Smt. Pushpa Soni And Another vs Smt. Sarbati Devi And Another
2001 Latest Caselaw 257 Del

ORDER

Vikramajit Sen, J.

1. In this Petition under Article 227 of the Constitution of India, the Tenant/Petitioner has assailed the Order of the Additional Rent Controller dismissing her Review Petition filed under Section 25B(9) of the Delhi Rent Control Act (DRC Act). The brief facts of the case are that the Respondent/Landlady had filed a Petition for the eviction of the Tenant under Section 14(1)(e) read with Section 25B of the DRC Act. Notice/Summons were ordered on 9.7.1999 returnable on 9.8.1999. The Tenants were not served either by the ordinary process or by Registered post Acknowledgment Due. The order was repeated on the next date of hearing and service was ordered returnable on 1.9.1999. But again the Tenants were not served. The Reports were to the effect that Shri Anil Soni was out of station; Shri Kishore Soni did not reside at the premises; and Smt.Pushpa Soni had gone out of Delhi. In this sequence, an application dated August 31, 1999 had been filed by the Landlady under Order V Rule 19A/20 of the Code of Civil Procedure. In paragraph 4 of this application it is stated that "there are contradictory reports on the summons, which clearly show that the Respondent in the aforesaid facts and circumstances cannot be served without alternative mode of service". The Landlady's logic by which she had arrived at the conclusion that the Tenant could be served duly by the alternative mode, is far from evident. Be that as it may, on 1.9.1999 the Additional Rent Controller allowed the application of the Landlady for service of notice/summons on the Tenants by publication in the National Herald. Publication was carried out and when the case came up for consideration on 6.10.1999, the Additional Rent Controller observed that the Tenant had been served by way of publication in the National Herald dated 15.9.1999. As no application for Leave to Defend/contest the eviction proceedings within the stipulated period of fifteen days has been filed, eviction orders were passed. On that date however, the Tenant was represented by his Advocate.

2. Thereafter, an application under Section 25-B(9) read with Order XLVII Rule 1 had been filed by the Tenant. This application, as mentioned above, had been rejected and the eviction order has been sustained.

3. It has been contended before me by Mr. O.P. Varma, Learned Counsel appearing for the Tenant that a miscarriage of justice has been occasioned. It was asserted by him that the Tenant had not been served in the Petition either by Registered post Acknowledgment Due or int he ordinary manner by the process server. Knowledge of the pendency of the eviction petition appears to have been gained by the Tenant in a most novel but incredible way, i.e. by the Tenant having overheard a conversation in which there was a mention of the Eviction Petition by the Landlady. I had observed in the course of hearing that perhaps it would only be the Tenants and no one else who would believe this fantastic version. However, Learned Counsel for the Petitioner further submitted that while ordering service on the Tenants by publication, the Additional Rent Controller had overlooked the relevant and mandatory provisions of law, in that, simultaneous service in the ordinary manner, and by Registered post Acknowledgment Due, had been given a go by.

4. The procedure for disposal of applications on the ground of bonafide requirements are contained in a composite Code legislated as Section 25B of the Delhi Rent Control Act, which reads as follows:

"25B. Special procedure for the disposal of applications for eviction on the ground of bona fide requirement (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 [or under section 14B or under section 14C or under section 14D], 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 on 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 acknowledgement 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 from the premises unless he files an affidavit stating 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 for eviction on the ground aforesaid.

(5) The Controller shall given to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause (c) of the proviso to sub-section (1) of section 14, or under section 14A.

(6) Where leave is granted to the tenant to contest the application, the Controller shall commence the hearing of the application as early as practicable.

(7) Notwithstanding anything contained in sub-section (2) of Section 37, the Controller shall, while holding an inquiry in a proceeding to which this Chapter applies, follows the practice and procedure of a Court of Small Causes, including the recording of evidence.

(8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section:

Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.

(9) Where no application has been mae to the High Court on revision, the Controller may, exercise the powers of review in accordance with the provisions of Order XLVII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908).

(10) Save ass otherwise provided in this Chapter, the procedure for the disposal of an application for eviction on the ground specified in clause (e) of the proviso to sub-section (1) of section 14, or under section 14A, shall be the same as the procedure for the disposal of applications by Controllers."

