Shri Dalip Kumar vs Shri Sadri Chauhan
2001 Latest Caselaw 1364 Del

ORDER

Vikramajit Sen, J.

1. The facts as they emerge after hearing the learned counsel for the parties are that the Respondent-Landlord has filed an eviction petition against the Petitioner/Tenant on the grounds of 14(1)(a) and (c) of the Delhi Rent Control Act. What is material for the present purposes is the assertion that the premises were let to the Tenant for residential purpose only but he was misusing the same without the consent of the Landlord by running a Restaurant/Dhaba from the tenanted premises. Mr. B.L. Mehra, Learned Counsel for the Petitioner/Tenant submits that his evidence was earlier closed but on filing an application he was permitted another opportunity to lead evidence and he examined Respondent Nos. 3 and 4. The eviction petition was filed as far back as in July 1994. In the course of examining Respondents 3 and 4, it transpired that a 'No Objection' had been given in favor of the Tenant for running the Dhaba. There is no pleading to the effect that a 'No Objection' had been obtained by the Tenant and hence the Landlord could not have been aware that he had to meet this aspect of the defense. Despite this fact, evidence was received by the Court. Be that as it may, at that stage the Landlord sought leave to place on record documents evidencing the date on which he had purchased the property in order to invalidate the 'No Objection' previously allegedly obtained. This prayer was declined and the application was dismissed. It need hardly be stated, but appears necessary to do so, that a Landlord will always endeavor not to delay the disposal of his petition and hence there may be good reason for the Court to be more liberal towards him, provided the application is not an abuse of the judicial process.

2. However, at that stage an Appeal was filed before the Additional Rent Control (hereinafter referred to as 'the ARCT). The Tribunal stayed the passing of the final judgment. This order was passed on 19.5.2000 and a notice was issued to the Tenant for 14.7.2000, 22.8.2000 and 26.9.2000. Although summons were issued, service appears not to have been effected to the satisfaction of the Tribunal. On 26.9.2001 the Tribunal recorded the satisfaction that the Respondent could not be served by the ordinary way and ordered service to be effected by way of affixation and by beat of drums. Admittedly no steps were taken for service of beat of drums. The contention of learned counsel for the Petitioner/Tenant is that since no steps were taken to serve the Tenant by beat of drums, the subsequent disposal of the Appeal ex parte the Tenant, was not proper.

3. I find no irregularity whatsoever with the approach adopted by the ARCT. What must be borne in mind is that consequent upon the stay granted of the passing of the Final judgment on 19.5.2000 the proceedings before the Additional Rent Controller (hereinafter referred to as 'the ARC') perforce had to be adjourned from time to time. The Tenant on appearing before the ARC, therefore, would have specific knowledge of the pendency of the Appeal before the ARCT. It is difficult to believe that the Tenant would not have made necessary enquiries in the Court of the ARCT. Be that as it may, on 30.10.2000, the ARCT had recorded that the Tenant had been served by way of affixation. Being fully satisfied of service he had processed ex parte against the Tenant. Keeping in perspective the fact that the Tenant would not stand to lose or be prejudiced by any delay in the proceedings, knowledge of the pendency of the proceedings before the ARCT must be assumed, as well a jural presumption of the adoption by the Tenant of dilatory tactics. This is the stark reality.

4. There is no merit in the argument that merely because the Tenant was not served by the 'beat of drums', the satisfaction recorded by the ARCT of service was irregular thereby calling for interference by the High Court. Already, prior to this mode of service, notices had been issued on previous occasions. Reliance is placed by learned counsel for the Petitioner herein of Union of India v. Sri Laxmi Oil Mills , AIR 1984 Patna 252. But the ratio of that judgment must rest on its own facts. The Court in that case did not have to consider the repeated adjournments granted by the Lower Court to await the outcome of the Appeal. In matters concerning service of the adversary, a pragmatic attitude must be pursued by the Court. Thus, even if formal compliance on this aspect appears to have been carried out, Courts always endeavor to ensure that actual notice has been received by the non-applicant. This does not mandate that if two modes of service are ordered, and the Court is satisfied that the non applicant had actual notice of the proceedings, the Court must nonetheless mindlessly, mechanically and stubbornly require service by both methods should be effected. This would lead to absurd results and cause inordinate delay which delay in itself defeat justice. It is possible that the next time around that non-applicant may void service by the other mode. The crucial question and consideration is the conscious satisfaction of the Court that service has been effected and the opposite party had knowledge of the pending proceeding.

5. The present petition must therefore be viewed as another attempt of the Tenant to delay and prolong the proceedings. Even on the merits, I find no infirmity with the impugned order. The Tribunal has only permitted the Landlord to lead further evidence in order to establish the circumstances in which the 'No Objection' was allegedly obtained. The fact was certainly not within the knowledge of the Landlord on a reading of the written Statement. Now that evidence on this issue has been allowed, the Landlord should not be placed in a position of disadvantage. He must be afforded on opportunity to rebut and answer the case.

6. The petition is without merit and is dismissed accordingly with costs of Rs. 500/-.

C.M. 45/2001

7. This application is also disposed of accordingly.