as well as of courts beyond the seven seas."

After referring to the decision of the Privy Council in vellayan Chettiar vs. Government of the Province of Madras ("AIR 1947 Pc 197) (5) and decisions of the Supreme 'Court in Dhirendra Nath Gorai vs. Shudhir Chandra Ghosh . Lachoo Mal vs. Radhev Shyam . Indira Bai vs. Nand Kishore and other cases the Supreme Court observed that this aspect is also brought out in 'Maxwell's. Interpretation of Statutes (12th Edition pages 328-330) wherein it is stated that if the mandatory provision was for the benefit of or protection of an individual in his private capacity, the same can be waived. But if the benefit be one which has been imposed in public interest, then there can be no waiver of the same. The same principle is mentioned by Craies in his Statute Law (7th edition, page 269) that the object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person Of class of persons, then the conditions prescribed by the statute are not considered as being indispensable. Reference is also made to Crawford in his Interpretation of Laws (1989 Reprint, pages, 540 542) to the effect that the requirement of giving notice may be waived as the same is intended for the benefit of a person. The Supreme Court also referred to Statutory Interpretation (1984) by Francis Bennion (page 27) to the effect that if the performance of statutory duty be one which comes within the maxim "Quilibel potest enunciate juri pro se introductory" meaning "an individual may renounce a law made for his special benefit") the person entitled to the performance can effectively waive performance of the duly by the person bound.

(19) It is, therefore, clear from the aforesaid decision that if the statute requires that the description of the property is also to be mentioned in the summons, the same direction being for the benefit of the respondent in the eviction petition, it can be waived and noncompliance with the requirement will not make the summons a nullity. The only question then is whether on facts it has been so waived or not. We have already mentioned that in the application for leave to defend and in the evidence also. It is nowhere mentioned by the tenant that he has been misled because of the fact that the summons does not give the description of the premises. Obviously, the summons contained the description of the premises at the place where the address of the tenant was given; the summons was also accompanied by the eviction petition which contained a clear description of the house. In fact, the application for leave to defend and the evidence of the tenant proceed on the basis that the tenant, clearly understood that the eviction was with reference to the premises mentioned in the eviction petition. As the facts were properly understood and as no objection was raised before the Rent Controller or even in the memorandum of revision, the objection must be deemed to have been waived. The same is accordingly rejected.

(20) In the result, the revision petition is dismissed, but in the circumstances without costs. It is unfortunate that pendency of this revision for 14 years on reference to the Full Bench in this Court has given the tenant the advantage of these 14 years against execution of the eviction order. It is contended for respondent that this is not a fit case where the petitioner can claim further indulgence of time for vacating the premises. However, while dismissing the revision we grant him 2 months' time for vacating the premises, provided he pays the arrears of rent, if any and also rent payable for these 2 months Anears, if any, to be paid within one month from today.

(21) Subject to the above, the revision is dismissed.