(Underlining added by me for emphasis)

5. In H.S. Gandhi vs. Abha Arora , summons under Section 25B were served on the son of the tenant. At that time, the tenant was on deputation out of India. The service on his son was accepted by the Additional Rent Controller to be legally efficacious on the tenant. He passed an eviction order since an application for Leave to Defend had not been filed since the tenant was out of India. B.N. Kirpal, J. (as his Lordship then was) held the service to be valid, but observed as follows:

"Under Sub-section (2) Controller is required to issue summons of an application filed under Section 14(1)(e). Sub-section 3(a) enables the Controller to direct the issuance of summons by registered post, acknowledgment due. This is to be in addition to the summons of service which are directed to be issued under Sub-section (2). sub-section 3(a) also enables the Controller to direct the publication of summons in a newspaper circulating in the locality in which the tenant is last known to have resided r carried on business etc. sub-clause (b) of Sub-section 3, inter-alia, provided that the Controller may declare that there has been a valid service of summons after an acknowledgment purported to be signed by the tenant or his agent is received or an endorsement by a postal employee is received to the effect that the tenant or his agent has refused to take delivery. It is pertinent to note that though under Sub-section 3(a) the Controller is empowered to direct the publication of summons, in addition to the summons being issued in ordinary way and by registered post, Sub-clause (b) of Sub-section 3 recognises valid service having been effected only after the registered post is delivered in the said sub-clause. Sub-clause (b) does not recognise the publication of the summons in the newspaper by itself, to be a valid and sufficient service.

Sub-section 4 provides that on summons being duly served, whether in the ordinary way or by registered post, a tenant is required to file an affidavit seeking leave to contest if he wants to oppose the application for eviction. Reading of Sub-section 4 also shows that the publication of the summons in a newspaper under Section 25-B(3)(a) is not regarded as a valid service. This would flow from the fact that in Sub-section 4 the expression "summons is duly served" is, in effect, clarified to mean "whether in the ordinary way or by registered post". If the publication of the summons in a newspaper under Sub-section 3(a) was to be regarded as due service, then the words appearing in bricket namely "whether in the ordinary way or by registered post" would have been unnecessary. These words have been inserted with a view to exclude the publication of the summons in the newspaper under Sub-section 3(a) as being regarded as a valid service."

6. A distillation of the observation of the Learned Judge in the context of Section 25B of the DRC Act would mandate that service of summons in the ordinary manner as well as by Registered post acknowledgement due must as a rule always be ordered by the Rent Controller. If a 'refusal report' is returned, the Controller is statutorily permitted to declare that there has been a valid service. The effort to server the Tenant should be meaningfully carried out. In the event of the Tenant undeniably being temporarily absent from that particular address, any effort to serve him there would not be meaningful, efficacious and binding. Every effort to actually personally serve the Tenant or his Agent (if there is one) must be endeavored for. Publication should be resorted to only when "the circumstances of the case so require", that is, where the Controller forms an opinion that although a 'refusal report' is not forthcoming on the record, the tenant is keeping out of the way for the purpose of avoiding service. But even where recourse is taken to the service on the Tenant by publication, it is only and cleary, an additional method, and cannot be the only method. I fully appreciate that the Controller are alive to the reality of Tenants adopting every effort to avoid service. That can be plugged, in good measure, by giving short dates for this purpose. The nuisance of necessarily having to be elusive, and the inevitability of quick service, and this uncomfortable event inexorably recurring every month, would adequate tire out even the most indefatigable tenant. The interests of both the adversaries in the litigation would thus be maintained.

7. Returning to the case at hand, on 1.9.1999, the Additional Rent Controller had only directed publication of the summons in the National Herald without simultaneously ordering that service be also effected in the ordinary manner, and if this effort was proving to be futile, by affixation and also by Registered post acknowledgement due. Regretfully, while ordering for service by publication alone, the provision of Section 25B had been completely overlooked. This provision clearly postulates and mandates that the issue of summons shall be not only in the ordinary manner, but also by Registered post Acknowledgment Due addressed to the Tenants. The sub-section vests discretion in the Rent Controller to order publication of summons in a Newspaper circulating in the locality in which the Tenant resides. The use of the adverb "also", [which in the concise of Oxford Dictionary is explained as 'in addition to; likewise, besides'] should not be lost sight of and ignored. A plain reading discloses that when publication is to be carried out, service in the ordinary manner as well as by Registered post Acknowledgement Due has to be simultaneously ordered. Failure to do so may lead to disastrous consequences, as an unscrupulous landlord may obtain an ex parte eviction decree based on a publication which the tenant may never have taken note of. Even a remote likelihood of this transpiring is so abominable that it would prevail upon me to set aside the impugned eviction order, despite my conviction of the illusory nature of the tenants' version that knowledge of the pendency of the eviction petition was gained by overhearing a pronouncement between the owners.

8. I am in no manner of doubt that an obligation is cast on the Advocate concerned to ensure that substituted service is not prayed for at a precipitate stage. He must remain mindful of his status of being an officer of the Court, by virtue of his license to practice. Even if this obligation is a utopian concept, practicality demands that he should not rush to pray for service by publication, lest after expense to the client, it is set aside on a future date. Both time and money wasted. In contrast to the Advocate's obligation, the Court has the duty to ensure that this mode of service is not mechanically or routinely resorted to since natural justice demands that doubts about effective service are conclusively put to rest. It is not possible for this Court to lay down the circumstances in which publication is to be ordered - these will indubitably change from case to case. But it does appear to me to be relevant that where the parties reside in the same house, the likelihood of evading service is drastically reduced. In the present case the landlady would always be available when either the process-server or the postman arrive at the tenants doorstep. The likelihood of a procured report would be minimized. On the other hand, the sinister chance of this exercise having been carried out at a time when the landlady is aware of the tenants absence from the address, must be kept in mind. In this case, neither the Process-Server, nor the Postman had endorsed a 'refusal' on their respective efforts to serve the tenant. The Controller decision to resort to publication, therefore, does not manifest the circumspection required on this pivotal stage of the lis. The jurisdiction to proceed ex parte and especially to render a final judgment, is purely predicated on the Court being surely satisfied that the Defendant/Respondent has knowledge of the proceedings.

9. In circumstances which are somewhat similar, I had in Suit No. 1549/98 observed that "it is usually a difficult and delicate task to render a decision on applications for setting aside ex parte decrees. The competing interests of the Plaintiff and Defendant are broodingly omnipresent. Having obtained a decree the Plaintiff ought not to be denied the enjoyment of its delectable fruits on flimsy grounds. There is always the lingering likelihood that service of summons were effected and that the Defendant had not appeared in order to delay proceedings. On the other hand, a judicial decision taken without given the parties adequate opportunity to present its version of the facts and the law, in my opinion, is a forensic abomination. The Court must fully satisfy itself that parties have been served. Otherwise it would tantamount to dereliction of duty."

10. It may be recalled that the application for publication was predicated on Rule 19A and 20 of Order V of the Code of Civil Procedure, 1908. It read as follows:

"19A (1) The Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgment due, addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personality works for gain;

Provided that nothing in this sub-rule shall require the Court to issue a summons for service by registered post, where, in the circumstances of the case, the Court considers it unnecessary.

(2) When an acknowledgment purporting to be signed by the defendant or his agent is received by the Court or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant:

Provided that where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of the issue of the summons."

"20. (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.

(1A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain."

11. Even in these Rules, what is envisaged is simultaneous service by Registered post Acknowledgement Due, as well as personal service and also service by affixation. Rule 20 does not narrate the circumstances in which service by publication can be ordered. These have obliquely to be extracted and drawn from sub rule (1)(a) of Section 20. A conjoint reading of all these provisions, however, appear to mandate that where the Court has arrived at a conclusion that the Defendant is keeping out of the way for the purpose of avoiding service, or that for any other reasons the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixation in the Court House as well as the Defendant's residence. Even this formality has not been carried out in the present case. Although, the conjunction "or" has been employed in Rule 20 (presumably referring to publication in a newspaper), it must be held, in the interest of justice, that it is in addition to other modes of service. Furthermore, a party cannot be heard to argue that there can be a tender of service when the Defendant is out-of-station.

12. Learned Counsel for the Respondent had laid great store on the fact that in the affidavit filed in support of the application under Section 25B(9), the date of July, 1999 had been mentioned in the Verification. The emphasis on this obvious typing mistake is misplaced since in July, 1999. Eviction Orders against the Tenant had not been issued and there would not have been any reason for preparing an application for setting aside of the eviction order dated 6.10.99. Hence, even if one were to read into the service-report the position that the tenants had notice of the eviction petition and had avoided service, the mistake is palpably evident because of the anachronism.

13. In these circumstances, the Eviction Order dated 6.10.1999 is set aside. The Tenant had already filed an application seeking Leave to Defend. The Additional Rent Controller is directed to dispose off this application on merits. Parties to appear before the Additional Rent Controller on 27th February, 2001.